EXHIBIT 4.1
EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES INC., as Master Servicer,
and
JPMORGAN CHASE BANK, as Trustee
---------------------------
TRUST AGREEMENT
Dated as of October 1, 2002
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-21A
TABLE OF CONTENTS
Page
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Article I DEFINITIONS............................................................................................9
Section 1.01. Definitions........................................................................................9
Section 1.02. Calculations Respecting Mortgage Loans............................................................43
Article II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES.......................................................45
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans..............................45
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation for Trust Fund.......................48
Section 2.03. Representations and Warranties of the Depositor...................................................50
Section 2.04. Discovery of Breach...............................................................................51
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans............................................52
Section 2.06. Grant Clause......................................................................................53
Article III THE CERTIFICATES....................................................................................54
Section 3.01. The Certificates..................................................................................54
Section 3.02. Registration......................................................................................55
Section 3.03. Transfer and Exchange of Certificates.............................................................55
Section 3.04. Cancellation of Certificates......................................................................61
Section 3.05. Replacement of Certificates.......................................................................61
Section 3.06. Persons Deemed Owners.............................................................................62
Section 3.07. Temporary Certificates............................................................................62
Section 3.08. Appointment of Paying Agent.......................................................................62
Section 3.09. Book-Entry Certificates...........................................................................62
Article IV ADMINISTRATION OF THE TRUST FUND.....................................................................64
Section 4.01. Collection Account................................................................................64
Section 4.02. Application of Funds in the Collection Account....................................................66
Section 4.03. Reports to Certificateholders.....................................................................68
Section 4.04. Certificate Account...............................................................................70
Section 4.05. [Reserved]........................................................................................71
Section 4.06. Certain Provisions with Respect to the Participations.............................................71
Article V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES..............................................................72
Section 5.01. Distributions Generally...........................................................................72
Section 5.02. Distributions from the Certificate Account........................................................72
Section 5.03. Allocation of Realized Losses.....................................................................80
Section 5.04. Advances by the Master Servicer and the Trustee...................................................84
Article VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT............................................................84
Section 6.01. Duties of Trustee.................................................................................84
Section 6.02. Certain Matters Affecting the Trustee.............................................................87
Section 6.03. Trustee Not Liable for Certificates...............................................................88
i
Section 6.04. Trustee May Own Certificates......................................................................88
Section 6.05. Eligibility Requirements for Trustee..............................................................88
Section 6.06. Resignation and Removal of Trustee................................................................89
Section 6.07. Successor Trustee.................................................................................89
Section 6.08. Merger or Consolidation of Trustee or Trustee.....................................................90
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian..........................................90
Section 6.10. Authenticating Agents.............................................................................92
Section 6.11. Indemnification of Trustee........................................................................93
Section 6.12. Fees and Expenses of Trustee and Custodian........................................................93
Section 6.13. Collection of Monies..............................................................................93
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor.......................................94
Section 6.15. Additional Remedies of Trustee Upon Event of Default..............................................97
Section 6.16. Waiver of Defaults................................................................................98
Section 6.17. Notification to Holders...........................................................................98
Section 6.18. Directions by Certificateholders and Duties of Trustee During Event of Default....................99
Section 6.19. Action Upon Certain Failures of the Master Servicer and Upon Event of Default.....................99
Section 6.20. Preparation of Tax Returns and Other Reports......................................................99
Article VII PURCHASE AND TERMINATION OF THE TRUST FUND.........................................................101
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation of All Mortgage Loans...................101
Section 7.02. Procedure Upon Termination of Trust Fund.........................................................101
Section 7.03. Additional Requirements under the REMIC Provisions...............................................102
Article VIII RIGHTS OF CERTIFICATEHOLDERS......................................................................103
Section 8.01. Limitation on Rights of Holders..................................................................103
Section 8.02. Access to List of Holders........................................................................104
Section 8.03. Acts of Holders of Certificates..................................................................104
Article IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER...............................105
Section 9.01. Duties of the Master Servicer....................................................................105
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance Policy..........105
Section 9.03. Master Servicer's Financial Statements and Related Information...................................106
Section 9.04. Power to Act; Procedures.........................................................................106
Section 9.05. Servicing Agreements Between the Master Servicer and Servicers; Enforcement of Servicers'
Obligations..............................................................................108
Section 9.06. Collection of Taxes, Assessments and Similar Items...............................................109
Section 9.07. Termination of Servicing Agreements; Successor Servicers.........................................109
Section 9.08. Master Servicer Liable for Enforcement...........................................................110
Section 9.09. No Contractual Relationship Between Servicers and Trustee or Depositor...........................110
Section 9.10. Assumption of Servicing Agreement by the Trustee.................................................110
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements.....................................................111
ii
Section 9.12. Release of Mortgage Files........................................................................111
Section 9.13. Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee.............112
Section 9.14. Representations and Warranties of the Master Servicer............................................113
Section 9.15. Closing Certificate and Opinion..................................................................116
Section 9.16. Standard Hazard and Flood Insurance Policies.....................................................116
Section 9.17. Presentment of Claims and Collection of Proceeds.................................................116
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies...........................................117
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies and Documents.........................117
Section 9.20. Realization Upon Defaulted Mortgage Loans........................................................118
Section 9.21. Compensation to the Master Servicer..............................................................118
Section 9.22. REO Property.....................................................................................119
Section 9.23. [Reserved].......................................................................................119
Section 9.24. Reports to the Trustee...........................................................................119
Section 9.25. Annual Officer's Certificate as to Compliance....................................................120
Section 9.26. Annual Independent Accountants' Servicing Report.................................................121
Section 9.27. Merger or Consolidation..........................................................................121
Section 9.28. Resignation of Master Servicer...................................................................121
Section 9.29. Assignment or Delegation of Duties by the Master Servicer........................................122
Section 9.30. Limitation on Liability of the Master Servicer and Others........................................122
Section 9.31. Indemnification; Third-Party Claims..............................................................123
Article X REMIC ADMINISTRATION.................................................................................123
Section 10.01. REMIC and Grantor Trust Administration..........................................................123
Section 10.02. Prohibited Transactions and Activities..........................................................125
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of REMIC Status..........................126
Section 10.04. REO Property....................................................................................126
Article XI MISCELLANEOUS PROVISIONS............................................................................127
Section 11.01. Binding Nature of Agreement; Assignment.........................................................127
Section 11.02. Entire Agreement................................................................................127
Section 11.03. Amendment.......................................................................................127
Section 11.04. Voting Rights...................................................................................129
Section 11.05. Provision of Information........................................................................129
Section 11.06. Governing Law...................................................................................129
Section 11.07. Notices.........................................................................................129
Section 11.08. Severability of Provisions......................................................................130
Section 11.09. Indulgences; No Waivers.........................................................................130
Section 11.10. Headings Not To Affect Interpretation...........................................................130
Section 11.11. Benefits of Agreement...........................................................................130
Section 11.12. Special Notices to the Rating Agencies..........................................................130
Section 11.13. Counterparts....................................................................................131
Section 11.14. Transfer of Servicing...........................................................................131
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ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Initial Certification
Exhibit B-2 Form of Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreements
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreement
Exhibit L-1 Form of Transfer Certificate for Transfer from Restricted Global Security to Regulation S
Global Security
Exhibit L-2 Form of Transfer Certificate for Transfer from Regulation S Global Security to Restricted
Global Security
Exhibit M Form of Certification to be Provided to the Depositor and the Master Servicer by the Trustee
Exhibit N Form of Certification to be Provided to the Depositor and the Trustee by the Master Servicer
Schedule A Mortgage Loan Schedule
iv
This TRUST AGREEMENT, dated as of October 1, 2002 (the "Agreement"), is by
and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as
depositor (the "Depositor"), AURORA LOAN SERVICES INC., as master servicer (the
"Master Servicer") and JPMORGAN CHASE BANK, a New York banking corporation, as
trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Bank and Xxxxxx
Capital (collectively the "Seller"), and at the Closing Date is the owner of the
Mortgage Loans and the other property being conveyed by it to the Trustee for
inclusion in the Trust Fund. On the Closing Date, the Depositor will acquire the
Certificates from the Trust Fund as consideration for its transfer to the Trust
Fund of the Mortgage Loans and the other property constituting the Trust Fund.
The Depositor has duly authorized the execution and delivery of this Agreement
to provide for the conveyance to the Trustee of the Mortgage Loans and the other
property constituting the Trust Fund. All covenants and agreements made by the
Depositor, the Master Servicer, and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates. The Depositor and
the Master Servicer are entering into this Agreement, and the Trustee is
accepting the Trust Fund created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund (other than
the rights to Prepayment Penalty Amounts) be treated for federal income tax
purposes as comprising three real estate mortgage investment conduits (each a
"REMIC" or, in the alternative, the Lower Tier REMIC, the Middle Tier REMIC and
the Upper Tier REMIC, respectively). Each Certificate, other than the Class P-I
and Class P-II Certificates and the Class R Certificates, represents ownership
of a regular interest in the Upper Tier REMIC for purposes of the REMIC
Provisions. The Class R Certificate represents ownership of the sole class of
residual interest in each of the Lower Tier REMIC, the Middle Tier REMIC and the
Upper Tier REMIC for purposes of the REMIC Provisions. The Upper Tier REMIC
shall hold as assets the several classes of uncertificated Middle Tier REMIC
Regular Interests. Each Middle Tier REMIC Regular Interest is hereby designated
as a regular interest in the Middle Tier REMIC. The Middle Tier REMIC shall hold
as assets the several classes of uncertificated Lower Tier REMIC Regular
Interests. Each Lower Tier REMIC Regular Interest is hereby designated as a
regular interest in the Lower Tier REMIC. The Lower Tier REMIC shall hold as
assets all property of the Trust Fund other than the Lower Tier REMIC Interests,
the Middle Tier REMIC Interests and the rights to Prepayment Penalty Amounts.
LOWER TIER REMIC
The following table specifies the class designation, interest rate, and
principal amount for each class of Lower Tier REMIC Interest.
1
Lower Tier Initial Pass-Through Rate Related Mortgage
REMIC Interest Balance Pool or Pools
LT-1A $85,802.01 (1) Pool 1
LT-1B $2,907,903.01 (2) Pool 1
LT-2A $273,923.09 (1) Pool 2
LT-2B $5,267,563.09 (3) Pool 2
LT-3A $13,856.25 (1) Pool 3
LT-3B $266,416.25 (4) Pool 3
LT-4A $84,066.24 (1) Pool 4
LT-4B $1,616,476.24 (5) Pool 4
LT-5A $14,919.28 (1) Pool 5
LT-5B $286,899.28 (6) Pool 5
LT-C $178,564.86 (1) Pool 0, Xxxx 0,
Xxxx 0, Xxxx 0
XX-X $1,023,529,397.16 (1) N/A
LT-R (7) (7) N/A
---------------------
(1) For any Distribution Date, the interest rate for the Class LT-1A, Class
LT-2A, Class LT-3A, Class LT-4A, Class LT-5A, Class LT-C and Class LT-Z
Interests shall be a per annum rate equal to the weighted average of the
Net Mortgage Rates of all of the Mortgage Loans at the beginning of the
related Due Period, weighted on the basis of their respective Scheduled
Principal Balances.
(2) For any Distribution Date, the interest rate for the Class LT-1B Interest
shall be a per annum rate equal to the Net WAC for Pool 1 for such
Distribution Date.
(3) For any Distribution Date, the interest rate for the Class LT-2B Interest
shall be a per annum rate equal to the Net WAC for Pool 2 for such
Distribution Date.
(4) For any Distribution Date, the interest rate for the Class LT-3B Interest
shall be a per annum rate equal to the Net WAC for Pool 3 for such
Distribution Date.
(5) For any Distribution Date, the interest rate for the Class LT-4B Interest
shall be a per annum rate equal to the Net WAC for Pool 4 for such
Distribution Date.
(6) For any Distribution Date, the interest rate for the Class LT-5B Interest
shall be per annum rate equal to the Net WAC for Pool 5 for such
Distribution Date.
(7) The LT-R Interest shall represent the sole class of residual interest in
the Lower Tier REMIC. The Class LT-R Interest will not have a principal
amount or an interest rate. The Class LT-R Interest shall be represented by
the Class R Certificate.
Distributions shall be deemed to be made to the Lower Tier REMIC Regular
Interests first, so as to keep the Uncertificated Principal Balance of each
Lower Tier REMIC Regular Interest ending with the designation "B" equal to 1% of
the aggregate Scheduled Principal Balance of the Mortgage Loans in the related
Mortgage Pool; second, to each Lower Tier REMIC Regular Interest ending with the
designation "A" (other than the Class LT-1A Interest) so that the Uncertificated
Principal Balance of each such Lower Tier REMIC Regular Interest is equal to 1%
of the excess of (x) the aggregate Scheduled Principal Balance of the Mortgage
Loans in the related Mortgage Pool over (y) the aggregate Class Principal
Amounts of the Certificate Group related to such Mortgage Pool (except that if
1% of any such excess is greater than the principal amount of the corresponding
Lower Tier REMIC Regular Interest ending with
2
the designation "A", the least amount of principal shall be distributed to such
Lower Tier REMIC Regular Interests such that the Lower Tier REMIC 2345
Subordinated Balance Ratio is maintained); third, to the Class LT-1A Interest
and the Class LT-C Interest so that the Uncertificated Principal Balance of each
such Lower Tier REMIC Regular Interest is equal to 1% of the excess of (x) the
aggregate Scheduled Principal Balance of the Mortgage Loans in the related
Mortgage Pool or related Mortgage Pools over (y) (i) in the case of the Class
LT-1A Interest, the aggregate Class Principal Amounts of the Certificate Group
related to such Mortgage Pool and (ii) in the case of the Class LT-C Interest,
the aggregate Class Principal Amounts of the Certificate Groups related to
Mortgage Group II and the Class B1-II and B2-II Certificates (except that if 1%
of any such excess computed using clause (i) is greater than the principal
amount of the Class LT-1A Interest or if 1% of any such excess computed using
clause (ii) is greater than the principal amount of the Class LT-C Interest, the
least amount of principal shall be distributed to such Lower Tier REMIC Regular
Interests such that the Lower Tier REMIC 1C Subordinated Balance Ratio is
maintained); and fourth, any remaining principal to the Class LT-Z Interest.
Realized Losses shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal Balance of
each Lower Tier REMIC Regular Interest ending with the designation "B" equal to
1% of the aggregate Scheduled Principal Balance of the Mortgage Loans in the
related Mortgage Pool; second, to each Lower Tier REMIC Regular Interest ending
with the designation "A" (other than the Class LT-1A Interest) so that the
Uncertificated Principal Balance of each such Lower Tier REMIC Regular Interest
is equal to 1% of the excess of (x) the aggregate Scheduled Principal Balance of
the Mortgage Loans in the related Mortgage Pool over (y) the aggregate Class
Principal Amounts of the Certificate Group related to such Mortgage Pool (except
that if 1% of any such excess is greater than the principal amount of the
corresponding Lower Tier REMIC Regular Interest ending with the designation "A",
the least amount of Realized Losses shall be allocated to such Lower Tier REMIC
Regular Interests such that the Lower Tier REMIC 2345 Subordinated Balance Ratio
is maintained); third, to the Class LT-1A Interest and the Class LT-C Interest
so that the Uncertificated Principal Balance of each such Lower Tier REMIC
Regular Interest is equal to 1% of the excess of (x) the aggregate Scheduled
Principal Balance of the Mortgage Loans in the related Mortgage Pool or related
Mortgage Pools over (y) (i) in the case of the Class LT-1A Interest, the
aggregate Class Principal Amounts of the Certificate Group related to such
Mortgage Pool and (ii) in the case of the Class LT-C Interest, the aggregate
Class Principal Amounts of the Certificate Groups related to Mortgage Group II
and the Class B1-II and B2-II Certificates (except that if 1% of any such excess
computed using clause (i) is greater than the principal amount of the Class
LT-1A Interest or if 1% of any such excess computed using clause (ii) is greater
than the principal amount of the Class LT-C Interest, the least amount of
Realized Losses shall be allocated to such Lower Tier REMIC Regular Interests
such that the Lower Tier REMIC 1C Subordinated Balance Ratio is maintained); and
fourth, the remaining Realized Losses shall be allocated to the Class LT-Z
Interest.
The following table specifies the class designation, interest rate and
principal amount for each class of Middle Tier REMIC Interest:
3
Middle-Tier Pass-Through Corresponding
REMIC Interest Initial Balance Rate Certificates
--------------- ---- ------------
MT-1A1 $210,434,000 (1) 1-A1, 1-A2
MT-1A3 $60,000,000 (1) 1-A3
MT-B1I $7,705,000 (1) B1-I, B1-I-X
MT-B2I $4,071,000 (1) B2-I, B2-I-X
MT-1R $100 (1) R
MT-2A1 $499,364,000 (2) 2-A1, 2-A2
MT-3A1 $25,256,000 (3) 3-A1, 3-A2
MT-4A1 $153,241,000 (4) 4-A1, 4-A2
MT-5A1 $27,198,000 (5) 5-A1, 5-A2
MT-B1II $11,525,000 (6) B1-II
MT-B2II $9,295,000 (6) B2-II
MT-B3 $8,838,000 (7) B3
MT-B4 $11,378,000 (7) B4
MT-B5 $3,101,000 (7) B5
MT-B6 $3,119,686 (7) B6
MT-R (8) (8) R
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(1) For any Distribution Date, the interest rate for each of the Class MT-1A1
Interest, the Class MT-1A3 Interest, the Class MT-B1I Interest, the Class
MT-B2I Interest and the Class MT-1R Interest shall be a per annum rate
equal to the Net WAC for Pool 1 for such Distribution Date.
(2) For any Distribution Date, the interest rate for the Class MT-2A1 Interest
shall be a per annum rate equal to the Net WAC for Pool 2 for such
Distribution Date.
(3) For any Distribution Date, the interest rate for the Class MT-3A1 Interest
shall be a per annum rate equal to the Net WAC for Pool 3 for such
Distribution Date.
(4) For any Distribution Date, the interest rate for the Class MT-4A1 Interest
shall be a per annum rate equal to the Net WAC for Pool 4 for such
Distribution Date.
(5) For any Distribution Date, the interest rate for the Class MT-5A1 Interest
shall be a per annum rate equal to the Net WAC for Pool 5 for such
Distribution Date.
(6) For any Distribution Date, the Class MT-B1II Interest and Class MT-B2II
Interest will bear interest at a per annum rate equal to the weighted
average of the pass-through rates on the Lower Tier REMIC Regular Interests
ending with the designation "A" (other than the Class LT-1A Interest),
weighted on the basis of the Uncertificated Principal Balance of each such
Lower Tier REMIC Regular Interest immediately preceding the Distribution
Date; provided that for purposes of such weighted average, the pass-through
rate of each such Lower Tier REMIC Regular Interest shall be subject to a
cap and floor equal to the pass-through rate of the Lower Tier REMIC
Regular Interest that ends with the designation "B" and is related to the
same Mortgage Pool.
(7) For any Distribution Date, the Class MT-B3 Interest, Class MT-B4 Interest,
Class MT-B5 Interest and Class MT-B6 Interest will bear interest at a per
annum rate equal to the weighted average of the pass-through rates on the
Class LT-1A Interest and the Class LT-C Interest, weighted on the basis of
the Uncertificated Principal Balance of each such Lower Tier REMIC Regular
Interest immediately preceding the Distribution Date; provided that for
purposes of such weighted average, the pass-through rate of the Class LT-1A
Interest shall be subject to a cap and floor equal to the pass-through rate
of the Class LT-1B Interest and the pass through rate of the Class LT-C
Interest shall be subject to a cap and floor equal the pass-through rate of
the Class MT-B1II Interest.
4
(8) The MT-R Interest shall represent the sole class of residual interest in
the Lower Tier REMIC. The Class MT-R Interest will not have a principal
amount or an interest rate. The Class MT-R Interest shall be represented by
the Class R Certificate.
Principal and interest shall be payable to, and shortfalls, losses and
prepayments are allocable to, the Middle Tier REMIC Regular Interests as such
amounts are payable and allocable to the Corresponding Certificates.
Notwithstanding the preceding sentence, (i) the first $0.76 of losses with
respect to principal on any Mortgage Loan shall be allocated to the Class MT-B6
Interest and (ii) immediately preceding any payment to the Class R Certificate
pursuant to Section 5.02(e) attributable to principal received with respect to
any Mortgage Loan, a payment shall be treated as made to the Class MT-B6
Interest in reduction of the principal balance thereof, if any, to zero.
UPPER TIER REMIC
As used herein each Certificate Group is "related" to the Mortgage Pool
having the identical numerical designation, each Senior Certificate is "related"
to the Mortgage Pool and Certificate Group having the identical numerical
designation, and each Subordinate Certificate identified with a "I-" is related
to Pool 1 and each Subordinate Certificate identified with a "II-" is "related"
to Pool 2, Pool 3, Pool 4 and Pool 5. As used herein each Class of Certificates
is "affected by" decisions, actions or failures to act with respect to its
"related" Mortgage Loans.
When reference is made herein to the "ranking" of a Certificate, the
highest ranking Certificate is the Certificate with the lowest numerical
designation and the lowest ranking Certificate is the Certificate with the
highest numerical designation.
The following table specifies the Class designation, Certificate Interest
Rate, initial Class Principal Amount or Class Notional Amount, and minimum
denomination (by dollar amount or Percentage Interest) for each Class of
Certificates representing the interests in the Trust Fund created hereunder.
Each Certificate, other than the Class P-I, Class P-II and Class R Certificates,
represents ownership of a regular interest in the Upper Tier REMIC for purposes
of the REMIC provisions.
5
Initial Class
Principal
Amount
Certificate or Class
Class Designation Interest Rate Notional Amount Minimum Denomination
----------------- ------------- --------------- --------------------
Class 1-A1 (1) $210,434,000 $25,000
Class 1-A2 0.52% $210,434,000(2) $1,000,000
Class 1-A3 (3) $60,000,000 $25,000
Class 2-A1 (4) $499,364,000 $25,000
Class 2-A2 4.81% $128,248,091(5) $1,000,000
Class 3-A1 (6) $25,256,000 $25,000
Class 3-A2 5.70% $5,848,723(7) $1,000,000
Class 4-A1 (8) $153,241,000 $25,000
Class 4-A2 5.15% $26,915,661(9) $1,000,000
Class 5-A1 (10) $27,198,000 $25,000
Class 5-A2 6.20% $891,399(11) $500,000
Class B1-I (12) $7,705,000 $100,000
Class B1-I-X 0.50% $7,705,000(13) $1,000,000
Class B2-I (12) $4,071,000 $100,000
Class B2-I-X 0.50% $4,071,000(14) $1,000,000
Class B1-II (15) $11,525,000 $100,000
Class B2-II (15) $9,295,000 $100,000
Class B3 (16) $8,838,000 $100,000
Class B4 (16) $11,378,000 $250,000
Class B5 (16) $3,101,000 $250,000
Class B6 (16) $3,119,686 $250,000
Class R (3) $100 $100
Class P-I (17) (17) 25%
Class P-II (17) (17) 25%
----------------------
(1) For any Distribution Date on or before the Distribution Date in March 2003,
the Certificate Interest Rate for the Class 1-A1 Certificates shall be a
per annum rate equal to the Net WAC for Pool 1 minus 0.52%. For any
Distribution Date after the Distribution Date in March 2003, the
Certificate Interest Rate for the Class 1-A1 Certificates shall be a per
annum rate equal to the Net WAC for Pool 1.
(2) The Class 1-A2 Certificates are Notional Certificates. For any Distribution
Date on or before the Distribution Date in March 2003, the Class Notional
Amount of the Class 1-A2 Certificates shall be equal to the Class Principal
Amount of the Class 1-A1 Certificates immediately prior to such
Distribution Date. For any Distribution Date after the Distribution Date in
March 2003, the Class 1-A2 Certificates shall have a Class Notional Amount
equal to zero.
(3) The Certificate Interest Rate for the Class 1-A3 and Class R Certificates
for any Distribution shall be a per annum rate equal to the Net WAC for
Pool 1.
(4) For any Distribution Date on or before the Distribution Date in August
2007, the Certificate Interest Rate for the Class 2-A1 Certificates shall
be a per annum rate equal to 4.81%, subject to a maximum rate equal to the
Net WAC for Pool 2 for such Distribution Date. For any Distribution Date
after the Distribution Date in August 2007, the Certificate Interest Rate
for the Class 2-A1 Certificates shall be a per annum rate equal to the Net
WAC for Pool 2 for such Distribution Date.
6
(5) The Class 2-A2 Certificates are Notional Certificates. For any Distribution
Date on or before the Distribution Date in August 2007, the Class Notional
Amount of the Class 2-A2 Certificates will be equal to the product of (i) a
fraction, the numerator of which is the excess, if any, of (1) the Net WAC
for Pool 2 for the related Distribution Date over (2) 4.81% and the
denominator of which is 4.81% and (ii) the Class Principal Amount of the
Class 2-A1 Certificates immediately prior to such Distribution Date. For
any Distribution Date after the Distribution Date in August 2007, the Class
2-A2 Certificates shall have a Class Notional Amount of zero.
(6) For any Distribution Date on or before the Distribution Date in March 2007,
the Certificate Interest Rate for the Class 3-A1 Certificates shall be a
per annum rate equal to 5.70%, subject to a maximum rate equal to the Net
WAC for Pool 3 for such Distribution Date. For any Distribution Date after
the Distribution Date in March 2007, the Certificate Interest Rate for the
Class 3-A1 Certificates shall be a per annum rate equal to the Net WAC for
Pool 3 for such Distribution Date.
(7) The Class 3-A2 Certificates are Notional Certificates. For any Distribution
Date on or before the Distribution Date in March 2007, the Class Notional
Amount of the Class 3-A2 Certificates will equal the product of (i) a
fraction, the numerator is the excess, if any, of (1) the Net WAC for Pool
3 for the related Distribution Date over (2) 5.70% and the denominator of
which is 5.70% and (ii) the Class Principal Amount of the Class 3-A1
Certificates immediately prior to such Distribution Date. For any
Distribution Date after the Distribution Date in March 2007, the Class 3-A2
Certificates shall have a Class Notional Amount of zero.
(8) For any Distribution Date on or before the Distribution Date in August
2009, the Certificate Interest Rate for the Class 4-A1 Certificates shall
be a per annum rate equal to 5.15%, subject to a maximum rate equal to the
Net WAC for Pool 4 for such Distribution Date. For any Distribution Date
after the Distribution Date in August 2009, the Certificate Interest Rate
for the Class 4-A1 Certificates shall be a per annum rate equal to the Net
WAC for Pool 4 for such Distribution Date.
(9) The Class 4-A2 Certificates are Notional Certificates. For any Distribution
Date on or before the Distribution Date in August 2009, the Class Notional
Amount of the Class 4-A2 Certificates will equal the product of (i) a
fraction, the numerator is the excess, if any, of (1) the Net WAC for Pool
4 for the related Distribution Date over (2) 5.15% and the denominator of
which is 5.15% and (ii) the Class Principal Amount of the Class 4-A1
Certificates immediately prior to such Distribution Date. For any
Distribution Date after the Distribution Date in August 2009, the Class
4-A2 Certificates shall have a Class Notional Amount of zero.
(10) For any Distribution Date on or before the Distribution Date in May 2005,
the Certificate Interest Rate for the Class 5-A1 Certificates shall be a
per annum rate equal to 6.20%, subject to a maximum rate equal to the Net
WAC for Pool 5 for such Distribution Date. For any Distribution Date after
the Distribution Date in May 2005, the Certificate Interest Rate for the
Class 5-A1 Certificates shall be a per annum rate equal to the Net WAC for
Pool 5 for such Distribution Date.
(11) The Class 5-A2 Certificates are Notional Certificates. For any Distribution
Date on or before the Distribution Date in May 2005, the Class Notional
Amount of the Class 5-A2 Certificates will equal the product of (i) a
fraction, the numerator is the excess, if any, of (1) the Net WAC for Pool
5 for the related Distribution Date over (2) 6.20% and the denominator of
which is 6.20% and (ii) the Class Principal Amount of the Class 5-A1
Certificates immediately prior to such Distribution Date. For any
Distribution Date after the Distribution Date in May 2005, the Class 5-A2
Certificates shall have a Class Notional Amount of zero.
(12) The Certificate Interest Rate for the Class B1-I Certificates for each
accrual period will be an annual rate equal to the Net WAC applicable to
Pool 1 minus 0.50%. The Certificate Interest Rate for the Class B2-I
Certificates for each accrual period will be an annual rate equal to the
Net WAC applicable to Pool 1 minus 0.50%.
(13) The Class B1-I-X Certificates are Notional Certificates. For any
Distribution Date, the Class Notional Amount of the Class B1-I-X
Certificates shall be equal to the Class Principal Amount of the Class B1-I
Certificates immediately prior to such Distribution Date.
(14) The Class B2-I-X Certificates are Notional Certificates. For any
Distribution Date, the Class Notional Amount of the Class B2-I-X
Certificates shall be equal to the Class Principal Amount of the Class B2-I
Certificates immediately prior to such Distribution Date.
(15) The Certificate Interest Rate for the Class B1-II and Class B2-II
Certificates for each Accrual Period will be an annual interest rate equal
to a weighted average of the Net WACs for Pool 2, Pool 3, Pool 4 and Pool
5, weighted on the basis of the Group Subordinate Amounts for Pool 2, Pool
3, Pool 4 and Pool 5.
7
(16) The Certificate Interest Rate for the Class B3, Class B4, Class B5 and
Class B6 Certificates for each Accrual Period will be an annual rate equal
to the weighted average of the Underlying Subordinate Rates, weighted on
the basis of the Modified Group Subordinate Amounts for Mortgage Group I
and Mortgage Group II.
(17) The Class P-I Certificates will be entitled to receive Prepayment Penalty
Amounts paid by borrowers upon voluntary full or partial prepayment of the
Mortgage Loans in Pool 1. The Class P-II Certificates will be entitled to
receive Prepayment Penalty Amounts paid by borrowers upon voluntary full or
partial prepayment of the Mortgage Loans in Pool 2, Pool 3, Pool 4 and Pool
5. Class P-I and Class P-II Certificates will be issued in definitive,
fully registered form.
8
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $1,034,525,786.76.
For purposes hereof, each pool of Mortgage Loans constitutes a fully
separate and distinct sub-trust.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS.
The following words and phrases, unless the context otherwise requires,
shall have the following meanings:
ACCEPTED SERVICING PRACTICES: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or 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 or (y) as provided in the applicable Servicing Agreement,
to the extent applicable to the related Servicer.
ACCOUNTANT: A person engaged in the practice of accounting who (except when
this Agreement provides that an Accountant must be Independent) may be employed
by or affiliated with the Depositor or an Affiliate of the Depositor.
ACCRETION DIRECTED CERTIFICATE: Not applicable.
ACCRETION TERMINATION DATE: Not applicable.
ACCRUAL AMOUNT: As to any Class of Accrual Certificates and each
Distribution Date through the Credit Support Depletion Date, the sum of (x) any
amount of Accrued Certificate Interest allocable to such Class pursuant to
Section 5.02(a)(ii) on such Distribution Date and (y) any Interest Shortfall
allocable to such Class pursuant to Section 5.02(a)(iii) on such Distribution
Date. As to any Class of Accrual Certificates and each Distribution Date after
the Credit Support Depletion Date, zero.
ACCRUAL CERTIFICATE: Not applicable.
ACCRUAL COMPONENT: Not applicable.
ACCRUAL PERIOD: With respect to any Distribution Date and any Class of
Certificates or any Class of Lower Tier Interests, the one-month period
beginning immediately following the end of the preceding Accrual Period (or from
the Cut-off Date, in the case of the first Accrual
9
Period) and ending on the last day of the month immediately preceding the month
in which such Distribution Date occurs.
ACCRUED CERTIFICATE INTEREST: As to any Class or Component of Certificates
and any Distribution Date, the product of the Certificate Interest Rate for such
Class or Component of Certificates and the Class Principal Amount (or Class
Notional Amount or Component Principal Amount) of such Class or Component of
Certificates immediately preceding such Distribution Date, as reduced by such
Class's or Component's share of the interest portion of (i) any Excess Losses
for the related Mortgage Pool for such Distribution Date and (ii) any Relief Act
Reduction for the related Mortgage Pool such Distribution Date, in each case
allocable among the Group 1, Group 2, Group 3, Group 4 and Group 5 Certificates,
as applicable, pro rata based on the Accrued Certificate Interest otherwise
distributable thereto, and allocable to the Class B1-II, Class B2-II, Class B3,
Class B4, Class B5 and Class B6 Certificates pro rata based on interest accrued
at the related Net WAC on their respective Apportioned Principal Balances.
Interest shall be calculated on the basis of a 360-day year consisting of twelve
30-day months.
ACT: As defined in Section 3.03(c).
ADDITIONAL COLLATERAL: Not applicable.
ADDITIONAL COLLATERAL SERVICING AGREEMENT: Not applicable.
ADJUSTABLE RATE MORTGAGE LOAN: Any Mortgage Loan as to which the related
Mortgage Note provides for the adjustment of the Mortgage Rate.
ADVANCE: An advance of the aggregate of payments of principal and interest
(net of the Master Servicing Fee and the applicable Servicing Fee) on one or
more Mortgage Loans that were due on the Due Date in the related Due Period and
not received as of the close of business on the related Determination Date,
required to be made by or on behalf of the Master Servicer and the related
Servicer (or by the Trustee) pursuant to Section 5.04.
AFFILIATE: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AGGREGATE MASTER SERVICING COMPENSATION: As to any Distribution Date, all
income and gain realized from the investment of funds in the Collection Account
during the period from and including the Deposit Date in the calendar month
immediately preceding the month in which such Distribution Date occurs, to but
excluding the Deposit Date relating to such Distribution Date.
AGGREGATE PRINCIPAL BALANCE: The aggregate of the Scheduled Principal
Balances for all Mortgage Loans at any date of determination.
10
AGGREGATE SUBORDINATE PERCENTAGE: With respect to any Distribution Date,
the sum of the Class Principal Amounts of the Class B3, Class B4, Class B5 and
Class B6 Certificates immediately prior to such date divided by the sum of the
Pool Balances for all five Mortgage Pools for the immediately preceding
Distribution Date.
AGGREGATE VOTING INTERESTS: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
AGREEMENT: This Trust Agreement and all amendments and supplements hereto.
AP PERCENTAGE: Not applicable.
AP Principal Distribution Amount: Not applicable.
APPORTIONED PRINCIPAL BALANCE: As to (i) each of the Class B1-II and Class
B2-II Certificates with respect to Pool 2, Pool 3, Pool 4 or Pool 5 for any
Distribution Date will equal the Class Principal Amount of that Class
immediately prior to that Distribution Date multiplied by a fraction, the
numerator of which is the applicable Group Subordinate Amount for that date and
the denominator of which is the sum of the Group Subordinate Amounts for Pool 2,
Pool 3, Pool 4 and Pool 5 and (ii) each of the Class B3, Class B4, Class B5 and
Class B6 Certificates with respect to each Mortgage Pool for any Distribution
Date will equal the Class Principal Amount of that Class immediately prior to
that Distribution Date multiplied by a fraction, the numerator of which is the
applicable Modified Pool Subordinate Amount for that date and the denominator of
which is the sum of the Modified Pool Subordinate Amounts for that date.
APPRAISED VALUE: With respect to any Mortgage Loan, the amount set forth in
an appraisal made in connection with the origination of such Mortgage Loan as
the value of the related Mortgaged Property.
ASSOCIATED MORTGAGE LOAN: Not applicable.
ASSIGNMENT OF MORTGAGE: 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 the
sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by law; provided, however, that the Trustee shall not
be responsible for determining whether any such assignment is in recordable
form.
AURORA: Aurora Loan Services Inc. or its successor in interest, in its
capacity as a Servicer.
AUTHENTICATING AGENT: Any authenticating agent appointed by the Trustee
pursuant to Section 6.10.
AUTHORIZED OFFICER: Any Person who may execute an Officer's Certificate on
behalf of the Depositor.
11
AVAILABLE DISTRIBUTION AMOUNT: As to each Mortgage Pool and on any
Distribution Date, the sum of the following amounts:
(i) the total amount of all cash received by the Master Servicer
through the Remittance Date applicable to each Servicer and deposited by
the Master Servicer by the Deposit Date for such Distribution Date on the
Mortgage Loans of such Mortgage Pool (including proceeds of any Insurance
Policy and any other credit support relating to such Mortgage Loans), plus
all Advances made by the Master Servicer or any Servicer (or the Trustee in
its capacity as successor Master Servicer) for such Distribution Date, any
Compensating Interest Payment for such date and Mortgage Pool any amounts
received with respect to any Additional Collateral or any Surety Bond
related thereto and any amounts paid by any Servicer in respect of
Prepayment Interest Shortfalls in respect of the related Mortgage Loans for
such date, but not including:
(A) all amounts distributed pursuant to Section 5.02 on prior
Distribution Dates;
(B) all Scheduled Payments of principal and interest collected
but due on a date subsequent to the related Due Period;
(C) all Principal Prepayments received or identified by the
applicable Servicer after the applicable Prepayment Period (together
with any interest payments received with such prepayments to the
extent that they represent the payment of interest accrued on the
related Mortgage Loans for the period subsequent to the applicable
Prepayment Period);
(D) any other unscheduled collection, including Net Liquidation
Proceeds and Insurance Proceeds, received by the Master Servicer after
the applicable Prepayment Period;
(E) all fees and amounts due or reimbursable to the Master
Servicer, the Trustee (other than the Trustee Fee), the Custodian or a
Servicer pursuant to the terms of this Agreement, the applicable
Custodial Agreement or the applicable Servicing Agreement;
(F) any Retained Interest; and
(G) Prepayment Interest Excess, to the extent not offset by
Prepayment Interest Shortfalls; and
any other payment made by the Master Servicer, any Servicer, the Seller,
the Depositor, or any other Person with respect to such Distribution Date
(including the Purchase Price with respect to any Mortgage Loan purchased by the
Seller, the Depositor or any other Person).
BALLOON MORTGAGE LOAN: Not applicable.
BALLOON PAYMENT: Not applicable.
12
BANK: Xxxxxx Brothers Bank, FSB and its successors and assigns.
BANKRUPTCY: As to any Person, the making of an assignment for the benefit
of creditors, the filing of a voluntary petition in bankruptcy, adjudication as
a bankrupt or insolvent, the entry of an order for relief in a bankruptcy or
insolvency proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or liquidator,
dissolution, or termination, as the case may be, of such Person pursuant to the
provisions of either the United States Bankruptcy Code of 1986, as amended, or
any other similar state laws.
BANKRUPTCY COVERAGE TERMINATION DATE: As to any Mortgage Pool, the
Distribution Date on which the Bankruptcy Loss Limit has been reduced to zero
(or less than zero).
BANKRUPTCY LOSS LIMIT: As of the Cut-off Date, $202,031.00, which amount
shall be reduced from time to time by the amount of Bankruptcy Losses that are
allocated to the related Classes of Certificates.
BANKRUPTCY LOSSES: With respect to the Mortgage Loans in the related
Mortgage Pool, losses that are incurred as a result of Deficient Valuations and
any reduction, in a bankruptcy proceeding, of the amount of the Scheduled
Payment on a Mortgage Loan other than as a result of a Deficient Valuation.
BLANKET MORTGAGE: The mortgage or mortgages encumbering a Cooperative
Property.
BOOK-ENTRY CERTIFICATES: Beneficial interests in Certificates designated as
"Book-Entry Certificates" in this Agreement, ownership and transfers of which
shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the occurrence of a condition
whereupon book-entry registration and transfer are no longer permitted and
Definitive Certificates are to be issued to Certificate Owners, such Book-Entry
Certificates shall no longer be "Book-Entry Certificates." As of the Closing
Date, all of the Classes of Certificates listed in the second table of the
Preliminary Statement, other than the Class R Certificates, will constitute
Book-Entry Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, (ii) a day on
which banking institutions in New York, New York or, if other than New York, the
city in which the Corporate Trust Office of the Trustee is located, or (iii)
with respect to any Remittance Date or any Servicer reporting date, the States
specified in the definition of "Business Day" in the applicable Servicing
Agreement, are authorized or obligated by law or executive order to be closed.
CERTIFICATE: Any one of the certificates signed and countersigned by the
Trustee in substantially the forms attached hereto as Exhibit A.
CERTIFICATE ACCOUNT: The account maintained by the Trustee in accordance
with the provisions of Section 4.04.
CERTIFICATE GROUP: The Group 1 Certificates, the Group 2 Certificates, the
Group 3 Certificates, the Group 4 Certificates or the Group 5 Certificates, as
applicable.
13
CERTIFICATE INTEREST RATE: With respect to each Class or Component of
Certificates, the applicable per annum rate specified or determined as provided
in the Preliminary Statement hereto.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the Person who
is the owner of such Book-Entry Certificate, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly or as an indirect participant, in accordance with the
rules of such Clearing Agency).
CERTIFICATE PRINCIPAL AMOUNT: With respect to any Certificate other than a
Notional Certificate, at the time of determination, the maximum specified dollar
amount of principal to which the Holder thereof is then entitled hereunder, such
amount being equal to the initial principal amount set forth on the face of such
Certificate (plus, in the case of any Negative Amortization Certificate, any
Deferred Interest allocated thereto on previous Distribution Dates, and plus, in
the case of any Accrual Certificate, its Percentage Interest of any related
Accrual Amount for each previous Distribution Date), less the amount of all
principal distributions previously made with respect to such Certificate, and
all Realized Losses allocated to such Certificate and, in the case of a
Subordinate Certificate, any Subordinate Certificate Writedown Amount allocated
to such Certificates. For purposes of Article V hereof, unless specifically
provided to the contrary, Certificate Principal Amounts shall be determined as
of the close of business of the immediately preceding Distribution Date, after
giving effect to all distributions made on such date. Notional Certificates are
issued without Certificate Principal Amounts.
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register maintained and
the registrar appointed pursuant to Section 3.02.
CERTIFICATEHOLDER: The meaning provided in the definition of "Holder."
CLASS: All Certificates bearing the same class designation, and, in the
case of each of the Lower Tier REMIC Interests and Middle Tier REMIC Interests,
bearing the same designation.
CERTIFICATEHOLDER: The meaning provided in the definition of "Holder."
CLASS AP CERTIFICATE: Not applicable.
CLASS AP DEFERRED AMOUNT: Not applicable.
CLASS B CERTIFICATE: Any Class I-B, Class II-B, Class B3 Class B4, Class B5
or Class B6 Certificate.
CLASS I-B CERTIFICATES: The Class B1-I, Class B1-I-X, Class B2-I, Class
B2-I-X, Certificates, referred to collectively.
CLASS II-B CERTIFICATES: The Class B1-II and Class B2-II Certificates,
referred to collectively.
CLASS LT-R INTEREST: The sole residual interest in the Lower Tier REMIC.
14
CLASS MT-R INTEREST: The sole residual interest in the Middle Tier REMIC.
CLASS NOTIONAL AMOUNT: With respect to each Class of Notional Certificates,
the applicable class notional amount calculated as provided in the Preliminary
Statement hereto.
CLASS P CERTIFICATES: The Class P-I and Class P-II Certificates, referred
to collectively.
CLASS PERCENTAGE: With respect to each Class or Component of Subordinate
Certificates, for each Distribution Date, the percentage obtained by dividing
the Class Principal Amount or Component Principal Amount of such Class or
Component immediately prior to such Distribution Date by the sum of the Class
Principal Amounts of all Certificates immediately prior to such date.
CLASS PRINCIPAL AMOUNT: With respect to each Class of Certificates other
than any Class of Notional Certificates, the aggregate of the Certificate
Principal Amounts of all Certificates of such Class at the date of
determination. With respect to each Class of Notional Certificates, zero.
CLEARING AGENCY: An organization registered as a "clearing agency" pursuant
to Section 17A of the Securities Exchange Act of 1934, as amended. As of the
Closing Date, the Clearing Agency shall be The Depository Trust Company.
CLEARING AGENCY PARTICIPANT: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
CLEARSTREAM: Clearstream Banking, societe anonyme, and any successor
thereto.
CLOSING DATE: October 30, 2002.
CODE: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
COLLECTION ACCOUNT: A separate account established and maintained by the
Master Servicer pursuant to Section 4.01.
COMPENSATING INTEREST PAYMENT: With respect to each Mortgage Pool and any
Distribution Date, an amount equal to the excess of (x) the aggregate of any
Prepayment Interest Shortfalls with respect to such Mortgage Pool and such
Distribution Date over (y) the aggregate of any amounts required to be paid by
the applicable Servicer in respect of such shortfalls but not paid.
COMPONENT: Not applicable.
COMPONENT CERTIFICATE: Not applicable.
COMPONENT INTEREST RATE: Not applicable.
15
COMPONENT NOTIONAL AMOUNT: Not applicable.
COMPONENT PRINCIPAL AMOUNT: Not applicable.
COMPONENT WRITEDOWN AMOUNT: Not applicable.
CONVENTIONAL LOAN: A Mortgage Loan that is not insured by the United States
Federal Housing Administration or guaranteed by the United States Veterans
Administration.
CONVERTED MORTGAGE LOAN: Not applicable.
CONVERTIBLE MORTGAGE LOAN: Not applicable.
COOPERATIVE CORPORATION: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
COOPERATIVE LOAN: Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
COOPERATIVE LOAN DOCUMENTS: As to any Cooperative Loan, (i) the Cooperative
Shares, together with a stock power in blank; (ii) the original executed
Security Agreement and the assignment of the Security Agreement endorsed in
blank; (iii) the original executed Proprietary Lease and the assignment of the
Proprietary Lease endorsed in blank; (iv) the original executed Recognition
Agreement and the assignment of the Recognition Agreement (or a blanket
assignment of all Recognition Agreements) endorsed in blank; (v) the executed
UCC-1 financing statement with evidence of recording thereon, which has been
filed in all places required to perfect the security interest in the Cooperative
Shares and the Proprietary Lease; and (vi) executed UCC-3 financing statements
(or copies thereof) or other appropriate UCC financing statements required by
state law, evidencing a complete and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon (or in a form suitable for
recordation).
COOPERATIVE PROPERTY: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the Cooperative Shares of the Cooperative Corporation.
COOPERATIVE SHARES: Shares issued by a Cooperative Corporation.
COOPERATIVE UNIT: A single-family dwelling located in a Cooperative
Property.
CORPORATE TRUST OFFICE: The principal corporate trust office of the Trustee
at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at JPMorgan Chase Bank,
4 New York Plaza, 6th Floor, New York, New York 10004, Attention: Institutional
Trust Services (SASCO 2002-21A).
CORRESPONDING CERTIFICATES: For each Class of Middle Tier REMIC Interest,
the Corresponding Certificates designated for such Class in the Preliminary
Statement.
16
CORRESPONDING COMPONENT: Not applicable.
CREDIT SCORE: With respect to any Mortgage Loan, a numerical assessment of
default risk with respect to the Mortgagor under such Mortgage Loan, determined
on the basis of a methodology developed by Fair, Xxxxx & Co., Inc.
CREDIT SUPPORT DEPLETION DATE: With respect to Group 1, the Distribution
Date on which, after giving effect to all distributions on such date, the
aggregate Certificate Principal Amount of the Class B1-I, Class B2-I, Class B3,
Class B4, Class B5 and Class B6 Certificates is reduced to zero. With respect to
Group 2, Group 3, Group 4 or Group 5, the Distribution Date on which, after
giving effect to all distributions on such date, the aggregate Certificate
Principal Amount of the Class B1-II, Class B2-II, Class B3, Class B4, Class B5
and Class B6 Certificates is reduced to zero.
CREDIT SUPPORT PERCENTAGE: For any Distribution Date, shall be calculated
as follows: The Credit Support Percentage with respect to the Class B1-I or
Class B1-II Certificates will equal a fraction, expressed as a percentage, the
numerator of which is the excess of (i) the Pool Balance of the related Mortgage
Pool or Pools over (ii) the aggregate Certificate Principal Amount of the Group
1 Certificates (exclusive of the Class B2-I Certificates) or the aggregate
Certificate Principal Amount of the Group 2, Group 3, Group 4 and Group 5 and
Class B1-II Certificates, as applicable, and the denominator of which is the
Pool Balance of the related Mortgage Pool or Pools. The Credit Support
Percentage with respect to the Class B3, Class B4 or Class B5 Certificates will
equal a fraction, expressed as a percentage, the numerator of which is the
aggregate Certificate Principal Amount of any Class or Classes of Subordinate
Certificates having a higher numerical class designation than such Class and the
denominator of which is the sum of the Pool Balances of Pool 1, Pool 2, Pool 3,
Pool 4 and Pool 5.
CUSTODIAL AGREEMENT: Each custodial agreement attached as Exhibit K hereto,
and any custodial agreement subsequently executed by the Trustee substantially
in the form thereof.
CUSTODIAN: Each custodian appointed by the Trustee pursuant to a Custodial
Agreement, and any successor thereto.
CUT-OFF DATE: October 1, 2002.
CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE: With respect to the Mortgage
Loans in the Trust Fund on the Closing Date, the Aggregate Principal Balance for
all such Mortgage Loans as of the Cut-off Date.
DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a reduction of
the Scheduled Payment that the related Mortgagor is obligated to pay on any Due
Date as a result of any proceeding under Bankruptcy law or any similar
proceeding.
DEFERRED INTEREST: With respect to any Class of Negative Amortization
Certificates and any Distribution Date, the lesser of (x) the applicable
Interest Distribution Amount for such date (without giving effect to any
Deferred Interest) and (y) the aggregate Mortgage Loan Negative Amortization, if
any, for the related Due Period.
17
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding indebtedness under such Mortgage Loan, which valuation
results from a proceeding under Bankruptcy law or any similar proceeding.
DEFINITIVE CERTIFICATE: A Certificate of any Class issued in definitive,
fully registered, certificated form.
DELETED MORTGAGE LOAN: A Mortgage Loan that is repurchased from the Trust
Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
DEPOSIT DATE: With respect to each Distribution Date, the Business Day
immediately preceding such Distribution Date.
DEPOSITOR: Structured Asset Securities Corporation, a Delaware corporation
having its principal place of business in New York, or its successors in
interest.
DESIGNATED RATE: Not applicable.
DETERMINATION DATE: With respect to each Distribution Date, the Remittance
Date immediately preceding such Distribution Date.
DISCOUNT MORTGAGE LOAN: Not applicable.
DISQUALIFIED ORGANIZATION: Either (i) the United States, (ii) any state or
political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative described
in section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by section 511
of the Code, (vii) any organization described in section 1381(a)(2)(C) of the
Code, (viii) any "electing large partnership" described in section 775 of the
Code, or (ix) any other entity designated as a Disqualified Organization by
relevant legislation amending the REMIC Provisions and in effect at or proposed
to be effective as of the time of the determination. In addition, a corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof if all of its activities are subject to tax
and, with the exception of the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by such governmental unit.
DISTRIBUTION DATE: The 25th day of each month, or, if such 25th day is not
a Business Day, the next succeeding Business Day commencing in November 2002.
DUE DATE: With respect to any Mortgage Loan, the date on which a Scheduled
Payment is due under the related Mortgage Note.
DUE PERIOD: With respect to any Distribution Date, the period commencing on
the second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the first day of the month in which such
Distribution Date occurs.
18
ELIGIBLE ACCOUNT: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable to
the Rating Agencies or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided that
any such deposits not so insured shall be maintained in an account at a
depository institution or trust company whose commercial paper or other short
term debt obligations (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the commercial
paper or other short term debt or deposit obligations of such holding company or
depository institution, as the case may be) have been rated by each Rating
Agency in its highest short-term rating category, or (iii) a segregated trust
account or accounts (which shall be a "special deposit account") maintained with
the Trustee or any other federal or state chartered depository institution or
trust company, acting in its fiduciary capacity, in a manner acceptable to the
Trustee and the Rating Agencies. Eligible Accounts may bear interest.
ELIGIBLE INVESTMENTS: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest 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 ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository institution
or trust company (including U.S. subsidiaries of foreign depositories and
the Trustee or any agent of the Trustee, acting in its respective
commercial capacity) incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal or state banking authorities, so long as at the time
of investment or the contractual commitment providing for such investment
the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit
obligations of such holding company or deposit institution, as the case may
be) have been rated by each Rating Agency in one of its two highest
short-term rating categories or one of its three highest long-term rating
categories;
(iii) repurchase agreements collateralized by Direct Obligations or
securities guaranteed by GNMA, FNMA or FHLMC with any registered
broker/dealer subject to Securities Investors' Protection Corporation
jurisdiction or any commercial bank insured by the FDIC, if such
broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest short-term rating
category;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any state thereof which have a credit rating from each Rating Agency, at
the time of investment or the contractual commitment providing for such
investment, at least equal to one of the two highest short-term credit
ratings of each Rating Agency; provided, however, that securities issued by
any particular corporation will not be Eligible Investments to the extent
that investment
19
therein will cause the then outstanding principal amount of securities
issued by such corporation and held as part of the Trust Fund to exceed 20%
of the sum of the Aggregate Principal Balance and the aggregate principal
amount of all Eligible Investments in the Certificate Account; provided,
further, that such securities will not be Eligible Investments if they are
published as being under review with negative implications from either
Rating Agency;
(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 180 days after the date of issuance thereof)
rated by each Rating Agency in one of its two highest short-term ratings;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership interests
in future interest or principal payments on obligations of the United
States of America or its agencies or instrumentalities (which obligations
are backed by the full faith and credit of the United States of America)
held by a custodian in safekeeping on behalf of the holders of such
receipts; and
(viii) any other demand, money market fund, common trust fund or time
deposit or obligation, or interest-bearing or other security or investment,
(A) rated in the highest rating category by each Rating Agency or (B) that
would not adversely affect the then current rating by either Rating Agency
of any of the Certificates. Such investments in this subsection (viii) may
include money market mutual funds or common trust funds, including, without
limitation, the X.X. Xxxxxx Prime Money Market Fund or any other fund for
which JPMorgan Chase Bank ("JPMorgan Chase"), the Trustee or an affiliate
thereof serves as an investment advisor, administrator, shareholder
servicing agent, and/or custodian or subcustodian, notwithstanding that (i)
the Bank, or an affiliate thereof charges and collects fees and expenses
from such funds for services rendered, (y) JPMorgan Chase, or an affiliate
thereof charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (z) services performed for such funds and
pursuant to this Agreement may converge at any time. The Trustee
specifically authorizes JPMorgan Chase Bank or an affiliate thereof to
charge and collect from the Trustee such fees as are collected from all
investors in such funds for services rendered to such funds (but not to
exceed investment earnings thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
EMPLOYEE MORTGAGE LOAN: Not applicable.
20
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-QUALIFYING UNDERWRITING: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: Any Class R, Class B4, Class B5, Class B6
Certificate or any Certificate with a rating below the lowest applicable rating
permitted under the Underwriter's Exemption.
ESCROW ACCOUNT: Any account established and maintained by a Servicer
pursuant to the applicable Servicing Agreement.
EUROCLEAR: JPMorgan Chase Bank, Brussels office, as operator of the
Euroclear System.
EVENT OF DEFAULT: Any one of the conditions or circumstances enumerated in
Section 6.14(a).
EXCESS LOSS: Any Bankruptcy Loss, or portion thereof, in excess of the
then-applicable Bankruptcy Loss Limit, any Fraud Loss, or portion thereof, in
excess of the then-applicable Fraud Loss Limit, and any Special Hazard Loss, or
portion thereof, in excess of the then-applicable Special Hazard Loss Limit.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FINAL SCHEDULED DISTRIBUTION DATE: November 25, 2032.
FINANCIAL INTERMEDIARY: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
FITCH: Fitch, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FRAUD LOSS: Any Realized Loss on a Liquidated Mortgage Loan sustained by
reason of a default arising from fraud, dishonesty or misrepresentation in
connection with the related Mortgage Loan, as reported by the applicable
Servicer to the Master Servicer.
FRAUD LOSS LIMIT: With respect to any Distribution Date (x) prior to the
first anniversary of the Cut-off Date, $20,690,516.00 less the aggregate of
Fraud Losses since the Cut-off Date and (y) from the first to the fifth
anniversary of the Cut-off Date, an amount equal to (1) the lesser of (a) the
Fraud Loss Limit as of the most recent anniversary of the Cut-off Date and (b)
21
1% of the aggregate principal balance of all the Mortgage Loans as of the most
recent anniversary of the Cut-off Date less (2) the aggregate of Fraud Losses
since the most recent anniversary of the Cut-off Date. On or after the fifth
anniversary of the Cut-off Date, the Fraud Loss Limit shall be zero.
GLOBAL SECURITIES: The global certificates representing the Book-Entry
Certificates.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
GRANTOR TRUST: Those certain "grantor trusts" (within the meaning of the
Grantor Trust Provisions) consisting of the Grantor Trust I Assets and the
Grantor Trust II Assets.
GRANTOR TRUST I ASSETS: Any Prepayment Penalty Amounts collected with
respect to Pool 1.
GRANTOR TRUST II ASSETS: Any Prepayment Penalty Amounts collected with
respect to Pools 2 through 5.
GRANTOR TRUST PROVISIONS: Subpart E of Subchapter J of the Code, including
Treasury regulation section 301.7701-4(c)(2).
GROUP 1: All of the Group 1 Certificates.
GROUP 1 CERTIFICATE: Any Class 1-A1, Class 1-A2, Class 1-A3, Class B1-I,
Class B1-I-X, Class B2-I, Class B2-I-X or Class R Certificate.
GROUP 2: All of the Group 2 Certificates.
GROUP 2 CERTIFICATE: Any Class 2-A1 or Class 2-A2 Certificate.
GROUP 3: All of the Group 3 Certificates.
GROUP 3 CERTIFICATE: Any Class 3-A1 or Class 3-A2 Certificate.
GROUP 4: All of the Group 4 Certificates.
GROUP 4 CERTIFICATE: Any Class 4-A1 or Class 4-A2 Certificate.
GROUP 5: All of the Group 5 Certificates.
GROUP 5 CERTIFICATE: Any Class 5-A1 or Class 5-A2 Certificate.
GROUP SUBORDINATE AMOUNT: With respect to any Mortgage Pool and any
Distribution Date, the excess, if any, of the Pool Balance of such Mortgage Pool
for the immediately preceding Distribution Date over the sum of the aggregate of
the Certificate Principal Amounts of the Senior Certificates of the related
Certificate Group immediately prior to the related Distribution Date.
22
HOLDER OR CERTIFICATEHOLDER: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar except that, solely for the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Certificate registered in the name of the Depositor, the Trustee, the Master
Servicer, any Servicer or any Affiliate thereof shall be deemed not to be
outstanding in determining whether the requisite percentage necessary to effect
any such consent has been obtained, except that, in determining whether the
Trustee shall be protected in relying upon any such consent, only Certificates
which a Responsible Officer of the Trustee knows to be so owned shall be
disregarded. The Trustee may request and conclusively rely on certifications by
the Depositor, the Master Servicer and any Servicer in determining whether any
Certificates are registered to an Affiliate of the Depositor, the Master
Servicer or such Servicer.
HUD: The United States Department of Housing and Urban Development, or any
successor thereto.
INDEPENDENT: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and Exchange
Commission's Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct financial
interest in such other Person or any Affiliate of such other Person, and (c) is
not connected with such other Person or any Affiliate of such other Person as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
INITIAL LIBOR RATE: Not applicable.
INITIAL NET MORTGAGE RATE: With respect to each Mortgage Loan, the Net
Mortgage Rate of such Mortgage Loan as of the Cut-off Date.
INSURANCE POLICY: Any Primary Mortgage Insurance Policy and any standard
hazard insurance policy, flood insurance policy, earthquake insurance policy or
title insurance policy relating to the Mortgage Loans or the Mortgaged
Properties, to be in effect as of the Closing Date or thereafter during the term
of this Agreement.
INSURANCE PROCEEDS: Amounts paid by the insurer under any Insurance Policy,
other than amounts (i) to cover expenses incurred by or on behalf of the
applicable Servicer in connection with procuring such proceeds, (ii) to be
applied to restoration or repair of the related Mortgaged Property, or (iii)
required to be paid over to the Mortgagor pursuant to law or the related
Mortgage Note.
INTEREST DISTRIBUTION AMOUNT: Not applicable.
INTEREST SHORTFALL: With respect to any Class or Component of Certificates
and any Distribution Date, any Accrued Certificate Interest not distributed (or
added to principal) with respect to any previous Distribution Date, other than
any Net Prepayment Interest Shortfalls.
INTERVENING ASSIGNMENTS: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
23
LATEST POSSIBLE MATURITY DATE: The Distribution Date in October 2035.
XXXXXX CAPITAL: Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings,
Inc.
LIBOR: Not applicable.
LIBOR CERTIFICATE: Not applicable.
LIBOR COMPONENT: Not applicable.
LIBOR DETERMINATION DATE: Not applicable.
LIQUIDATED MORTGAGE LOAN: Any defaulted Mortgage Loan as to which the
Master Servicer or the applicable Servicer has determined that all amounts that
it expects to recover on behalf of the Trust Fund from or on account of such
Mortgage Loan have been recovered.
LIQUIDATION EXPENSES: Expenses that are incurred by the Master Servicer or
any Servicer in connection with the liquidation of any defaulted Mortgage Loan
and are not recoverable under the applicable Primary Mortgage Insurance Policy,
including, without limitation, foreclosure and rehabilitation expenses, legal
expenses and unreimbursed amounts expended pursuant to Sections 9.06, 9.16 or
9.22.
LIQUIDATION PROCEEDS: Cash received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the related
Mortgaged Property (including any Additional Collateral) if the Mortgaged
Property (including such Additional Collateral) is acquired in satisfaction of
the Mortgage Loan, including any amounts remaining in the related Escrow
Account.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan, the ratio of the
principal balance of such Mortgage Loan at origination, or such other date as is
specified, to the Original Value thereof.
LONDON BUSINESS DAY: Not applicable.
Lower Tier REMIC: The Lower Tier REMIC as described in the Preliminary
Statement hereto.
LOWER TIER REMIC INTEREST: Any one of the classes of Lower Tier REMIC
Interests described in the Preliminary Statement hereto.
LOWER TIER REMIC REGULAR INTEREST: Any of the LT-1A Interest, LT-1B
Interest, LT-2A Interest, LT-2B Interest, LT-3A Interest, LT-3B Interest, LT-4A
Interest, LT-4B Interest, LT-5A Interest, LT-5B Interest, LT-C Interest and LT-Z
Interest.
LOWER TIER REMIC 1C SUBORDINATED BALANCE RATIO: The ratio among the
Uncertificated Principal Balances of each of the Class LT-1A Interest and the
Class LT-C Interest that is equal to the ratio among, with respect to each such
Lower Tier REMIC Regular Interest, the excess of
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(x) the aggregate Scheduled Principal Balance of the Mortgage Loans in the
related Mortgage Pool or related Mortgage Pools over (y) in the case of the
Class LT-1A Interest, the aggregate Class Principal Amounts of the Certificate
Group related to such Mortgage Pool and, in the case of the Class LT-C Interest,
the aggregate Class Principal Amounts of the Certificate Groups related to
Mortgage Group II and the Class B1-II and B2-II Certificates.
LOWER TIER REMIC 2345 SUBORDINATED BALANCE RATIO: The ratio among the
Uncertificated Principal Balances of each of the Lower Tier REMIC Regular
Interests ending with the designation "A" (other than the Class LT-1A Interest)
that is equal to the ratio among, with respect to each such Lower Tier REMIC
Regular Interest, the excess of (x) the aggregate Scheduled Principal Balance of
the Mortgage Loans in the related Mortgage Pool over (y) the aggregate Class
Principal Amounts of the Certificate Group related to such Mortgage Pool.
MAINTENANCE: With respect to any Cooperative Unit, the rent or fee paid by
the Mortgagor to the Cooperative Corporation pursuant to the Proprietary Lease.
MASTER SERVICER: Aurora Loan Services Inc., or any successor in interest,
or if any successor master servicer shall be appointed as herein provided, then
such successor master servicer.
MASTER SERVICING FEE: As to any Distribution Date and each Mortgage Loan,
an amount equal to the product of the Master Servicing Fee Rate and the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Due Period. The Master Servicing Fee for any Mortgage Loan shall be
payable in respect of any Distribution Date solely from the interest portion of
the Scheduled Payment or other payment or recovery with respect to such Mortgage
Loan.
MASTER SERVICING FEE RATE: With respect to each Mortgage Loan (other than
any Participation), 0.000% per annum.
MASTER SERVICER REMITTANCE DATE: Not applicable.
MATERIAL DEFECT: As defined in Section 2.02(c) hereof.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
Corporation, or any successor in interest thereto.
MERS MORTGAGE LOAN: Any Mortgage Loan as to which the related Mortgage, or
an Assignment of Mortgage, has been or will be recorded in the name of MERS, as
agent for the holder from time to time of the Mortgage Note.
MIDDLE TIER REMIC: The Middle Tier REMIC as described in the Preliminary
Statement hereto.
MIDDLE TIER REMIC INTEREST: Any one of the classes of Middle Tier REMIC
Interests described in the Preliminary Statement hereto.
25
MIDDLE TIER REMIC REGULAR INTEREST: Any of the MT-1A1 Interest, MT-1A3
Interest, MT-B1I Interest, MT-B2I Interest, Class XX-0X Xxxxxxxx, XX-0X0
Xxxxxxxx, XX-0X0 Interest, MT-4A1 Interest, MT-5A1 Interest, MT-B1II Interest,
MT-B2II Interest, MT-B3 Interest, MT-B4 Interest, MT-B5 Interest and MT-B6
Interest.
MODIFIED GROUP SUBORDINATE AMOUNT: With respect to either Mortgage Group
and any Distribution Date, the lesser of (1) the excess, if any, of the Pool
Balance of the Mortgage Pools included in such Mortgage Group for the
immediately preceding Distribution Date over the sum of the aggregate of the
Certificate Principal Amounts of the Senior Certificates of the related
Certificate Group and the Class B1-I and Class B2-I Certificates (in the case of
Mortgage Group I) or the Class B1-II and Class B2-II Certificates (in the case
of Mortgage Group II) and (2) the aggregate Certificate Principal Amount of the
Class B3, Class B4, Class B5 and Class B6 Certificates immediately prior to that
Distribution Date, but not less than zero.
MODIFIED POOL SUBORDINATE AMOUNT: With respect to any Distribution Date and
(i) Pool 1 is the lesser of (A) the excess of the Pool Balance for Pool 1 over
the total Certificate Principal Amount of the Group 1 Certificates (other than
the Class B1-I-X and Class B2-I-X Certificates) immediately prior to that
Distribution Date and (B) the aggregate Certificate Principal Amount of the
Class B3, Class B4, Class B5 and Class B6 Certificates immediately prior to that
Distribution Date, but not less than zero and (ii) each of Pool 2, Pool 3, Pool
4 and Pool 5 is the lesser of (A) the excess of the Pool Balance for such
Mortgage Pool over the sum of (1) the total Certificate Principal Amount of the
Senior Certificates of the related Certificate Group and (2) the Apportioned
Principal Balance of the Class B1-II and Class B2-II Certificates with respect
to such Mortgage Pool immediately prior to that Distribution Date and (B) the
aggregate Certificate Principal Amount of the Class B3, Class B4, Class B5 and
Class B6 Certificates immediately prior to that Distribution Date, but not less
than zero.
MOODY'S: Xxxxx'x Investors Service, Inc., or any successor in interest.
MORTGAGE: A mortgage, deed of trust or other instrument encumbering a fee
simple interest in real property securing a Mortgage Note, together with
improvements thereto.
MORTGAGE 100(SM) LOAN: Not applicable.
MORTGAGE GROUP: Either of Mortgage Group I or Mortgage Group II.
MORTGAGE GROUP I: Pool 1.
MORTGAGE GROUP II: Pool 2, Pool 3, Pool 4 and Pool 5, collectively.
MORTGAGE FILE: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan required to be delivered to the Trustee or a
Custodian pursuant to this Agreement.
MORTGAGE LOAN: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned
to or deposited with the Trustee pursuant to Section 2.01 or Section 2.05,
including without limitation, each Mortgage Loan listed on the Mortgage Loan
Schedule, as amended from time to time. In addition, as used
26
herein the term "Mortgage Loan" includes the Participations, except where
otherwise specified or where the context requires otherwise.
MORTGAGE LOAN SALE AGREEMENT: Each of (i) the agreement, dated as of
October 1, 2002, for the sale of the Mortgage Loans by the Bank to the Depositor
and (ii) the agreement, dated as of October 1, 2002, for the sale of the
Mortgage Loans by Xxxxxx Capital to the Depositor.
MORTGAGE LOAN SCHEDULE: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan, as such schedule may be amended from time to
time to reflect the addition of Mortgage Loans to, or the deletion of Mortgage
Loans from, the Trust Fund. The Depositor shall be responsible for providing the
Trustee and the Master Servicer with all amendments to the Mortgage Loan
Schedule.
MORTGAGE NOTE: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
MORTGAGE POOL: Either Pool 1, Pool 2, Pool 3, Pool 4 or Pool 5.
MORTGAGE RATE: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
MORTGAGED PROPERTY: Either of (x) the fee simple interest in real property,
together with improvements thereto including any exterior improvements to be
completed within 120 days of disbursement of the related Mortgage Loan proceeds,
or (y) in the case of a Cooperative Loan, the related Cooperative Shares and
Proprietary Lease, securing the indebtedness of the Mortgagor under the related
Mortgage Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NEGATIVE AMORTIZATION CERTIFICATE: Not applicable.
NET LIQUIDATION PROCEEDS: With respect to any Liquidated Mortgage Loan, the
related Liquidation Proceeds net of unreimbursed expenses incurred in connection
with liquidation or foreclosure and unreimbursed Advances, Servicing Advances
and Servicing Fees received and retained in connection with the liquidation of
such Mortgage Loan.
NET MORTGAGE RATE: With respect to any Mortgage Loan, the Mortgage Rate
thereof reduced by the sum of the Trustee Fee Rate, the Master Servicing Fee
Rate, the applicable Servicing Fee Rate and the Retained Interest Rate (if
applicable).
NET PREPAYMENT INTEREST SHORTFALL: With respect to each Mortgage Pool and
any Distribution Date, the excess, if any, of any Prepayment Interest Shortfalls
with respect to the Mortgage Loans in such Mortgage Pool for such date over the
sum of any amounts paid by the applicable Servicer with respect to such
shortfalls and any amount that is required to be paid by the Master Servicer in
respect of such shortfalls pursuant to this Agreement.
27
NET WAC: With respect to each Mortgage Pool and any Distribution Date, the
weighted average of Net Mortgage Rates of the Mortgage Loans in the related
Mortgage Pool at the beginning of the related Due Period, weighted on the basis
of their Scheduled Principal Balances.
NON-AP PERCENTAGE: Not applicable.
NON-AP SENIOR CERTIFICATE: Not applicable.
NON-BOOK-ENTRY CERTIFICATE: Any Certificate other than a Book-Entry
Certificate.
NON-DISCOUNT MORTGAGE LOAN: Not applicable.
NON-MERS MORTGAGE LOAN: Any Mortgage Loan other than a MERS Mortgage Loan.
NON-PERMITTED FOREIGN HOLDER: As defined in Section 3.03(f).
NON-PO PERCENTAGE: Not applicable.
NON-PO POOL BALANCE: Not applicable.
NON-U.S. PERSON: Any person other than (i) a citizen or resident of the
United States; (ii) a corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the District
of Columbia; (iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United States
or of any state thereof, including, for this purpose, the District of Columbia
(unless provided otherwise by future Treasury regulations); (iv) an estate whose
income is includible in gross income for United States income tax purposes
regardless of its source; or (v) 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 U.S. Persons have authority to control all substantial decisions of
the trust. Notwithstanding the last clause of the preceding sentence, to the
extent provided in Treasury regulations, certain trusts in existence on August
20, 1996, and treated as U.S. Persons prior to such date, may elect to continue
to be U.S. Persons.
NOTIONAL AMOUNT: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class Notional
Amount of such Class of Certificates for such Distribution Date.
NOTIONAL CERTIFICATE: Any Class 1-A2, Class 2-A2, Class 3-A2, Class 4-A2,
Class 5-A2, Class B1-I-X or Class B2-I-X Certificate.
NOTIONAL COMPONENT: Not applicable.
OFFERING DOCUMENT: The private placement memorandum dated October 28, 2002,
relating to the Class B4, Class B5 and Class B6 Certificates, or the Prospectus.
28
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of the Board,
any Vice Chairman, the President, any Vice President or any Assistant Vice
President of a Person, and in each case delivered to the Trustee.
OPINION OF COUNSEL: A written opinion of counsel, reasonably acceptable in
form and substance to the Trustee, and who may be in-house or outside counsel to
the Depositor, the Master Servicer or the applicable Servicer but which must be
Independent outside counsel with respect to any such opinion of counsel
concerning the transfer of any Residual Certificate or concerning certain
matters with respect to ERISA, or the taxation, or the federal income tax
status, of each REMIC. For purpose of Section 2.01(c)(i), the Opinion of Counsel
referred to therein may take the form of a memorandum of law or other acceptable
assurance.
ORIGINAL CREDIT SUPPORT PERCENTAGE: With respect to any class of
Subordinated Certificates (other than the Class B2-I, Class B2-II and Class B6
Certificates), the Credit Support Percentage with respect to such Class on the
Closing Date.
ORIGINAL GROUP SUBORDINATE AMOUNT: As to any Mortgage Pool, the Group
Subordinate Amount for such Mortgage Pool on the Closing Date.
ORIGINAL VALUE: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor at
the time the related Mortgage Loan was originated.
PARENT POWER(R) LOAN: Not applicable.
PARTICIPATION: Not applicable.
PARTICIPATION AGREEMENT: Not applicable.
PARTICIPATION SCHEDULE: Not applicable.
PARTICIPATION MASTER SERVICER: Not applicable.
PAYING AGENT: Any paying agent appointed pursuant to Section 3.08.
PERCENTAGE INTEREST: With respect to any Certificate and the related Class,
such Certificate's percentage interest in the undivided beneficial ownership
interest in the Trust Fund evidenced by all Certificates of the same Class as
such Certificate. With respect to any Certificate other than a Notional
Certificate, the Percentage Interest evidenced thereby shall equal the initial
Certificate Principal Amount thereof divided by the initial Class Principal
Amount of all Certificates of the same Class. With respect to any Notional
Certificate, the Percentage Interest evidenced thereby shall be as specified on
the face thereof.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
29
PLACEMENT AGENT: Xxxxxx Brothers Inc.
PLANNED PRINCIPAL BALANCE: Not applicable.
PLEDGED ASSET LOAN-TO-VALUE RATIO: Not applicable.
PLEDGED ASSET MORTGAGE LOAN: Not applicable.
POOL 1: The aggregate of the Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 1.
POOL 2: The aggregate of the Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 2.
POOL 3: The aggregate of the Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 3.
POOL 4: The aggregate of the Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 4.
POOL 5: The aggregate of the Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 5.
POOL 1 B1-B2 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, the
product of (1) the Subordinate Principal Distribution Amount for Pool 1 and (2)
a fraction, the numerator of which is the aggregate Certificate Principal Amount
of the Class B1-I and Class B2-I Certificates immediately prior to such
Distribution Date and the denominator of which is the sum of the aggregate
Certificate Principal Amount of the Class B1-I and Class B2-I Certificates
immediately prior to such Distribution Date and the Modified Group Subordinate
Amount for Pool 1.
POOL 2-5 B1-B2 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date,
the product of (1) the sum of Subordinate Principal Distribution Amount for Pool
2, Pool 3, Pool 4 and Pool 5 and (2) a fraction, the numerator of which is the
aggregate Certificate Principal Amount of the Class B1-II and Class B2-II
Certificates immediately prior to such Distribution Date and the denominator of
which is the sum of the aggregate Certificate Principal Amount of the Class
B1-II and Class B2-II Certificates immediately prior to such Distribution Date
and the Modified Group Subordinate Amount for Mortgage Group II.
POOL 1 B3-B6 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, the
excess of the Subordinate Principal Distribution Amount for Pool 1 over the Pool
1 B1-B2 Principal Distribution Amount.
POOL 2-5 B3-B6 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date,
the excess of the sum of the Subordinate Principal Distribution Amount for Pool
2, Pool 3, Pool 4 and Pool 5 over the Pool 2-5 B1-B2 Principal Distribution
Amount.
POOL 1 UNDERLYING SUBORDINATE RATE: The Net WAC for Pool 1.
30
POOL 2-5 UNDERLYING SUBORDINATE RATE: The weighted average of the Net WACs
of Pools 2 through 5, weighted by the corresponding Group Subordinate Amounts.
POOL BALANCE: As to each Mortgage Pool and any Distribution Date, the sum
of the Scheduled Principal Balance of each Mortgage Loan included in such
Mortgage Pool.
PO PERCENTAGE: Not applicable.
PREPAYMENT INTEREST EXCESS: With respect to any Distribution Date and any
Principal Prepayment in full received on the Mortgage Loans serviced by Aurora
from the first day through the sixteenth day of the month during which such
Distribution Date occurs, all amounts paid in respect of interest at the
applicable Net Mortgage Rate on such Principal Prepayment in full.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution Date and
(x) any Principal Prepayment in part and, with respect to those Mortgage Loans
serviced by Servicers other than Aurora, any Principal Prepayment in full and
(y) any Principal Prepayment in full with respect to those Mortgage Loans
serviced by Aurora if received on or after the seventeenth day of the month
immediately preceding the month of such Distribution Date but on or before the
last day of the month immediately preceding the month of such Distribution Date,
the difference between (i) one full month's interest at the applicable Mortgage
Rate (after giving effect to any applicable Relief Act Reduction), as reduced by
the applicable Servicing Fee Rate, the applicable Retained Interest Rate and the
Master Servicing Fee Rate (if the Master Servicer is acting as Servicer), on the
outstanding principal balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest actually received with respect to
such Mortgage Loan in connection with such Principal Prepayment.
PREPAYMENT PENALTY AMOUNTS: With respect to any Distribution Date, all
premiums or charges paid by the obligors under the related Mortgage Notes due to
Principal Prepayments collected by the Servicers during the immediately
preceding Prepayment Period.
PREPAYMENT PERIOD: With respect to those Mortgage Loans serviced by
Servicers other than Aurora, any Distribution Date and any Principal Prepayment,
whether in part or in full (including any liquidation), the calendar month
immediately preceding the month in which such Distribution Date occurs. With
respect to any Distribution Date and a Principal Prepayment in full (including
any liquidation) with respect to those Mortgage Loans serviced by Aurora, the
period from the seventeenth day of the month immediately preceding the month of
such Distribution Date to the sixteenth day of the month of such Distribution
Date. With respect to those Mortgage Loans serviced by Aurora, any Distribution
Date and any Principal Prepayment in part, the calendar month immediately
preceding the month in which such Distribution Date occurs.
PRIMARY MORTGAGE INSURANCE POLICY: Mortgage guaranty insurance, if any, on
an individual Mortgage Loan, as evidenced by a policy or certificate.
PRINCIPAL AMOUNT SCHEDULES: Not applicable.
PRINCIPAL ONLY CERTIFICATE: Not applicable.
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PRINCIPAL PREPAYMENT: Any Mortgagor payment of principal (other than a
Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled Due
Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the applicable Servicing
Agreement.
PROCEEDING: Any suit in equity, action at law or other judicial or
administrative proceeding.
PROPRIETARY LEASE: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
PROSPECTUS: The prospectus supplement dated October 28, 2002, together with
the accompanying prospectus dated October 28, 2002, relating to the Senior
Certificates and the Class B1-I, Class B1-I-X, Class B1-II, Class B2-I, Class
B2-I-X, Class B2-II and Class B3 Certificates.
PURCHASE PRICE: With respect to the repurchase of a Mortgage Loan pursuant
to this Agreement, an amount equal to the sum of (a) 100% of the unpaid
principal balance of such Mortgage Loan, (b) accrued interest thereon at the
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date immediately preceding the related Distribution Date and
(c) any unreimbursed Servicing Advances with respect to such Mortgage Loan. The
Master Servicer or the applicable Servicer (or the Trustee, if applicable) shall
be reimbursed from the Purchase Price for any Mortgage Loan or related REO
Property for any Advances made with respect to such Mortgage Loan that are
reimbursable to the Master Servicer or such Servicer under this Agreement or the
applicable Servicing Agreement, as well as any unreimbursed Servicing Advances
and accrued and unpaid Master Servicing Fees or Servicing Fees, as applicable.
QIB: As defined in Section 3.03(c).
QUALIFIED GIC: A guaranteed investment contract or surety bond providing
for the investment of funds in the Collection Account or the Certificate Account
and insuring a minimum, fixed or floating rate of return on investments of such
funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two
highest rating categories or, if such insurance company has no long-term
debt, whose claims paying ability is rated by each Rating Agency in one of
its two highest rating categories, and whose short-term debt is rated by
each Rating Agency in its highest rating category;
(b) provide that the Trustee may exercise all of the rights under such
contract or surety bond without the necessity of taking any action by any
other Person;
(c) provide that if at any time the then current credit standing of
the obligor under such guaranteed investment contract is such that
continued investment pursuant to such contract of funds would result in a
downgrading of any rating of the Certificates, the Trustee shall
32
terminate such contract without penalty and be entitled to the return of
all funds previously invested thereunder, together with accrued interest
thereon at the interest rate provided under such contract to the date of
delivery of such funds to the Trustee;
(d) provide that the Trustee's interest therein shall be transferable
to any successor trustee hereunder; and
(e) provide that the funds reinvested thereunder and accrued interest
thereon be returnable to the Collection Account or the Certificate Account,
as the case may be, not later than the Business Day prior to any
Distribution Date.
QUALIFIED INSURER: An insurance company duly qualified as such under the
laws of the states in which the related Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided and whose claims paying ability is
rated by each Rating Agency in its highest rating category or whose selection as
an insurer will not adversely affect the rating of the Certificates.
QUALIFYING SUBSTITUTE MORTGAGE LOAN: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan, provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together with
interest thereon at the applicable Mortgage Rate net of the applicable Master
Servicing Fee and the applicable Servicing Fee from the date as to which
interest was last paid through the end of the Due Period in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Master Servicer for deposit into the Collection Account, and shall be
treated as a Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not
lower than the Net Mortgage Rate of the related Deleted Mortgage Loan and will
be a Discount Mortgage Loan if the Deleted Mortgage Loan was a Discount Mortgage
Loan or a Non-Discount Mortgage Loan if the Deleted Mortgage Loan was a
Non-Discount Mortgage Loan; (iii) has a remaining stated term to maturity not
longer than, and not more than one year shorter than, the remaining term to
stated maturity of the related Deleted Mortgage Loan; (iv) (A) has a
Loan-to-Value Ratio as of the date of such substitution of not greater than 80%,
provided, however, that if the related Deleted Mortgage Loan has a Loan-to-Value
Ratio of greater than 80%, then the Loan-to-Value Ratio of such substitute
Mortgage Loan may be greater than 80% but shall not be greater than the
Loan-to-Value Ratio of the related Deleted Mortgage Loan and (B) the addition of
such substitute Mortgage Loan does not increase the weighted average
Loan-to-Value Ratio of the related Mortgage Pool by more than 5%; (v) will
comply with all of the representations and warranties relating to Mortgage Loans
set forth herein, as of the date as of which such substitution occurs; (vi) is
not a Cooperative Loan unless the related Deleted Mortgage Loan was a
Cooperative Loan; (vii) if applicable, has the same index as and a margin not
less than that of the related Deleted Mortgage Loan; (viii) has not been
delinquent for a period of more than 30 days more than once in the twelve months
immediately preceding such date of substitution; (ix) is covered by a Primary
Mortgage Insurance Policy if the related Deleted Mortgage Loan is so covered,
and the Loan-to-Value Ratio of such Mortgage Loan is
33
greater than 80%; (x) has a Credit Score not greater than 20 points lower than
the Credit Score of the related Deleted Mortgage Loan, provided, however, that
if the Deleted Mortgage Loan does not have a Credit Score, then such substitute
Mortgage Loan shall have a Credit Score equal to or greater than 700; (xi) has
its initial adjustment date after the related Reset Date; and (xii) has a gross
margin no less than the related Deleted Mortgage Loan. In the event that either
one mortgage loan is substituted for more than one Deleted Mortgage Loan or more
than one mortgage loan is substituted for one or more Deleted Mortgage Loans,
then (a) the Scheduled Principal Balance referred to in clause (i) above shall
be determined such that the aggregate Scheduled Principal Balance of all such
substitute Mortgage Loans shall not exceed the aggregate Scheduled Principal
Balance of all Deleted Mortgage Loans and (b) each of (1) the rate referred to
in clause (ii) above, (2) the remaining term to stated maturity referred to in
clause (iii) above, (3) the Loan-to-Value Ratio referred to in clause (iv) above
and (4) the Credit Score referred to in clause (x) above shall be determined on
a weighted average basis, provided that the final scheduled maturity date of any
Qualifying Substitute Mortgage Loan shall not exceed the Final Scheduled
Distribution Date of any Class of Certificates. Whenever a Qualifying Substitute
Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this
Agreement, the party effecting such substitution shall certify such
qualification in writing to the Trustee and the Master Servicer.
RATING AGENCY: Each of Xxxxx'x or S&P.
REALIZED LOSS: (a) with respect to each Liquidated Mortgage Loan, an amount
equal to (i) the unpaid principal balance of such Mortgage Loan as of the date
of liquidation, plus (ii) interest at the applicable Net Mortgage Rate from the
date as to which interest was last paid up to the last day of the month of such
liquidation, minus (iii) Liquidation Proceeds received, net of amounts that are
reimbursable to the Master Servicer or the applicable Servicer with respect to
such Mortgage Loan (other than Advances of principal and interest) including
expenses of liquidation and (b) with respect to each Mortgage Loan that has
become the subject of a Deficient Valuation, the difference between the unpaid
principal balance of such Mortgage Loan immediately prior to such Deficient
Valuation and the unpaid principal balance of such Mortgage Loan as reduced by
the Deficient Valuation. In determining whether a Realized Loss on a Liquidated
Mortgage Loan is a Realized Loss of interest or principal, Liquidation Proceeds
shall be allocated, first, to payment of expenses related to such Liquidated
Mortgage Loan (including payment of any Retained Interest), then to accrued
unpaid interest and finally to reduce the principal balance of the Mortgage
Loan.
RECOGNITION AGREEMENT: With respect to any Cooperative Loan, an agreement
between the related Cooperative Corporation and the originator of such Mortgage
Loan to establish the rights of such originator in the related Cooperative
Property.
RECORD DATE: With respect to any Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
REDEMPTION CERTIFICATE: Not applicable.
REFERENCE BANKS: Not applicable.
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REGULATION S: Regulation S promulgated under the Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition or
term, as the case may be, or any successor thereto, in each case as the same may
be amended from time to time.
REGULATION S GLOBAL SECURITY: The meaning specified in Section 3.01(c).
RELATED POOL: With respect to any Group 1 Certificate, Pool 1, with respect
to any Group 2 Certificate, Pool 2, with respect to any Group 3 Certificate,
Pool 3, with respect to any Group 4 Certificate, Pool 4, with respect to any
Group 5 Certificate, Pool 5, with respect to the Class B1-II and Class B2-II
Certificates, Pool 2, Pool 3, Pool 4 and Pool 5 and with respect to Class B3,
Class B4, Class B5 and Class B6 Certificates, all Mortgage Pools.
RELIEF ACT REDUCTION: With respect to any Mortgage Loan as to which there
has been a reduction in the amount of interest collectible thereon as a result
of application of the Solders' and Sailors' Civil Relief Act of 1940, as
amended, any amount by which interest collectible on such Mortgage Loan for the
Due Date in the related Due Period is less than interest accrued thereon for the
applicable one-month period at the Mortgage Rate without giving effect to such
reduction.
REMIC: Each of the Lower Tier REMIC, the Middle Tier REMIC and the Upper
Tier REMIC, as described in the Preliminary Statement hereto.
REMIC PROVISIONS: The provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
86OG of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMITTANCE DATE: The day in each month on which each Servicer is required
to remit payments to the account maintained by the Master Servicer, as specified
in the applicable Servicing Agreement, which is the 18th day of each month (or
if such 18th day is not a Business Day, the next succeeding Business Day).
REO PROPERTY: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the REMIC
Provisions.
RESERVE INTEREST RATE: Not applicable.
RESET DATE: With respect to Pool 1, March 2003 and with respect to Pool 2,
August 2007, with respect to Pool 3, March 2007, with respect to Pool 4, August
2009 and with respect to Pool 5, May 2005.
RESIDUAL CERTIFICATE: Any Class R Certificate.
35
RESPONSIBLE OFFICER: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary, any
Trust Officer, the Treasurer, or any assistant treasurer, working in its
corporate trust department and having direct responsibility for the
administration of this Agreement.
RESTRICTED CERTIFICATE: Any Class B4, Class B5 or Class B6 Certificate but
excluding any Regulation S Global Security.
RESTRICTED GLOBAL SECURITY: The meaning specified in Section 3.01(c).
RETAINED INTEREST: Interest in respect of each Employee Mortgage Loan,
retained in each case by the Retained Interest Holder at the Retained Interest
Rate.
RETAINED INTEREST HOLDER: Xxxxxx Capital or any successor in interest by
assignment or otherwise.
RETAINED INTEREST RATE: For each Due Period, 0.00% per annum; provided,
however, if the Mortgagor of the Employee Mortgage Loan ceases to be an employee
of Xxxxxx Brothers Inc. or its Affiliates, 0.25% per annum.
ROUNDING ACCOUNT: Not applicable.
S&P: Standard & Poor's, A Division of The XxXxxx-Xxxx Companies, Inc., or
any successor in interest.
SCHEDULED PAYMENT: Each scheduled payment of principal and interest (or of
interest only, if applicable) to be paid by the Mortgagor on a Mortgage Loan, as
reduced (except where otherwise specified herein) by the amount of any related
Debt Service Reduction (excluding all amounts of principal and interest that
were due on or before the Cut-off Date whenever received) and, in the case of an
REO Property, an amount equivalent to the Scheduled Payment that would have been
due on the related Mortgage Loan if such Mortgage Loan had remained in
existence. In the case of any bi-weekly payment Mortgage Loan, all payments due
on such Mortgage Loan during any Due Period shall be deemed collectively to
constitute the Scheduled Payment due on such Mortgage Loan in such Due Period.
SCHEDULED PRINCIPAL AMOUNT: As to any Distribution Date, an amount equal to
the amount described in clause (i)(b) of the definition of Senior Principal
Distribution Amount.
SCHEDULED PRINCIPAL BALANCE: With respect to (i) any Mortgage Loan as of
any Distribution Date, the principal balance of such Mortgage Loan at the close
of business on the Cut-off Date, after giving effect to principal payments due
on or before the Cut-off Date, whether or not received, less an amount equal to
principal payments due after the Cut-off Date and on or before the Due Date in
the related Due Period, whether or not received from the Mortgagor or advanced
by the applicable Servicer or the Master Servicer, and all amounts allocable to
unscheduled principal payments (including Principal Prepayments, Net Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the applicable Prepayment
Period) and (ii) any REO Property as of any Distribution Date, the Scheduled
Principal Balance of the related Mortgage Loan on the Due
36
Date immediately preceding the date of acquisition of such REO Property by or on
behalf of the Trustee (reduced by any amount applied as a reduction of principal
on the Mortgage Loan). With respect to any Mortgage Loan as of the Cut-off Date,
as specified in the Mortgage Loan Schedule or the Participation Schedule, as the
case may be.
SECURITY AGREEMENT: With respect to any Cooperative Loan, the agreement
between the owner of the related Cooperative Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Cooperative Shares and the related Proprietary Lease.
SELLER: Either of the Bank or Xxxxxx Capital, or any successor in interest.
SENIOR CERTIFICATE: Any Class 1-A1, Class 1-A2, Class 1-A3, Class 2-A1,
Class 2-A2, Class 3-A1, Class 3-A2, Class 4-A1, Class 4-A2, Class 5-A1, Class
5-A2 or Class R Certificate.
SENIOR ENHANCEMENT PERCENTAGE: For each Mortgage Group for any Distribution
Date the percentage equivalent of a fraction, the numerator of which is the
related Group Subordinate Amount or Group Subordinate Amounts and the
denominator of which is the related Pool Balance or Pool Balances of such
Mortgage Group for the immediately preceding Distribution Date.
SENIOR PERCENTAGE: With respect to each Mortgage Pool and any Distribution
Date, the percentage equivalent of the fraction, the numerator of which is the
aggregate of the Certificate Principal Amounts of the Class 1-A1, Class 1-A3 and
Class R Certificates, in the case of Pool 1, the Class 2-A1 Certificates, in the
case of Pool 2, the Class 3-A1 Certificates in the case of Pool 3, the Class
4-A1 Certificates, in the case of Pool 4 and the Class 5-A1 Certificates in the
case of Pool 5, in each case, immediately prior to such Distribution Date and
the denominator of which is the related Pool Balance for the immediately
preceding Distribution Date.
SENIOR PREPAYMENT PERCENTAGE: With respect to each Mortgage Pool and any
Distribution Date occurring during the seven years beginning on the first
Distribution Date, 100%, except as described herein below. With respect to each
Mortgage Pool and for any Distribution Date occurring on or after the seventh
anniversary of the first Distribution Date, the related Senior Percentage plus
the following percentage of the related Subordinate Percentage for such
Distribution Date: for any Distribution Date in the first year thereafter, 70%;
for any Distribution Date in the second year thereafter, 60%; for any
Distribution Date in the third year thereafter, 40%; for any Distribution Date
in the fourth year thereafter, 20%; and for any subsequent Distribution Date,
0%; provided, however, (i) if on any of the foregoing Distribution Dates the
Senior Enhancement Percentage for either Mortgage Group is less than the initial
Senior Enhancement Percentage for that Mortgage Group, the Senior Prepayment
Percentage for each Mortgage Pool on such Distribution Date shall once again
equal 100%, (ii) unless the condition described in (i) has occurred, if on any
Distribution Date before the Distribution Date in November 2005, prior to giving
effect to any distributions on such Distribution Date, the Senior Enhancement
Percentages for Mortgage Group I and Mortgage Group II for such Distribution
Date are greater than or equal to twice the initial Senior Enhancement
Percentages for such Mortgage Groups, then the Senior Prepayment Percentage for
each Mortgage Pool for such Distribution Date will equal the related Senior
Percentage plus 50% of the related Subordinate
37
Percentage for such Mortgage Pool and (iii) unless the condition described in
(i) has occurred, if on any Distribution Date on or after the Distribution Date
in November 2005, prior to giving effect to any distributions on such
Distribution Date, the Senior Enhancement Percentages for Mortgage Group I and
Mortgage Group II for such Distribution Date are greater than or equal to twice
the initial Senior Enhancement Percentages for such Mortgage Groups, then the
Senior Prepayment Percentage for each Mortgage Pool on such Distribution Date
will equal the related Senior Percentage.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage for any Mortgage Pool below the respective levels in effect for the
most recent prior period set forth in the paragraph above shall be effective on
any Distribution Date if, as of the first Distribution Date as to which any such
decrease applies, (i) the average outstanding principal balance on such
Distribution Date and for the preceding five Distribution Dates of all Mortgage
Loans in the related Mortgage Group that were delinquent 60 days or more
(including for this purpose any Mortgage Loans in foreclosure and the Scheduled
Payments that would have been due on Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust Fund if the related
Mortgage Loan had remained in existence) is greater than or equal to 50% of the
applicable Group Subordinate Amount (i.e., the Group Subordinate Amount of Pool
1 in the case of Mortgage Group I and the sum of the Group Subordinate Amounts
of Pool 2, Pool 3, Pool 4 and Pool 5 in the case of Mortgage Group II)
immediately prior to such Distribution Date or (ii) cumulative Realized Losses
with respect to the Mortgage Loans in the related Mortgage Group exceed (a) with
respect to the Distribution Date prior to the third anniversary of the first
Distribution Date, 20% of the related Original Group Subordinate Amounts (i.e.,
the Group Subordinate Amount of Pool 1 in the case of Mortgage Group I and the
sum of the Group Subordinate Amounts of Pool 2, Pool 3, Pool 4 and Pool 5 in the
case of Mortgage Group II), (b) with respect to the Distribution Date on or
after the third anniversary and prior to the sixth anniversary of the first
Distribution Date, 30% of the related Original Group Subordinate Amounts, (c)
with respect to the Distribution Date on or after the sixth anniversary and
prior to the seventh anniversary of the first Distribution Date, 35% of the
related Original Group Subordinate Amounts, (d) with respect to the Distribution
Date on or after the seventh anniversary and prior to the eighth anniversary of
the first Distribution Date, 40% of the related Original Group Subordinate
Amounts, (e) with respect to the Distribution Date on or after the eighth
anniversary and prior to the ninth anniversary of the first Distribution Date,
45% of the related Original Group Subordinate Amounts, and (f) with respect to
the Distribution Date on or after the ninth anniversary of the first
Distribution Date or thereafter, 50% of the related Original Group Subordinate
Amounts. After the Class Principal Amount of each Class of Senior Certificates
in any Certificate Group has been reduced to zero, the Senior Prepayment
Percentage for the related Mortgage Pool shall be 0%.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: For each Certificate Group and any
Distribution Date, the sum of the following amounts:
(i) the product of (a) the related Senior Percentage for such date and
(b) the principal portion of each Scheduled Payment (without giving effect
to any Debt Service Reduction occurring prior to the Bankruptcy Coverage
Termination Date), on each Mortgage Loan in the related Mortgage Pool due
during the related Due Period;
38
(ii) the product of (a) the related Senior Prepayment Percentage for
such date and (b) each of the following amounts: (1) each Principal
Prepayment on the Mortgage Loans in the related Mortgage Pool collected
during the related Prepayment Period, (2) each other unscheduled
collection, including Insurance Proceeds and Net Liquidation Proceeds
(other than with respect to any Mortgage Loan in the related Mortgage Pool
that was finally liquidated during the related Prepayment Period)
representing or allocable to recoveries of principal received during the
related Prepayment Period, and (3) the principal portion of all proceeds of
the purchase of any Mortgage Loan in the related Mortgage Pool (or, in the
case of a permitted substitution, amounts representing a principal
adjustment) actually received by the Trustee during the related Prepayment
Period;
(iii) with respect to unscheduled recoveries allocable to principal of
any Mortgage Loan in the related Mortgage Pool that was finally liquidated
during the related Prepayment Period, the lesser of (a) the related net
Liquidation Proceeds allocable to principal and (b) the product of the
related Senior Prepayment Percentage for such date and the Scheduled
Principal Balance of such related Mortgage Loan at the time of liquidation;
and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
If on any Distribution Date the Class Principal Amount of each Class of Senior
Certificates in any Certificate Group has been reduced to zero, the Senior
Principal Distribution Amount for such Certificate Group for such date
(following such reduction) and each subsequent Distribution Date shall be zero.
SERVICERS: Any Servicer that has entered into any of the Servicing
Agreements attached as Exhibit E hereto, or any successor in interest.
Initially, the Servicers are Aurora, Bank of America, N.A. and Cendant Mortgage
Corporation.
SERVICING ADVANCES: Expenditures incurred by a Servicer in connection with
the liquidation or foreclosure of a Mortgage Loan which are eligible for
reimbursement under the applicable Servicing Agreement.
SERVICING AGREEMENT: Each Servicing Agreement between a Servicer and the
Seller, dated as of October 1, 2002, attached hereto in Exhibit E, and any other
servicing agreement entered into between a successor servicer and the Seller or
the Trustee pursuant to the terms hereof and the Additional Collateral Servicing
Agreement.
SERVICING FEE: The Servicing Fee specified in the applicable Servicing
Agreement.
SERVICING FEE RATE: With respect to each Servicer, as specified in
applicable Servicing Agreements.
SERVICING OFFICER: Any officer of the Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on
39
a list of servicing officers furnished by the Master Servicer to the Trustee, as
such list may from time to time be amended.
SPECIAL HAZARD LOSS: With respect to the Mortgage Loans, (x) any Realized
Loss arising out of any direct physical loss or damage to a Mortgaged Property
which is caused by or results from any cause, exclusive of any loss covered by a
hazard policy or a flood insurance policy required to be maintained in respect
of such Mortgaged Property and any loss caused by or resulting from (i) normal
wear and tear, (ii) conversion or other dishonest act on the part of the
Trustee, the Master Servicer, any Servicer or any of their agents or employees,
or (iii) errors in design, faulty workmanship or faulty materials, unless the
collapse of the property or a part thereof ensues, or (y) any Realized Loss
arising from or related to the presence or suspected presence of hazardous
wastes, or hazardous substances on a Mortgaged Property unless such loss is
covered by a hazard policy or flood insurance policy required to be maintained
in respect of such Mortgaged Property, in any case, as reported by any Servicer
to the Master Servicer.
Special Hazard Loss Limit: As of the Cut-off Date, $12,914,727.00 which
amount shall be reduced in each case from time to time to an amount equal on any
Distribution Date to the lesser of (a) the greatest of (i) 1% of the aggregate
of the Scheduled Principal Balances of the Mortgage Loans; (ii) twice the
Scheduled Principal Balance of the Mortgage Loan having the highest Scheduled
Principal Balance, and (iii) the aggregate Scheduled Principal Balances of the
Mortgage Loans secured by Mortgaged Properties located in the single California
postal zip code area having the highest aggregate Scheduled Principal Balance of
any such postal zip code area and (b) the Special Hazard Loss Limit as of the
Closing Date less the amount, if any, of Special Hazard Losses incurred since
the Closing Date.
SPECIFIED RATING: Not applicable.
STARTUP DAY: The day designated as such pursuant to Section 10.01(b)
hereof.
SUBORDINATE CERTIFICATE: Any Class B Certificate including any Component
thereof.
SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: On any Distribution Date on or
prior to the date on which the aggregate Certificate Principal Amount of the
Class B3, Class B4, Class B5 and Class B6 Certificates is reduced to zero, the
amount by which (i) the total Certificate Principal Amount of all of the
Certificates on any Distribution Date (after giving effect to distributions of
principal and allocation of Realized Losses in reduction of the Certificate
Principal Amounts of the Certificates on such Distribution Date) exceeds (ii)
the total Scheduled Principal Balance of the Mortgage Loans in Pool 1, Pool 2,
Pool 3, Pool 4 and Pool 5 for the related Distribution Date. On the Distribution
Date on which the aggregate Certificate Principal Amount of the Class B3, Class
B4, Class B5 and Class B6 Certificates is reduced to zero, the portion of any
Realized Loss in excess of the amount necessary to reduce the aggregate
Certificate Principal Amount of the Class B3, Class B4, Class B5 and Class B6
Certificates to zero shall be treated in accordance with one of the two
succeeding sentences, as applicable, and allocated between the Subordinate
Certificates related to Mortgage Group I and the Subordinate Certificates
related to Mortgage Group II based on the ratio of Realized Losses for Mortgage
Group I to Realized Losses for Mortgage Group II with respect to such
Distribution Date. On any Distribution Date following the date on which the
aggregate Certificate Principal Amount of
40
the Class B3, Class B4, Class B5 and Class B6 Certificates has been reduced to
zero, the Certificate Principal Amount of the lowest ranking Class of
Subordinate Certificates then outstanding related to Mortgage Group I (i.e.,
Class B2-I and Class B1-I Certificates) will also be reduced by the amount of
any subsequent Realized Losses on Mortgage Group I. On any Distribution Date
following the date on which the aggregate Certificate Principal Amount of the
Class B3, Class B4, Class B5 and Class B6 Certificates has been reduced to zero,
the Certificate Principal Amount of the lowest ranking Class of Subordinate
Certificates then outstanding related to Mortgage Group II (i.e., Class B2-II
and Class B1-II Certificates) will also be reduced by the amount of any
subsequent Realized Losses on Mortgage Group II.
SUBORDINATE CLASS PERCENTAGE: With respect to any Distribution Date and any
Class or Component of Subordinate Certificates (exclusive of the Class B1-I-X
and Class B2-I-X Certificates), the percentage obtained by dividing the Class
Principal Amount of such Class or Component immediately prior to such
Distribution Date by the aggregate Certificate Principal Amount of all
Subordinate Certificates designated with the same roman numeral (i.e., "I" or
"II") immediately prior to such Distribution Date.
SUBORDINATE COMPONENT PERCENTAGE: Not applicable.
SUBORDINATE PERCENTAGE: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior Percentage
for such Distribution Date.
SUBORDINATE PREPAYMENT PERCENTAGE: With respect to each Mortgage Pool and
any Distribution Date, the difference between 100% and the related Senior
Prepayment Percentage for such Distribution Date.
SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT: For each Mortgage Pool and any
Distribution Date, the sum of the following:
(i) the product of (a) the related Subordinate Percentage for such
date and (b) the principal portion of each Scheduled Payment (without
giving effect to any Debt Service Reduction occurring prior to the
applicable Bankruptcy Coverage Termination Date) on each Mortgage Loan in
the related Mortgage Pool due during the related Due Period;
(ii) the product of (a) the related Subordinate Prepayment Percentage
for such date and (b) each of the following amounts: (1) each Principal
Prepayment on the Mortgage Loans in the related Mortgage Pool collected
during the related Prepayment Period, (2) each other unscheduled
collection, including Insurance Proceeds and Net Liquidation Proceeds
(other than with respect to any Mortgage Loan in the related Mortgage Pool
that was finally liquidated during the related Prepayment Period)
representing or allocable to recoveries of principal received during the
related Prepayment Period, and (3) the principal portion of all proceeds of
the purchase of any Mortgage Loan in the related Mortgage Pool (or, in the
case of a permitted substitution, amounts representing a principal
adjustment) actually received by the Trustee during the related Prepayment
Period;
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(iii) with respect to unscheduled recoveries allocable to principal of
any Mortgage Loan in the related Mortgage Pool that was finally liquidated
during the related Prepayment Period, the related net Liquidation Proceeds
allocable to principal less any related amount paid pursuant to subsection
(iii) of the definition of Senior Principal Distribution Amount for the
related Certificate Group; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid;
SURETY: Ambac Assurance Corporation, or its successors in interest.
SURETY BOND: The Limited Purpose Surety Bond (Policy No. AB0039BE), dated
February 28, 1996 (as amended subsequent to the date thereof), issued by the
Surety for the benefit of certain beneficiaries, including the Trustee for the
benefit of the Holders of the Certificates, but only to the extent that such
Limited Purpose Surety Bond covers any Pledged Asset Mortgage Loans.
TAX MATTERS PERSON: The "tax matters person" as specified in the REMIC
Provisions.
TERMINATION PRICE: As defined in Section 7.01 hereof.
TITLE INSURANCE POLICY: A title insurance policy maintained with respect to
a Mortgage Loan.
TRANSFER AGREEMENT: As defined in the Mortgage Loan Sale Agreement.
TRANSFEROR: Each seller of Mortgage Loans to the Bank or Xxxxxx Capital
pursuant to a Transfer Agreement.
TRUST FUND: The corpus of the trust created pursuant to this Agreement,
consisting of the Mortgage Loans (other than any Retained Interest), the
assignment of the Depositor's rights under the Mortgage Loan Sale Agreement and
the Participation Agreement, the Participations, the Additional Collateral, such
amounts as shall from time to time be held in the Collection Account, the
Certificate Account, any Escrow Account, the Insurance Policies, any REO
Property, and the other items referred to in, and conveyed to the Trustee under,
Section 2.01(a).
TRUST RATE: Not applicable.
TRUSTEE: JPMorgan Chase Bank, not in its individual capacity but solely as
Trustee, or any successor in interest, or if any successor trustee or any
co-trustee shall be appointed as herein provided, then such successor trustee
and such co-trustee, as the case may be.
TRUSTEE FEE: As to any Distribution Date and each Mortgage Pool, an amount
equal to the product of the Trustee Fee Rate and the aggregate Scheduled
Principal Balance of the Mortgage Loans in such Mortgage Pool.
TRUSTEE FEE RATE: 0.0040% per annum.
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UNCERTIFICATED PRINCIPAL BALANCE: With respect to any Lower Tier REMIC
Regular Interest or Middle Tier REMIC Regular Interest as of any Distribution
Date, the initial principal amount of such regular interest, reduced by (i) all
amounts distributed on previous Distribution Dates on such regular interest with
respect to principal, (ii) the principal portion of all Realized Losses
allocated prior to such Distribution Date to such regular interest and (iii) in
the case of a Middle Tier REMIC Regular Interest, such regular interest's share,
if any, of the applicable Subordinate Certificate Writedown Amount allocated to
such regular interest's Corresponding Certificates for previous Distribution
Dates.
UNDERCOLLATERALIZATION DISTRIBUTION: As defined in Section 5.02(g)(ii).
UNDERCOLLATERALIZED GROUP: With respect to any Distribution Date, the
Senior Certificates of any Certificate Group as to which the aggregate
Certificate Principal Amount thereof, after giving effect to distributions
pursuant to Sections 5.02(a) and (b) on such date, is greater than the Pool
Balance of the related Mortgage Pool for such Distribution Date.
UNDERLYING SUBORDINATE RATES: The Pool 1 Underlying Subordinate Rate and
the Pool 2-5 Underlying Subordinate Rate.
UNDERWRITER'S EXEMPTION: Prohibited Transaction Exemption 91-14, 56 Fed.
Reg. 7413 (1991), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor.
UPPER TIER REMIC: One of the separate REMICs as described in the
Preliminary Statement hereto.
VOTING INTERESTS: The portion of the voting rights of all the Certificates
that is allocated to any Certificate for purposes of the voting provisions of
this Agreement. At all times during the term of this Agreement until the Class
Notional Amount of each Class of Notional Certificates has been reduced to zero,
93% of all Voting Interests shall be allocated to the Certificates other than
the Notional Certificates and the Class P Certificates, and 5% of all Voting
Interests shall be allocated to the Notional Certificates, 1% shall be allocated
to the Class P-I Certificates and 1% shall be allocated to the Class P-II
Certificates. After the Class Notional Amount of each Class of Notional
Certificates has been reduced to zero, 98% of all Voting Interests shall be
allocated to the remaining Classes of Certificates other than the Class P
Certificates. Voting Interests allocated to the Notional Certificates shall be
allocated among the Classes of such Certificates (and among the Certificates of
each such Class) in proportion to their Class Notional Amounts (or Notional
Amounts). Voting Interests shall be allocated among the other Classes of
Certificates (and among the Certificates of each such Class) in proportion to
their Class Principal Amounts (or Certificate Principal Amounts).
Section 1.02. Calculations Respecting Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect to
any Mortgage Loan in the Trust Fund shall be made based upon current information
as to the terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans and payments to be made to the Trustee by the
Master Servicer as supplied to the Trustee by the Master Servicer. The Trustee
shall not be required to recompute, verify or recalculate the information
supplied to it by the Master Servicer.
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ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. CREATION AND DECLARATION OF TRUST FUND; CONVEYANCE OF
MORTGAGE LOANS.
(a) Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, subject to Sections 2.02, 2.04, 2.05
and 2.06, in trust, all the right, title and interest of the Depositor in and to
the Mortgage Loans (including the Participations). Such conveyance includes,
without limitation, the right to all distributions of principal and interest
received on or with respect to the Mortgage Loans on and after the Cut-off Date
(other than payments of principal and interest due on or before such date), and
all such payments due after such date but received prior to such date and
intended by the related Mortgagors to be applied after such date, together with
all of the Depositor's right, title and interest in and to the Collection
Account and all amounts from time to time credited to and the proceeds of the
Collection Account, the Certificate Account and all amounts from time to time
credited to and the proceeds of the Certificate Account, any Escrow Account
established pursuant to Section 9.06 hereof and all amounts from time to time
credited to and the proceeds of any such Escrow Account, any REO Property and
the proceeds thereof, the Depositor's rights under any Insurance Policies
related to the Mortgage Loans, and the Depositor's security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any Additional Collateral, and any proceeds of the foregoing, to
have and to hold, in trust; and the Trustee declares that, subject to the review
provided for in Section 2.02, it has received and shall hold the Trust Fund, as
trustee, in trust, for the benefit and use of the Holders of the Certificates
and for the purposes and subject to the terms and conditions set forth in this
Agreement, and, concurrently with such receipt, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, in exchange
for the Trust Fund, Certificates in the authorized denominations evidencing the
entire ownership of the Trust Fund.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest under
the Mortgage Loan Sale Agreement; including all rights of the Seller under the
applicable Servicing Agreement to the extent assigned under the Mortgage Loan
Sale Agreement. The Trustee hereby accepts such assignment, and shall be
entitled to exercise all rights of the Depositor under the Mortgage Loan Sale
Agreement as if, for such purpose, it were the Depositor. The foregoing sale,
transfer, assignment, set-over, deposit and conveyance does not and is not
intended to result in creation or assumption by the Trustee of any obligation of
the Depositor, the Seller, or any other Person in connection with the Mortgage
Loans or any other agreement or instrument relating thereto except as
specifically set forth herein.
In addition, with respect to any Pledged Asset Mortgage Loan, the Depositor
does hereby transfer, assign, set-over and otherwise convey to the Trustee
without recourse (except as provided herein) (i) its rights as assignee under
any security agreements, pledge agreements or guarantees relating to the
Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its
security interest in and to any Additional Collateral, (iii) its right to
receive payments in
44
respect of any Pledged Asset Mortgage Loan pursuant to the Additional Collateral
Servicing Agreement, and (iv) its rights as beneficiary under the Surety Bond in
respect of any Pledged Asset Mortgage Loan. Notwithstanding anything to the
contrary in this Agreement, the Trust Fund shall not obtain title to or
beneficial ownership of any Additional Collateral as a result of or in lieu of
the disposition thereof or otherwise.
(b) In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, or cause to be delivered to and deposited
with, the Trustee, and/or any custodian acting on the Trustee's behalf, if
applicable, the following documents or instruments with respect to each Mortgage
Loan (each a "Mortgage File") so transferred and assigned (other than the
Participations):
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee, or in
blank (in each case, with all necessary intervening endorsements as
applicable);
(ii) the original of any guarantee, security agreement or pledge
agreement relating to any Additional Collateral and executed in connection
with the Mortgage Note, assigned to the Trustee;
(iii) with respect to each Mortgage Loan other than a Cooperative
Loan, the original recorded Mortgage with evidence of recording indicated
thereon and the original recorded power of attorney, if the Mortgage was
executed pursuant to a power of attorney, with evidence of recording
thereon or, if such Mortgage or power of attorney has been submitted for
recording but has not been returned from the applicable public recording
office, has been lost or is not otherwise available, a copy of such
Mortgage or power of attorney, as the case may be, certified to be a true
and complete copy of the original submitted for recording. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has
been lost, the Depositor shall deliver or cause to be delivered to the
Trustee (or its custodian), in the case of a delay due to recording, a true
copy of such Mortgage, pending delivery of the original thereof, together
with an Officer's Certificate of the Depositor certifying that the copy of
such Mortgage delivered to the Trustee (or its custodian) is a true copy
and that the original of such Mortgage has been forwarded to the public
recording office, or, in the case of a Mortgage that has been lost, a copy
thereof (certified as provided for under the laws of the appropriate
jurisdiction) and a written Opinion of Counsel acceptable to the Trustee
and the Depositor that an original recorded Mortgage is not required to
enforce the Trustee's interest in the Mortgage Loan;
(iv) the original of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused by the
public recording office where such assumption, modification or substitution
agreement has been delivered for recordation, a photocopy of such
assumption, modification or substitution agreement, pending delivery of the
original
45
thereof, together with an Officer's Certificate of the Depositor certifying
that the copy of such assumption, modification or substitution agreement
delivered to the Trustee (or its custodian) is a true copy and that the
original of such agreement has been forwarded to the public recording
office;
(v) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each Mortgage
Loan;
(vi) if applicable, such original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete chain of
assignment from the originator, or, in the case of an Intervening
Assignment that has been lost, a written Opinion of Counsel acceptable to
the Trustee that such original Intervening Assignment is not required to
enforce the Trustee's interest in the Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or certificate,
if private mortgage guaranty insurance is required;
(viii) with respect to each Mortgage Loan other than a Cooperative
Loan, the original mortgagee title insurance policy or attorney's opinion
of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage or as to any security
agreement, chattel mortgage or their equivalent that cannot be delivered on
or prior to the Closing Date because of a delay caused by the public
recording office where such document has been delivered for recordation, a
photocopy of such document, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying that the
copy of such security agreement, chattel mortgage or their equivalent
delivered to the Trustee (or its custodian) is a true copy and that the
original of such document has been forwarded to the public recording
office; and
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
With respect to each Participation, the Depositor does hereby deliver to,
and deposit with, or cause to be delivered to and deposited with, the Trustee,
and/or any custodian acting on the Trustee's behalf, a copy of the Participation
Agreement and the original Participation issued to the Trustee.
(c) (i) Assignments of Mortgage with respect to each Non-MERS Mortgage Loan
other than a Cooperative Loan shall be recorded; provided, however, that such
Assignments need not be recorded if, in the Opinion of Counsel (which must be
from Independent counsel) acceptable to the Trustee and the Rating Agencies,
recording in such states is not required to protect the Trustee's interest in
the related Non-MERS Mortgage Loans. Subject to the preceding sentence, as soon
as practicable after the Closing Date (but in no event more than 3 months
thereafter
46
except to the extent delays are caused by the applicable recording office), the
Trustee (or its custodian), at the expense of the Depositor and with the
cooperation of the applicable Servicer, shall cause to be properly recorded by
such Servicer in each public recording office where the related Mortgages are
recorded each Assignment of Mortgage referred to in subsection (b)(v) above with
respect to a Non-MERS Mortgage Loan. With respect to each Cooperative Loan, the
Trustee (or its custodian), at the expense of the Depositor and with the
cooperation of the applicable Servicer, shall cause such Servicer to take such
actions as are necessary under applicable law in order to perfect the interest
of the Trustee in the related Mortgaged Property.
(ii) With respect to each MERS Mortgage Loan, the Trustee (or its
custodian), at the expense of the Depositor and with the cooperation of the
applicable Servicer, shall cause to be taken such actions by such Servicer as
are necessary to cause the Trustee to be clearly identified as the owner of each
such Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
(d) In instances where a Title Insurance Policy is required to be delivered
to the Trustee, or to the applicable Custodian on behalf of the Trustee, under
clause (b)(viii) above and is not so delivered, the Depositor will provide a
copy of such Title Insurance Policy to the Trustee, or to the applicable
Custodian on behalf of the Trustee, as promptly as practicable after the
execution and delivery hereof, but in any case within 180 days of the Closing
Date.
(e) For Mortgage Loans (if any) that 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, herewith delivers to the Trustee, or to the applicable
Custodian on behalf of the Trustee, an Officer's Certificate which shall include
a statement to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the applicable Collection
Account pursuant to Section 4.01 have been so deposited. All original documents
that are not delivered to the Trustee or the applicable Custodian on behalf of
the Trustee shall be held by the Master Servicer or the applicable Servicer in
trust for the benefit of the Trustee and the Certificateholders.
Section 2.02. ACCEPTANCE OF TRUST FUND BY TRUSTEE: REVIEW OF DOCUMENTATION
FOR TRUST FUND.
(a) The Trustee, or the applicable custodian on behalf of the Trustee, by
execution and delivery hereof, acknowledges receipt of the Participations and
the Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage Loan
Schedule, subject to review thereof by the Trustee, or by the applicable
Custodian on behalf of the Trustee, under this Section 2.02. The Trustee, or the
applicable Custodian on behalf of the Trustee, will execute and deliver to the
Trustee, the Depositor and the Master Servicer on the Closing Date an Initial
Certification in the form annexed hereto as Exhibit B-1 (or in the form annexed
to the applicable Custodial Agreement as Exhibit B-1, as applicable).
(b) Within 45 days after the Closing Date, the applicable Custodian will,
on behalf of the Trustee and for the benefit of Holders of the Certificates,
review each Mortgage File to ascertain that all required documents set forth in
Section 2.01 have been received and appear on their face
47
to contain the requisite signatures by or on behalf of the respective parties
thereto, and shall deliver to the Trustee, the Depositor and the Master Servicer
an Interim Certification in the form annexed hereto as Exhibit B-2 (or in the
form annexed to the applicable Custodial Agreement as Exhibit B-2, as
applicable) to the effect that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan prepaid in full or any Mortgage Loan
specifically identified in such certification as not covered by such
certification), (i) all of the applicable documents specified in Section 2.01(b)
are in its possession and (ii) such documents have been reviewed by it and
appear to relate to such Mortgage Loan. The Trustee, or the applicable Custodian
on behalf of the Trustee, shall make sure that the documents are executed and
endorsed, but shall be under no duty or obligation to inspect, review or examine
any such documents, instruments, certificates or other papers to determine that
the same are valid, binding, legally effective, properly endorsed, genuine,
enforceable or appropriate for the represented purpose or that they have
actually been recorded or are in recordable form or that they are other than
what they purport to be on their face. Neither the Trustee nor any Custodian
shall have any responsibility for verifying the genuineness or the legal
effectiveness of or authority for any signatures of or on behalf of any party or
endorser.
(c) If in the course of the review described in paragraph (b) above the
Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear regular
on its face (i.e., is mutilated, damaged, defaced, torn or otherwise physically
altered) or appears to be unrelated to the Mortgage Loans identified in the
Mortgage Loan Schedule (each, a "Material Defect"), the Trustee, or the
applicable Custodian on behalf of the Trustee, shall promptly identify the
Mortgage Loan to which such Material Defect relates in the Interim Certificate
delivered to the Depositor or the Master Servicer (and to the Trustee). Within
90 days of its receipt of such notice, the Depositor shall be required to cure
such Material Defect (and, in such event, the Depositor shall provide the
Trustee with an Officer's Certificate confirming that such cure has been
effected). If the Depositor does not so cure such Material Defect, it shall, if
a loss has been incurred with respect to such Mortgage Loan that would, if such
Mortgage Loan were not purchased from the Trust Fund, constitute a Realized
Loss, and such loss is attributable to the failure of the Depositor to cure such
Material Defect, repurchase the related Mortgage Loan from the Trust Fund at the
Purchase Price. A loss shall be deemed to be attributable to the failure of the
Depositor to cure a Material Defect if, as determined by the Depositor, upon
mutual agreement with the Servicer acting in good faith, absent such Material
Defect, such loss would not have been incurred. Within the two-year period
following the Closing Date, the Depositor may, in lieu of repurchasing a
Mortgage Loan pursuant to this Section 2.02, substitute for such Mortgage Loan a
Qualifying Substitute Mortgage Loan subject to the provisions of Section 2.05.
The failure of the Trustee or the applicable Custodian to give the notice
contemplated herein within 45 days after the Closing Date shall not affect or
relieve the Depositor of its obligation to repurchase any Mortgage Loan pursuant
to this Section 2.02 or any other Section of this Agreement requiring the
repurchase of Mortgage Loans from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Trustee, the Depositor and the Master
Servicer a Final Certification substantially in the form annexed hereto as
Exhibit B-3 (or in the form annexed to the applicable Custodial Agreement as
Exhibit B-3, as applicable) evidencing the completeness of the Mortgage Files in
its possession or control, with any exceptions noted thereto.
48
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and deliver the respective
certifications thereof as provided in this Section 2.02.
Section 2.03. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
(a) The Depositor hereby represents and warrants to the Trustee, for the
benefit of Certificateholders, and to the Master Servicer, as of the Closing
Date or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry on
its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(ii) 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; 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 certificate of incorporation or bylaws of the Depositor;
(iii) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee and the Master Servicer, constitutes a valid and binding obligation
of the Depositor enforceable against it in accordance with its terms except
as such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) 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
49
the Depositor materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement; and
(vi) immediately prior to the transfer and assignment of the Mortgage
Loans to the Trustee, the Depositor was the sole owner of record and holder
of each Mortgage Loan, and the Depositor had good and marketable title
thereto, and had full right to transfer and sell each Mortgage Loan to the
Trustee free and clear, subject only to (1) liens of current real property
taxes and assessments not yet due and payable and, if the related Mortgaged
Property is a condominium unit, any lien for common charges permitted by
statute, (2) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of
such Mortgage acceptable to mortgage lending institutions in the area in
which the related Mortgaged Property is located and specifically referred
to in the lender's Title Insurance Policy or attorney's opinion of title
and abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly subject
which do not, individually or in the aggregate, materially interfere with
the benefits of the security intended to be provided by the Mortgage, of
any encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest, and had full right and authority, subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Mortgage Loan pursuant to this Agreement.
(b) The representations and warranties of each Transferor with respect to
the related Mortgage Loans in the applicable Transfer Agreement, which have been
assigned to the Trustee hereunder, were made as of the date specified in the
applicable Transfer Agreement (or underlying agreement, if such Transfer
Agreement is in the form of an assignment of a prior agreement). To the extent
that any fact, condition or event with respect to a Mortgage Loan constitutes a
breach of both (i) a representation or warranty of the applicable Transferor
under the applicable Transfer Agreement and (ii) a representation or warranty of
Xxxxxx Capital or the Bank under the Mortgage Loan Sale Agreement, the only
right or remedy of the Trustee or of any Certificateholder shall be the
Trustee's right to enforce the obligations of the applicable Transferor under
any applicable representation or warranty made by it. The Trustee acknowledges
that Xxxxxx Capital or the Bank shall have no obligation or liability with
respect to any breach of a representation or warranty made by it with respect to
the Mortgage Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the applicable
Transferor in the applicable Transfer Agreement, without regard to whether such
Transferor fulfills its contractual obligations in respect of such
representation or warranty. The Trustee further acknowledges that the Depositor
shall have no obligation or liability with respect to any breach of any
representation or warranty with respect to the Mortgage Loans (except as set
forth in Section 2.03(a)(vi)) under any circumstances.
Section 2.04. DISCOVERY OF BREACH.
It is understood and agreed that the representations and warranties (i) set
forth in Section 2.03 and (ii) of Xxxxxx Capital or the Bank set forth in the
Mortgage Loan Sale Agreement and assigned to the Trustee by the Depositor
hereunder and (iii) of each Transferor, assigned by Xxxxxx Capital or the Bank
to the Depositor pursuant to the Mortgage Loan Sale Agreement
50
and assigned to the Trustee by the Depositor hereunder shall each survive
delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage
Loan to the Trustee and shall continue throughout the term of this Agreement.
Upon discovery by either the Depositor, the Master Servicer or the Trustee of a
breach of any of such representations and warranties that adversely and
materially affects the value of the related Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties. Within 90
days of the discovery of a breach of any representation or warranty given to the
Trustee by the Depositor, any Transferor, Xxxxxx Capital or the Bank and
assigned to the Trustee, the Depositor, such Transferor, Xxxxxx Capital or the
Bank, as applicable, shall either (a) cure such breach in all material respects,
(b) repurchase such Mortgage Loan or any property acquired in respect thereof
from the Trustee at the Purchase Price or (c) within the two year period
following the Closing Date, substitute a Qualifying Substitute Mortgage Loan for
the affected Mortgage Loan. In the event of discovery of a breach of any
representation and warranty of any Transferor assigned to the Trustee shall
enforce its rights under the applicable Transfer Agreement and the Mortgage Loan
Sale Agreement for the benefit of Certificateholders. As provided in the
Mortgage Loan Sale Agreement, if any Transferor substitutes for a Mortgage Loan
for which there is a breach of any representations and warranties in the related
Transfer Agreement which adversely and materially affects the value of such
Mortgage Loan and such substitute mortgage loan is not a Qualifying Substitute
Mortgage Loan, under the terms of the Mortgage Loan Sale Agreement, Xxxxxx
Capital or the Bank will, in exchange for such substitute Mortgage Loan, (i)
provide the applicable Purchase Price for the affected Mortgage Loan or (ii)
within two years of the Closing Date, substitute such affected Mortgage Loan
with a Qualifying Substitute Mortgage Loan.
Section 2.05. REPURCHASE, PURCHASE OR SUBSTITUTION OF MORTGAGE LOANS.
(a) With respect to any Mortgage Loan repurchased by the Depositor pursuant
to this Agreement, by Xxxxxx Capital or the Bank pursuant to the Mortgage Loan
Sale Agreement or by any Transferor pursuant to the applicable Transfer
Agreement, the principal portion of the funds received by the Master Servicer in
respect of such repurchase of a Mortgage Loan will be considered a Principal
Prepayment and shall be deposited in the Collection Account pursuant to Section
4.01. The Trustee, upon receipt of the full amount of the Purchase Price for a
Deleted Mortgage Loan, or upon receipt of the Mortgage File for a Qualifying
Substitute Mortgage Loan substituted for a Deleted Mortgage Loan (and any
applicable Substitution Amount), shall release or cause to be released and
reassign to the Depositor, Xxxxxx Capital or the applicable Transferor, as
applicable, the related Mortgage File for the Deleted Mortgage Loan and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as shall be necessary to vest in
such party or its designee or assignee title to any Deleted Mortgage Loan
released pursuant hereto, free and clear of all security interests, liens and
other encumbrances created by this Agreement, which instruments shall be
prepared by the Trustee (or its custodian), and the Trustee shall have no
further responsibility with respect to the Mortgage File relating to such
Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor, the Bank or Xxxxxx Capital, as applicable, must deliver
to the Trustee (or its custodian) the Mortgage File for the Qualifying
Substitute Mortgage Loan containing the documents set forth in Section 2.01(b)
along with a
51
written certification certifying as to the delivery of such Mortgage File and
containing the granting language set forth in Section 2.01(a); and (ii) the
Depositor will be deemed to have made, with respect to such Qualified Substitute
Mortgage Loan, each of the representations and warranties made by it with
respect to the related Deleted Mortgage Loan. As soon as practicable after the
delivery of any Qualifying Substitute Mortgage Loan hereunder, the Trustee, at
the expense of the Depositor and at the direction and with the cooperation of
the applicable Servicer, shall (i) with respect to a Qualifying Substitute
Mortgage Loan that is a Non-MERS Mortgage Loan, cause the Assignment of Mortgage
to be recorded by such Servicer if required pursuant to Section 2.01(c)(i), or
(ii) with respect to a Qualifying Substitute Mortgage Loan that is a MERS
Mortgage Loan, cause to be taken such actions by such Servicer as are necessary
to cause the Trustee to be clearly identified as the owner of each such Mortgage
Loan on the records of MERS if required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Qualifying Substitute Mortgage
Loan for a Deleted Mortgage Loan shall be made unless the Trustee has received
an Opinion of Counsel (at the expense of the party seeking to make the
substitution) that, under current law, such substitution will not (A) affect
adversely the status of any REMIC established hereunder as a REMIC, or of the
related "regular interests" as "regular interests" in any such REMIC, or (B)
cause any such REMIC to engage in a "prohibited transaction" or prohibited
contribution pursuant to the REMIC Provisions. The Depositor shall cause the
Mortgage Loan Schedule to be amended in accordance with the terms of this
Agreement.
Section 2.06. GRANT CLAUSE.
It is intended that the conveyance of the Depositor's right, title and
interest in and to property constituting the Trust Fund pursuant to this
Agreement shall constitute, and shall be construed as, a sale of such property
and not a grant of a security interest to secure a loan. However, if such
conveyance is deemed to be in respect of a loan, it is intended that: (i) the
rights and obligations of the parties shall be established pursuant to the terms
of this Agreement; (ii) the Depositor hereby grants to the Trustee for the
benefit of the Holders of the Certificates a first priority security interest in
all of the Depositor's right, title and interest in, to and under, whether now
owned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting the Trust Fund to secure payment of the Certificates; and
(iii) this Agreement shall constitute a security agreement under applicable law.
If such conveyance is deemed to be in respect of a loan and the Trust created by
this Agreement terminates prior to the satisfaction of the claims of any Person
holding any Certificate, the security interest created hereby shall continue in
full force and effect and the Trustee shall be deemed to be the collateral agent
for the benefit of such Person, and all proceeds shall be distributed as herein
provided.
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ARTICLE III
THE CERTIFICATES
Section 3.01. THE CERTIFICATES.
(a) The Certificates shall be issuable in registered form only and shall be
securities governed by Article 8 of the New York Uniform Commercial Code. The
Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the dollar denominations in
Certificate Principal Amount or Notional Principal Amount, as applicable, or in
the Percentage Interests, specified herein. Each Class of Book-Entry
Certificates shall be issued in the minimum denominations in Certificate
Principal Amount (or Notional Amount) or Percentage Interest specified in the
Preliminary Statement hereto and in integral multiples of $1 or 5% (in the case
of Certificates issued in Percentage Interests) in excess thereof. Each Class of
Non-Book Entry Certificates other than the Residual Certificate shall be issued
in definitive, fully registered form in the minimum denominations in Certificate
Principal Amount (or Notional Amount) specified in the Preliminary Statement
hereto and in integral multiples of $1 in excess thereof. The Residual
Certificate shall be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 25% of the
Percentage Interest of such Class. The Certificates may be issued in the form of
typewritten certificates. One Certificate of each Class of Certificates other
than any Class of Residual Certificates may be issued in any denomination in
excess of the minimum denomination.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Each Certificate shall, on
original issue, be authenticated by the Trustee upon the order of the Depositor
upon receipt by the Trustee of the Mortgage Files described in Section 2.01. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by an
authorized officer of the Trustee or the Authenticating Agent, if any, by manual
signature, and such certification 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. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver such
Certificates as in this Agreement provided and not otherwise.
(c) The Class B4, Class B5 or Class B6 Certificates offered and sold in
reliance on the exemption from registration under Rule 144A shall be issued
initially in the form of one or more permanent global Certificates in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A added to the forms of such Certificates (each, a
"Restricted Global Security"), which shall be deposited on behalf of the
subscribers for such Certificates represented thereby with the Trustee, as
custodian for DTC and registered in the name of a nominee of DTC, duly executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Restricted Global Securities may from time to
53
time be increased or decreased by adjustments made on the records of the Trustee
or DTC or its nominee, as the case may be, as hereinafter provided.
The Class B4, Class B5 or Class B6 Certificates sold in offshore
transactions in reliance on Regulation S shall be issued initially in the form
of one or more permanent global Certificates in definitive, fully registered
form without interest coupons with the applicable legends set forth in Exhibit A
hereto added to the forms of such Certificates (each, a "Regulation S Global
Security"), which shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for DTC and
registered in the name of a nominee of DTC, duly executed and authenticated by
the Trustee as hereinafter provided. The aggregate principal amounts of the
Regulation S Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee or DTC or its nominee, as the
case may be, as hereinafter provided.
(d) The Class B4, Class B5 or Class B6 Certificates sold to an "accredited
investor" under Rule 501(a)(1), (2), (3) or (7) under the Act shall be issued
initially in the form of one or more Definitive Certificates.
Section 3.02. REGISTRATION.
The Trustee is hereby appointed, and hereby accepts its appointment as,
Certificate Registrar in respect of the Certificates and shall maintain books
for the registration and for the transfer of Certificates (the "Certificate
Register"). The Trustee may appoint a bank or trust company to act as
Certificate Registrar. A registration book shall be maintained for the
Certificates collectively. The Certificate Registrar may resign or be discharged
or removed and a new successor may be appointed in accordance with the
procedures and requirements set forth in Sections 6.06 and 6.07 hereof with
respect to the resignation, discharge or removal of the Trustee and the
appointment of a successor Trustee. The Certificate Registrar may appoint, by a
written instrument delivered to the Holders and the Master Servicer, any bank or
trust company to act as co-registrar under such conditions as the Certificate
Registrar may prescribe; provided, however, that the Certificate Registrar shall
not be relieved of any of its duties or responsibilities hereunder by reason of
such appointment.
Section 3.03. TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall be
satisfactory to the Certificate Registrar. Upon the transfer of any Certificate
in accordance with the preceding sentence, the Trustee shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver to the
transferee, one or more new Certificates of the same Class and evidencing, in
the aggregate, the same aggregate Certificate Principal Amount as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum
54
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number of
new Certificates of the same Class, in authorized denominations, representing in
the aggregate the same Certificate Principal Amount as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the office of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of transfer duly executed by such Holder or his duly authorized attorney in such
form as is satisfactory to the Certificate Registrar. Certificates delivered
upon any such exchange will evidence the same obligations, and will be entitled
to the same rights and privileges, as the Certificates surrendered. No service
charge shall be made to a Certificateholder for any exchange of Certificates,
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
exchange of Certificates. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, and the Trustee or the Authenticating Agent
shall authenticate, date and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate or a Regulation S Global
Security, whether upon original issuance or subsequent transfer, each Holder of
such a Certificate acknowledges the restrictions on the transfer of such
Certificate set forth thereon and agrees that it will transfer such a
Certificate only as provided herein. In addition, each Holder of a Regulation S
Global Security shall be deemed to have represented and warranted to the
Trustee, the Certificate Registrar and any of their respective successors that:
(i) such Person is not a U.S. person within the meaning of Regulation S and was,
at the time the buy order was originated, outside the United States and (ii)
such Person understands that such Certificates have not been registered under
the Securities Act of 1933, as amended (the "Act"), and that (x) until the
expiration of the 40-day distribution compliance period (within the meaning of
Regulation S), no offer, sale, pledge or other transfer of such Certificates or
any interest therein shall be made in the United States or to or for the account
or benefit of a U.S. person (each as defined in Regulation S), (y) if in the
future it decides to offer, resell, pledge or otherwise transfer such
Certificates, such Certificates may be offered, resold, pledged or otherwise
transferred only (A) to a person which the seller reasonably believes is a
"qualified institutional buyer" (a "QIB") as defined in Rule 144A under the Act,
that is purchasing such Certificates for its own account or for the account of a
qualified institutional buyer to which notice is given that the transfer is
being made in reliance on Rule 144A or (B) in an offshore transaction (as
defined in Regulation S) in compliance with the provisions of Regulation S, in
each case in compliance with the requirements of this Agreement; and it will
notify such transferee of the transfer restrictions specified in this Section.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that takes
delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor or
the Placement Agent, an affiliate (as defined in Rule 405 under the Act) of
the Depositor or the Placement Agent
55
or (y) being made to a QIB by a transferor that has provided the Trustee
with a certificate in the form of Exhibit F hereto; and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the Act
by a transferor who furnishes to the Trustee a letter of the transferee
substantially in the form of Exhibit G hereto.
(d) (i) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H (or Exhibit
D-1 in the case of the Class R Certificate) hereto from such transferee, or (B)
an Opinion of Counsel satisfactory to the Trustee and the Depositor to the
effect that the purchase and holding of such a Certificate will not constitute
or result in the assets of the Trust Fund being deemed to be "plan assets"
subject to the prohibited transaction provisions of ERISA, Section 4975 of the
Code or substantially similar rules under state, local or other federal law
("Similar Law") and will not subject the Trustee or the Depositor to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an Opinion of Counsel to the effect that the purchase and holding
of an ERISA-Restricted Certificate (other than the Class R Certificate) by a
Plan or a Person that is purchasing or holding such a Certificate with the
assets of a Plan will not constitute or result in a prohibited transaction under
ERISA, Section 4975 of the Code or Similar Law. Each transferee of an
ERISA-Restricted Certificate that is a Book Entry Certificate shall be deemed to
have made the representations set forth in Exhibit H. The preparation and
delivery of the certificate and opinions referred to above shall not be an
expense of the Trust Fund, the Trustee or the Depositor. Notwithstanding the
foregoing, no opinion or certificate shall be required for the initial issuance
of the ERISA-Restricted Certificates.
The Trustee shall have no obligations to monitor transfers of Book-Entry
Certificates that are ERISA-Restricted Certificates and shall have no liability
for transfers of such Certificates in violation of the transfer restrictions.
Notwithstanding anything to the contrary herein, any purported transfer of
an ERISA-Restricted Certificate in the form of a Definitive Certificate to or on
behalf of an employee benefit plan subject to Title I of ERISA, a plan subject
to Section 4975 of the Code or a plan subject to Similar Law without the
delivery to the Trustee of an Opinion of Counsel satisfactory to the Trustee as
described above shall be void and of no effect; provided that the restriction
set forth in this sentence shall not be applicable if there has been delivered
to the Trustee an Opinion of Counsel meeting the requirements of clause (B) of
the first sentence of the first paragraph of this Section 3.03(d). The Trustee
shall be under no liability to any Person for any registration of transfer of
any ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered in accordance with the
foregoing requirements. The Trustee shall be entitled, but not obligated, to
recover from any Holder of any ERISA-Restricted Certificate that was in fact an
employee benefit plan subject to Title I of ERISA, a plan subject to Section
4975 of the Code or a plan subject to Similar Law, or a Person acting on behalf
of any such plan at the time it became
56
a Holder or, at such subsequent time as it became such a plan or Person acting
on behalf of such a plan, all payments made on such ERISA-Restricted Certificate
at and after either such time. Any such payments so recovered by the Trustee
shall be paid and delivered by the Trustee to the last preceding Holder of such
Certificate that is not such a plan or Person acting on behalf of a plan.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no Residual
Certificate may be owned, pledged or transferred, directly or indirectly, by or
to (i) a Disqualified Organization or (ii) an individual, corporation or
partnership or other person unless, in the case of clause (ii), such person is
(A) not a Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual
Certificate in connection with the conduct of a trade or business within the
United States and has furnished the transferor and the Trustee with an effective
Internal Revenue Service Form W-8ECI or successor form at the time and in the
manner required by the Code (any such person who is not covered by clause (A) or
(B) above is referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto as
Exhibit D-1 representing and warranting, among other things, that such
transferee is neither a Disqualified Organization, an agent or nominee acting on
behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder (any
such transferee, a "Permitted Transferee"), and the proposed transferor shall
deliver to the Trustee an affidavit in substantially the form attached hereto as
Exhibit D-2. In addition, the Trustee may (but shall have no obligation to)
require, prior to and as a condition of any such transfer, the delivery by the
proposed transferee of an Opinion of Counsel, addressed to the Depositor and the
Trustee satisfactory in form and substance to the Depositor, that such proposed
transferee or, if the proposed transferee is an agent or nominee, the proposed
beneficial owner, is not a Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder. Notwithstanding the registration in the
Certificate Register of any transfer, sale, or other disposition of a Residual
Certificate to a Disqualified Organization, an agent or nominee thereof, or
Non-permitted Foreign Holder, such registration shall be deemed to be of no
legal force or effect whatsoever and such Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to, the
receipt of distributions on such Residual Certificate. The Trustee shall not be
under any liability to any person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder or for the maturity of any payments due on such
Residual Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of the Agreement, so long as the
transfer was effected in accordance with this Section 3.03(f), unless the
Trustee shall have
57
actual knowledge at the time of such transfer or the time of such payment or
other action that the transferee is a Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder. The Trustee shall be entitled
to recover from any Holder of a Residual Certificate that was a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder at the
time it became a Holder or any subsequent time it became a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder, all
payments made on such Residual Certificate at and after either such times (and
all costs and expenses, including but not limited to attorneys' fees, incurred
in connection therewith). Any payment (not including any such costs and
expenses) so recovered by the Trustee shall be paid and delivered to the last
preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a Residual
Certificate in violation of the provisions of this Section 3.03(f), then upon
receipt of written notice to the Trustee that the registration of transfer of
such Residual Certificate was not in fact permitted by this Section 3.03(f), the
last preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of such registration of transfer of such
Residual Certificate. The Trustee shall be under no liability to any Person for
any registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.03(f), for making any payment due on such
Certificate to the registered Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered upon receipt of the affidavit described in the preceding
paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's acceptance
thereof, shall be deemed for all purposes to have consented to the provisions of
this section.
(h) Notwithstanding any provision to the contrary herein, so long as a
Global Security representing any of the Class B4, Class B5 or Class B6
Certificates remains outstanding and is held by or on behalf of DTC, transfers
of a Global Security representing any such Certificates, in whole or in part,
shall only be made in accordance with Section 3.01 and this Section 3.03(h).
(A) Subject to clauses (B) and (C) of this Section 3.03(h), transfers of a
Global Security representing any of the Class B4, Class B5 or Class B6
Certificates shall be limited to transfers of such Global Security, in
whole or in part, to nominees of DTC or to a successor of DTC or such
successor's nominee.
(B) RESTRICTED GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY. If a
holder of a beneficial interest in a Restricted Global Security
deposited with or on behalf of DTC wishes at any time to exchange its
interest in such Restricted Global Security for an interest in a
Regulation S Global Security, or to transfer its interest in such
Restricted Global Security to a Person who wishes to take delivery
thereof in the form of an interest in a Regulation S Global Security,
such holder, provided such holder is not a U.S. person, may, subject
to the rules and procedures of DTC, exchange or cause the exchange of
such interest for an equivalent beneficial interest in the Regulation
S Global Security. Upon receipt by the Trustee, as Certificate
Registrar, of (I) instructions from DTC directing the Trustee, as
58
Certificate Registrar, to be credited a beneficial interest in a
Regulation S Global Security in an amount equal to the beneficial
interest in such Restricted Global Security to be exchanged but not
less than the minimum denomination applicable to such holder's
Certificates held through a Regulation S Global Security, (II) a
written order given in accordance with DTC's procedures containing
information regarding the participant account of DTC and, in the case
of a transfer pursuant to and in accordance with Regulation S, the
Euroclear or Clearstream account to be credited with such increase and
(III) a certificate in the form of Exhibit L-1 hereto given by the
holder of such beneficial interest stating that the exchange or
transfer of such interest has been made in compliance with the
transfer restrictions applicable to the Global Securities, including
that the holder is not a U.S. person, and pursuant to and in
accordance with Regulation S, the Trustee, as Certificate Registrar,
shall reduce the principal amount of the Restricted Global Security
and increase the principal amount of the Regulation S Global Security
by the aggregate principal amount of the beneficial interest in the
Restricted Global Security to be exchanged, and shall instruct
Euroclear or Clearstream, as applicable, concurrently with such
reduction, to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the
Regulation S Global Security equal to the reduction in the principal
amount of the Restricted Global Security.
(C) REGULATION S GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY. If a
holder of a beneficial interest in a Regulation S Global Security
deposited with or on behalf of DTC wishes at any time to transfer its
interest in such Regulation S Global Security to a Person who wishes
to take delivery thereof in the form of an interest in a Restricted
Global Security, such holder may, subject to the rules and procedures
DTC, exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Restricted Global Security. Upon receipt by
the Trustee, as Certificate Registrar, of (I) instructions from DTC
directing the Trustee, as Certificate Registrar, to cause to be
credited a beneficial interest in a Restricted Global Security in an
amount equal to the beneficial interest in such Regulation S Global
Security to be exchanged but not less than the minimum denomination
applicable to such holder's Certificates held through a Restricted
Global Security, to be exchanged, such instructions to contain
information regarding the participant account with DTC to be credited
with such increase, and (II) a certificate in the form of Exhibit L-2
hereto given by the holder of such beneficial interest and stating,
among other things, that the Person transferring such interest in such
Regulation S Global Security reasonably believes that the Person
acquiring such interest in a Restricted Global Security is a QIB, is
obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable
securities laws of any State of the United States or any other
jurisdiction, then the Trustee, as Certificate Registrar, will reduce
the
59
principal amount of the Regulation S Global Security and increase the
principal amount of the Restricted Global Security by the aggregate
principal amount of the beneficial interest in the Regulation S Global
Security to be transferred and the Trustee, as Certificate Registrar,
shall instruct DTC, concurrently with such reduction, to credit or
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Restricted Global Security
equal to the reduction in the principal amount of the Regulation S
Global Security.
(D) OTHER EXCHANGES. In the event that a Global Security is exchanged for
Certificates in definitive registered form without interest coupons,
pursuant to Section 3.09(c) hereof, such Certificates may be exchanged
for one another only in accordance with such procedures as are
substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers
comply with Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or
are to non-U.S. persons in compliance with Regulation S under the Act,
as the case may be), and as may be from time to time adopted by the
Trustee.
(E) RESTRICTIONS ON U.S. TRANSFERS. Transfers of interests in the
Regulation S Global Security to U.S. persons (as defined in Regulation
S) shall be limited to transfers made pursuant to the provisions of
Section 3.03(h)(C).
Section 3.04. CANCELLATION OF CERTIFICATES.
Any Certificate surrendered for registration of transfer or exchange shall
be cancelled and retained in accordance with normal retention policies with
respect to cancelled certificates maintained by the Trustee or the Certificate
Registrar.
Section 3.05. REPLACEMENT OF CERTIFICATES.
If (i) any Certificate is mutilated and is surrendered to the Trustee or
any Authenticating Agent or (ii) the Trustee or any Authenticating Agent
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee or the Authenticating Agent
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Depositor and any Authenticating
Agent that such destroyed, lost or stolen Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute and the Trustee or any
Authenticating Agent shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee or the Authenticating Agent) connected
therewith. Any replacement Certificate issued pursuant to this Section 3.05
shall constitute complete and indefeasible evidence of ownership in the
applicable Trust Fund, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
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Section 3.06. PERSONS DEEMED OWNERS.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of any of them may treat the Person in whose name any
Certificate is registered upon the books of the Certificate Registrar as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Sections 5.01 and 5.02 and for all other purposes whatsoever, and neither the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar nor any
agent of any of them shall be affected by notice to the contrary.
Section 3.07. TEMPORARY CERTIFICATES.
(a) Pending the preparation of definitive Certificates, upon the order of
the Depositor, the Trustee shall execute and shall authenticate and deliver
temporary Certificates that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Certificates in lieu of which they are issued and with
such variations as the authorized officers executing such Certificates may
determine, as evidenced by their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in exchange
therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same Class.
Section 3.08. APPOINTMENT OF PAYING AGENT.
The Trustee may appoint a Paying Agent (which may be the Trustee) for the
purpose of making distributions to Certificateholders hereunder. The Trustee
shall cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee that such
Paying Agent will hold all sums held by it for the payment to Certificateholders
in an Eligible Account in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to the Certificateholders. All
funds remitted by the Trustee to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee. If the Paying Agent is not the Trustee, the Trustee shall cause to be
remitted to the Paying Agent on or before the Business Day prior to each
Distribution Date, by wire transfer in immediately available funds, the funds to
be distributed on such Distribution Date. Any Paying Agent shall be either a
bank or trust company or otherwise authorized under law to exercise corporate
trust powers.
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Section 3.09. BOOK-ENTRY CERTIFICATES.
(a) Each Class of Book-Entry Certificates, upon original issuance, shall be
issued in the form of one or more typewritten Certificates representing the
Book-Entry Certificates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Depositor. The Book-Entry
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of the Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Book-Entry Certificates, except as provided in Section 3.09(c). Unless
Definitive Certificates have been issued to Certificate Owners of Book-Entry
Certificates pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full force and
effect;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency for
all purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate Owners
and the Clearing Agency shall be responsible for crediting the amount of
such distributions to the accounts of such Persons entitled thereto, in
accordance with the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09 conflict
with any other provisions of this Agreement, the provisions of this Section
3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only through
the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such Certificate
Owners and the Clearing Agency and/or the Clearing Agency Participants.
Unless and until Definitive Certificates are issued pursuant to Section
3.09(c), the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit distributions of
principal of and interest on the Book-Entry Certificates to such Clearing
Agency Participants.
(b) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the Trustee
shall give all such notices and communications specified herein to be given to
Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a Class
of Book-Entry Certificates identified as such to the Trustee by an Officer's
Certificate from the Clearing Agency advise the Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Certificate Owners of a Class of Book-Entry Certificates, the Trustee
shall notify or cause the Certificate Registrar to notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing
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Agency, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Transferor 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 all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the extent
applicable, with respect to such Definitive Certificates and the Trustee shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder.
ARTICLE IV ADMINISTRATION OF THE TRUST FUND
Section 4.01. COLLECTION ACCOUNT.
(a) On the Closing Date, the Master Servicer shall open and shall
thereafter maintain a segregated account held in trust (the "Collection
Account"), entitled "Aurora Loan Services Inc., as Master Servicer, in trust for
the benefit of the Holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2002-21A." The Collection Account shall relate
solely to the Certificates issued by the Trust Fund hereunder, and funds in such
Collection Account shall not be commingled with any other monies.
(b) The Collection Account shall be an Eligible Account. If an existing
Collection Account ceases to be an Eligible Account, the Master Servicer shall
establish a new Collection Account that is an Eligible Account within 30 days
and transfer all funds on deposit in such existing Collection Account into such
new Collection Account.
(c) The Master Servicer shall give to the Trustee prior written notice of
the name and address of the depository institution at which the Collection
Account is maintained and the account number of such Collection Account. No
later than 2:00 p.m. on each Deposit Date, the entire amount on deposit in the
Collection Account (subject to permitted withdrawals set forth in Section 4.02),
not including any amounts which are to be excluded from the Available
Distribution Amount for such Distribution Date pursuant to clauses (A) through
(G) of paragraph (i) of the definition thereof (other than any amounts due or
reimbursable to the Trustee pursuant to this Agreement), shall be remitted to
the Trustee for deposit into the Certificate Account by wire transfer in
immediately available funds. The Master Servicer, at its option, may choose to
make daily remittances from the Collection Account to the Trustee for deposit
into the Certificate Account.
(d) The Master Servicer shall deposit or cause to be deposited into the
Collection Account, no later than the Business Day following the Closing Date,
any amounts representing Scheduled Payments on the Mortgage Loans due after the
Cut-off Date and received by the Master Servicer on or before the Closing Date.
Thereafter, the Master Servicer shall deposit or cause to be deposited in the
Collection Account on the applicable Remittance Date the following amounts
received or payments made by it (other than in respect of principal of and
interest on the Mortgage Loans due on or before the Cut-Off Date):
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(i) all payments on account of principal, including Principal
Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans (other
than payments due prior to the Cut-off Date), net of the applicable
Servicing Fee and Master Servicing Fee with respect to each such Mortgage
Loan, but only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections 5.04 and
9.21;
(iii) any unscheduled payment or other recovery with respect to a
Mortgage Loan not otherwise specified in this paragraph (d), including all
Net Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation of any
REO Property, net of any unpaid Servicing Fees and Master Servicing Fees
with respect to such Mortgage Loans, but only to the extent of the amount
permitted to be withdrawn or withheld from the Collection Account in
accordance with Sections 5.04 and 9.21; provided that if the applicable
Servicer is also the Retained Interest Holder with respect to any Mortgage
Loan, payments on account of interest on the Mortgage Loans as to which
such Servicer is the Retained Interest Holder may also be made net of the
related Retained Interest with respect to each such Mortgage Loan.
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or the applicable
Servicer pursuant to Section 5.04 or the applicable Servicing Agreement;
and
(vi) all proceeds of any Mortgage Loan purchased by any Person.
(e) Funds in the Collection Account may be invested in Eligible Investments
(selected by and at the written direction of the Master Servicer) which shall
mature not later than the earlier of (a) the Deposit Date (except that if such
Eligible Investment is an obligation of the Trustee or the Paying Agent, if
other than the Trustee, and such Collection Account is maintained with the
Trustee or the Paying Agent, if other than the Trustee, then such Eligible
Investment shall mature not later than such applicable Distribution Date) or (b)
the day on which the funds in such Collection Account are required to be
remitted to the Trustee for deposit into the Certificate Account, and any such
Eligible Investment shall not be sold or disposed of prior to its maturity. All
such Eligible Investments shall be made in the name of the Trustee (in its
capacity as such) or its nominee. All income and gain realized from any such
investment shall be for the benefit of the Master Servicer, while such
Collection Account is maintained by the Master Servicer, and shall be subject to
its withdrawal or order from time to time, subject to Section 5.05, and shall
not be part of the Trust Fund. The amount of any losses incurred in respect of
any such investments shall be deposited in such Collection Account by the Master
Servicer out of its own funds, without any right of reimbursement therefor,
immediately as realized. The foregoing requirements for deposit in the
Collection Account are exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments of interest on funds in the
Collection Account and payments in the nature of late payment charges or
assumption fees need not be deposited by the Master Servicer in the Collection
Account and may be retained by the
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Master Servicer or the applicable Servicer as additional servicing compensation.
If the Master Servicer deposits in the Collection Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Collection Account. In the event the Master Servicer does not provide
written direction to the Trustee pursuant to this Section, all funds on deposit
in the Collection Account shall remain uninvested.
Section 4.02. Application of Funds in the Collection Account.
The Master Servicer may, from time to time, make, or cause to be made,
withdrawals from the Collection Account for the following purposes:
(i) to reimburse itself or any Servicer for Advances made by it or by
such Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; the Master Servicer's right to reimburse itself pursuant to this
subclause (i) is limited to amounts received on or in respect of particular
Mortgage Loans (including, for this purpose, Liquidation Proceeds and
amounts representing Insurance Proceeds with respect to the property
subject to the related Mortgage) which represent late recoveries (net of
the applicable Servicing Fee and the Master Servicing Fee) of payments of
principal or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master
Servicer's or Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(ii) to reimburse itself or any Servicer for any Servicing Advances
made by it or by such Servicer that it determines in good faith will not be
recoverable from amounts representing late recoveries of payments of
principal or interest respecting the particular Mortgage Loan as to which
such Servicing Advance was made or from Liquidation Proceeds or Insurance
Proceeds with respect to such Mortgage Loan, it being understood, in the
case of any such reimbursement, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse itself or any Servicer from Liquidation Proceeds
for Liquidation Expenses and for amounts expended by it pursuant to
Sections 9.20 and 9.22(a) or the applicable Servicing Agreement in good
faith in connection with the restoration of damaged property and, to the
extent that Liquidation Proceeds after such reimbursement exceed the unpaid
principal balance of the related Mortgage Loan, together with accrued and
unpaid interest thereon at the applicable Mortgage Rate less the applicable
Servicing Fee and the Master Servicing Fee for such Mortgage Loan to the
Due Date next succeeding the date of its receipt of such Liquidation
Proceeds, to pay to itself out of such excess the amount of any unpaid
assumption fees, late payment charges or other Mortgagor charges on the
related Mortgage Loan and to retain any excess remaining thereafter as
additional servicing compensation, it being understood, in the case of any
such reimbursement or payment, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the Certificateholders;
(iv) in the event it has elected not to pay itself the Master
Servicing Fee out of any Mortgagor payment on account of interest or other
recovery with respect to a particular Mortgage Loan prior to the deposit of
such Mortgagor payment or recovery in
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the Collection Account, to pay to itself the Master Servicing Fee for each
Distribution Date and any unpaid Master Servicing Fees for prior
Distribution Dates, as reduced pursuant to Section 5.05, from any Mortgagor
payment as to interest or such other recovery with respect to that Mortgage
Loan, as is permitted by this Agreement;
(v) to reimburse itself or any Servicer for expenses incurred by and
recoverable by or reimbursable to it or such Servicer pursuant to Section
9.04, 9.06, 9.16 or 9.22(a) or pursuant to the applicable Servicing
Agreement, and to reimburse itself for any expenses reimbursable to it
pursuant to Section 10.01(c);
(vi) to pay to the applicable Person, with respect to each Mortgage
Loan or REO Property acquired in respect thereof that has been repurchased
by such Person pursuant to this Agreement, all amounts received thereon and
not distributed on the date on which the related repurchase was effected;
(vii) subject to Section 5.04, to pay to itself income earned on the
investment of funds deposited in the Collection Account;
(viii) to make payments to the Trustee for deposit into the
Certificate Account in the amounts and in the manner provided for in
Section 4.04;
(ix) to make distributions of the Retained Interest to the Retained
Interest Holder on each Distribution Date (other than any Retained Interest
not deposited into the Collection Account in accordance with Section
4.01(d)(iii));
(x) to make payment to itself, the Trustee and others pursuant to any
provision of this Agreement;
(xi) to withdraw funds deposited in error in the Collection Account;
(xii) to clear and terminate any Collection Account pursuant to
Section 7.02;
(xiii) to reimburse a successor Master Servicer (solely in its
capacity as successor Master Servicer), for any fee or advance occasioned
by a termination of the Master Servicer, and the assumption of such duties
by the Trustee or a successor Master Servicer appointed by the Trustee
pursuant to Section 6.14, in each case to the extent not reimbursed by the
terminated Master Servicer, it being understood, in the case of any such
reimbursement or payment, that the right of the Master Servicer or the
Trustee thereto shall be prior to the rights of the Certificateholders; and
(xiv) to reimburse any Servicer for such amounts as are due thereto
under the applicable Servicing Agreement and have not been retained by or
paid to such Servicer to the extent provided in such Servicing Agreement.
If provided in the related Servicing Agreement, each Servicer shall be
entitled to retain as additional servicing compensation any Prepayment Interest
Excess (to the extent not offset by Prepayment Interest Shortfalls). The
Servicer of the Participations shall be entitled to retain as
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additional servicing compensation any Prepayment Penalty Amounts received with
respect to the Participations.
In connection with withdrawals pursuant to subclauses (i), (iii), (iv) and
(vi) above, the Master Servicer's or Servicer's entitlement thereto is limited
to collections or other recoveries on the related Mortgage Loan. The Master
Servicer shall therefore keep and maintain a separate accounting for each
Mortgage Loan it master services for the purpose of justifying any withdrawal
from the Collection Account it maintains pursuant to such subclause (i), (iii),
(iv) and (vi).
Section 4.03. Reports to Certificateholders.
(a) On each Distribution Date, the Trustee shall have prepared (based
solely on information provided by the Master Servicer) and shall make available
to each Certificateholder a written report setting forth the following
information, by Mortgage Pool and Certificate Group (on the basis of Mortgage
Loan level information obtained from the applicable Servicer and the Master
Servicer):
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates, other than
any Class of Notional Certificates, to the extent applicable, allocable to
principal on the Mortgage Loans, including Liquidation Proceeds and
Insurance Proceeds, stating separately the amount attributable to scheduled
principal payments and unscheduled payments in the nature of principal in
each Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable to
interest, including any Accrual Amount added to the Class Principal Amount
of any Class of Accrual Certificates;
(iii) the amount, if any, of any distribution to the Holders of a
Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be made by
or on behalf of the Master Servicer or any Servicer (or, if applicable, the
Trustee) with respect to such Distribution Date, (B) the aggregate amount
of such Advances actually made, and (C) the amount, if any, by which (A)
above exceeds (B) above;
(v) the Aggregate Principal Balance of the Mortgage Loans and the Pool
Balance of each Mortgage Pool for such Distribution Date, after giving
effect to payments allocated to principal reported under clause (i) above;
(vi) the Class Principal Amount (or Class Notional Amount) of each
Class of Certificates, to the extent applicable, as of such Distribution
Date after giving effect to payments allocated to principal reported under
clause (i) above (and to the addition of any Accrual Amount in the case of
any Class of Accrual Certificates), separately identifying any reduction of
any of the foregoing Certificate Principal Amounts due to Realized Losses:
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(vii) any Realized Losses realized with respect to the Mortgage Loans
(x) in the applicable Prepayment Period and (y) in the aggregate since the
Cut-off Date, stating separately the amount of Special Hazard Losses, Fraud
Losses and Bankruptcy Losses and the aggregate amount of such Realized
Losses, and the remaining Special Hazard Loss Amount, Fraud Loss Amount and
Bankruptcy Loss Amount;
(viii) the amount of the Master Servicing Fees, Servicing Fees and
Trustee Fee paid during the Due Period to which such distribution relates;
(ix) the number and aggregate Scheduled Principal Balance of Mortgage
Loans, as reported to the Trustee by the Master Servicer, (a) remaining
outstanding (b) delinquent one month, (c) delinquent two months, (d)
delinquent three or more months, and (e) as to which foreclosure
proceedings have been commenced as of the close of business on the last
Business Day of the calendar month immediately preceding the month in which
such Distribution Date occurs;
(x) the aggregate principal balance of all REO Properties as of the
close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs;
(xi) with respect to substitution of Mortgage Loans in the preceding
calendar month, the aggregate Scheduled Principal Balance of all such
Deleted Mortgage Loans, and of all Qualifying Substitute Mortgage Loans;
(xii) the aggregate outstanding Interest Shortfalls and Net Prepayment
Interest Shortfalls, if any, for each Class of Certificates, after giving
effect to the distribution made on such Distribution Date;
(xiii) the Certificate Interest Rate applicable to such Distribution
Date with respect to each Class of Certificates; and
(xiv) if applicable, the amount of any shortfall (i.e., the difference
between the aggregate amounts of principal and interest which
Certificateholders would have received if there were sufficient available
amounts in the Certificate Account and the amounts actually distributed).
In the case of information furnished pursuant to subclauses (i), (ii) and
(viii) above, the amounts shall be expressed as a dollar amount per $1,000 of
original principal amount of Certificates.
The Trustee will make such report and additional loan level information
(and, at its option, any additional files provided by the Master Servicer
containing the same information in an alternative format) available each month
to Certificateholders and the Rating Agencies via the Trustee's internet
website. The Trustee's internet website shall initially be located at
"xxx.xxxxxxxx.xxx/xxxxxx." Assistance in using the website can be obtained by
calling the Trustee's customer service desk at 0-000-000-0000. Such parties that
are unable to use the website are entitled to have a paper copy mailed to them
via first class mail by calling the customer service desk and indicating such.
The Trustee shall have the right to change the way
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such statements are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Trustee shall
provide timely and adequate notification to all above parties regarding any such
changes.
The foregoing information and reports shall be prepared and determined by
the Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master Servicer no later than four Business Days prior to the Distribution Date.
In preparing or furnishing the Mortgage Loan data to the Trustee, the Master
Servicer shall be entitled to rely conclusively on the accuracy of the
information or data regarding the Mortgage Loans and the related REO Property
that has been provided to the Master Servicer by each Servicer, and the Master
Servicer shall not be obligated to verify, recompute, reconcile or recalculate
any such information or data. The Trustee shall be entitled to conclusively rely
on the Mortgage Loan data provided by the Master Servicer and shall have no
liability for any errors in such Mortgage Loan data.
(b) Upon the reasonable advance written request of any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee, will be promptly forwarded to the Master Servicer, the
Master Servicer shall provide, or cause to be provided, (or, to the extent that
such information or documentation is not required to be provided by a Servicer
under the applicable Servicing Agreement, shall use reasonable efforts to obtain
such information and documentation from such Servicer, and provide) to such
Certificateholder such reports and access to information and documentation
regarding the Mortgage Loans as such Certificateholder may reasonably deem
necessary to comply with applicable regulations of the Office of Thrift
Supervision or its successor or other regulatory authorities with respect to
investment in the Certificates; provided, however, that the Master Servicer
shall be entitled to be reimbursed by such Certificateholder for such Master
Servicer's actual expenses incurred in providing such reports and access.
(c) Within 90 days, or such shorter period as may be required by statute or
regulation, after the end of each calendar year, the Trustee shall, upon written
request, send to each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to Certificateholders
pursuant to Section 4.03(a) on an annual basis as may be required to enable such
Holders to prepare their federal income tax returns. Such information shall
include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. The
Master Servicer shall provide the Trustee with such Mortgage Loan level
information as is necessary for the Trustee to prepare such reports.
Section 4.04. Certificate Account.
(a) The Trustee shall establish and maintain in its name, as trustee, a
trust account (the "Certificate Account"), to be held in trust for the benefit
of the Certificateholders until disbursed pursuant to the terms of this
Agreement. The Certificate Account shall be an Eligible Account. If the existing
Certificate Account ceases to be an Eligible Account, the Trustee shall
establish a new Certificate Account that is an Eligible Account within 20
Business Days and transfer all funds on deposit in such existing Certificate
Account into such new Certificate Account. The Certificate Account shall relate
solely to the Certificates issued hereunder and funds in the
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Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies of
the Trustee held under this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate Account on
the day on which, or, if such day is not a Business Day, the Business Day
immediately following the day on which, any monies are remitted by the Master
Servicer to the Trustee all such amounts. The Trustee shall make withdrawals
from the Certificate Account only for the following purposes:
(i) to withdraw amounts deposited in the Certificate Account in error;
(ii) to pay the Depositor any investment income earned with respect to
funds in the Certificate Account invested in Eligible Investments as set
forth in subsection (c) below, and to make payments to itself prior to
making distributions pursuant to Section 5.02 for any expenses or other
indemnification owing to the Trustee and others pursuant to any provision
of this Agreement;
(iii) to make payments of the Master Servicing Fee (to the extent not
already withheld or withdrawn from the Collection Account by the Master
Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders pursuant to
Article V; and
(v) to clear and terminate the Certificate Account pursuant to Section
7.02.
(c) The Trustee may invest, or cause to be invested, funds held in the
Certificate Account, which funds, if invested, shall be invested in Eligible
Investments (which may be obligations of the Trustee). All such investments must
mature no later than the next Distribution Date, and shall not be sold or
disposed of prior to their maturity. All such Eligible Investments will be made
in the name of the Trustee (in its capacity as such) or its nominee. All income
and gain realized from any such investment shall be paid to the Depositor and
shall be subject to its withdrawal on order from time to time. The amount of any
losses incurred in respect of any such investments shall be paid by the Trustee
for deposit in the Certificate Account out of its own funds, without any right
of reimbursement therefor, immediately as realized. Funds held in the
Certificate Account that are not invested shall be held in cash.
Section 4.05. [Reserved].
Section 4.06. Certain Provisions with Respect to the Participations.
If the Trustee shall not have received a payment with respect to any
Participation by the date on which such payment was due and payable pursuant to
the terms thereof, the Trustee shall make demand upon the Participation Master
Servicer for immediate payment, and may, and at the direction of a majority (by
Voting Interests) of the Certificateholders shall, take any available legal
action, including the prosecution of any claims in connection therewith. The
Depositor shall cooperate with the Trustee in connection with any such demand or
action to the extent reasonably requested by the Trustee. The reasonable legal
fees and expenses incurred by the
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Trustee in connection with the prosecution of any such legal action shall be
reimbursable to the Trustee from the Trust Fund.
Article V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally.
(a) Subject to Section 7.01 with respect to the final distribution on the
Certificates, on each Distribution Date the Trustee or the Paying Agent shall
make distributions in accordance with this Article V. Such distributions shall
be made by check mailed to each Certificateholder's address as it appears on the
Certificate Register of the Certificate Registrar (which shall initially be the
Trustee) or, upon written request made to the Trustee at least three Business
Days prior to the related Distribution Date to any Certificateholder owning an
aggregate initial Certificate Principal Amount of at least $2,500,000, or, in
the case of the Notional Certificates, a Percentage Interest of 25%, by wire
transfer in immediately available funds to an account specified in the request
and at the expense of such Certificateholder; provided, however, that the final
distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office. Wire transfers
will be made at the expense of the Holder requesting such wire transfer by
deducting a wire transfer fee from the related distribution. Notwithstanding
such final payment of principal of any of the Certificates, each Residual
Certificate will remain outstanding until the termination of each REMIC and the
payment in full of all other amounts due with respect to the Residual
Certificate and at such time such final payment in retirement of the Residual
Certificate will be made only upon presentation and surrender of such
Certificate at the Corporate Trust Office of the Trustee or at the office of its
designated presenting agent in New York City. If any payment required to be made
on the Certificates is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in proportion
to their respective initial Certificate Principal Amounts (or initial Notional
Amounts).
Section 5.02. Distributions from the Certificate Account.
(a) On each Distribution Date, the Trustee (or the Paying Agent on behalf
of the Trustee) shall withdraw from the Certificate Account the Available
Distribution Amount with respect to each Mortgage Pool, and shall distribute
such amount to the Holders of record of each Class of Certificates, in the
following order of priority:
(i) to payment of the Trustee Fee for such Distribution Date;
(ii) from the remaining Available Distribution Amount for each
Mortgage Pool, to each Class of Senior Certificates in the related
Certificate Group, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class's allocable share of any Net
Prepayment Interest Shortfalls for the related Mortgage Pool for such
Distribution Date; provided, however, that any shortfall in available
amounts for a Mortgage Pool shall be allocated among the Classes of the
related Certificate Group in
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proportion to the amount of Accrued Certificate Interest (as so reduced)
that would otherwise be distributable thereon;
(iii) from the remaining Available Distribution Amount for each
Mortgage Pool, to each Class of Senior Certificates in the related
Certificate Group, any related Interest Shortfall for such Distribution
Date; provided, however, that any shortfall in available amounts for each
Mortgage Pool shall be allocated among the Classes of the related
Certificate Group in proportion to the Interest Shortfall for each such
Class on such Distribution Date;
(iv) from the remaining Available Distribution Amount for each
Mortgage Pool, to the Senior Certificates of the related Certificate Group
(other than any Class of Notional Certificates) in reduction of the Class
Principal Amounts thereof, concurrently, as follows.
(A) to the Class R, Class 1-A1 and Class 1-A3 Certificates from
the Available Distribution Amount for Pool 1, the Senior Principal
Distribution Amount for Mortgage Pool 1, in reduction of their Class
Principal Amounts, sequentially, as follows:
1. to the Class R Certificate, until its Class Principal
Amount has been reduced to zero;
2. to the Class 1-A1 and Class 1-A3 Certificates, pro
rata, until their Class Principal Amounts have been
reduced to zero;
(B) to the Class 2-A1 Certificates from the Available
Distribution Amount for Pool 2, the Senior Principal Distribution
Amount for such Mortgage Pool, in reduction of their Class Principal
Amount until their Class Principal Amount has been reduced to zero;
(C) to the Class 3-A1 Certificates, from the Available
Distribution Amount for Pool 3, the Senior Principal Distribution
Amount for such Mortgage Pool, in reduction of their Class Principal
Amount, until their Class Principal Amount has been reduced to zero;
(D) to the Class 4-A1 Certificates, from the Available
Distribution Amount for Pool 4, the Senior Principal Distribution
Amount for such Mortgage Pool, in reduction of their Class Principal
Amount, until their Class Principal Amount has been reduced to zero;
(E) to the Class 5-A1 Certificates, from the Available
Distribution Amount for Pool 5, the Senior Principal Distribution
Amount for such Mortgage Pool, in reduction of their Class Principal
Amount, until their Class Principal Amount has been reduced to zero;
(v) from the remaining Available Distribution Amount for Pool 1,
subject to the prior distribution of amounts pursuant to Section 5.02(b) in
the case of clauses (C)
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and (H) below, to the Class B1-I, Class B1-I-X, Class B2-I and Class B2-I-X
Certificates, in the following order of priority:
(A) to the Class B1-I Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(B) to the Class B1-I Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(C) to the Class B1-I Certificates, in reduction of the Class
Principal Amount thereof, such Class's pro rata share of the Pool 1
B1-B2 Principal Distribution Amount for such Distribution Date, except
as provided in Section 5.02(b), until the Certificate Principal
Balance thereof has been reduced to zero;
(D) to the Class B1-I-X Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(E) to the Class B1-I-X Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(F) to the Class B2-I Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(G) to the Class B2-I Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(H) to the Class B2-I Certificates, in reduction of the
Certificate Principal Amount thereof, the sum of (i) such Class's pro
rata share of the Pool 1 B1-B2 Principal Distribution Amount for such
Distribution Date, except as provided in Section 5.02(b), and (ii) any
portion of the Pool 1 B1-B2 Principal Distribution Amount allocated to
the Class B1-I Certificates in excess of the Certificate Principal
Amount of such Class, until the Class Principal Amount thereof has
been reduced to zero;
(I) to the Class B2-I-X Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(J) to the Class B2-I-X Certificates, any Interest Shortfall for
such Class on such Distribution Date;
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(vi) from the remaining Available Distribution Amount for Pool 2, Pool
3, Pool 4 and Pool 5, subject to the prior distribution of amounts pursuant
to Section 5.02(b) in the case of clauses (C) and (F) below, to the Class
B1-II and Class B2-II Certificates, in the following order of priority:
(A) to the Class B1-II Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(B) to the Class B1-II Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(C) to the Class B1-II Certificates, in reduction of the Class
Principal Amount thereof, such Class's pro rata share of the Pool 2-5
B1-B2 Principal Distribution Amount for such Distribution Date, except
as provided in Section 5.02(b), until the Certificate Principal
Balance thereof has been reduced to zero;
(D) to the Class B2-II Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(E) to the Class B2-II Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(F) to the Class B2-II Certificates, in reduction of the
Certificate Principal Amount thereof, the sum of (i) such Class's pro
rata share of the Pool 2-5 B1-B2 Principal Distribution Amount for
such Distribution Date, except as provided in Section 5.02(b), and
(ii) any portion of the Pool 2-5 B1-B2 Principal Distribution Amount
allocated to the Class B1-II Certificates in excess of the Certificate
Principal Amount of such Class, until the Class Principal Amount
thereof has been reduced to zero;
(vii) from the remaining Available Distribution Amounts for all
Mortgage Pools, subject to the prior distribution of amounts pursuant to
Section 5.02(c) in the case of clauses (C), (F), (I) and (L) below, to the
Class B3, Class B4, Class B5 and Class B6 Certificates in the following
order of priority
(A) to the Class B3 Certificates, Accrued Certificate Interest
thereon for such Distribution Date, as reduced by such Component's
allocable share of any Net Prepayment Interest Shortfalls for such
Distribution Date;
(B) to the Class B3 Certificates, any Interest Shortfall for such
Class on such Distribution Date;
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(C) to the Class B3 Certificates, in reduction of the Certificate
Principal Amount thereof, such Class's pro rata share of the sum of
the Pool 1 B3-B6 Principal Distribution Amount and the Pool 2-5 B3-B6
Principal Distribution Amount for such Distribution Date, except as
provided in Section 5.02(c), until the Certificate Principal Amount
thereof has been reduced to zero;
(D) to the Class B4 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(E) to the Class B4 Certificates, any Interest Shortfall for such
Class on such Distribution Date;
(F) to the Class B4 Certificates, in reduction of the Certificate
Principal Amount thereof, the sum of (i) such Class's pro rata share
of the sum of the Pool 1 B3-B6 Principal Distribution Amount and the
Pool 2-5 B3-B6 Principal Distribution Amount for such Distribution
Date, except as provided in Section 5.02(c), and (ii) any portion of
the sum of the Pool 1 B3-B6 Principal Distribution Amount and Pool 2-5
B3-B6 Principal Distribution Amount allocated to the Class B3
Certificates in excess of the Certificate Principal Amount of such
Class, until the Certificate Principal Balance thereof has been
reduced to zero;
(G) to the Class B5 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
(H) to the Class B5 Certificates, any Interest Shortfall for such
Class on such Distribution Date;
(I) to the Class B5 Certificates, in reduction of the Certificate
Principal Amount thereof, the sum of (i) such Class's pro rata share
of sum of the Pool 1 B3-B6 Principal Distribution Amount and the Pool
2-5 B3-B6 Principal Distribution Amount for such Distribution Date,
except as provided in Section 5.02(c), and (ii) any portion of the sum
of the Pool 1 B3-B6 Principal Distribution Amount and the Pool 2-5
B3-B6 Principal Distribution Amount allocated to the Class B4
Certificates in excess of the Certificate Principal Amount of such
Class, until the Class Principal Balance thereof has been reduced to
zero;
(J) to the Class B6 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls for
such Distribution Date;
75
(K) to the Class B6 Certificates, any Interest Shortfall for such
Class on such Distribution Date; and
(L) to the Class B6 Certificates, in reduction of the Certificate
Principal Amount thereof, the sum of (i) such Class's pro rata share
of the sum of the Pool 1 B3-B6 Principal Distribution Amount and the
Pool 2-5 B3-B6 Principal Distribution Amount for such Distribution
Date, except as provided in Section 5.02(c), and (ii) any portion of
the sum of the Pool 1 B3-B6 Principal Distribution Amount and the Pool
2-5 B3-B6 Principal Distribution Amount allocated to the Class B5
Certificates in excess of the Certificate Principal Amount of such
Class, until the Certificate Principal Balance thereof has been
reduced to zero.
(viii) Net Prepayment Interest Shortfalls for Pool 1 shall be
allocated among the Group 1 Certificates and the Class B3, Class B4, Class
B5 and Class B6 Certificates pro rata based on (x) in the case of the
related Group 1 Certificates, the Accrued Certificate Interest otherwise
distributable thereon, and (y) in the case of the Class B3, Class B4, Class
B5 and Class B6 Certificates, interest accrued at the Pool 1 Net WAC on the
related Apportioned Principal Balances.
(ix) Net Prepayment Interest Shortfalls for Pool 2 shall be allocated
among the Group 2 Certificates and the Class B1-II, Class B2-II, Class B3,
Class B4, Class B5 and Class B6 Certificates pro rata based on (x) in the
case of the Group 2 Certificates, the Accrued Certificate Interest
otherwise distributable thereon, and (y) in the case of the Class B1-II,
Class B2-II, Class B3, Class B4, Class B5 and Class B6 Certificates, the
interest accrued at the Pool 2 Net WAC on the related Apportioned Principal
Balances.
(x) Net Prepayment Interest Shortfalls for Pool 3 shall be allocated
among the Group 3 Certificates and the Class B1-II, Class B2-II, Class B3,
Class B4, Class B5 and Class B6 Certificates pro rata based on (x) in the
case of the Group 3 Certificates, the Accrued Certificate Interest
otherwise distributable thereon, and (y) in the case of the Class B1-II,
Class B2-II, Class B3, Class B4, Class B5 and Class B6 Certificates, the
interest accrued at the Pool 3 Net WAC on the related Apportioned Principal
Balances.
(xi) Net Prepayment Interest Shortfalls for Pool 4 shall be allocated
among the Group 4 Certificates and the Class B1-II, Class B2-II, Class B3,
Class B4, Class B5 and Class B6 Certificates pro rata based on (x) in the
case of the Group 4 Certificates, the Accrued Certificate Interest
otherwise distributable thereon, and (y) in the case of the Class B1-II,
Class B2-II, Class B3, Class B4, Class B5 and Class B6 Certificates, the
interest accrued at the Pool 4 Net WAC on the related Apportioned Principal
Balances.
(xii) Net Prepayment Interest Shortfalls for Pool 5 shall be allocated
among the Group 5 Certificates and the Class B1-II, Class B2-II, Class B3,
Class B4, Class B5 and Class B6 Certificates pro rata based on (x) in the
case of the Group 5 Certificates, the Accrued Certificate Interest
otherwise distributable thereon, and (y) in the case of the Class B1-II,
Class B2-II, Class B3, Class B4, Class B5 and Class B6 Certificates, the
interest accrued at the Pool 5 Net WAC on the related Apportioned Principal
Balances.
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(b) (i) Notwithstanding the foregoing, on any Distribution Date, the
portion of the Pool 1 B1-B2 Principal Distribution Amount described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
for Pool 1 referred to above in Section 5.02(a)(v) will be distributed entirely
to the Class B1-I Certificates if the Credit Support Percentage of the Class
B1-I Certificates as of such Distribution Date (before giving effect to any
distribution of principal on such Distribution Date) is less than the Original
Credit Support Percentage for such Class. (ii) Notwithstanding the foregoing, on
any Distribution Date, the portion of the Pool 2-5 B1-B2 Principal Distribution
Amount described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount for Pool 2, Pool 3, Pool 4 and Pool 5 referred to
above in Section 5.02(a)(vi) will be distributed entirely to the Class B1-II
Certificates if the Credit Support Percentage of the Class B1-II Certificates as
of such Distribution Date (before giving effect to any distribution of principal
on such Distribution Date) is less than the Original Credit Support Percentage
for such Class.
(c) Notwithstanding the foregoing, on any Distribution Date, the portion of
the sum of the Pool 1 B3-B6 Principal Distribution Amount and the Pool 2-5 B3-B6
Principal Distribution Amount described in clauses (ii) and (iii) of the
definition of Subordinate Principal Distribution Amount for Pool 1, Pool 2, Pool
3, Pool 4 and Pool 5 referred to above in Section 5.02(a)(vii) will be allocated
pro rata among the following Classes of Certificates: (i) any of the Class of
Class B3, Class B4 and Class B5 Certificates which has a current Credit Support
Percentage (before giving effect to any distribution of principal on such
Distribution Date) greater than or equal to the original Credit Support
Percentage for such Class; (ii) the Class of Class B3, Class B4 and Class B5
Certificates having the lowest numerical class designation which does not meet
the criteria in (i) above; and (iii) the Class B6 Certificates if all other
outstanding Classes of Class B3, Class B4 and Class B5 Certificates meet the
criteria in (i) above or if no other Class of Class B3, Class B4 and Class B5
Certificates is outstanding.
(d) On each Distribution Date, the Trustee shall distribute to Holders of
the Class P-I and Class P-II Certificates any Prepayment Penalty Amounts related
to Pool 1 and Pool 2, Pool 3, Pool 4 and Pool 5, respectively, for such
Distribution Date.
(e) On each Distribution Date, the Trustee shall distribute to the Holder
of the Class R Certificate any portion of the Available Distribution Amount for
any of the Mortgage Pools for such Distribution Date remaining after application
of all amounts described in paragraph (a) and (d) of this Section 5.02. Any
distributions pursuant to this paragraph (e) shall not reduce the Class
Principal Amount of the Class R Certificate.
(f) (i) On each Distribution Date prior to the Credit Support Depletion
Date for Group 1, Group 2, Group 3, Group 4 or Group 5, but on or after the date
on which the aggregate Certificate Principal Amount of the Senior Certificates
of Group 1, Group 2, Group 3, Group 4 or Group 5 has been reduced to zero,
amounts otherwise distributable as principal on each of the Class B3, Class B4,
Class B5 and Class B6 Certificates, in reverse order of priority, in respect of
such Class's share of the B3-B6 Principal Distribution Amount for the Mortgage
Pool relating to such retired Senior Certificates, shall be distributed as
principal to the Senior Certificates (other than any Notional Certificates)
remaining outstanding in Certificate Group 1, Certificate Group 2, Certificate
Group 3, Certificate Group 4 and Certificate Group 5, as applicable, in
accordance with the priorities set forth in Section 5.02(a)(iv), until the Class
Principal Amounts thereof have
77
been reduced to zero, provided that on such Distribution Date (a) the Aggregate
Subordinate Percentage for such Distribution Date is less than 200% of the
Aggregate Subordinate Percentage as of the Cut-off Date or (b) the average
outstanding principal balance of the Mortgage Loans in Pool 1 (if the aggregate
Certificate Principal Amount of the Senior Certificates of Group 2, Group 3,
Group 4 or Group 5 has been reduced to zero), Pool 2 (if the aggregate
Certificate Principal Amount of the Senior Certificates of Group 1, Group 3,
Group 4 or Group 5 has been reduced to zero), Pool 3 (if the aggregate
Certificate Principal Amount of the Senior Certificates of Group 1, Group 2,
Group 4 or Group 5 has been reduced to zero), Pool 4 (if the aggregate
Certificate Principal Amount of the Senior Certificates of Group 1, Group 2,
Group 3 or Group 5 has been reduced to zero) and Pool 5 (if the aggregate
Certificate Principal Amount of the Senior Certificates of Group 1, Group 2,
Group 3 or Group 4 has been reduced to zero) that are delinquent 60 days or more
for the last six months as a percentage of the related Modified Group
Subordinate Amount is greater than or equal to 50%. In the case of Pools 2
through 5, the respective Class share of the B3-B6 Principal Distribution Amount
related to such Mortgage Pool will equal the product of (a) a fraction the
numerator of which is the principal amount of such Class and the denominator of
which is the aggregate principal amount of Classes B3 through B6, (b) the
Subordinate Distribution Amount for the relevant Mortgage Pool and (c) a
fraction the numerator of which is the Pool 2-5 B3-B6 Principal Distribution
Amount and the denominator of which is the sum of the Subordinate Distribution
Amounts for Pools 2 through 5. On each Distribution Date prior to the Credit
Support Depletion Date for a Certificate Group related to Mortgage Group II, but
on or after the Distribution Date (i) on which the total Certificate Principal
Amount of the Senior Certificates of such Certificate Group has been reduced to
zero and (ii) on which the total Certificate Principal Amount of the Class B3,
Class B4, Class B5 and Class B6 Certificates has been reduced to zero, amounts
otherwise distributable as principal to each of the Class B1-II and Class B2-II
Certificates, in reverse order of priority, in respect of such Class's share of
the Pool 2-5 B1-B2 Principal Distribution Amount for the Mortgage Pool relating
to such retired Senior Certificates, will be distributed as principal to the
Senior Certificates remaining outstanding (other than the Interest-Only
Certificates and the Class 1-A1, Class 1-A3 and Class R Certificates), pro rata
based on their respective Class Principal Amounts, until the related Class
Principal Amounts have been reduced to zero.
(ii) (A) On any Distribution Date on which any of Certificate Groups 1, 2,
3, 4 or 5 constitutes an Undercollateralized Group, all amounts otherwise
distributable as principal on the Class B3, Class B4, Class B5 and Class B6
Certificates, in reverse order of priority (other than amounts necessary to pay
unpaid Interest Shortfalls) (or, following the date on which the aggregate
Certificate Principal Amount of the Class B3, Class B4, Class B5 and Class B6
Certificates is reduced to zero, such other amounts described in the immediately
following sentence), will be distributed as principal to the Senior Certificates
(other than any Notional Certificates) of such Undercollateralized Group in
accordance with the priorities set forth in Section 5.02(a)(iv) until the
aggregate Certificate Principal Amount of such Certificates equals the Pool
Balance of the related Mortgage Pool (such distribution, an
"Undercollateralization Distribution"). In the event that any of Certificate
Groups 1, 2, 3, 4 or 5 constitutes the Undercollateralized Group on any
Distribution Date following the date on which the aggregate Certificate
Principal Amount of the Class B3, Class B4, Class B5 and Class B6 Certificates
is reduced to zero, Undercollateralization Distributions will be made from the
excess of the Available Distribution Amount for the other such Mortgage Pools
not related to the
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Undercollateralized Group remaining after all required amounts have been
distributed to the Senior Certificates of the other Certificate Groups. In
addition, the amount of any unpaid Interest Shortfalls with respect to the
Undercollateralized Group on any Distribution Date (including any Interest
Shortfalls for such Distribution Date) will be distributed to the Senior
Certificates of the Undercollateralized Group prior to the payment of any
Undercollateralization Distributions from amounts otherwise distributable as
principal on the Class B3, Class B4, Class B5 and Class B6 Certificates, in
reverse order of priority (or, following the date on which the aggregate
Certificate Principal Amount of the Class B3, Class B4, Class B5 and Class B6
Certificates is reduced to zero, as provided in the preceding sentence).
Section 5.03. ALLOCATION OF REALIZED LOSSES.
(a) (i) On any Distribution Date, the principal portion of each Realized
Loss (other than any Excess Loss) in respect of a Mortgage Loan in Pool 1 shall
be allocated in the following order of priority:
first, to the Class B6 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fifth, to the Class B2-I Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B1-I Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
seventh, to the Class 1-A1, Class 1-A3 and Class R Certificates, pro
rata, until the Class Principal Amounts thereof have been reduced to zero.
(ii) On any Distribution Date, the principal portion of each Realized Loss
(other than any Excess Loss) in respect of a Mortgage Loan in Pool 2 shall be
allocated in the following order of priority:
first, to the Class B6 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
79
third, to the Class B4 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fifth, to the Class B2-II Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B1-II Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
seventh, to the Class 2-A1 Certificates, until the Class Principal
Amount thereof has been reduced to zero.
(iii) On any Distribution Date, the principal portion of each Realized Loss
(other than any Excess Loss) in respect of a Mortgage Loan in Pool 3 shall be
allocated in the following order of priority:
first, to the Class B6 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fifth, to the Class B2-II Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B1-II Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
seventh, to the Class 3-A1 Certificates, until the Class Principal
Amount thereof has been reduced to zero.
(iv) On any Distribution Date, the principal portion of each Realized Loss
(other than any Excess Loss) in respect of a Mortgage Loan in Pool 4 shall be
allocated in the following order of priority:
first, to the Class B6 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
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second, to the Class B5 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fifth, to the Class B2-II Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B1-II Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
seventh, to the Class 4-A1 Certificates, until the Class Principal
Amount thereof has been reduced to zero.
(v) On any Distribution Date, the principal portion of each Realized Loss
(other than any Excess Loss) in respect of a Mortgage Loan in Pool 5 shall be
allocated in the following order of priority:
first, to the Class B6 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class Principal Amount
thereof has been reduced to zero;
fifth, to the Class B2-II Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B1-II Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
seventh, to the Class 5-A1 Certificates, until the Class Principal
Amount thereof has been reduced to zero.
(vi) Notwithstanding the foregoing, the first $0.76 of principal portion of
Realized Losses will not be allocated to any Class of Certificates.
(b) With respect to any Distribution Date, (i) the principal portion of any
Excess Loss in respect of a Mortgage Loan in Pool 1 shall be allocated, pro
rata, to the Class B3, Class B4,
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Class B5 and Class B6 Certificates and the Group 1 Certificates, (ii) the
principal portion of any Excess Losses in respect of a Mortgage Loan in Pool 2
shall be allocated pro rata, to the Class B1-II, Class B2-II, Class B3, Class
B4, Class B5 and Class B6 Certificates and to the Group 2 Certificates, (iii)
the principal portion of any Excess Losses in respect of a Mortgage Loan in Pool
3 shall be allocated pro rata, to the Class B1-II, Class B2-II, Class B3, Class
B4, Class B5 and Class B6 Certificates and to the Group 3 Certificates, (iv) the
principal portion of any Excess Losses in respect of a Mortgage Loan in Pool 4
shall be allocated pro rata, to the Class B1-II, Class B2-II, Class B3, Class
B4, Class B5 and Class B6 Certificates and to the Group 4 Certificates, and (v)
the principal portion of any Excess Losses in respect of a Mortgage Loan in Pool
5 shall be allocated pro rata, to the Class B1-II, Class B2-II, Class B3, Class
B4, Class B5 and Class B6 and to the Group 5 Certificates, in each case on the
basis of the Apportioned Principal Balances of the Class B1-II, Class B2-II,
Class B3, Class B4, Class B5 and Class B6 Certificates and Class Principal
Amounts of the Group 1, Group 2, Group 3, Group 4 and Group 5 Certificates;
provided, that any such loss allocated to any Class of Accrual Certificates (and
any Accrual Component) shall be allocated (subject to Section 5.03(c)) on the
basis of the lesser of (x) the Class Principal Amount thereof immediately prior
to the applicable Distribution Date and (y) the Class Principal Amount thereof
on the Closing Date (as reduced by any Realized Losses previously allocated
thereto).
(c) Any Realized Losses allocated to a Class or Component of Certificates
pursuant to Section 5.03(a) or (b) shall be allocated among the Certificates of
such Class or Component in proportion to their respective Certificate Principal
Amounts or Component Principal Amounts. Any allocation of Realized Losses
pursuant to this paragraph (c) shall be accomplished by reducing the Certificate
Principal Amount or Component Principal Amount of the related Certificates on
the related Distribution Date in accordance with Section 5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03 shall be
allocated on the Distribution Date in the month following the month in which
such loss was incurred and, in the case of the principal portion thereof, after
giving effect to distributions made on such Distribution Date.
(e) On each Distribution Date, the Subordinate Certificate Writedown Amount
for such date shall effect a corresponding reduction in the Certificate
Principal Amount of the lowest ranking Class of outstanding Subordinate
Certificates, which reduction shall occur on such Distribution Date after giving
effect to distributions made on such Distribution Date.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, each outstanding Class to
which any portion of such Realized Loss had previously been allocated shall be
entitled to receive, on the Distribution Date in the month following the month
in which such recovery is received, its pro rata share (based on the Class
Principal Amount thereof) of such recovery, up to the amount of the portion of
such Realized Loss previously allocated to such Class. In the event that the
total amount of such recovery exceeds the amount of Realized Loss allocated to
the outstanding Classes in accordance with the preceding provisions, each
outstanding Class of Certificates shall be entitled to receive its pro rata
share of the amount of such excess, up to the amount of any unrecovered Realized
Loss previously allocated to such Class. Any such recovery allocated to a Class
of Certificates shall
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not further reduce the Certificate Principal Amount of such Certificate. Any
such amounts not otherwise allocated to any Class of Certificates, pursuant to
this subsection shall be treated as Principal Prepayments for purposes of this
Agreement.
Section 5.04. ADVANCES BY THE MASTER SERVICER AND THE TRUSTEE.
(a) Advances shall be made in respect of each Deposit Date as provided
herein. If, on any Determination Date, the Master Servicer determines that any
Scheduled Payments due during the related Due Period (other than Balloon
Payments) have not been received, the Master Servicer shall, or shall cause the
applicable Servicer to, advance such amount, less an amount, if any, to be set
forth in an Officer's Certificate to be delivered to the Trustee on such
Determination Date, which if advanced the Master Servicer or such Servicer has
determined would not be recoverable from amounts received with respect to such
Mortgage Loan, including late payments, Liquidation Proceeds, Insurance Proceeds
or otherwise. If the Master Servicer determines that an Advance is required, it
shall on the Deposit Date immediately following such Determination Date either
(i) remit to the Trustee from its own funds (or funds advanced by the applicable
Servicer) for deposit in the Certificate Account immediately available funds in
an amount equal to such Advance, (ii) cause to be made an appropriate entry in
the records of the Collection Account that funds in such account being held for
future distribution or withdrawal have been, as permitted by this Section 5.04,
used by the Master Servicer to make such Advance, and remit such immediately
available funds to the Trustee for deposit in the Certificate Account or (iii)
make Advances in the form of any combination of clauses (i) and (ii) aggregating
the amount of such Advance. Any funds being held in the Collection Account for
future distribution to Certificateholders and so used shall be replaced by the
Master Servicer from its own funds by remittance to the Trustee for deposit in
the Certificate Account on or before any future Deposit Date to the extent that
funds in the Certificate Account on such Deposit Date shall be less than
payments to Certificateholders required to be made on the related Distribution
Date. The Master Servicer and each Servicer shall be entitled to be reimbursed
from the Collection Account for all Advances made by it as provided in Section
4.02.
(b) In the event that the Master Servicer fails for any reason to make an
Advance required to be made pursuant to Section 5.04(a) on or before the Deposit
Date, the Trustee, solely in its capacity as successor Master Servicer pursuant
to Section 6.14, shall, on or before the related Distribution Date, deposit in
the Certificate Account an amount equal to the excess of (a) Advances required
to be made by the Master Servicer or any Servicer that would have been deposited
in such Certificate Account over (b) the amount of any Advance made by the
Master Servicer or such Servicer with respect to such Distribution Date;
provided, however, that the Trustee shall be required to make such Advance only
if it is not prohibited by law from doing so and it has determined that such
Advance would be recoverable from amounts to be received with respect to such
Mortgage Loan, including late payments, Liquidation Proceeds, Insurance
Proceeds, or otherwise. The Trustee shall be entitled to be reimbursed from the
Certificate Account for Advances made by it pursuant to this Section 5.04 as if
it were the Master Servicer.
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ARTICLE VI CONCERNING THE TRUSTEE;
EVENTS OF DEFAULT
Section 6.01. DUTIES OF TRUSTEE.
(a) The Trustee, except during the continuance of an Event of Default (of
which a Responsible Officer of the Trustee shall have actual knowledge),
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. Any permissive right of the Trustee provided for in
this Agreement shall not be construed as a duty of the Trustee. If an Event of
Default (of which a Responsible Officer of the Trustee shall have actual
knowledge) has occurred and has not otherwise been cured or waived, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs unless the Trustee is acting as Master Servicer, in which case it
shall use the same degree of care and skill as the Master Servicer hereunder.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Master Servicer, to the Trustee pursuant to this Agreement, and
the Trustee shall not be required to recalculate or verify any numerical
information furnished to the Trustee pursuant to this Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful misconduct.
No provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the consent or direction of Holders of Certificates as
provided in Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default (other than resulting from a
failure by the Master Servicer (i) to remit funds (or to make Advances) or
(ii) to furnish information to the Trustee when required to do so) unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by
the Trustee at the Corporate Trust Office, and such notice references the
Holders of the Certificates and this Agreement;
(iii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default (other than resulting from a
failure by the Master Servicer to furnish information to the Trustee when
required to do so) unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the address provided in
Section 11.07, and such notice references the Holders of the Certificates
and this Agreement; and
(iv) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its
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duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that 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 to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement except, with respect to the Trustee, 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.
(d) The Trustee shall have no duty hereunder with respect to any complaint,
claim, demand, notice or other document it may receive or which may be alleged
to have been delivered to or served upon it by the parties as a consequence of
the assignment of any Mortgage Loan hereunder; provided, however, that the
Trustee shall use its best efforts to remit to the Master Servicer upon receipt
any such complaint, claim, demand, notice or other document (i) which is
delivered to the Corporate Trust Office of the Trustee, (ii) of which a
Responsible Officer has actual knowledge, and (iii) which contains information
sufficient to permit the Trustee to make a determination that the real property
to which such document relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of Certificateholders of any Class holding Certificates which
evidence, as to such Class, Percentage Interests aggregating not less than 25%
as to the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred upon the
Trustee under this Agreement.
(f) The Trustee shall not be held liable by reason of any insufficiency in
any account (including without limitation the Collection Account and the
Certificate Account) held by or on behalf of the Trustee resulting from any
investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
(g) Except as otherwise provided herein, the Trustee shall have no duty (A)
to see to any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any re-recording, re-filing or
re-depositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Collection Account or the Certificate Account, or (D) to confirm or verify the
contents of any reports or certificates of the Master Servicer delivered to the
Trustee pursuant to this Agreement believed by the Trustee, as applicable, to be
genuine and to have been signed or presented by the proper party or parties.
(h) The Trustee shall not be liable in its individual capacity for an error
of judgment made in good faith by a Responsible Officer or other officers of the
Trustee unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts.
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(i) Notwithstanding anything in this Agreement to the contrary, the Trustee
shall not be liable for special, indirect or consequential losses or damages of
any kind whatsoever (including, but not limited to, lost profits), even if the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
Section 6.02. CERTAIN MATTERS AFFECTING THE TRUSTEE. EXCEPT AS OTHERWISE
PROVIDED IN SECTION 6.01:
(i) The Trustee may request, and may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors, Opinion of Counsel or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and any advice of its
counsel or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(iv) Unless an Event of Default shall have occurred and be continuing,
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document (provided the same appears regular on its face), unless
requested in writing to do so by Holders of at least a majority in Class
Principal Amount (or Class Notional Amount) of each Class of Certificates;
provided, however, that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability or payment of such estimated expenses as
a condition to proceeding. The reasonable expense thereof shall be paid by
the Holders requesting such investigation;
(v) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
custodians, or attorneys, which agents, custodians or attorneys shall have
any and all of the rights, powers, duties and obligations of the Trustee
conferred on them by such appointment provided that the Trustee shall
continue to be responsible for its duties and obligations hereunder to the
extent provided herein, and provided further that the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by the Trustee;
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(vi) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto, in each case 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;
(vii) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act; and
(viii) The Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers
granted hereunder.
Section 6.03. TRUSTEE NOT LIABLE FOR CERTIFICATES. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates)
or of any Mortgage Loan, or related document save that the Trustee represents
that, assuming due execution and delivery by the other parties hereto, this
Agreement has been duly authorized, executed and delivered by it and constitutes
its valid and binding obligation, enforceable against it in accordance with its
terms except that such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally, and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in equity
or at law. The Trustee shall not be accountable for the use or application by
the Depositor of funds paid to the Depositor in consideration of the assignment
of the Mortgage Loans to the Trust Fund by the Depositor or for the use or
application of any funds deposited into the Collection Account, the Certificate
Account, any Escrow Account or any other fund or account maintained with respect
to the Certificates. The Trustee shall not be responsible for the legality or
validity of this Agreement or the validity, priority, perfection or sufficiency
of the security for the Certificates issued or intended to be issued hereunder.
Except as otherwise provided herein, the Trustee shall have no responsibility
for filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security interest
or lien granted to it hereunder or to record this Agreement.
Section 6.04. TRUSTEE MAY OWN CERTIFICATES. The Trustee and any Affiliate
or agent of the Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact banking and trust with the
other parties hereto with the same rights it would have if it were not Trustee
or such agent.
Section 6.05. ELIGIBILITY REQUIREMENTS FOR TRUSTEE. Trustee hereunder shall
at all times be (i) an institution insured by the FDIC and (ii) a corporation or
national banking association, organized and doing business under the laws of any
State or the United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation or national banking association 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, the combined capital and surplus of such
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corporation or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with provisions of this Section, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.06.
Section 6.06. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) The Trustee 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. Upon receiving such notice of resignation, the Depositor will promptly
appoint a successor trustee, by written instrument, one copy of which instrument
shall be delivered to the resigning Trustee, one copy to the successor trustee
and one copy to the Master Servicer. If no successor trustee shall have been so
appointed and shall have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.05 and shall fail to resign after written
request therefor by the Depositor, (ii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation, (iii) a tax is imposed or
threatened with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund held by the Trustee is located, or (iv) the continued use of the
Trustee would result in a downgrading of the rating by the Rating Agencies of
any Class of Certificates with a rating, then the Depositor shall remove the
Trustee and appoint a successor trustee by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or Class
Notional Amount) of each Class of Certificates may at any time upon 30 days'
written notice to the Trustee and the Depositor, remove the Trustee by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor,
one copy to the Trustee so removed and one copy to the Master Servicer; the
Depositor shall thereupon use its best efforts to appoint a mutually acceptable
successor trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon (i) payment of all unpaid amounts owed to the Trustee and (ii)
acceptance of appointment by the successor trustee as provided in Section 6.07.
Section 6.07. SUCCESSOR TRUSTEE
(a) Any successor trustee appointed as provided in Section 6.06 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer and to
its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of
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the predecessor trustee shall become effective and such successor trustee
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee. The predecessor trustee (or its
custodian) shall deliver to the successor Trustee (or assign to the successor
Trustee its interest under each Custodial Agreement, to the extent permitted
thereunder) all Mortgage Files and documents and statements related to each
Mortgage Files held by it hereunder, and shall duly assign, transfer, deliver
and pay over to the successor trustee the entire Trust Fund, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the record or copies
thereof maintained by the predecessor Trustee in the administration hereof as
may be requested by the successor trustee and shall thereupon be discharged from
all duties and responsibilities under this Agreement. In addition, the Master
Servicer and the predecessor Trustee shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section, the Master Servicer shall mail notice of the succession of such
Trustee and to all Holders of Certificates at their addresses as shown in the
Certificate Register and to the Rating Agencies. The expenses of such mailing
shall be borne by the Master Servicer.
Section 6.08. Merger or Consolidation of Trustee or Trustee. Any Person
into which the Trustee may be merged or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Persons succeeding to the business of the
Trustee, shall be the successor to the Trustee hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, provided that such
Person shall be eligible under the provisions of Section 6.05.
Section 6.09. APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee,
the Depositor or the Certificateholders evidencing more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates shall
each have the power from time to time to appoint one or more Persons to act
either as co-Trustees jointly with the Trustee, or as separate Trustees, or as
custodians, for the purpose of holding title to, foreclosing or otherwise taking
action with respect to any Mortgage Loan outside the state where the Trustee has
its principal place of business where such separate Trustee or co-Trustee is
necessary or advisable (or the Trustee has been advised by the Master Servicer
that such separate Trustee or co-Trustee is necessary or advisable) under the
laws of any state in which a property securing a Mortgage Loan is located or for
the purpose of otherwise conforming to any legal requirement, restriction or
condition in any state in which a property securing a Mortgage Loan is located
or in any state in which any portion of the Trust Fund is located. The separate
Trustees, co-trustees, or custodians so appointed shall be trustees or
custodians for the benefit of all the Certificateholders
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and shall have such powers, rights and remedies as shall be specified in the
instrument of appointment; provided, however, that no such appointment shall, or
shall be deemed to, constitute the appointee an agent of the Trustee. The
obligation of the Trustee to make Advances pursuant to Section 5.04 and 6.14
hereof shall not be affected or assigned by the appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed 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 Fund or any portion thereof in any such
jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee or the Certificateholders evidencing more than 50% of
the Aggregate Voting Interests of the Certificates may at any time accept
the resignation of or remove any separate trustee, co-trustee or custodian,
so appointed by it or them, if such resignation or removal does not violate
the other terms of this Agreement.
(c) 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, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VI. 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.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. The Trustee shall not
be responsible for any action or inaction of any separate trustee, co-trustee or
custodian. If any separate trustee, co-trustee or custodian shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be
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exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the co-trustees to
the extent, and in accordance with the standards, specified in Section 6.12
hereof (which compensation shall not reduce any compensation payable to the
Trustee under such Section).
Section 6.10. AUTHENTICATING AGENTS.
(a) The Trustee may appoint one or more Authenticating Agents which shall
be authorized to act on behalf of the Trustee in authenticating Certificates.
Wherever reference is made in this Agreement to the authentication of
Certificates by the Trustee's certificate of authentication, such reference
shall be deemed to include authentication on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent must be a
corporation organized and doing business under the laws of the United States of
America or of any state, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.10, the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10. No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee. Any
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Authenticating Agent shall be entitled to reasonable compensation for its
services and, if paid by the Trustee, it shall be a reimbursable expense to the
extent provided in Section 6.12.
Section 6.11. INDEMNIFICATION OF TRUSTEE. The Trustee and its respective
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense incurred in connection
with any legal proceeding or incurred without negligence or willful misconduct
on their part, arising out of, or in connection with, the acceptance or
administration of the trusts created hereunder or in connection with the
performance of their duties hereunder, including any applicable fees and
expenses payable pursuant to Section 6.12 and the costs and expenses of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall have given the
Depositor, the Master Servicer and the Holders written notice thereof
promptly after the Trustee shall have knowledge thereof; provided that
failure to so notify shall not relieve the Trust Fund of the obligation to
indemnify the Trustee; however, any reasonable delay by the Trustee to
provide written notice to the Depositor, the Master Servicer and the
Holders promptly after the Trustee shall have obtained knowledge of a claim
shall not relieve the Trust Fund of the obligation to indemnify the Trustee
under this Section 6.11;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this Section 6.11,
the Trust Fund shall not be liable for settlement of any such claim by the
Trustee entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee and shall be construed
to include, but not be limited to any loss, liability or expense under any
environmental law.
Section 6.12. FEES AND EXPENSES OF TRUSTEE AND CUSTODIAN. The Trustee shall
be entitled to (a) the Trustee Fee and (b) all reasonable expenses,
disbursements and advancements incurred or made by the Trustee in accordance
with this Agreement (including fees and expenses of its counsel and all persons
not regularly in its employment), except any such expenses, disbursements and
advancements that either (i) arise from its negligence, bad faith or willful
misconduct or (ii) do not constitute "unanticipated expenses" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii). The Custodian shall be
compensated as separately agreed with the Depositor.
Section 6.13. COLLECTION OF MONIES. Except as otherwise expressly provided
in this Agreement, the Trustee may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee pursuant to this Agreement. The Trustee shall hold all such money
and property received by it as part of the Trust Fund and shall distribute it as
provided in this Agreement. If the Trustee shall not have timely received
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amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
Section 6.14. EVENTS OF DEFAULT; TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default":
(i) Any failure by the Master Servicer to furnish the Trustee the
Mortgage Loan data sufficient to prepare the reports described in Section
4.03(a) which continues unremedied for a period of one Business Day after
the date upon which written notice of such failure shall have been given to
such Master Servicer by the Trustee or to such Master Servicer, the Trustee
by the Holders of not less than 25% of the Class Principal Amount (or Class
Notional Amount) of each Class of Certificates affected thereby; or
(ii) Any failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on
the part of such Master Servicer contained in this Agreement which
continues unremedied for a period of 30 days (or 15 days, in the case of a
failure to maintain any Insurance Policy required to be maintained pursuant
to this Agreement) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to such Master
Servicer by the Trustee, or to such Master Servicer and the Trustee by the
Holders of not less than 25% of the Class Principal Amount (or Class
Notional Amount) of each Class of Certificates affected thereby; or
(iii) A decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days or any Rating Agency
reduces or withdraws or threatens to reduce or withdraw the rating of the
Certificates because of the financial condition or loan servicing
capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, voluntary liquidation or
similar proceedings of or relating to such Master Servicer or of or
relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into
another entity or shall
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permit another entity to consolidate or merge into it, such that the
resulting entity does not meet the criteria for a successor servicer as
specified in Section 9.27 hereof; or
(vii) If a representation or warranty set forth in Section 9.14 hereof
shall prove to be incorrect as of the time made in any respect that
materially and adversely affects the interests of the Certificateholders,
and the circumstance or condition in respect of which such representation
or warranty was incorrect shall not have been eliminated or cured within 60
days after the date on which written notice of such incorrect
representation or warranty shall have been given to the Master Servicer by
the Trustee, or to the Master Servicer and the Trustee by the Holders of
not less than 25% of the Aggregate Certificate Principal Amount of each
Class of Certificates; or
(viii) A sale or pledge of the any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master Servicer
hereunder shall have occurred in any manner not otherwise permitted
hereunder and without the prior written consent of the Trustee and
Certificateholders holding more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates;
(ix) Any Servicer at any time is not either an FNMA- or FHLMC-
approved Seller/Servicer, and the Master Servicer has not terminated the
rights and obligations of such Servicer under the applicable Servicing
Agreement and replaced such Servicer with an FNMA- or FHLMC-approved
servicer within 30 days of the absence of such approval; or
(x) Any failure of the Master Servicer to remit to the Trustee any
payment required to be made to the Trustee for the benefit of
Certificateholders under the terms of this Agreement, including any
Advance, on any Deposit Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates, terminate all of the
rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof. If an Event of Default described in
clause (x) of this Section 6.14 shall occur, then, in each and every case,
subject to applicable law, the Trustee, by notice in writing to the Master
Servicer, shall promptly terminate all of the rights and obligations of the
Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer, and only in its capacity as
Master Servicer under this Agreement, whether with respect to the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
the terms of this Agreement; and the Trustee is hereby authorized and empowered
to execute and deliver, on behalf of the defaulting 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
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the Mortgage Loans and related documents or otherwise. The defaulting Master
Servicer agrees to cooperate with the Trustee in effecting the termination of
the defaulting Master Servicer's responsibilities and rights hereunder as Master
Servicer including, without limitation, notifying Servicers of the assignment of
the master servicing function and providing the Trustee or its designee all
documents and records in electronic or other form reasonably requested by it to
enable the Trustee or its designee to assume the defaulting Master Servicer's
functions hereunder and the transfer to the Trustee for administration by it of
all amounts which shall at the time be or should have been deposited by the
defaulting Master Servicer in the Collection Account maintained by such
defaulting Master Servicer and any other account or fund maintained with respect
to the Certificates or thereafter received with respect to the Mortgage Loans.
The Master Servicer being terminated shall bear all costs of a master servicing
transfer, including but not limited to those of the Trustee reasonably allocable
to specific employees and overhead, legal fees and expenses, accounting and
financial consulting fees and expenses, and costs of amending the Agreement, if
necessary. The Trustee shall be entitled to be reimbursed from the Master
Servicer (or by the Trust, if the Master Servicer is unable to fulfill its
obligations hereunder) for all costs associated with the transfer of servicing
from the predecessor Master Servicer, including, without limitation, any costs
or expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to master service the Mortgage Loans properly
and effectively. If the terminated Master Servicer does not pay such
reimbursement within thirty (30) days of its receipt of an invoice therefor,
such reimbursement shall be an expense of the Trust and the Trustee shall be
entitled to withdraw such reimbursement from amounts on deposit in the
Certificate Account pursuant to Section 4.04; provided that the terminated
Master Servicer shall reimburse the Trust for any such expense incurred by the
Trust.
Notwithstanding the termination of its activities as Master Servicer, each
terminated Master Servicer shall continue to be entitled to reimbursement to the
extent provided in Section 4.02(i), (ii), (iii), (iv), (v), (vi), (vii), (ix)
and (xi) to the extent such reimbursement relates to the period prior to such
Master Servicer's termination.
If any Event of Default shall occur of which a Responsible Officer of the
Trustee has actual knowledge, the Trustee shall promptly notify the Rating
Agencies of the nature and extent of such Event of Default. The Trustee shall
immediately give written notice to the Master Servicer upon such Master
Servicer's failure to remit funds on the Deposit Date.
(b) Within 90 days of the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee receives
the resignation of the Master Servicer evidenced by an Opinion of Counsel
pursuant to Section 9.28, the Trustee, unless another master servicer shall have
been appointed, shall be the successor in all respects to the Master Servicer in
its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all the rights and powers and be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer hereunder, including the obligation to
make Advances; provided, however, that any failure to perform such duties or
responsibilities caused by the Master Servicer's or the Trustee's failure to
provide information required by this Agreement shall not be considered a default
by the Trustee hereunder. In addition, the Trustee shall have no responsibility
for any act or
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omission of the Master Servicer prior to the issuance of any notice of
termination and within a period of time not to exceed 90 days after the issuance
of any notice of termination pursuant to Section 6.14(a) or Section 9.28. The
Trustee shall have no liability relating to the representations and warranties
of the Master Servicer set forth in Section 9.14. In the Trustee's capacity as
such successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation therefor, the Trustee shall be
entitled to receive all compensation payable to the Master Servicer under this
Agreement, including the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be unwilling to
continue to so act, or shall, if it is unable to so act, appoint or petition a
court of competent jurisdiction to appoint any established housing and home
finance institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of all of
the responsibilities, duties or liabilities of a master servicer, like the
Master Servicer. Any entity designated by the Trustee as a successor master
servicer may be an Affiliate of the Trustee; provided, however, that, unless
such Affiliate meets the net worth requirements and other standards set forth
herein for a successor master servicer, the Trustee, in its individual capacity
shall agree, at the time of such designation, to be and remain liable to the
Trust Fund for such Affiliate's actions and omissions in performing its duties
hereunder. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other form
reasonably requested by it to enable it to assume the Master Servicer's
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Master Servicer to deliver,
or any delay in delivering, cash, documents or records to it, (ii) the failure
of the Master Servicer to cooperate as required by this Agreement, (iii) the
failure of the Master Servicer to deliver the Mortgage Loan data to the Trustee
as required by this Agreement or (iv) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer.
Section 6.15. ADDITIONAL REMEDIES OF TRUSTEE UPON EVENT OF DEFAULT. During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 6.14, shall have the right, in its own name and as trustee of an express
trust, to take all actions now or hereafter existing at
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law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
Section 6.16. WAIVER OF DEFAULTS. 35% or more of the Aggregate Voting
Interests of Certificateholders may waive any default or Event of Default by the
Master Servicer in the performance of its obligations hereunder, except that a
default in the making of any required deposit to the Certificate Account that
would result in a failure of the Trustee to make any required payment of
principal of or interest on the Certificates may only be waived with the consent
of 100% of the affected Certificateholders. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been 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.
Section 6.17. NOTIFICATION TO HOLDERS. Upon termination of the Master
Servicer or appointment of a successor to the Master Servicer, in each case as
provided herein, the Trustee shall promptly mail notice thereof by first class
mail to the Certificateholders at their respective addresses appearing on the
Certificate Register. The Trustee shall also, within 45 days after the
occurrence of any Event of Default known to a Responsible Officer of the
Trustee, give written notice thereof to the Certificateholders, unless such
Event of Default shall have been cured or waived prior to the issuance of such
notice and within such 45-day period.
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Section 6.18. DIRECTIONS BY CERTIFICATEHOLDERS AND DUTIES OF TRUSTEE DURING
EVENT OF DEFAULT. Subject to the provisions of Section 8.01 hereof, during the
continuance of any Event of Default, Holders of Certificates evidencing not less
than 25% of the Class Principal Amount (or Class Notional Amount) of each Class
of Certificates may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Agreement; provided, however, that
the Trustee shall be under no obligation to pursue any such remedy, or to
exercise any of the trusts or powers vested in it by this Agreement (including,
without limitation, (i) the conducting or defending of any administrative action
or litigation hereunder or in relation hereto and (ii) the terminating of the
Master Servicer or any successor master servicer from its rights and duties as
master servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, in accordance with
an Opinion of Counsel, determines that the action or proceeding so directed may
not lawfully be taken or if the Trustee in good faith determines that the action
or proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
Section 6.19. ACTION UPON CERTAIN FAILURES OF THE MASTER SERVICER AND UPON
EVENT OF DEFAULT. In the event that a Responsible Officer of the Trustee shall
have actual knowledge of any action or inaction of the Master Servicer that
would become an Event of Default upon the Master Servicer's failure to remedy
the same after notice, the Trustee shall give notice thereof to the Master
Servicer. For all purposes of this Agreement, in the absence of actual knowledge
by a Responsible Officer of the Trustee, the Trustee shall not be deemed to have
knowledge of any failure of the Master Servicer or any other Event of Default
unless notified in writing by the Depositor, the Master Servicer or a
Certificateholder.
Section 6.20. PREPARATION OF TAX RETURNS AND OTHER REPORTS.
(a) The Trustee shall prepare or cause to be prepared on behalf of the
Trust Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, and the Trustee shall file,
federal tax returns and appropriate state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund, and
shall file any other documents to the extent required by applicable state tax
law (to the extent such documents are in the Trustee's possession). The Trustee
shall forward copies to the Depositor of all such returns and Form 1099
supplemental tax information and such other information within the control of
the Trustee as the Depositor may reasonably request in writing, and shall
forward to each Certificateholder such forms and furnish such information within
the control of the Trustee as are required by the Code and the REMIC Provisions
to be furnished to them, and will prepare and distribute to Certificateholders
Form 1099 (supplemental tax information) (or otherwise furnish information
within the control of the Trustee) to the extent required by applicable law. The
Master Servicer will indemnify the Trustee for any liability of or assessment
against the Trustee, as applicable, resulting from any error in any of such tax
or information returns directly resulting from errors in the information
provided by such Master Servicer.
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(b) The Trustee shall prepare and file with the Internal Revenue Service
("IRS"), on behalf of each of the Lower Tier REMIC, the Middle Tier REMIC and
the Upper Tier REMIC, an application on IRS Form SS-4. The Trustee, upon receipt
from the IRS of the Notice of Taxpayer Identification Number Assigned for each
REMIC, shall promptly forward copies of such notice to the Master Servicer and
the Depositor. The Trustee will file, on behalf of each of the Lower Tier REMIC,
the Middle Tier REMIC and the Upper Tier REMIC, an IRS Form 8811.
(c) The Depositor shall prepare or cause to be prepared the initial current
report on Form 8-K. Thereafter, within 15 days after each Distribution Date, the
Trustee shall, in accordance with industry standards, file with the Securities
and Exchange Commission (the "Commission") via the Electronic Data Gathering and
Retrieval System (XXXXX), a Form 8-K with a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
January 30, 2003, the Trustee shall, in accordance with industry standards, file
a Form 15 Suspension Notification with respect to the Trust Fund, if applicable.
Prior to March 31, 2003, the Trustee shall file (but will not execute) a Form
10-K, in substance conforming to industry standards, with respect to the Trust
Fund. The Depositor hereby grants to the Trustee a limited power of attorney to
execute and file each such document on behalf of the Depositor. Such power of
attorney shall continue until either the earlier of (i) receipt by the Trustee
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
Trustee, 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 Trustee reasonably deems appropriate to prepare and file
all necessary reports with the Commission. In addition, the Form 10-K shall
include the certification required pursuant to Rule 13a-14 under the Securities
and Exchange Act of 1934, as amended (the "Form 10-K Certification") signed by
an appropriate party or parties (which Form 10-K Certification the Trustee shall
not be required to sign). The Trustee shall have no responsibility to file any
items other than those specified in this section.
(d) If so requested, the Trustee shall sign a certification (in the form
attached hereto as Exhibit M) for the benefit of the Person(s) signing the Form
10-K Certification regarding certain aspects of such Form 10-K Certification
(provided, however, that the Trustee shall not be required to undertake an
analysis of the accountant's report attached as an exhibit to the Form 10-K).
(e) If so requested, the Master Servicer shall sign a certification (in the
form attached hereto as Exhibit N) for the benefit of the Person(s) signing the
Form 10-K Certification regarding certain aspects of such Form 10-K
Certification (provided, however, that the Master Servicer shall not be required
to undertake an analysis of the accountant's report attached as an exhibit to
the Form 10-K).
(f) Each person (including their officers or directors) that signs any Form
10-K Certification shall be entitled to indemnification from the Trust Fund for
any liability or expense incurred by it in connection with such certification,
other than any liability or expense attributable to such Person's own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal of such
Person.
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ARTICLE VII PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. TERMINATION OF TRUST FUND UPON REPURCHASE OR LIQUIDATION OF
ALL MORTGAGE LOANS.
(a) The respective obligations and responsibilities of the Trustee and the
Master Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in Section 7.02, the obligation of
the Master Servicer to make a final remittance to the Trustee for deposit into
the Certificate Account pursuant to Section 4.01 and the obligations of the
Master Servicer to the Trustee pursuant to Sections 9.10 and 9.14), shall
terminate on the earlier of (i) the final payment or other liquidation of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the sale of all remaining property held by the Trust Fund in
accordance with Section 7.01(b); provided, however, that in no event shall the
Trust Fund 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. Any termination of the Trust Fund shall be carried out in such a manner
so that the termination of each REMIC included therein shall qualify as a
"qualified liquidation" under the REMIC Provisions.
(b) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans in the Trust Fund is
less than 5% of the Principal Balance of the Mortgage Loans in the Trust Fund
(determined in the aggregate rather than by pool) as of the Cut-off Date, the
Master Servicer may, upon written direction to the Trustee, cause the Trustee to
sell (or arrange for the sale of) the assets of the Trust Fund. Upon the
repurchase of the Mortgage Loans in the Trust Fund, the Master Servicer shall,
upon written direction to the Trustee, cause each REMIC included in the Trust
Fund to adopt a plan of complete liquidation pursuant to Section 7.03 hereof to
sell all of its property. The property of the Trust Fund shall be sold at a
price (the "Repurchase Price") equal to: (i) 100% of the unpaid principal
balance of each Mortgage Loan in the Trust Fund on the day of such purchase plus
interest accrued thereon at the applicable Mortgage Rate with respect to any
Mortgage Loan to the Due Date in the Due Period immediately preceding the
related Distribution Date to the date of such repurchase, (ii) the fair market
value of any REO Property and any other property held by the Trust Fund, such
fair market value to be determined by an appraiser or appraisers appointed by
the Master Servicer with the consent of the Trustee and (iii) any unreimbursed
Servicing Advances with respect to each Mortgage Loan in the Trust Fund. Upon
the repurchase of the Mortgage Loans, the Trust Fund shall terminate in
accordance with the terms of this Agreement.
Section 7.02. PROCEDURE UPON TERMINATION OF TRUST FUND.
(a) Notice of any termination pursuant to the provisions of Section 7.01,
specifying the Distribution Date upon which the final distribution shall be
made, shall be given promptly by the Trustee by first class mail to
Certificateholders mailed (x) no later than five Business Days after the Trustee
has received notice from the Master Servicer of its intent to exercise its right
to cause the termination of the Trust Fund pursuant to Section 7.01(b) or (y)
upon the final payment or other liquidation of the last Mortgage Loan or REO
Property in the Trust Fund. Such notice
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shall specify (A) the Distribution Date upon which final distribution on the
Certificates of all amounts required to be distributed to Certificateholders
pursuant to Section 5.02 will be made upon presentation and surrender of the
Certificates at the Corporate Trust Office, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein specified. The Trustee shall give such
notice to the Master Servicer, the Depositor and the Certificate Registrar at
the time such notice is given to Holders of the Certificates. Upon any such
termination, the duties of the Certificate Registrar with respect to the
Certificates shall terminate and the Trustee shall terminate, or request the
Master Servicer to terminate, the Collection Account it maintains, the
Certificate Account and any other account or fund maintained with respect to the
Certificates, subject to the Trustee's obligation hereunder to hold all amounts
payable to Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to contact
the remaining Certificateholders concerning surrender of such Certificates, and
the cost thereof shall be paid out of the amounts distributable to such Holders.
If within two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee shall, subject to applicable state law
relating to escheatment, hold all amounts distributable to such Holders for the
benefit of such Holders. No interest shall accrue on any amount held by the
Trustee and not distributed to a Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section.
(c) Any reasonable expenses incurred by the Trustee in connection with any
termination or liquidation of the Trust Fund shall be paid from proceeds
received from the liquidation of the Trust Fund, but only to the extent that
such expenses constitute "unanticipated expenses" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii).
Section 7.03. ADDITIONAL REQUIREMENTS UNDER THE REMIC PROVISIONS.
(a) Any termination of the Trust Fund shall be effected in accordance with
the following additional requirements, unless the Trustee seeks (at the request
of the Master Servicer), and subsequently receives, an Opinion of Counsel (at
the expense of the Master Servicer), addressed to the Trustee to the effect that
the failure of the Trust Fund to comply with the requirements of this Section
7.03 will not (i) result in the imposition of taxes on any REMIC under the REMIC
Provisions or (ii) cause any REMIC established hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) The Trustee shall sell all of the assets of the Trust Fund for
cash and, within 90 days of such sale, shall distribute the proceeds of
such sale to the Certificateholders in complete liquidation of the Trust
Fund, the Lower Tier REMIC, the Middle Tier REMIC and the Upper Tier REMIC;
and
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(ii) The Trustee shall attach a statement to the final Federal income
tax return for each of the Lower Tier REMIC, the Middle Tier REMIC and the
Upper Tier REMIC stating that pursuant to Treasury Regulation ss. 1.860F-1,
the first day of the 90-day liquidation period for each such REMIC was the
date on which the Trustee sold the assets of the Trust Fund.
(b) By its acceptance of a Residual Certificate, each Holder thereof hereby
(i) authorizes the Trustee to take the action described in paragraph (a) above
and (ii) agrees to take such other action as may be necessary to facilitate
liquidation of each REMIC created under this Agreement, which authorization
shall be binding upon all successor Residual Certificateholders.
Article VIII RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of this
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
the operation and management of the Trust Fund, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Class Notional Amount) of Certificates of each Class 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 cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for sixty
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request has been given such Trustee
during such sixty-day period by such Certificateholders; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing of any provision of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of such Certificates, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Agreement, except in the manner herein provided and for the
benefit of all
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Certificateholders. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 8.02. ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the Certificate
Registrar will furnish or cause to be furnished to the Trustee, within fifteen
days after receipt by the Certificate Registrar of a request by the Trustee in
writing, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Certificateholders of each Class as of the most
recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter referred to
as "Applicants") apply in writing to the Trustee, and such application states
that the Applicants desire to communicate with other Holders with respect to
their rights under this Agreement or under the Certificates and is accompanied
by a copy of the communication which such Applicants propose to transmit, then
the Trustee shall, within five Business Days after the receipt of such
application, afford such Applicants reasonable access during the normal business
hours of the Trustee to the most recent list of Certificateholders held by the
Trustee or shall, as an alternative, send, at the Applicants' expense, the
written communication proffered by the Applicants to all Certificateholders at
their addresses as they appear in the Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing Agency,
by receiving and holding a Certificate, agrees with the Depositor, the Master
Servicer, the Certificate Registrar and the Trustee that neither the Depositor,
the Master Servicer, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 8.03. ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders or
Certificate Owner, if the Holder is a Clearing Agency, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where expressly
required herein, to the Master Servicer. Such instrument or instruments (as the
action embodies therein and evidenced thereby) are herein sometimes referred to
as an "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agents
shall be sufficient for any purpose of this Agreement and conclusive in favor of
the Trustee and Master Servicer, if made in the manner provided in this Section.
Each of the Trustee and Master Servicer shall promptly notify the other of
receipt of any such instrument by it, and shall promptly forward a copy of such
instrument to the other.
(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
the certificate of any notary
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public or other officer authorized by law to take acknowledgments or deeds,
certifying that the individual signing such instrument or writing acknowledged
to him the execution thereof. Whenever such execution is by an officer of a
corporation or a member of a partnership on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient
proof of his 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 (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and the Trustee, the Master Servicer and the Depositor
shall not be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee or the
Master Servicer in reliance thereon, whether or not notation of such action is
made upon such Certificate.
Article IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. DUTIES OF THE MASTER SERVICER.
The Certificateholders, by their purchase and acceptance of the
Certificates, appoint Aurora Loan Services Inc., as Master Servicer. For and on
behalf of the Depositor, the Trustee and the Certificateholders, the Master
Servicer shall master service the Mortgage Loans in accordance with the
provisions of this Agreement and the provisions of the applicable Servicing
Agreement.
Section 9.02. MASTER SERVICER FIDELITY BOND AND MASTER SERVICER ERRORS AND
OMISSIONS INSURANCE POLICY.
(a) The Master Servicer, at its expense, shall maintain in effect a
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 that would meet the requirements of FNMA or FHLMC if it were the
purchaser of the Mortgage Loans. The Master Servicer shall (i) require each
Servicer to maintain an Errors and Omissions Insurance Policy and a Fidelity
Bond in accordance with the provisions of the applicable Servicing Agreement,
(ii) cause each Servicer to provide to the Master Servicer certificates
evidencing that such policy and bond is in effect and to furnish to the Master
Servicer any notice of cancellation, non-renewal or modification of the policy
or bond received by it, as and to the extent provided in the applicable
Servicing Agreement, and (iii) furnish copies of the certificates
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and notices referred to in clause (ii) to the Trustee upon its request. The
Fidelity Bond and Errors and Omissions Insurance Policy may be obtained and
maintained in blanket form.
(b) The Master Servicer shall promptly report to the Trustee any material
changes that may occur in the Master Servicer Fidelity Bond or the Master
Servicer Errors and Omissions Insurance Policy and shall furnish to the Trustee,
on request, certificates evidencing that such bond and insurance policy are in
full force and effect. The Master Servicer shall promptly report to the Trustee
all cases of embezzlement or fraud, if such events involve funds relating to the
Mortgage Loans. The total losses, regardless of whether claims are filed with
the applicable insurer or surety, shall be disclosed in such reports together
with the amount of such losses covered by insurance. If a bond or insurance
claim report is filed with any of such bonding companies or insurers, the Master
Servicer shall promptly furnish a copy of such report to the Trustee. Any
amounts relating to the Mortgage Loans collected by the Master Servicer under
any such bond or policy shall be promptly remitted by the Master Servicer to the
Trustee for deposit into the Certificate Account. Any amounts relating to the
Mortgage Loans collected by any Servicer under any such bond or policy shall be
remitted to the Master Servicer to the extent provided in the applicable
Servicing Agreement.
Section 9.03. MASTER SERVICER'S FINANCIAL STATEMENTS AND RELATED
INFORMATION.
For each year this Agreement is in effect, the Master Servicer shall submit
to the Trustee, each Rating Agency and the Depositor a copy of its annual
unaudited financial statements on or prior to the last day of February of each
year commencing on February 28, 2003. Such financial statements shall include a
balance sheet, income statement, statement of retained earnings, statement of
additional paid-in capital, statement of changes in financial position and all
related notes and schedules and shall be in comparative form, certified by a
nationally recognized firm of Independent Accountants to the effect that such
statements were examined and prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of the preceding
year.
Section 9.04. POWER TO ACT; PROCEDURES.
(a) 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, and each Servicer shall have full power and
authority (to the extent provided in the applicable Servicing Agreement) to do
any and all things that it may deem necessary or desirable in connection with
the 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 applicable Servicing Agreement, as applicable; provided
that the Master Servicer shall not take, or knowingly permit any Servicer to
take, any action that is inconsistent with or prejudices the interests of the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee and the Certificateholders under this
Agreement. The
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Master Servicer further is authorized and empowered by the Trustee, on behalf of
the Certificateholders and the Trustee, in its own name or in the name of any
Servicer, when the Master Servicer or a Servicer, as the case may be, believes
it is appropriate in its best judgment to register any Mortgage Loan with MERS,
or cause the removal from the registration of any Mortgage Loan on the MERS
system, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not make or knowingly permit any Servicer to
make any modification, waiver or amendment of any term of any Mortgage Loan that
would cause any REMIC included in the Trust Fund to fail to qualify as a REMIC
or result in the imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code. Without limiting the generality of the foregoing, the Master
Servicer in its own name or in the name of a Servicer, and each Servicer, to the
extent such authority is delegated to such Servicer by the Master Servicer under
the applicable Servicing Agreement, is hereby authorized and empowered by the
Trustee when the Master Servicer or a Servicer, as the case may be, believes it
appropriate in its best judgment and in accordance with Accepted Servicing
Practices and the applicable Servicing Agreement, to execute and deliver, on
behalf of itself and the Certificateholders, the Trustee or any of them, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall furnish
the Master Servicer, upon request, with any powers of attorney empowering the
Master Servicer or each Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with the applicable Servicing Agreement and
this Agreement, and the Trustee shall execute and deliver such other documents,
as the Master Servicer may request, necessary or appropriate 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 Servicing
Practices (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or the applicable 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, then
upon request of the Trustee, the Master Servicer shall join with the Trustee in
the appointment of a co-trustee pursuant to Section 6.09 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.
(b) In master servicing and administering the Mortgage Loans, the Master
Servicer shall employ procedures, and shall cause each Servicer to employ
procedures (including, but not limited to, collection procedures), consistent
with the applicable Servicing Agreement. Consistent with the foregoing, the
Master Servicer may, and may permit any Servicer to, in its discretion (i) waive
any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due dates
for payments
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due on a Mortgage Note for a period not greater than 120 days; provided,
however, that the maturity of any Mortgage Loan shall not be extended past the
date on which the final payment is due on the latest maturing Mortgage Loan as
of the Cut-off Date. In the event of any extension described in clause (ii)
above, the Master Servicer shall make or cause to be made Advances on the
related Mortgage Loan in accordance with the provisions of Section 5.04 on the
basis of the amortization schedule of such Mortgage Loan without modification
thereof by reason of such extension. Notwithstanding anything to the contrary in
this Agreement, the Master Servicer shall not, unless default by the related
Mortgagor is, in the reasonable judgment of the Master Servicer or the related
Servicer, imminent, make or knowingly permit such Servicer to make any
modification, waiver or amendment of any material term of any Mortgage Loan
(including but not limited to the interest rate, the principal balance, the
amortization schedule, or any other term affecting the amount or timing of
payments on the Mortgage Loan or the collateral therefor) unless the Master
Servicer or the related Servicer shall have provided or caused to be provided to
the Trustee an Opinion of Counsel (at the expense of the party seeking the
modification) in writing to the effect that such modification, waiver or
amendment would not be treated as giving rise to a new debt instrument for
federal income tax purposes and would not adversely affect the status of any
REMIC provided for herein.
Section 9.05. SERVICING AGREEMENTS BETWEEN THE MASTER SERVICER AND
SERVICERS; ENFORCEMENT OF SERVICERS' OBLIGATIONS.
(a) Each Servicing Agreement requires the applicable Servicer to service
the Mortgage Loans in accordance with the provisions thereof. References in this
Agreement to actions taken or to be taken by the Master Servicer include such
actions taken or to be taken by a Servicer pursuant to a Servicing Agreement.
Any fees, costs and expenses and other amounts payable to such Servicers shall
be deducted from amounts remitted to the Master Servicer by the applicable
Servicer and shall not be an obligation of the Trust, the Trustee or the Master
Servicer.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall use its reasonable best efforts to
enforce the obligations of each Servicer under the related Servicing Agreement
and shall, upon its obtaining actual knowledge of the failure of a Servicer to
perform its obligations in accordance with the related Servicing Agreement, to
the extent that the non-performance of any such obligations would have a
material adverse effect on a Mortgage Loan, the Trust Fund or
Certificateholders, terminate the rights and obligations of such Servicer
thereunder to the extent and in the manner permitted by the related Servicing
Agreement and either act as servicer of the related Mortgage Loans or enter into
a Servicing Agreement with a successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement at
its own expense, and shall be reimbursed therefor initially only (i) from a
general recovery resulting from such enforcement only to the extent, if any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans or (ii) from a specific recovery of costs, expenses or attorneys' fees
against the party against whom such enforcement is directed, and then, to the
extent that such amounts are insufficient to reimburse the Master Servicer for
the costs of such enforcement, (iii) from the Collection Account.
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Section 9.06. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS.
(a) To the extent provided in the applicable Servicing Agreement, the
Master Servicer shall cause each Servicer to establish and maintain one or more
custodial accounts at a depository institution (which may be a depository
institution with which the Master Servicer or any Servicer establishes accounts
in the ordinary course of its servicing activities), the accounts of which are
insured to the maximum extent permitted by the FDIC (each, an "Escrow Account")
and shall deposit therein any collections of amounts received with respect to
amounts due for taxes, assessments, water rates, Standard Hazard Insurance
Policy premiums or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have been
escrowed for such purpose) only in accordance with the applicable Servicing
Agreement. Each Servicer shall be entitled to all investment income not required
to be paid to Mortgagors on any Escrow Account maintained by such Servicer. The
Master Servicer shall make (or cause to be made) to the extent provided in the
applicable Servicing Agreement advances to the extent necessary in order to
effect timely payment of taxes, water rates, assessments, Standard Hazard
Insurance Policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails, to pay
such items), provided that it has determined that the funds so advanced are
recoverable from escrow payments, reimbursement pursuant to Section 4.02(v) or
otherwise.
(b) Costs incurred by the Master Servicer or by Servicers in effecting the
timely payment of taxes and assessments on the properties subject to the
Mortgage Loans may be added to the amount owing under the related Mortgage Note
where the terms of the Mortgage Note 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. Such costs, to
the extent that they are unanticipated, extraordinary costs, and not ordinary or
routine costs shall be recoverable by the Master Servicer pursuant to Section
4.02(v).
Section 9.07. TERMINATION OF SERVICING AGREEMENTS; SUCCESSOR SERVICERS.
(a) The Master Servicer shall be entitled to terminate the rights and
obligations of any Servicer under the applicable Servicing Agreement in
accordance with the terms and conditions of such Servicing Agreement and without
any limitation by virtue of this Agreement; provided, however, that in the event
of termination of any Servicing Agreement by the Master Servicer or the related
Servicer, the Master Servicer shall either act as Servicer of the related
Mortgage Loans, or enter into a Servicing Agreement with a successor Servicer.
(b) 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. The Master Servicer shall use reasonable efforts to have the successor
Servicer assume liability for the representations and warranties made by the
terminated Servicer in respect of the related Mortgage Loans, and in the event
of any such assumption by the successor Servicer, the Trustee or the Master
Servicer, as applicable, may, in the exercise of its business judgment, release
the terminated Servicer from liability for such representations and warranties.
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Section 9.08. MASTER SERVICER LIABLE FOR ENFORCEMENT.
Notwithstanding any Servicing Agreement, the Master Servicer shall remain
obligated and liable to the Trustee and the Certificateholders in accordance
with the provisions of this Agreement, to the extent of its obligations
hereunder, without diminution of such obligation or liability by virtue of such
Servicing Agreements or arrangements. The Master Servicer shall use commercially
reasonable efforts to ensure that the Mortgage Loans are serviced in accordance
with the provisions of this Agreement and shall use commercially reasonable
efforts to enforce the provisions of each Servicing Agreement for the benefit of
the Certificateholders. The Master Servicer shall be entitled to enter into any
agreement with the Servicers for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer shall
have no liability for the acts or omissions of any Servicer in the performance
by such Servicer of its obligations under the related Servicing Agreement.
Section 9.09. NO CONTRACTUAL RELATIONSHIP BETWEEN SERVICERS AND TRUSTEE OR
DEPOSITOR.
Any Servicing Agreement that may be entered into and any other transactions
or services relating to the Mortgage Loans involving a Servicer in its capacity
as such and not as an originator shall be deemed to be between such Servicer,
the Seller, the Master Servicer, the Trustee and the Depositor shall not be
deemed parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to such Servicer except as set forth in Section 9.10
hereof.
Section 9.10. ASSUMPTION OF SERVICING AGREEMENT BY THE TRUSTEE.
(a) In the event the Master Servicer shall for any reason no longer be the
Master Servicer (including by reason of any Event of Default under this
Agreement), after a period not to exceed ninety days after the issuance of any
notice of termination pursuant to Section 6.14 or Section 9.28, as applicable,
the Trustee shall thereupon assume all of the rights and obligations of such
Master Servicer hereunder and under each Servicing Agreement entered into with
respect to the Mortgage Loans. The Trustee, its designee or any successor master
servicer appointed by the Trustee shall be deemed to have assumed all of the
Master Servicer's interest herein and therein to the same extent as if such
Servicing Agreement had been assigned to the assuming party, except that the
Master Servicer shall not thereby be relieved of any liability or obligations of
the Master Servicer under such Servicing Agreement accruing prior to its
replacement as Master Servicer, and shall be liable to the Trustee, and hereby
agrees to indemnify and hold harmless the Trustee from and against all costs,
damages, expenses and liabilities (including reasonable attorneys' fees)
incurred by the Trustee as a result of such liability or obligations of the
Master Servicer and in connection with the Trustee's assumption (but not its
performance, except to the extent that costs or liability of the Trustee are
created or increased as a result of negligent or wrongful acts or omissions of
the Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer's obligations, duties or responsibilities thereunder; provided that the
Master Servicer shall not indemnify or hold harmless the Trustee against
negligent or willful misconduct of the Trustee.
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(b) The Master Servicer that has been terminated shall, upon request of the
Trustee but at the expense of such Master Servicer or at the expense of the
Trust Fund, deliver to the assuming party all documents and records relating to
each Servicing Agreement and the related Mortgage Loans and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of each Servicing Agreement to the assuming
party.
Section 9.11. "DUE-ON-SALE" CLAUSES; ASSUMPTION AGREEMENTS.
(a) To the extent provided in the applicable Servicing Agreement, to the
extent Mortgage Loans contain enforceable due-on-sale clauses, and to the extent
that the Master Servicer has knowledge of the conveyance of a Mortgaged
Property, the Master Servicer shall use its reasonable best efforts to cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
(b) The Master Servicer or the related Servicer, as the case may be, shall
be entitled to approve a request from a Mortgagor for the granting of an
easement thereon in favor of another Person or any alteration or demolition of
the related Mortgaged Property if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of the
related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be materially adversely affected
thereby. Any fee collected by the Master Servicer or the related Servicer for
processing such a request will be retained by the Master Servicer or such
Servicer as additional servicing compensation.
Section 9.12. RELEASE OF MORTGAGE FILES.
(a) Upon (i) becoming aware of the payment in full of any Mortgage Loan,
(ii) the receipt by the Master Servicer of a notification that payment in full
has been or will be escrowed in a manner customary for such purposes, or (iii)
in the case of a Mortgage Loan as to which the related Mortgaged Property is
located in California, receipt by the Master Servicer of notification from the
Servicer that the Servicer reasonably expects that payment in full will be
received promptly, the Master Servicer will, or will cause the applicable
Servicer to, promptly notify the Trustee (or the applicable Custodian) by a
certification (which certification shall include a statement to the effect that
all amounts received or to be received in connection with such payment that are
required to be deposited in the Collection Account maintained by the Master
Servicer pursuant to Section 4.01 have been or will be so deposited) of a
Servicing Officer and shall request the Trustee or the applicable Custodian, to
deliver to the applicable Servicer the related Mortgage File. In lieu of sending
a hard copy certification of a Servicing Officer, the Master Servicer may, or
may cause the Servicer to, deliver the request for release in a mutually
agreeable electronic format. To the extent that such a request, on its face,
originates from a Servicing Officer, no signature shall be required. Upon
receipt of such certification and request, the Trustee or the applicable
Custodian, shall promptly release the related Mortgage File to the applicable
Servicer and neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File. The Master Servicer is
authorized, and each Servicer, to the extent such authority is delegated to such
Servicer by the Master Servicer under
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the applicable Servicing Agreement, is authorized, to give, as agent for the
Trustee, as the mortgagee under the Mortgage that secured the Mortgage Loan, an
instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument of
satisfaction or assignment, as the case may be, shall be delivered to the Person
or Persons entitled thereto against receipt therefor of such payment, it being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or foreclosure
of, or other legal proceedings relating to, any Mortgage Loan and in accordance
with Accepted Servicing Practices and the applicable Servicing Agreement, the
Trustee shall execute such pleadings, request for trustee's sale or other
documents as shall be prepared and furnished to the Trustee by the Master
Servicer, or by a Servicer (in form reasonably acceptable to the Trustee) and as
are necessary to the prosecution of any such proceedings. The Trustee or the
Custodian, shall, upon request of the Master Servicer, or of a Servicer, and
delivery to the Trustee or the applicable Custodian, of a trust receipt signed
by a Servicing Officer substantially in the form annexed hereto as Exhibit C or
in the form annexed to the applicable Custodial Agreement as Exhibit C, release
the related Mortgage File held in its possession or control to the Master
Servicer (or the applicable Servicer). Such trust receipt shall obligate the
Master Servicer or applicable Servicer to return the Mortgage File to the
Trustee or Custodian, as applicable, when the need therefor by the Master
Servicer or applicable Servicer no longer exists unless (i) the Mortgage Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that herein above specified, the trust receipt shall be
released by the Trustee or the Custodian, as applicable, to the Master Servicer
(or the applicable Servicer) or (ii) the Mortgage File has been delivered
directly or through a Servicer 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 Master Servicer has delivered directly or
through a Servicer to the Trustee 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.
Section 9.13. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER SERVICER
TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit, or cause the applicable Servicer to
transmit, to the Trustee 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 to be delivered to the Trustee. 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 Collection Account the Master
Servicing Fee and other amounts provided in this Agreement, and to the right of
each Servicer to retain its Servicing Fee and other amounts as provided in the
applicable Servicing Agreement. The Master Servicer shall, and shall (to the
extent provided in the applicable Servicing Agreement) cause each Servicer to,
provide access to information and documentation regarding the Mortgage Loans to
the Trustee, its agents and accountants at any time upon reasonable request and
during normal business hours, and to
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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 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, or each 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, or by such Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee; provided, however, that the Master Servicer and each Servicer shall
be entitled to setoff against, and deduct from, any such funds any amounts that
are properly due and payable to the Master Servicer or such Servicer under this
Agreement or the applicable Servicing Agreement and shall be authorized to remit
such funds to the Trustee in accordance with this Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with the
execution of this Agreement, the Trustee shall own or, to the extent that a
court of competent jurisdiction shall deem the conveyance of the Mortgage Loans
from the Seller to the Depositor not to constitute a sale, the Trustee shall
have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by, or
under the control of, a Servicer or the Master Servicer that are collected by
such Servicer or the Master Servicer in connection with the Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which such
Servicer is entitled under the applicable Servicing Agreement, or the Master
Servicer or the Depositor is entitled to hereunder); and the Master Servicer
agrees that so long as the Mortgage Loans are assigned to and held by the
Trustee, all documents or instruments constituting part of the Mortgage Files,
and such funds relating to the Mortgage Loans which come into the possession or
custody of, or which are subject to the control of, the Master Servicer or any
Servicer shall be held by the Master Servicer or such Servicer for and on behalf
of the Trustee as the Trustee's agent and bailee for purposes of perfecting the
Trustee's security interest therein as provided by the applicable Uniform
Commercial Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not authorize
any Servicer to, create, incur or subject any Mortgage Loans, or any funds that
are deposited in any custodial account, Escrow Account or the Collection
Account, or any funds that otherwise are or may become due or payable to the
Trustee, to any claim, lien, security interest, judgment, levy, writ of
attachment or other encumbrance, nor assert by legal action or otherwise any
claim or right of setoff against any Mortgage Loan or any funds collected on, or
in connection with, a Mortgage Loan.
Section 9.14. REPRESENTATIONS AND WARRANTIES OF THE MASTER SERVICER.
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(a) The Master Servicer hereby represents and warrants to the Depositor,
the Trustee, for the benefit of the Certificateholders, as of the Closing Date
that:
(i) it is validly existing and in good standing under the jurisdiction
of its formation, and as Master Servicer has full power and authority to
transact any and all business contemplated by this Agreement and to
execute, deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary corporate action on the part of the Master
Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement or
instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree, law
or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this Agreement
or the performance by the Master Servicer of its obligations under this
Agreement;
(vi) no litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit its
entering into this Agreement or performing its obligations under this
Agreement;
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(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential mortgage
loans, is an FNMA- and FHLMC- approved seller/servicer;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated by
this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained;
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer;
and
(x) the Master Servicer has obtained an Errors and Omissions Insurance
Policy and a Fidelity Bond in accordance with Section 9.02, each of which
is in full force and effect, and each of which provides at least such
coverage as is required hereunder.
(b) It is understood and agreed that the representations and warranties set
forth in this Section 9.14 shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the Trustee and
hold them harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Master Servicer's representations and warranties
contained in Section 9.14(a). Notwithstanding anything in this Agreement to the
contrary, the Master Servicer shall not be liable for special, indirect or
consequential losses or damages of any kind whatsoever (including, but not
limited to, lost profits). It is understood and agreed that the enforcement of
the obligation of the Master Servicer set forth in this Section to indemnify the
Depositor, the Trustee as provided in this Section constitutes the sole remedy
(other than as set forth in Section 6.14) of the Depositor, the Trustee,
respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of the Master Servicer as Master
Servicer hereunder, and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or arising out
of the breach of any representations and warranties made in this Section shall
accrue upon discovery of such breach by either the Depositor, the Master
Servicer or the Trustee or notice thereof by any one of such parties to the
other parties.
(c) It is understood and agreed that the representations and warranties of
the Depositor set forth in Sections 2.03(a) through (f) shall survive the
execution and delivery of this Agreement. The Depositor shall indemnify the
Master Servicer and hold it harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Depositor's representations
and warranties contained in Sections 2.03(a) through (f) hereof. It is
understood and agreed that the enforcement of the obligation of the Depositor
set forth in this Section to indemnify the Master Servicer as provided in this
Section constitutes the sole remedy of the Master Servicer respecting a breach
by the Depositor of the representations and warranties in Sections 2.03(a)
through (f) hereof.
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Any cause of action against the Depositor relating to or arising out of the
breach of the representations and warranties made in Sections 2.03(a) through
(f) hereof shall accrue upon discovery of such breach by either the Depositor or
the Master Servicer or notice thereof by any one of such parties to the other
parties.
Section 9.15. CLOSING CERTIFICATE AND OPINION.
On or before the Closing Date, the Master Servicer shall cause to be
delivered to the Depositor and Xxxxxx Brothers Inc. an Opinion of Counsel, dated
the Closing Date, in form and substance reasonably satisfactory to the Depositor
and Xxxxxx Brothers Inc., as to the due authorization, execution and delivery of
this Agreement by the Master Servicer and the enforceability thereof.
Section 9.16. STANDARD HAZARD AND FLOOD INSURANCE POLICIES.
For each Mortgage Loan (other than a Cooperative Loan), the Master Servicer
shall maintain, or cause to be maintained by each Servicer, standard fire and
casualty insurance and, where applicable, flood insurance, all in accordance
with the provisions of this Agreement and the related Servicing Agreement, as
applicable. It is understood and agreed that such insurance shall be with
insurers meeting the eligibility requirements set forth in the applicable
Servicing Agreement and that no earthquake or other additional insurance is to
be required of any Mortgagor or to be maintained on property acquired in respect
of a defaulted loan, other than pursuant to such applicable laws and regulations
as shall at any time be in force and as shall require such additional insurance.
Pursuant to Section 4.01, any amounts collected by the Master Servicer, or
by any Servicer, under any insurance policies maintained pursuant to this
Section 9.16 (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 Master Servicer's or the Servicer's normal servicing
procedures and Accepted Servicing Practices) shall be deposited into the
Collection Account, subject to withdrawal pursuant to Section 4.02. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Section 4.02(v).
Section 9.17. PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Master Servicer shall, or shall cause each Servicer (to the extent
provided in the applicable Servicing Agreement) to, prepare and present on
behalf of the Trustee and the Certificateholders all claims under the Insurance
Policies with respect to the Mortgage Loans, 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 or bonds shall be promptly
deposited in the Collection Account upon
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receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property or release to the Mortgagor in
accordance with the Master Servicer's or the Servicer's normal servicing
procedures need not be so deposited (or remitted).
Section 9.18. MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take, or knowingly permit any Servicer
(consistent with the applicable Servicing Agreement) to take, any action that
would result in non-coverage 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. To the extent that coverage is
available, the Master Servicer shall use its best reasonable efforts to keep in
force and effect, or to cause each Servicer to keep in force and effect (to the
extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer to, cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in effect at the date of the initial issuance of the Certificates
and is required to be kept in force hereunder except as required by a applicable
law or in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer to
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, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in the
Collection Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE POLICIES
AND DOCUMENTS.
The Trustee (or its custodian, if any, as directed by the Trustee), shall
retain possession and custody of the originals of the Primary Mortgage Insurance
Policies or certificate of insurance if applicable and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer otherwise has
fulfilled its obligations under this Agreement, the Trustee (or its custodian,
if any, as directed by the Trustee) shall also retain possession and custody of
each Mortgage File in accordance with and subject to the terms and conditions of
this Agreement. The Master Servicer shall promptly deliver or cause to be
delivered to the Trustee (or its custodian, if any, as directed by the Trustee),
upon the execution or receipt thereof the originals of the Primary Mortgage
Insurance Policies and any certificates of renewal thereof, and such other
documents or instruments that constitute portions of the Mortgage File that come
into the possession of the Master Servicer from time to time.
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Section 9.20. REALIZATION UPON DEFAULTED MORTGAGE LOANS.
The Master Servicer shall use its reasonable best efforts to, or to cause
each Servicer to, foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, all in accordance with the
applicable Servicing Agreement. Alternatively, the Master Servicer may take, or
authorize any Servicer to take, other actions in respect of a defaulted Mortgage
Loan, which may include (i) accepting a short sale (a payoff of the Mortgage
Loan for an amount less than the total amount contractually owed in order to
facilitate a sale of the Mortgaged Property by the Mortgagor) or permitting a
short refinancing (a payoff of the Mortgage Loan for an amount less than the
total amount contractually owed in order to facilitate refinancing transactions
by the Mortgagor not involving a sale of the Mortgaged Property), (ii) arranging
for a repayment plan or (iii) agreeing to a modification in accordance with
Section 9.04. In connection with such foreclosure or other conversion or action,
the Master Servicer shall, consistent with Section 9.18, follow such practices
and procedures as it shall reasonably determine to be in the best interests of
the Trust Fund and the Certificateholders and which shall be consistent with its
customary practices in performing its general mortgage servicing activities;
provided that the Master Servicer shall not be liable in any respect hereunder
if the Master Servicer is acting in connection with any such foreclosure or
other conversion or action in a manner that is consistent with the provisions of
this Agreement. Neither the Master Servicer, nor any Servicer, shall be required
to expend its own funds or incur other reimbursable charges in connection with
any foreclosure, or attempted foreclosure which is not completed, or toward the
correction of any default on a related senior mortgage loan, or towards the
restoration of any property unless it shall determine (i) that such restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to the Certificateholders after reimbursement to itself for such expenses
or charges and (ii) that such expenses and charges will be recoverable to it
through Liquidation Proceeds or Insurance Proceeds (as provided in Section
4.02).
Section 9.21. COMPENSATION TO THE MASTER SERVICER.
The Master Servicer shall (i) be entitled, at its election, either (a) to
pay itself the Master Servicing Fee, as reduced pursuant to Section 5.05, in
respect of the Mortgage Loans out of any Mortgagor payment on account of
interest prior to the deposit of such payment in the Collection Account it
maintains or (b) to withdraw from the Collection Account, subject to Section
5.05, the Master Servicing Fee to the extent permitted by Section 4.02(iv). The
Master Servicer shall also be entitled, at its election, either (a) to pay
itself the Master Servicing Fee in respect of each delinquent Mortgage Loan
master serviced by it out of Liquidation Proceeds in respect of such Mortgage
Loan or other recoveries with respect thereto to the extent permitted in Section
4.02 or (b) to withdraw from the Collection Account it maintains the Master
Servicing Fee in respect of each Liquidated Mortgage Loan to the extent of such
Liquidation Proceeds or other recoveries, to the extent permitted by Section
4.02. Servicing compensation in the form of assumption fees, if any, late
payment charges, as collected, if any, or otherwise shall be retained by the
Master Servicer (or the applicable Servicer) and shall not be deposited in the
Collection Account. If the Master Servicer does not retain or withdraw the
Master Servicing Fee from the Collection Account as provided herein, the Master
Servicer shall be entitled to direct the Trustee to pay the Master Servicing Fee
to such Master Servicer by withdrawal from the Certificate Account to the
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extent that payments have been received with respect to the applicable Mortgage
Loan. 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. Pursuant to Section
4.01(e), all income and gain realized from any investment of funds in the
Collection Account shall be for the benefit of the Master Servicer as additional
compensation. The provisions of this Section 9.21 are subject to the provisions
of Section 6.14(b).
Section 9.22. REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO Property in
respect of any Mortgage Loan, the deed or certificate of sale shall be issued to
the Trustee, or to its nominee, on behalf of the Certificateholders. The Master
Servicer shall use its reasonable best efforts to sell, or, to the extent
provided in the applicable Servicing Agreement, cause the applicable Servicer to
sell, any REO Property as expeditiously as possible and in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable,
but in all events within the time period, and subject to the conditions set
forth in Article X hereof. Pursuant to its efforts to sell such REO Property,
the Master Servicer shall protect and conserve, or cause the applicable Servicer
to protect and conserve, such REO Property in the manner and to such extent
required by the applicable Servicing Agreement, subject to Article X hereof.
(b) The Master Servicer shall deposit or cause to be deposited all funds
collected and received by it, or recovered from any Servicer, in connection with
the operation of any REO Property in the Collection Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided, that any such unreimbursed Advances
as well as any unpaid Master Servicing Fees or 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) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable Servicer
as provided above, shall be deposited in the Collection Account on or prior to
the Determination Date in the month following receipt thereof (and the Master
Servicer shall provide prompt written notice to the Trustee upon such deposit)
and be remitted by wire transfer in immediately available funds to the Trustee
for deposit into the Certificate Account on the next succeeding Deposit Date.
Section 9.23. [RESERVED].
Section 9.24. REPORTS TO THE TRUSTEE.
(a) Not later than 30 days after each Distribution Date, the Master
Servicer shall forward to the Trustee a statement, deemed to have been certified
by a Servicing Officer, setting forth the status of the Collection Account
maintained by the Master Servicer as of the close of business on the related
Distribution Date, indicating that all distributions required by this Agreement
to be
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made by the Master Servicer have been made (or if any required distribution has
not been made by the Master Servicer, specifying the nature and status thereof)
and showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer to
the Depositor, Attention: Contract Finance, and, upon request, any
Certificateholders (or by the Trustee at the Master Servicer's expense if the
Master Servicer shall fail 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)).
(b) Not later than two Business Days following each Distribution Date, the
Master Servicer shall deliver to the Person designated by the Depositor, in a
format consistent with other electronic loan level reporting supplied by the
Master Servicer in connection with similar transactions, "loan level"
information with respect to the Mortgage Loans as of the related Determination
Date, to the extent that such information has been provided to the Master
Servicer by the Servicers or by the Depositor.
Section 9.25. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer shall deliver to the Trustee and the Rating
Agencies five Business Days after March 15 of each year commencing on March 21,
2003, an Officer's Certificate, certifying that with respect to the period
ending on the immediately preceding December 31; (i) such Servicing Officer has
reviewed the activities of such Master Servicer during the preceding calendar
year or portion thereof and its performance under this Agreement; (ii) to the
best of such Servicing Officer's knowledge, based on such review, such Master
Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement in all material respects throughout such year,
or, if there has been a default in the fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof, (iii) nothing has come to
the attention of such Servicing Officer to lead such Servicing Officer to
believe that any Servicer has failed to perform any of its duties,
responsibilities and obligations under its Servicing Agreement in all material
respects throughout such year, or, if there has been a material default in the
performance or fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature and
status thereof, and (iv) the Master Servicer has received from each Servicer
such Servicer's annual certificate of compliance and a copy of such Servicer's
annual audit report, in each case to the extent required under the applicable
Servicing Agreement, or, if any such certificate or report has not been received
by the Master Servicer, the Master Servicer is using its best reasonable efforts
to obtain such certificate or report.
(b) Copies of such statements shall be provided to any Certificateholder
upon request, by the Master Servicer or by the Trustee at the Master Servicer's
expense if the Master Servicer failed to provide such copies (unless (i) the
Master Servicer shall have failed to provide the Trustee with such statement or
(ii) the Trustee shall be unaware of the Master Servicer's failure to provide
such statement).
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Section 9.26. ANNUAL INDEPENDENT ACCOUNTANTS' 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 the last day of February of each year commencing on
February 28, 2003, 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 FHLMC 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 FHLMC 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.
To the extent that the Master Servicer receives an Annual Independent
Accountants' Servicing Report from any Servicer, the Master Servicer shall
forward a copy of such report to the Trustee. If the report is not received from
the Servicer, the Trustee may request that the Master Servicer contact the
applicable Servicer to obtain such report. The Master Servicer will not be
liable for the failure of a Servicer to provide such report.
Section 9.27. MERGER OR CONSOLIDATION.
Any Person into which the Master Servicer may be merged or consolidated, or
any Person resulting from any merger, conversion, other change in form 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 to the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or resulting
Person to the Master Servicer shall be a Person that shall be qualified and
approved to service mortgage loans for FNMA or FHLMC and shall have a net worth
of not less than $15,000,000.
Section 9.28. RESIGNATION OF MASTER SERVICER.
Except as otherwise provided in Sections 9.27 and 9.29 hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it or the Trustee determines that the Master Servicer's duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it and cannot
be cured. Any such determination permitting the resignation of the
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Master Servicer shall be evidenced by an Opinion of Counsel that shall be
Independent to such effect delivered to the Trustee. In the event such
determination of ineligibility of the Master Servicer to continue in the
capacity of master servicer is made by the Master Servicer, no such resignation
shall become effective until a period of time not to exceed ninety days after
the Trustee receives written notice thereof from the Master Servicer and until
the Trustee shall have assumed, or a successor master servicer shall have been
appointed by the Trustee and until such successor shall have assumed, the Master
Servicer's responsibilities and obligations under this Agreement. Notice of such
resignation shall be given promptly by the Master Servicer to the Depositor.
Section 9.29. ASSIGNMENT OR DELEGATION OF DUTIES BY THE MASTER SERVICER.
Except as expressly provided herein, the Master Servicer shall not assign
or transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Master Servicer hereunder; provided, however, that the Master Servicer shall
have the right without the prior written consent of the Trustee, the Depositor
or the Rating Agencies to delegate or assign to or subcontract with or authorize
or appoint an Affiliate of the Master Servicer to perform and carry out any
duties, covenants or obligations to be performed and carried out by the Master
Servicer hereunder. In no case, however, shall any such delegation,
subcontracting or assignment to an Affiliate of the Master Servicer relieve the
Master Servicer of any liability hereunder. Notice of such permitted assignment
shall be given promptly by the Master Servicer to the Depositor, the Trustee.
If, pursuant to any provision hereof, the duties of the Master Servicer are
transferred to a successor master servicer, the entire amount of the Master
Servicing Fees and other compensation payable to the Master Servicer pursuant
hereto, including amounts payable to or permitted to be retained or withdrawn by
the Master Servicer pursuant to Section 9.21 hereof, shall thereafter be payable
to such successor master servicer.
Section 9.30. LIMITATION ON LIABILITY OF THE MASTER SERVICER AND OTHERS.
Neither the Master Servicer nor any of the directors, officers, employees
or agents of the Master Servicer shall be under any liability to the Trustee or
the Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Master Servicer or
any such person against any liability that would otherwise be imposed by reason
of willful misfeasance, bad faith or negligence in its performance of its duties
or by reason of reckless disregard for its obligations and duties under this
Agreement. The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be entitled to indemnification by the Trust Fund and
will be held harmless against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the Certificates
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of his or its duties
hereunder or by reason of reckless disregard of his or its obligations and
duties hereunder. 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. The Master Servicer shall be under no obligation to appear
in, prosecute or defend
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any legal action that is not incidental to its duties to master service the
Mortgage Loans in accordance with this Agreement and that in its opinion may
involve it in any expenses or liability; provided, however, that the Master
Servicer may in its sole discretion undertake any such action that it may deem
necessary or desirable in 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
Collection Account it maintains as provided by Section 4.02. Notwithstanding
anything herein to the contrary, the Master Servicer shall have no liability for
the servicing of the Additional Collateral, including, without limitation, the
perfection, continuation, partial release, release, termination, realization
upon, substitution, foreclosure, sale, or any other matter with respect to the
Additional Collateral, or the enforcement of the Additional Collateral Servicing
Agreement.
Section 9.31. INDEMNIFICATION; THIRD-PARTY CLAIMS.
The Master Servicer agrees to indemnify the Depositor and the Trustee, and
hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses that the Depositor and the Trustee may sustain as a
result of the failure of the Master Servicer to perform its duties and master
service the Mortgage Loans in compliance with the terms of this Agreement. The
Depositor and the Trustee shall immediately notify the Master Servicer if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans entitling the Depositor and the Trustee to indemnification hereunder,
whereupon the Master Servicer shall assume the defense of any such claim and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim.
ARTICLE X REMIC ADMINISTRATION
Section 10.01. REMIC AND GRANTOR TRUST ADMINISTRATION.
(a) As set forth in the Preliminary Statement hereto, the Trustee shall
elect REMIC status in accordance with the REMIC Provisions with respect to each
of the Lower Tier REMIC, the Middle Tier REMIC and the Upper Tier REMIC. The
Trustee shall make such elections on Forms 1066 or other appropriate federal tax
or information return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. For the purposes of such
elections, each of the Lower Tier REMIC Regular Interests is hereby designated
as a regular interest in the Lower Tier REMIC Each of the Middle Tier REMIC
Regular Interests is hereby designated as a regular interest in the Middle Tier
REMIC. Each Certificate, other than the Class R Certificate and the Class P
Certificates, is hereby designated as a regular interest in the Upper Tier
REMIC. The Class LT-R Interest is hereby designated as the sole residual
interest in the Lower Tier REMIC. The Class MT-R Interest is hereby designated
as the sole residual interest in the Middle Tier REMIC. The Class R Certificate
evidences ownership of the Class LT-R Interest, the Class MT-R Interest and is
also hereby designated as the sole residual interest in the Upper Tier REMIC.
The Class P Certificates shall be neither regular interests nor residual
interests in any REMIC created hereunder. It is the intention of the parties
hereto that the segregated pool of assets consisting of any collections of
Prepayment Penalty Amounts with respect to Pool 1 constitute a grantor trust for
federal income tax purposes. The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the Grantor Trust I Assets and declares
that it holds and will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class P-I Certificates. It is
the intention of the parties hereto that the
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segregated pool of assets consisting of any collections of Prepayment Penalty
Amounts with respect to Pool 2, Pool 3, Pool 4 or Pool 5 constitute a grantor
trust for federal income tax purposes. The Trustee, by its execution and
delivery hereof, acknowledges the assignment to it of the Grantor Trust II
Assets and declares that it holds and will hold such assets in trust for the
exclusive use and benefit of all present and future Holders of the Class P-II
Certificates. The rights of Holders of the Class P-I and Class P-II Certificates
to receive distributions from the proceeds of the Grantor Trust Assets, and all
ownership interests of such Holders in and to such distributions, shall be as
set forth in this Agreement.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 86OG(a)(9) of the Code. The "latest possible
maturity date" of each regular interest in each REMIC for purposes of Treasury
Regulation 1.860G-1(a)(4) is the Latest Possible Maturity Date.
(c) The Trustee shall pay any and all tax related expenses (not including
taxes) of each REMIC and Grantor Trust, including but not limited to any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC and Grantor Trust that involve
the Internal Revenue Service or state tax authorities, but only to the extent
that (i) such expenses are ordinary or routine expenses, including expenses of a
routine audit but not expenses of litigation (except as described in (ii)); or
(ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Trustee in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Trustee shall be entitled to reimbursement of the expenses to the extent
provided in clause (i) above from the Certificate Account, but only to the
extent such expenses are "unanticipated expenses" for purposes of Treasury
Regulation Section 1.860G-1(b)(3)(ii).
(d) The Trustee shall prepare, sign and file all of each REMIC's federal
and state tax and information returns as such REMIC's direct representative. The
Trustee shall prepare, sign and file all of the tax returns in respect of the
Grantor Trusts. The Trustee shall comply with such requirement by filing Form
1041. The expenses of preparing and filing such returns shall be borne by the
Trustee. If any Disqualified Organization acquires any Ownership Interest in a
Residual Certificate, then the Trustee will upon request provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3) and (6) of
the Code, such information as required in Section 860D(a)(6)(B) of the Code
needed to compute the tax imposed under Section 860E(e) of the Code on transfers
of residual interests to disqualified organizations and the Trustee will be
reimbursed by the Trust for all expenses incurred therewith.
(e) The Trustee or its designee shall perform on behalf of each REMIC and
Grantor Trust all reporting and other tax compliance duties that are the
responsibility of such REMIC or Grantor Trust under the Code, the REMIC
Provisions, or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority.
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(f) The Trustee, the Master Servicer and the Holders of Certificates shall
take any action or cause each REMIC to take any action necessary to create or
maintain the status of such REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status. Neither
the Trustee, the Master Servicer nor the Holder of any Residual Certificate
shall take any action, cause any REMIC to take any action or fail to take (or
fail to cause to be taken) any action that, under the REMIC Provisions, if taken
or not taken, as the case may be, could (i) endanger the status of any REMIC as
a REMIC or (ii) result in the imposition of a tax upon any REMIC (including but
not limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth on Section 860G(d)
of the Code) (either such event, an "Adverse REMIC Event") unless the Trustee
and the Master Servicer have received an Opinion of Counsel (at the expense of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a tax.
In addition, prior to taking any action with respect to any REMIC or the assets
therein, or causing any REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of a Residual
Certificate will consult with the Trustee and the Master Servicer, or their
respective designees, in writing, with respect to whether such action could
cause an Adverse REMIC Event to occur with respect to any REMIC, and no such
Person shall take any such action or cause any REMIC to take any such action as
to which the Trustee or the Master Servicer has advised it in writing that an
Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on any REMIC by federal or state governmental authorities. To the
extent that such Trust taxes are not paid by a Residual Certificateholder, the
Trustee shall pay any remaining REMIC taxes out of current or future amounts
otherwise distributable to the Holder of the Residual Certificate or, if no such
amounts are available, out of other amounts held in the Collection Account, and
shall reduce amounts otherwise payable to holders of regular interests in such
REMIC, as the case may be.
(h) The Trustee shall, for federal income tax purposes, maintain books and
records with respect to each REMIC on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to Qualified
Substitute Mortgage Loans.
(j) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) Upon the request of any Rating Agency, the Trustee shall deliver to
such Rating Agency an Officer's Certificate stating the Trustee's compliance
with the provisions of this Section 10.01.
Section 10.02. PROHIBITED TRANSACTIONS AND ACTIVITIES.
Neither the Depositor, the Master Servicer nor the Trustee shall sell,
dispose of, or substitute for any of the Mortgage Loans, except in a disposition
pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the
Trust Fund, (iii) the termination of each REMIC
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pursuant to Article VII of this Agreement, (iv) a substitution pursuant to
Article II of this Agreement, or (v) a repurchase of Mortgage Loans pursuant to
Article II of this Agreement, nor acquire any assets for any REMIC, nor sell or
dispose of any investments in the Certificate Account for gain, nor accept any
contributions to any REMIC after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale, disposition,
or substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of such REMIC as a REMIC or of the
Certificates other than the Residual Certificates as the regular interests
therein, (b) affect the distribution of interest or principal on the
Certificates, (c) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause such REMIC to be subject to a tax on prohibited transactions or
prohibited contributions pursuant to the REMIC Provisions.
Section 10.03. INDEMNIFICATION WITH RESPECT TO CERTAIN TAXES AND LOSS OF
REMIC STATUS.
In the event that a REMIC fails to qualify as a REMIC, loses its status as
a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Trustee of its duties and obligations set forth
herein, the Trustee shall indemnify the Holder of the Residual Certificate
against any and all losses, claims, damages, liabilities or expenses ("Losses")
resulting from such negligence; provided, however, that the Trustee shall not be
liable for any such Losses attributable to the action or inaction of the Master
Servicer, the Depositor, or the Holder of such Residual Certificate, as
applicable, nor for any such Losses resulting from misinformation provided by
the Holder of such Residual Certificate on which the Trustee has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holder of such Residual Certificate now or hereafter existing at law or in
equity. Notwithstanding the foregoing, however, in no event shall the Trustee
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Trustee of its duties and obligations set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on the
Certificates).
Section 10.04. REO PROPERTY.
(a) Notwithstanding any other provision of this Agreement, the Master
Servicer, acting on behalf of the Trustee hereunder, shall not (except to the
extent provided in the applicable Servicing Agreement), permit any Servicer to,
rent, lease, or otherwise earn income on behalf of any REMIC with respect to any
REO Property which might cause such REO Property to fail to qualify as
"foreclosure" property within the meaning of section 860G(a)(8) of the Code or
result in the receipt by any REMIC of any "income from non-permitted assets"
within the meaning of section 860F(a)(2) of the Code or any "net income from
foreclosure property" which is subject to tax under the REMIC Provisions unless
the Master Servicer has advised, or has caused the applicable Servicer to
advise, the Trustee in writing to the effect that, under the REMIC Provisions,
such action would not adversely affect the status of any REMIC as a REMIC and
any income generated for such REMIC by the REO Property would not result in the
imposition of a tax upon such REMIC.
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(b) The Master Servicer shall make, or shall cause the applicable Servicer
to make, reasonable efforts to sell any REO Property for its fair market value.
In any event, however, the Master Servicer shall, or shall cause the applicable
Servicer to, dispose of any REO Property within three years from the end of the
calendar year of its acquisition by the Trust Fund unless the Trustee has
received a grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions and any relevant proposed legislation and under
applicable state law, a REMIC may hold REO Property for a longer period without
adversely affecting the REMIC status of such REMIC or causing the imposition of
a Federal or state tax upon such REMIC. If the Trustee has received such an
extension, then (a) the Trustee shall provide a copy of such extension to the
Master Servicer and (b) the Trustee, or the Master Servicer, acting on its
behalf hereunder, shall, or shall cause the applicable Servicer to, continue to
attempt to sell the REO Property for its fair market value for such period
longer than three years as such extension permits (the "Extended Period"). If
the Trustee has not received such an extension and the Trustee, or the Master
Servicer acting on behalf of the Trustee hereunder, or the applicable Servicer
is unable to sell the REO Property within 33 months after its acquisition by the
Trust Fund or if the Trustee has received such an extension, and the Trustee, or
the Master Servicer acting on behalf of the Trustee hereunder, is unable to sell
the REO Property within the period ending three months before the close of the
Extended Period, the Master Servicer shall, or shall cause the applicable
Servicer to, before the end of the three year period or the Extended Period, as
applicable, (i) purchase such REO Property at a price equal to the REO
Property's fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Master Servicer) in an auction reasonably designed to
produce a fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be.
Article XI MISCELLANEOUS PROVISIONS
Section 11.01. BINDING NATURE OF AGREEMENT; ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02. ENTIRE AGREEMENT.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
Section 11.03. AMENDMENT.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Trustee, without notice to or the consent of any of the
Holders, (i) to cure any ambiguity, (ii) to cause the provisions herein to
conform to or be consistent with or in
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furtherance of the statements made with respect to the Certificates, the Trust
Fund or this Agreement in any Offering Document; or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein,
(iii) to make any other provisions with respect to matters or questions arising
under this Agreement or (iv) to add, delete, or amend any provisions to the
extent necessary or desirable to comply with any requirements imposed by the
Code and the REMIC Provisions. No such amendment effected pursuant to the
preceding sentence shall, as evidenced by an Opinion of Counsel, adversely
affect the status of any REMIC created pursuant to this Agreement, nor shall
such amendment effected pursuant to clause (iii) of such sentence adversely
affect in any material respect the interests of any Holder. Prior to entering
into any amendment without the consent of Holders pursuant to this paragraph,
the Trustee may require an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that such amendment is permitted under
this paragraph. Any such amendment shall be deemed not to adversely affect in
any material respect any Holder, if the Trustee receives written confirmation
from each Rating Agency that such amendment will not cause such Rating Agency to
reduce, qualify or withdraw the then current rating assigned to the Certificates
(and any Opinion of Counsel requested by the Trustee in connection with any such
amendment may rely expressly on such confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the Depositor,
the Master Servicer, the Trustee with the consent of the Holders of not less
than 66 2/3% of the Class Principal Amount (or Percentage Interest) of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders; provided,
however, that no such amendment shall be made unless the Trustee receives an
Opinion of Counsel, at the expense of the party requesting the change, that such
change will not adversely affect the status of any REMIC as a REMIC or cause a
tax to be imposed on any REMIC; and provided further, that no such amendment may
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required to
consent to any such amendment without the consent of the Holders of 100% of the
Class Principal Amount (or Class Notional Amount) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to "Holder" or
"Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee shall
furnish written notification of the substance of such amendment to each Holder,
the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this Section
11.03 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Holders shall be subject to such reasonable regulations as the
Trustee may prescribe.
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(e) Notwithstanding anything to the contrary in any Servicing Agreement,
the Trustee shall not consent to any amendment of any Servicing Agreement except
pursuant to the standards provided in this Section with respect to amendment of
this Agreement.
Section 11.04. VOTING RIGHTS.
Except to the extent that the consent of all affected Certificateholders is
required pursuant to this Agreement, with respect to any provision of this
Agreement requiring the consent of Certificateholders representing specified
percentages of aggregate outstanding Certificate Principal Amount (or Notional
Amount), Certificates owned by the Depositor, the Master Servicer, the Trustee
or any Servicer or Affiliates thereof are not to be counted so long as such
Certificates are owned by the Depositor, the Master Servicer, the Trustee or any
Servicer or Affiliates thereof.
Section 11.05. PROVISION OF INFORMATION.
(a) For so long as any of the Certificates of any Series or Class are
"restricted securities" within the meaning of Rule 144(a)(3) under the Act, each
of the Depositor and the Trustee agree to cooperate with each other to provide
to any Certificateholders and to any prospective purchaser of Certificates
designated by such Certificateholder, upon the request of such Certificateholder
or prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee in
providing such information shall be reimbursed by the Depositor.
(b) The Trustee will make available to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or documents
requested, (i) a copy (excluding exhibits) of any report on Form 8-K or Form
10-K filed with the Securities and Exchange Commission pursuant to Section
6.20(c), and (ii) a copy of any other document incorporated by reference in the
Prospectus to the extent such document is in the possession of the Trustee. Any
reasonable out-of-pocket expenses incurred by the Trustee in providing copies of
such documents shall be reimbursed by the Depositor.
(c) On each Distribution Date, the Trustee shall make available to the
Depositor a copy of the report delivered to Certificateholders pursuant to
Section 4.03.
Section 11.06. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. NOTICES.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered to such party at the
relevant address, facsimile
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number or electronic mail address set forth below (or at such other address,
facsimile number or electronic mail address as such party may designate from
time to time by written notice in accordance with this Section 11.07): received
by (a) in the case of the Depositor, Structured Asset Securities Corporation,
000 0xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxx, (b)
in the case of the Trustee, JPMorgan Chase Bank, 4 New York Plaza, 6th Floor,
New York, New York 10004, Attention: Institutional Trust Services, SASCO
2002-21A and (c) in the case of the Master Servicer, Aurora Loan Services Inc.,
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000; Attention: Master
Servicing or as to each party such other address as may hereafter be furnished
by such party to the other parties in writing. Any notice required or permitted
to be mailed to a Holder shall be given by first class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.
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 severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.09. INDULGENCES; NO WAIVERS.
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
Section 11.10. HEADINGS NOT TO AFFECT INTERPRETATION.
The headings contained in this Agreement are for convenience of reference
only, and they shall not be used in the interpretation hereof.
Section 11.11. BENEFITS OF AGREEMENT.
Nothing in this Agreement or in the Certificates, express or implied, shall
give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates, any benefit or any
legal or equitable right, power, remedy or claim under this Agreement, except to
the extent specified in Sections 11.14 and 11.15.
Section 11.12. SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Depositor shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events of which it has notice:
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(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any Assignment by the Master Servicer of its rights hereunder or
delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in Section
6.14;
(iv) any notice of termination given to the Master Servicer pursuant
to Section 6.14 and any resignation of the Master Servicer hereunder;
(v) the appointment of any successor to any Master Servicer pursuant
to Section 6.14; and
(vi) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section shall be
in writing and sent by first class mail, telecopy or overnight courier, as
follows:
If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Surveillance
If to S&P, to:
Standard & Poor's, A Division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(c) The Trustee shall make available to the Rating Agencies reports
prepared pursuant to Section 4.03. In addition, the Trustee shall, at the
expense of the Trust Fund, make available to each Rating Agency such information
as such Rating Agency may reasonably request regarding the Certificates or the
Trust Fund, to the extent that such information is reasonably available to the
Trustee.
Section 11.13. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, and all of which together shall constitute
one and the same instrument.
Section 11.14. TRANSFER OF SERVICING.
The Seller agrees that it shall provide written notice to the Trustee and
the Master Servicer thirty days prior to any transfer or assignment by the
Seller of its rights under any Servicing Agreement or of the servicing
thereunder or delegation of its rights or duties thereunder or any portion
thereof to any Person other than the initial Servicer under such
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Servicing Agreement; provided that (i) the Seller shall not be required to
provide prior notice of any transfer of servicing that occurs within three
months following the Closing Date to an entity that is a Servicer on the Closing
Date and (ii) neither Xxxxxx Capital nor the Bank shall be required to provide
prior notice of any transfer of servicing rights by either of them to the other.
In addition, the ability of the Seller to transfer or assign its rights and
delegate its duties under a Servicing Agreement (other than a transfer of
servicing rights between Xxxxxx Capital and the Bank) or to transfer the
servicing thereunder to a successor servicer shall be subject to the following
conditions:
(i) Such successor servicer must be qualified to service loans for
FNMA or FHLMC;
(ii) Such successor servicer must satisfy the seller/servicer
eligibility standards in the applicable Servicing Agreement, exclusive of
any experience in mortgage loan origination, and must be reasonably
acceptable to the Master Servicer, whose approval shall not be unreasonably
withheld;
(iii) Such successor servicer must execute and deliver to the Trustee
and the Master Servicer an agreement, in form and substance reasonably
satisfactory to the Trustee and the Master Servicer, that contains an
assumption by such successor servicer of the due and punctual performance
and observance of each covenant and condition to be performed and observed
by the applicable Servicer under the applicable Servicing Agreement or, in
the case of a transfer of servicing to a party that is already a Servicer
pursuant to this Agreement, an agreement to add the related Mortgage Loans
to the Servicing Agreement already in effect with such Servicer;
(iv) If the successor servicer is not a Servicer of Mortgage Loans at
the time of such transfer, there must be delivered to the Trustee a letter
from each Rating Agency to the effect that such transfer of servicing will
not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates;
(v) The Seller shall, at its cost and expense, take such steps, or
cause the terminated Servicer to take such steps, as may be necessary or
appropriate to effectuate and evidence the transfer of the servicing of the
Mortgage Loans to such successor servicer, including, but not limited to,
the following: (A) to the extent required by the terms of the Mortgage
Loans and by applicable federal and state laws and regulations, the Seller
shall cause the prior Servicer to timely mail to each obligor under a
Mortgage Loan any required notices or disclosures describing the transfer
of servicing of the Mortgage Loans to the successor servicer; (B) prior to
the effective date of such transfer of servicing, the Seller shall cause
the prior Servicer to transmit to any related insurer notification of such
transfer of servicing; (C) on or prior to the effective date of such
transfer of servicing, the Seller shall cause the prior Servicer to deliver
to the successor servicer all Mortgage Loan Documents and any related
records or materials; (D) on or prior to the effective date of such
transfer of servicing, the Seller shall cause the prior Servicer to
transfer to the successor servicer, or, if such transfer occurs after a
Remittance Date but before the next succeeding Deposit Date, to the Master
Servicer, all funds held by the applicable Servicer in respect of the
Mortgage Loans; (E) on or prior to the
131
effective date of such transfer of servicing, the Seller shall cause the
prior Servicer to, after the effective date of the transfer of servicing to
the successor servicer, continue to forward to such successor servicer,
within one Business Day of receipt, the amount of any payments or other
recoveries received by the prior Servicer, and to notify the successor
servicer of the source and proper application of each such payment or
recovery; and (F) the Seller shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer, continue
to cooperate with the successor servicer to facilitate such transfer in
such manner and to such extent as the successor servicer may reasonably
request.
132
IN WITNESS WHEREOF, the Depositor, the Trustee and the Master Servicer have
caused their names to be signed hereto by their respective officers hereunto
duly authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
AURORA LOAN SERVICES INC.,
as Master Servicer
By:
-----------------------------------
Name: E. Xxxx Xxxxxxxxxx
Title: Executive Vice President
Solely for purposes of Section 11.14,
accepted and agreed to by:
XXXXXX BROTHERS BANK, FSB
By:
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Solely for purposes of Section 11.14,
accepted and agreed to by:
XXXXXX CAPITAL, A DIVISION OF XXXXXX
BROTHERS HOLDINGS INC.
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
EXHIBIT A
FORMS OF CERTIFICATES
[Intentionally Omitted]
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION
________________
Date
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of October 1, 2002
among Structured Asset Securities Corporation, as Depositor, Aurora
Loan Services Inc., as Master Servicer and JPMorgan Chase Bank, as
Trustee, with respect to Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2002-21A
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Trust Agreement, subject to
review of the contents thereof, the undersigned, as Custodian on behalf of the
Trustee, hereby certifies that it (or its custodian) has received the documents
listed in Section 2.01(b) of the Trust Agreement for each Mortgage File
pertaining to each Mortgage Loan listed on Schedule A, to the Trust Agreement,
subject to any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined herein
shall have the respective meanings assigned to them in the Trust Agreement. This
Certificate is subject in all respects to the terms of Section 2.02 of the Trust
Agreement and the Trust Agreement sections cross-referenced therein.
[Custodian], on behalf of
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT B-2
FORM OF INTERIM CERTIFICATION
____________________
Date
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of October 1, 2002
among Structured Asset Securities Corporation, as Depositor, Aurora
Loan Services Inc., as Master Servicer and JPMorgan Chase Bank, as
Trustee, with respect to Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2002-21A
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the undersigned,
as Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan identified
on the Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents identified above and has determined that
each such document appears regular on its face and appears to relate to the
Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is qualified
in all respects by the terms of said Trust Agreement including, but not limited
to, Section 2.02(b).
[Custodian], on behalf of
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT B-3
FORM OF FINAL CERTIFICATION
___________________
Date
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of October 1, 2002
among Structured Asset Securities Corporation, as Depositor, Aurora
Loan Services Inc., as Master Servicer and JPMorgan Chase Bank, as
Trustee, with respect to Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2002-21A
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the undersigned,
as Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan identified
on the Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that each
such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is qualified
in all respects by the terms of said Trust Agreement.
[Custodian], on behalf of
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of JPMorgan Chase Bank, as trustee (the "Trustee") under
the Trust Agreement dated as of October 1, 2002, among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services Inc., as Master
Servicer and JPMorgan Chase Bank, as Trustee relating to Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2002-21A,
without recourse.
--------------------------------------
[current signatory on note]
By:___________________________________
Name:
Title:
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
______________________
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of October 1, 2002 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer and JPMorgan Chase Bank, as Trustee (the "Trust
Agreement"), the undersigned Master Servicer hereby requests a release of the
Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Master Servicer hereby certifies that all
amounts received in connection with the loan have been or will be credited
to the Collection Account or the Certificate Account (whichever is
applicable) pursuant to the Trust Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Master Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage Loan repurchased. (The Master Servicer hereby certifies that the
Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust
Agreement.)
5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held by
the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has
been paid in full, or repurchased or substituted for a Qualifying Substitute
Mortgage Loan (in which case the Mortgage File will be retained by us
permanently) and except if the Mortgage Loan is being foreclosed (in which case
the Mortgage File will be returned when no longer required by us for such
purpose).
Capitalized terms used herein shall have the meanings ascribed to them in
the Trust Agreement.
-------------------------------------
[Name of Master Servicer]
By:__________________________________
Name:
Title: Servicing Officer
C-2
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and
says:
That he [she] is [title of officer] ________________________ of [name of
Purchaser] _________________________________________ (the "Purchaser"), a
_______________________ [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he [she] makes this affidavit.
1. That the Purchaser's Taxpayer Identification Number is ______________.
2. That the Purchaser is not a "disqualified organization" within the meaning
of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended (the
"Code") and will not be a "disqualified organization" as of
__________________ [date of transfer], and that the Purchaser is not
acquiring a Residual Certificate (as defined in the Agreement) for the
account of, or as agent (including a broker, nominee, or other middleman)
for, any person or entity from which it has not received an affidavit
substantially in the form of this affidavit. For these purposes, a
"disqualified organization" means the United States, any state or political
subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the foregoing (other
than an instrumentality if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental
entity), any cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as described in Code
Section 1381(a)(2)(C), any "electing large partnership" within the meaning
of Section 775 of the Code, or any organization (other than a farmers'
cooperative described in Code Section 521) that is exempt from federal
income tax unless such organization is subject to the tax on unrelated
business income imposed by Code Section 511.
3. That the Purchaser either (x) is not, and on __________________ [date of
transfer] will not be, an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
Section 4975 of the Code or substantially similar rules under state, local
or federal law ("Similar Law"), the trustee of any such plan or a person
acting on behalf of any such plan or investing the assets of any such plan
to acquire a Residual Certificate or (y) herewith delivers to the Trustee
and shall deliver to the Depositor an Opinion of Counsel satisfactory to
the Trustee and the Depositor, and upon which the Trustee and the Depositor
shall be entitled to rely, to the effect that the
purchase and holding of such Residual Certificate by the Investor will not
result in the assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA, the Code or
Similar Law, and will not subject the Trustee or the Depositor to any
obligation in addition to those undertaken by such entities in the Trust
Agreement, which Opinion of Counsel shall not be an expense of the Trustee
or the Depositor.
4. That the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities Corporation,
JPMorgan Chase Bank, as Trustee and Aurora Loan Services Inc., as Master
Servicer, dated as of October 1, 2002, no transfer of a Residual
Certificate shall be permitted to be made to any person unless the
Depositor and the Trustee have received a certificate from such transferee
containing the representations in paragraphs 2, 3 and 4 hereof.
5. That the Purchaser does not hold REMIC residual securities as nominee to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a "Book-Entry Nominee").
6. That the Purchaser does not have the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with respect to such Residual Certificate, and that the Purchaser has
provided financial statements or other financial information requested by
the transferor in connection with the transfer of the Residual Certificate
in order to permit the transferor to assess the financial capability of the
Purchaser to pay such taxes.
7. That the Purchaser will not transfer a Residual Certificate to any person
or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 2, paragraph 5 or paragraph 9 hereof
are not satisfied or that the Purchaser has reason to believe does not
satisfy the requirements set forth in paragraph 6 hereof, and (ii) without
obtaining from the prospective Purchaser an affidavit substantially in this
form and providing to the Trustee a written statement substantially in the
form of Exhibit D-2 to the Agreement.
8. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash
flows generated by the interest and that it intends to pay taxes associated
with holding such Residual Certificate as they become due.
9. That the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S. Person that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service Form W-8 ECI
(Certificate of Foreign Person's Claim for Exemption From Withholding on
Income Effectively Connected with the Conduct of a Trade or Business in the
United States) or successor form at the time and in the manner required by
the Code. "Non-U.S. Person" means any person other than (i) a citizen or
resident of the United States; (ii) a corporation (or entity treated as a
corporation for tax purposes)
D-2
created or organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose, the District
of Columbia; (iii) a partnership (or entity treated as a partnership for
tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; (v) 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 U.S. Persons have
authority to control all substantial decisions of the trust or; (vi) and,
to the extent provided in Treasury regulations, certain trusts in existence
prior to August 20, 1996 that are treated as United States persons prior to
such date and elect to continue to be treated as United States persons.
10. That the Purchaser agrees to such amendments of the Trust Agreement as may
be required to further effectuate the restrictions on transfer of any
Residual Certificate to such a "disqualified organization," an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 6 and paragraph 9 hereof.
11. That the Purchaser consents to the designation of the Trustee as its agent
to act as "tax matters person" of the Trust Fund pursuant to the Trust
Agreement.
Terms used in this transfer affidavit which are not otherwise defined
herein have the respective meanings assigned thereto in the Trust Agreement.
D-3
IN WITNESS WHEREOF, the Purchaser 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 Purchaser]
By:
-----------------------------------
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
---------------------------------
COUNTY OF_____________________
STATE OF_______________________
My commission expires the _____ day of __________, 20__.
X-0
XXXXXXX X-0
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
-------------------
Date
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2002-21A
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 6 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate. In addition, the Transferor has conducted a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
EXHIBIT E
SERVICING AGREEMENTS
[See Exhibits #99.3 through #99.5]
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2002-21A
Reference is hereby made to the Trust Agreement (the "Trust Agreement"),
dated as of October 1, 2002 among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services Inc., as Master Servicer and JPMorgan Chase
Bank, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Trust Agreement.
This letter relates to $_________ initial Certificate Principal Amount of
Class Certificates which are held in the form of Definitive Certificates
registered in the name of _____________________ (the "Transferor"). The
Transferor has requested a transfer of such Definitive Certificates for
Definitive Certificates of such Class registered in the name of [insert name of
transferee].
In connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a "qualified institutional buyer"
within the meaning of Rule 144A purchasing for its own account or for the
account of a "qualified institutional buyer", which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Placement Agent and the Depositor.
--------------------------------------
[Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated: __________________, ________
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
------------------
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2002-21A (the "Privately Offered Certificates") of
Structured Asset Securities Corporation (the "Depositor") which are held in the
form of Definitive Certificates, we confirm that:
1. We understand that the Privately Offered Certificates have not been, and
will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell any
Privately Offered Certificates within two years of the later of the date of
original issuance of the Privately Offered Certificates or the last day on
which such Privately Offered Certificates are owned by the Depositor or any
affiliate of the Depositor (which includes the Placement Agent) we will do
so only (A) to the Depositor, (B) to "qualified institutional buyers"
(within the meaning of Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act ("QIBs"), (C) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act,
or (D) to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that is
not a QIB (an "Institutional Accredited Investor") which, prior to such
transfer, delivers to the Trustee under the Trust Agreement (the "Trust
Agreement"), dated as of October 1, 2002 among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services Inc., as Master Servicer
and JPMorgan Chase Bank, as Trustee, a signed letter in the form of this
letter; and we further agree, in the capacities stated above, to provide to
any person purchasing any of the Privately Offered Certificates from us a
notice advising such purchaser that resales of the Privately Offered
Certificates are restricted as stated herein.
2. We understand that, in connection with any proposed resale of any Privately
Offered Certificates to an Institutional Accredited Investor, we will be
required to furnish to the Trustee and the Depositor a certification from
such transferee in the form hereof to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by us will
bear a legend to the foregoing effect.
3. We are acquiring the Privately Offered Certificates for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act. We have such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Privately Offered
Certificates, and we and any account for which we are acting are each able
to bear the economic risk of such investment.
4. We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion.
5. We have received such information as we deem necessary in order to make our
investment decision.
6. If we are acquiring ERISA-Restricted Certificates, we understand that in
accordance with ERISA, the Code, Similar Law and the Underwriter's
Exemption, no Plan and no person acting on behalf of such a Plan may
acquire such Certificate except in accordance with Section 3.03(d) of the
Trust Agreement.
Terms used in this letter which are not otherwise defined herein have the
respective meanings assigned thereto in the Trust Agreement.
G-2
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By:
-----------------------------------
Name:
Title:
G-3
EXHIBIT H
[FORM OF ERISA TRANSFER AFFIDAVIT]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the "Investor"), a
[corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The Investor either (x) is not, and on ___________ [date of transfer] will
not be, an employee benefit plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code") or
substantially similar rules under state, local or other federal law
("Similar Law"), the trustee of any such plan or a person acting on behalf
of any such plan or investing the assets of any such plan; (y) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, is an
insurance company that is purchasing the Certificate with funds contained
in an "insurance company general account" as defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60 and the purchase and
holding of the Certificate are covered under Sections I and III of PTCE
95-60; or (z) herewith delivers to the Trustee and shall deliver to the
Depositor an Opinion of Counsel satisfactory to the Trustee and the
Depositor, and upon which the Trustee and the Depositor shall be entitled
to rely, to the effect that the purchase and holding of such Certificate by
the Investor will not result in the assets of the Trust Fund being deemed
to be plan assets and subject to the prohibited transaction provisions of
ERISA, the Code or Similar Law, and will not subject the Trustee or the
Depositor to any obligation in addition to those undertaken by such
entities in the Trust Agreement, which Opinion of Counsel shall not be an
expense of the Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities Corporation,
as Depositor, Aurora Loan Services Inc., as Master Servicer and JPMorgan
Chase Bank, as Trustee, dated as of October 1, 2002, no transfer of the
ERISA-Restricted Certificates (other than the Class R Certificate) shall be
permitted to be made to any person unless the Depositor and Trustee have
received a certificate from such transferee in the form hereof.
4. Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Trust Agreement.
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed
on its behalf, pursuant to proper authority, by its duly authorized officer,
duly attested, this ____ day of _______________, 20__.
----------------------------------------
[Investor]
By:
-------------------------------------
Name:
Title:
ATTEST:
---------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named ___________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the _________________ of the Investor, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this _____ day of ___________ 20___.
________________________________________
NOTARY PUBLIC
My commission expires the
____ day of __________, 20__.
H-2
EXHIBIT I
MONTHLY REMITTANCE ADVICE
[Intentionally Omitted]
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
[Intentionally Omitted]
EXHIBIT K
CUSTODIAL AGREEMENTS
[Intentionally Omitted]
EXHIBIT L-1
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO REGULATION S GLOBAL SECURITY
(Transfers pursuant to ss. 3.03(h)(B)
of the Agreement)
Re: Structured Asset Securities Corporation Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2002-21A
Reference is hereby made to the Trust Agreement (the "Agreement") among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer and JPMorgan Chase Bank, as Trustee, dated as of
October 1, 2002. Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This letter relates to U.S. $_______________________ aggregate principal
amount of Securities which are held in the form of a Restricted Global Security
with DTC in the name of [name of transferor]_______________ (the "Transferor")
to effect the transfer of the Securities in exchange for an equivalent
beneficial interest in a Regulation S Global Security.
In connection with such request, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904 of
Regulation S, and that:
a. the offer of the Securities was not made to a person in the United
States;
b. at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States;
c. no directed selling efforts have been made in contravention of the
requirements of Rule 903 or 904 of Regulation S, as applicable;
d. the transaction is not part of a plan or scheme to evade the
registration requirements of the United States Securities Act of 1933,
as amended; and
e. the transferee is not a U.S. person (as defined in Regulation S).
L-1-1
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
-----------------------------------------
[Name of Transferor]
By:
-------------------------------------
Name:
Title:
Date: ,
----------------------------------- ------
X-0-0
XXXXXXX X-0
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL SECURITY
TO RESTRICTED GLOBAL SECURITY
(Transfers pursuant to ss. 3.03(h)(C)
of the Agreement)
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2002-21A
Reference is hereby made to the Trust Agreement (the "Agreement") among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer and JPMorgan Chase Bank, as Trustee, dated as of
October 1, 2002. Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This letter relates to U.S. $_________________________ aggregate principal
amount of Securities which are held in the form of a Regulations S Global
Security in the name of [name of transferor] _____________________ (the
"Transferor") to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In connection with such request, and in respect of such Securities, the
Transferor does hereby certify that such Securities are being transferred in
accordance with (i) the transfer restrictions set forth in the Agreement and the
Securities and (ii) Rule 144A under the United States Securities Act of 1933, as
amended, to a transferee that the Transferor reasonably believes is purchasing
the Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
----------------------------------------
[Name of Transferor]
By:
-------------------------------------
Name:
Title:
Date: ,
------------------------- ------
L-2-1
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED TO
DEPOSITOR BY THE TRUSTEE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2002-21A
I, [[identify the certifying individual]], a [[title]] of JPMorgan Chase Bank,
as Trustee of the Trust, hereby certify to [[____________________]] (the
"[[_______]]"), and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
(i) [[I have reviewed the annual report on Form 10-K for the fiscal year
[[ ]], and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that
annual report, relating to the above-referenced trust;]]
(ii) [[Based on my knowledge, the information in these distribution reports
prepared by the Trustee, 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 that annual report; and]]
(iii) [[Based on my knowledge, the distribution information required to be
provided by the Trustee under the Trust Agreement is included in these
reports.]]
Date:
JPMorgan Chase Bank, as Trustee
By:_______________________________
[[Signature]]
[[Title]]
M-1
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED TO
THE DEPOSITOR AND THE MASTER SERVICER BY THE TRUSTEE
Structured Asset Securities Corporation
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aurora Loan Services Inc.
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Re: Structured Asset Securities Corporation,
Mortgage Pass-Through Certificates, Series 2002-21A
Reference is made to the Trust Agreement, dated as of October 1, 2002 (the
"Trust Agreement"), by and among JPMorgan Chase Bank (the "Trustee"), Aurora
Loan Services, Inc., as master servicer (the "Master Servicer"), and Structured
Asset Securities Corporation, as depositor (the "Depositor"). The Trustee,
hereby certifies to the Depositor and the Master Servicer, and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
(iv) The Trustee has reviewed the annual report on Form 10-K for the fiscal
year [ ], and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that
annual report, relating to the above-referenced trust;
(v) Based solely upon the information provided to us by the Master
Servicer, the information set forth in the reports referenced in (i)
above does not contain any untrue statement of material fact; and
(vi) Based on my knowledge, the distribution information required to be
provided by the Trustee under the Trust Agreement is included in these
reports.
Date:
JPMorgan Chase Bank, as Trustee
By: _______________________________
Name: _______________________________
Title: _______________________________
M-1
EXHIBIT N
FORM OF CERTIFICATION TO BE PROVIDED TO
THE DEPOSITOR AND THE TRUSTEE BY THE MASTER SERVICER
Structured Asset Securities Corporation
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Structured Asset Securities Corporation,
Mortgage Pass-Through Certificates, Series 2002-21A
Reference is made to the Trust Agreement, dated as of October 1, 2002 (the
"Trust Agreement"), by and among JPMorgan Chase Bank (the "Trustee"), Aurora
Loan Services, Inc., as master servicer (the "Master Servicer"), and Structured
Asset Securities Corporation, as depositor (the "Depositor"). I, [identify the
certifying individual], a [title] of the Master Servicer hereby certify to the
Depositor and the Trustee, and its officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification, that:
(vii) I have reviewed the material provided by the Master Servicer to the
Trustee in accordance with Section 9.24 of the Trust Agreement during
the fiscal year [YEAR];
(viii) Based on my knowledge, the information prepared by the Master
Servicer and delivered to the Trustee pursuant to Section 9.24 of
the Trust Agreement, taken as a whole, does not contain any untrue
statements of material fact or omit to state any material facts
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading at the time
such information was delivered to the Trustee; and
(ix) Based on my knowledge, all of the information required to be
provided by the Master Servicer to the Trustee under the Trust
Agreement is included in the material referred to in (i) above.
Date:
Aurora Loan Services Inc., as Master Servicer
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
N-1
SCHEDULE A
MORTGAGE LOAN SCHEDULE
(In the aggregate and by pool)
[Intentionally Omitted]
