FIRST HORIZON ASSET SECURITIES INC.
Depositor
FIRST HORIZON HOME LOAN CORPORATION
Master Servicer
and
THE BANK OF NEW YORK,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2004
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FIRST HORIZON MORTGAGE PASS-THROUGH TRUST 2004-AR3
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR3
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................................................5
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.........................................33
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS......................................................................33
SECTION 2.2 ACCEPTANCE BY TRUSTEE OF THE MORTGAGE LOANS.......................................................37
SECTION 2.3 REPRESENTATIONS AND WARRANTIES OF THE MASTER SERVICER; COVENANTS OF THE SELLER...................39
SECTION 2.4 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AS TO THE MORTGAGE LOANS..........................41
SECTION 2.5 DELIVERY OF OPINION OF COUNSEL IN CONNECTION WITH SUBSTITUTIONS...................................42
SECTION 2.6 EXECUTION AND DELIVERY OF CERTIFICATES............................................................42
SECTION 2.7 REMIC MATTERS.....................................................................................42
SECTION 2.8 COVENANTS OF THE MASTER SERVICER..................................................................44
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.......................................................45
SECTION 3.1 MASTER SERVICER TO SERVICE MORTGAGE LOANS.........................................................45
SECTION 3.2 SUBSERVICING; ENFORCEMENT OF THE OBLIGATIONS OF SERVICERS.........................................46
SECTION 3.3 RIGHTS OF THE DEPOSITOR AND THE TRUSTEE IN RESPECT OF THE MASTER SERVICER.........................47
SECTION 3.4 TRUSTEE TO ACT AS MASTER SERVICER.................................................................47
SECTION 3.5 COLLECTION OF MORTGAGE LOAN PAYMENTS; CERTIFICATE ACCOUNT; DISTRIBUTION ACCOUNT...................47
SECTION 3.6 COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS; ESCROW ACCOUNTS...............................51
SECTION 3.7 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE MORTGAGE LOANS......................51
SECTION 3.8 PERMITTED WITHDRAWALS FROM THE CERTIFICATE ACCOUNT AND
DISTRIBUTION ACCOUNT....................................................................................52
SECTION 3.9 MAINTENANCE OF HAZARD INSURANCE; MAINTENANCE OF PRIMARY
INSURANCE POLICIES......................................................................................53
SECTION 3.10 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS........................................55
SECTION 3.11 REALIZATION UPON DEFAULTED MORTGAGE LOANS; REPURCHASE OF CERTAIN MORTGAGE LOANS..................56
SECTION 3.12 TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES..................................................59
SECTION 3.13 DOCUMENTS RECORDS AND FUNDS IN POSSESSION OF MASTER SERVICER TO BE HELD FOR THE TRUSTEE..........60
SECTION 3.14 MASTER SERVICING COMPENSATION....................................................................60
SECTION 3.15 ACCESS TO CERTAIN DOCUMENTATION..................................................................61
SECTION 3.16 ANNUAL STATEMENT AS TO COMPLIANCE................................................................61
SECTION 3.17 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING STATEMENT; FINANCIAL STATEMENTS.................61
SECTION 3.18 ERRORS AND OMISSIONS INSURANCE; FIDELITY BONDS...................................................62
SECTION 3.19 NOTIFICATION OF ADJUSTMENTS......................................................................62
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER.....................................................62
SECTION 4.1 ADVANCES..........................................................................................62
SECTION 4.2 PRIORITIES OF DISTRIBUTION........................................................................63
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SECTION 4.3 METHOD OF DISTRIBUTION............................................................................68
SECTION 4.4 ALLOCATION OF LOSSES..............................................................................69
SECTION 4.5 [RESERVED]........................................................................................70
SECTION 4.6 MONTHLY STATEMENTS TO CERTIFICATEHOLDERS..........................................................70
ARTICLE V THE CERTIFICATES.......................................................................................72
SECTION 5.1 THE CERTIFICATES..................................................................................72
SECTION 5.2 CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.......................73
SECTION 5.3 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.................................................78
SECTION 5.4 PERSONS DEEMED OWNERS.............................................................................78
SECTION 5.5 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.........................................78
SECTION 5.6 MAINTENANCE OF OFFICE OR AGENCY...................................................................79
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER.................................................................79
SECTION 6.1 RESPECTIVE LIABILITIES OF THE DEPOSITOR AND THE MASTER SERVICER...................................79
SECTION 6.2 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE MASTER SERVICER...................................79
SECTION 6.3 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE MASTER SERVICER AND OTHERS..........................79
SECTION 6.4 LIMITATION ON RESIGNATION OF MASTER SERVICER......................................................80
ARTICLE VII DEFAULT..............................................................................................80
SECTION 7.1 EVENTS OF DEFAULT.................................................................................80
SECTION 7.2 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR..........................................................82
SECTION 7.3 NOTIFICATION TO CERTIFICATEHOLDERS................................................................83
ARTICLE VIII CONCERNING THE TRUSTEE..............................................................................84
SECTION 8.1 DUTIES OF TRUSTEE.................................................................................84
SECTION 8.2 CERTAIN MATTERS AFFECTING THE TRUSTEE.............................................................85
SECTION 8.3 TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS.............................................87
SECTION 8.4 TRUSTEE MAY OWN CERTIFICATES......................................................................87
SECTION 8.5 TRUSTEE'S FEES AND EXPENSES.......................................................................87
SECTION 8.6 ELIGIBILITY REQUIREMENTS FOR TRUSTEE..............................................................88
SECTION 8.7 RESIGNATION AND REMOVAL OF TRUSTEE................................................................88
SECTION 8.8 SUCCESSOR TRUSTEE.................................................................................89
SECTION 8.9 MERGER OR CONSOLIDATION OF TRUSTEE................................................................90
SECTION 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE....................................................90
SECTION 8.11 TAX MATTERS......................................................................................91
SECTION 8.12 PERIODIC FILINGS.................................................................................93
ARTICLE IX TERMINATION...........................................................................................93
SECTION 9.1 TERMINATION UPON LIQUIDATION OR PURCHASE OF ALL MORTGAGE LOANS....................................93
SECTION 9.2 FINAL DISTRIBUTION ON THE CERTIFICATES............................................................94
SECTION 9.3 ADDITIONAL TERMINATION REQUIREMENTS...............................................................95
ARTICLE X [RESERVED].............................................................................................96
ARTICLE XI MISCELLANEOUS PROVISIONS..............................................................................96
SECTION 11.1 AMENDMENT........................................................................................96
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SECTION 11.2 RECORDATION OF AGREEMENT; COUNTERPARTS...........................................................97
SECTION 11.3 GOVERNING LAW....................................................................................98
SECTION 11.4 INTENTION OF PARTIES.............................................................................98
SECTION 11.5 NOTICES..........................................................................................99
SECTION 11.6 SEVERABILITY OF PROVISIONS......................................................................100
SECTION 11.7 ASSIGNMENT......................................................................................100
SECTION 11.8 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS......................................................100
SECTION 11.9 INSPECTION AND AUDIT RIGHTS.....................................................................101
SECTION 11.10 CERTIFICATES NONASSESSABLE AND FULLY PAID......................................................101
SECTION 11.11 LIMITATIONS ON ACTIONS; NO PROCEEDINGS.........................................................101
SECTION 11.12 ACKNOWLEDGMENT OF SELLER.......................................................................102
SCHEDULES
Schedule I: Mortgage Loan Schedule S-I-1
Schedule II: Representations and Warranties of the Master Servicer S-II-1
Schedule III: Form of Monthly Master Servicer Report S-III-1
EXHIBITS
Exhibit A: Form of Senior Certificate A-1
Exhibit B: Form of Subordinated Certificate B-1
Exhibit C: Form of Residual Certificate C-1
Exhibit D: Form of Reverse of Certificates D-1
Exhibit E: Form of Initial Certification E-1
Exhibit F: Form of Delay Delivery Certification F-1
Exhibit G: Form of Final Certification of Custodian G-1
Exhibit H: Transfer Affidavit H-1
Exhibit I: Form of Transferor Certificate I-1
Exhibit J: Form of Investment Letter [Non-Rule 144A] J-1
Exhibit K: Form of Rule 144A Letter K-1
Exhibit L: Request for Release (for Trustee) L-1
Exhibit M: Request for Release (Mortgage Loan) M-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of May 1, 2004, among
FIRST HORIZON ASSET SECURITIES INC., a Delaware corporation, as depositor (the
"Depositor"), FIRST HORIZON HOME LOAN CORPORATION, a Kansas corporation, as
master servicer (the "Master Servicer"), and THE BANK OF NEW YORK, a banking
corporation organized under the laws of the State of New York, as trustee (the
"Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. The Trust Fund for federal income
tax purposes will consist of two separate REMICs. The Certificates will
represent the entire beneficial ownership interest in the Trust Fund. The
Regular Certificates will represent "regular interests" in the Upper REMIC. The
Class II-A-RU Certificates will represent the sole class of residual interests
in the Upper REMIC and the Class II-A-RL Certificates will represent the sole
class of residual interests in the Lower REMIC, as described in Section 2.7. The
"latest possible maturity date" for federal income tax purposes of all REMIC
regular interests created hereby will be the Latest Possible Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount and, in addition, one
Residual Certificate representing the Tax Matters Person Certificate may be
issued in a different amount):
[Remainder of Page Intentionally Left Blank]
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Initial Class Initial Minimum Integral Multiples
Class Designation Certificate Balance Pass Through Rate Denomination in Excess Minimum
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Class I-A-1 $ 24,469,000.00 3.650%(1) $ 25,000 $1,000
Class II-A-1 $180,072,000.00 4.229%(1) $ 25,000 $1,000
Class II-A-RU $ $50.00 4.229%(1) $ 50 $ N/A
Class II-A-RL $ $50.00 4.229%(1) $ 50 $ N/A
Class III-A-1 $ 53,441,000.00 4.500%(1) $ 25,000 $1,000
Class IV-A-1 $ 24,407,000.00 4.950%(1) $ 25,000 $1,000
Class B-1 $ 4,651,000.00 4.293%(2) $100,000 $1,000
Class B-2 $ 1,453,000.00 4.293%(2) $100,000 $1,000
Class B-3 $ 727,000.00 4.293%(2) $100,000 $1,000
Class B-4 $ 727,000.00 4.293%(2) $100,000 $1,000
Class B-5 $ 436,000.00 4.293%(2) $100,000 $1,000
Class B-6 $ 290,829.09 4.293%(2) $100,000 $1,000
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(1) The Pass-Through Rates for the Senior Certificates for each subsequent
Distribution Date will equal the Weighted Average Adjusted Net Mortgage Rate for
the related Mortgage Pool, as of the first day of the month immediately prior to
the month in which the relevant Distribution Date occurs, after taking into
account scheduled payments of principal on that date.
(2) The Pass-Through Rates for the Subordinated Certificates for each subsequent
Distribution Date will equal the weighted average of the Weighted Average
Adjusted Net Mortgage Rates for each Mortgage Pool, weighted on the basis of the
Group Subordinate Amount for each Mortgage Pool, as of the first day of the
month immediately prior to the month in which the relevant Distribution Date
occurs, after taking into account scheduled payments of principal on that date.
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Accretion Directed Certificates....... None.
Accrual Certificates.................. None.
Accrual Components.................... None.
Book-Entry Certificates............... All Classes of Certificates other
than the Physical Certificates.
Certificate Group..................... With respect to Pool I, the Group I
Senior Certificates, with respect to
Pool II, the Group II Senior
Certificates, with respect to Pool
III, the Group III Senior
Certificates, and with respect to
Pool IV, the Group IV Senior
Certificates. The Subordinated
Certificates correspond to all the
Mortgage Pools.
COFI Certificates..................... None.
Component Certificates................ None.
Components............................ None.
Delay Certificates.................... All interest-bearing Classes of
Certificates other than the Non-Delay
Certificates, if any.
ERISA-Restricted Certificates......... The Residual Certificates, Private
Certificates and Certificates of any
Class that no longer satisfy the
applicable rating requirement of the
Underwriters' Exemption.
Floating Rate Certificates............ None.
Group I Senior Certificates........... The Class I-A-1 Certificates.
Group II Senior Certificates.......... The Class II-A-1, Class II-A-RU and
Class II-A-RL Certificates.
Group III Senior Certificates......... The Class III-A-1 Certificates.
Group IV Senior Certificates.......... The Class IV-A-1 Certificates.
Insured Retail Certificates........... None.
Interest Only Certificates............ None.
Inverse Floating Rate Certificates.... None.
LIBOR Certificates.................... None.
Non-Delay Certificates................ None.
Notional Amount Components............ None.
Offered Certificates.................. All Classes of the Certificates other than the Private Certificates.
Physical Certificates................. The Private Certificates and the Residual Certificates.
Planned Principal Classes............. None.
Principal Only Certificates........... None.
Private Certificates.................. The Class B-4, Class B-5 and Class
B-6 Certificates.
Rating Agencies....................... S&P and Fitch; except that, for the
purposes of the Class B-1, Class B-2,
Class B-3, Class B-4 and Class B-5
Certificates,
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S&P shall be the sole Rating Agency.
Regular Certificates.................. All Classes of Certificates, other
than the Residual Certificates.
Residual Certificates................. The Class II-A-RU and Class II-A-RL
Certificates.
Scheduled Principal Classes........... None.
Senior Certificates................... The Group I Senior Certificates, the
Group II Senior Certificates, the
Group III Senior Certificates and the
Group IV Senior Certificates,
collectively.
Senior Support Certificates........... None
Subordinated Certificates............. The Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6
Certificates.
Super Senior Certificates............. None.
Support Classes....................... None.
Targeted Principal Classes............ None.
Underwriter........................... Citigroup Global Markets Inc. and
Xxxxxxx, Xxxxx & Co.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accrued Certificate Interest: For any Class of Certificates for any
Distribution Date, the interest accrued during the related Interest Accrual
Period at the applicable Pass-Through Rate on the Class Certificate Balance of
such Class of Certificates immediately prior to such Distribution Date, less
such Class' share of any Net Interest Shortfall, allocable among the outstanding
Classes of Senior Certificates of the related Certificate Group based on the
Accrued Certificate Interest otherwise distributable thereto, and allocable to
the Subordinated Certificates based on interest accrued on their related
Apportioned Principal Balances.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the Master Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan, and at any time,
the per annum rate equal to the Mortgage Rate less the related Expense Fee Rate.
Adjustment Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: The payment required to be made by the Master Servicer with
respect to any Distribution Date pursuant to Section 4.1, the amount of any such
payment being equal to the aggregate of payments of principal and interest (net
of the Master Servicing Fee and net of any net income in the case of any REO
Property) on the Mortgage Loans that were due on the related Due Date and not
received as of the close of business on the related Determination Date, less the
aggregate amount of any such delinquent payments that the Master Servicer has
determined would constitute a Nonrecoverable Advance if advanced.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Allocable Share: With respect to any Class of Subordinated Certificates
on any Distribution Date, such Class' pro rata share (based on the Class
Certificate Balance of each Class entitled thereto) of each of the components of
the Subordinated Optimal Principal Amount for each Mortgage Pool; provided,
that, except as provided in this Agreement, no Subordinated Certificates (other
than the Class of Subordinated Certificates with the highest priority of
distribution) shall be entitled on any Distribution Date to receive
distributions pursuant to clauses (2), (3) and (5) of the definition of
Subordinated Optimal Principal Amount unless the Class Prepayment Distribution
Trigger for such Class is satisfied for such Distribution Date.
Amount Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the applicable subaccount of the Certificate Account at
the close of business on the related Determination Date on account of (i)
Principal Prepayments on the related Mortgage Pool received after the related
Prepayment Period and Liquidation Proceeds in the related Mortgage
5
Pool received in the month of such Distribution Date and (ii) all Scheduled
Payments in the related Mortgage Pool due after the related Due Date.
Apportioned Principal Balance: For any Class of Subordinated
Certificates and any Distribution Date, an amount equal to the Class Certificate
Balance of such Class immediately prior to that Distribution Date multiplied by
a fraction, the numerator of which is the applicable Group Subordinate Amount
for such Distribution Date and the denominator of which is the sum of the Group
Subordinate Amounts for such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the
time of the origination of such Mortgage Loan; (ii) with respect to a
Refinancing Mortgage Loan other than a Streamlined Documentation Mortgage Loan,
the value of the Mortgaged Property based upon the appraisal made at the time of
the origination of such Refinancing Mortgage Loan; and (iii) with respect to a
Streamlined Documentation Mortgage Loan, (a) if the loan-to-value ratio with
respect to the Original Mortgage Loan at the time of the origination thereof was
90% or less, the value of the Mortgaged Property based upon the appraisal made
at the time of the origination of the Original Mortgage Loan and (b) if the
loan-to-value ratio with respect to the Original Mortgage Loan at the time of
the origination thereof was greater than 90%, the value of the Mortgaged
Property based upon the appraisal (which may be a drive-by appraisal) made at
the time of the origination of such Streamlined Documentation Mortgage Loan.
Available Funds: For each Mortgage Pool, with respect to any
Distribution Date, an amount equal to the sum of:
o all scheduled installments of interest, net of the Master
Servicing Fee and the Trustee Fee, and all scheduled installments
of principal due in respect of the Mortgage Loans in such
Mortgage Pool on the Due Date in the month in which the
Distribution Date occurs and received before the related
Determination Date, together with any Advances in respect
thereof;
o all Insurance Proceeds and all Liquidation Proceeds received in
respect of the Mortgage Loans in such Mortgage Pool during the
calendar month before the Distribution Date, which in each case
is net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any;
o all Principal Prepayments received in respect of the Mortgage
Loans in such Mortgage Pool during the related Prepayment Period,
plus interest received thereon, net of any Prepayment Interest
Excess;
o any Compensating Interest in respect of Principal Prepayments in
Full received in respect of the Mortgage Loans in such Mortgage
Pool during the related Prepayment Period (or, in the case of the
first Distribution Date, from the Cut-off Date); and
6
o any Substitution Adjustment Amount or the Purchase Price for any
Deleted Mortgage Loan in the related Mortgage Pool or a Mortgage
Loan in the related Mortgage Pool repurchased by the Seller or
the Master Servicer as of such Distribution Date, reduced by
amounts in reimbursement for Advances previously made and other
amounts that the Master Servicer is entitled to be reimbursed for
out of the Certificate Account pursuant to this Agreement.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The date on which the Bankruptcy
Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss
shall not be deemed a Bankruptcy Loss hereunder so long as the Master Servicer
has notified the Trustee in writing that the Master Servicer is diligently
pursuing any remedies that may exist in connection with the related Mortgage
Loan and either (A) the related Mortgage Loan is not in default with regard to
payments due thereunder or (B) delinquent payments of principal and interest
under the related Mortgage Loan and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Master Servicer,
in either case without giving effect to any Debt Service Reduction or Deficient
Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in a
downgrading of the then current ratings assigned to the Classes of Certificates
rated by it. As of any Distribution Date on or after the Cross-over Date, the
Bankruptcy Loss Coverage Amount will be zero.
Blanket Mortgage: The mortgage or mortgages encumbering the Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of Dallas, or the State of Texas
or the city in which the Corporate Trust Office of the Trustee is located are
authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Master Servicer pursuant to Section 3.5 with a depository
institution in the name of the Master Servicer for the benefit of the Trustee on
behalf of Certificateholders and designated "First Horizon Home Loan Corporation
in trust for the registered holders of First Horizon Asset Securities Inc.
Mortgage Pass-Through Certificates, Series 2004-AR3."
7
Certificate Group: As specified in the Preliminary Statement.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: With respect to any Certificate and as
of any Distribution Date, the Certificate Principal Balance on the date of the
initial issuance of such Certificate, as reduced by:
(a) all amounts distributed on previous Distribution Dates on such
Certificate on account of principal,
(b) the principal portion of all Realized Losses previously allocated
to such Certificate, and
(c) in the case of a Subordinated Certificate, such Certificate's pro
rata share, if any, of the Subordinated Certificate Writedown
Amount for previous Distribution Dates.
Certificate Register: The register maintained pursuant to Section 5.2
hereof.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or the Seller or any affiliate or agent of the Depositor
or the Seller shall be deemed not to be Outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests necessary to effect such consent has
been obtained; provided, however, that if any such Person (including the
Depositor) owns 100% of the Percentage Interests evidenced by a Class of
Certificates, such Certificates shall be deemed to be Outstanding for purposes
of any provision hereof that requires the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Depositor or
any affiliate of the Depositor in determining which Certificates are registered
in the name of an affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set forth
in the Preliminary Statement.
Class Certificate Balance: With respect to any Class of Certificates
and as of any Distribution Date the aggregate of the Certificate Principal
Balances of all Certificates of such Class as of such date.
Class Prepayment Distribution Trigger: For a Class of Subordinated
Certificates (other than the Class of Subordinated Certificates with the highest
priority of distribution), a trigger that is satisfied on any Distribution Date
on which a fraction (expressed as a percentage), the numerator of which is the
aggregate Class Certificate Balance of such Class and each Class subordinate
thereto, if any, and the denominator of which is the aggregate Pool Principal
Balance for all of the Mortgage Pools with respect to such Distribution Date,
equals or exceeds such percentage calculated as of the Closing Date.
8
Closing Date: May 27, 2004.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Compensating Interest: As to any Distribution Date and any Principal
Prepayment in respect of a Mortgage Loan that is received during the period from
the sixteenth day of the month (or, in the case of the first Distribution Date,
from the Cut-off Date) prior to the month of such Distribution Date through the
last day of such month, an additional payment to the related Mortgage Pool made
by the Master Servicer, to the extent funds are available from the Master
Servicing Fee, equal to the amount of interest at the Adjusted Net Mortgage Rate
for that Mortgage Loan from the date of the prepayment to the related Due Date;
provided that the aggregate of all such payments as to the Mortgage Loans in a
Mortgage Pool shall not exceed 0.0083% of the Pool Principal Balance of such
Mortgage Pool as of the related Determination Date, and provided further that if
a partial Principal Prepayment is applied on or after the first day of the month
following the month of receipt, no additional payment is required for such
Principal Prepayment.
Component: Not applicable.
Component Balance: Not applicable.
Component Certificates: 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.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of New York at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at The Bank of New York, 000
Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000 (Attn: Corporate Trust
Mortgage-Backed Securities Group, First Horizon Asset Securities Inc. Series
2004-AR3),
9
facsimile no. (000) 000-0000, and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Classes of Certificates: As to any Lower REMIC Interest
in Section 2.7, the Class or Classes that are identified in Section 2.7 as
corresponding to such Lower REMIC interest.
Cross-over Date: The Distribution Date on which the respective Class
Certificate Balances of each Class of Subordinated Certificates have been
reduced to zero.
Custodial Agreement: The Custodial Agreement dated as of May 27, 2004
by and among the Trustee, the Master Servicer and the Custodian.
Custodian: LaSalle Bank National Association, a national banking
association, and its successors and assigns, as custodian under the Custodial
Agreement.
Cut-off Date: May 1, 2004.
Cut-off Date Pool Principal Balance: With respect to Pool I,
$25,186,803.99; with respect to Pool II, $185,355,225.46; with respect to Pool
III, $55,008,356.38; and with respect to Pool IV, $25,123,543.26.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.2 or 2.3.
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 the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any Scheduled Payment
that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.2(e).
Delay Certificates: Not applicable.
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to Trustee on the Closing
Date. The number of Delay
10
Delivery Mortgage Loans shall not exceed 25% of the aggregate number of Mortgage
Loans as of the Closing Date.
Deleted Mortgage Loan: As defined in Section 2.3(b) hereof.
Denomination: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Certificate Balance of this Certificate" or the
Percentage Interest appearing on the face thereof.
Depositor: First Horizon Asset Securities Inc., a Delaware corporation,
or its successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the earlier of (i) the
third Business Day after the 15th day of each month, and (ii) the second
Business Day prior to the related Distribution Date.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.5 in the name of the Trustee for
the benefit of the Certificateholders and designated "The Bank of New York, in
trust for registered Holders of First Horizon Asset Securities Inc. Mortgage
Pass-Through Certificates, Series 2004-AR3." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 1:30
p.m. Central time on the Business Day immediately preceding such Distribution
Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business Day,
the next succeeding Business Day, commencing in June 2004.
Due Date: With respect to any Distribution Date, the first day of the
month in which the related Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are
11
insured by the FDIC or the SAIF (to the limits established by the FDIC or the
SAIF, as applicable) and the uninsured deposits in which accounts are otherwise
secured such that, as evidenced by an Opinion of Counsel delivered to the
Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
(a) the trust department of a federal or state chartered depository institution
or (b) a trust company, acting in its fiduciary capacity or (iv) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: With respect to any ERISA-Restricted
Certificate, a best efforts or firm commitment underwriting or private placement
that meets the requirements of the Underwriters' Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.6(a) hereof.
Event of Default: As defined in Section 7.1 hereof.
Excess Loss: With respect to a Mortgage Pool, the amount of any (i)
Fraud Loss realized after the Fraud Loss Coverage Termination Date, (ii) Special
Hazard Loss realized after the Special Hazard Coverage Termination Date or (iii)
Deficient Valuation realized after the Bankruptcy Coverage Termination Date.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the Master
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.8(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Rate from the Due Date as to which interest was last paid or
advanced (and not reimbursed) to Certificateholders up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Master Servicing Fee Rate and the Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
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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.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
First Horizon: First Horizon Home Loan Corporation, a Kansas
corporation and an indirect wholly owned subsidiary of First Tennessee National
Corporation, a Tennessee corporation.
Fitch: Fitch Ratings or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section 11.5(b)
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group, or
such other address as Fitch may hereafter furnish to the Depositor and the
Master Servicer.
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 Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $2,906,739. As of
any Distribution Date from the first anniversary of the Cut-off Date and prior
to the third anniversary of the Cut-off Date, the Fraud Loss Coverage Amount
will equal $2,906,739 minus the aggregate amount of Fraud Losses that would have
been allocated to the Subordinated Certificates in the absence of the Loss
Allocation Limitation since the Cut-off Date. As of any Distribution Date from
the third to the fifth anniversary of the Cut-off Date, the Fraud Loss Coverage
Amount will equal (1) the lesser of (a) the Fraud Loss Coverage Amount as of the
most recent anniversary of the Cut-off Date and (b) 0.5% of the aggregate
outstanding principal balance of all of the Mortgage Loans as of the most recent
anniversary of the Cut-off Date minus (2) the Fraud Losses that would have been
allocated to the Subordinated Certificates in the absence of the Loss Allocation
Limitations since the most recent anniversary of the Cut-off Date. As of any
Distribution Date on or after the earlier of the Cross-over Date or the fifth
anniversary of the Cut-off Date, the Fraud Loss Coverage Amount shall be zero.
Fraud Loss Coverage Termination Date: The date on which the Fraud Loss
Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation.
Group I Senior Certificates: As specified in the Preliminary Statement.
Group II Senior Certificates: As specified in the Preliminary
Statement.
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Group III Senior Certificates: As specified in the Preliminary
Statement.
Group IV Senior Certificates: As specified in the Preliminary
Statement.
Group Subordinate Amount: For a Mortgage Pool and any Distribution
Date; the excess of (a) the Pool Principal Balance of such Mortgage Pool for the
immediately preceding Distribution Date, over (b) the aggregate Class
Certificate Balance of the Senior Certificates of the related Certificate Group
immediately prior to that Distribution Date.
Index: Not applicable.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Coverage Amount: $100,000.
Initial Component Balance: Not applicable.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Insured Retail Certificates: Not applicable.
Interest Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the calendar month prior to the month of
such Distribution Date. With respect to any Non-Delay Certificates and any
Distribution Date, the one month period commencing on the 25th day of the month
preceding the month in which such Distribution Date occurs and ending on the
24th day of the month in which such Distribution Date occurs.
Interest Determination Date: Not applicable.
Interest Only Certificates: Not applicable.
Latest Possible Maturity Date: As to each Class of Senior Certificates
in the Certificate Groups corresponding to Pool I, Pool II and Pool III, the
Distribution Date following the third anniversary of the scheduled maturity date
of the Mortgage Loan in Pool I, Pool II and Pool III having the latest scheduled
maturity date as of the Cut-off Date. As to each Class of Subordinated and the
Class of Senior Certificates in the Certificate Group corresponding to Pool IV,
the Distribution Date following the third anniversary of the scheduled maturity
date of the Mortgage Loan in Pool IV having the latest scheduled maturity date
as of the Cut-off Date.
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Lender PMI Mortgage Loan: Not applicable.
LIBOR: Not applicable.
LIBOR Certificates: Not applicable.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Master Servicer has determined (in accordance with this Agreement) that it has
received all amounts it expects to receive in connection with the liquidation of
such Mortgage Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds and any
Unanticipated Recoveries, received in connection with the partial or complete
liquidation of defaulted Mortgage Loans, whether through trustee's sale,
foreclosure sale or otherwise or amounts received in connection with any
condemnation or partial release of a Mortgaged Property and any other proceeds
received in connection with an REO Property, less the sum of related
unreimbursed Master Servicing Fees, Servicing Advances and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any
date of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Loss Allocation Limitation: As defined in Section 4.4(g).
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Lower REMIC: The segregated pool of assets consisting of the Trust
Fund, but excluding the Lower REMIC Interests.
Lower REMIC Interests: The regular REMIC interests issued by the Lower
REMIC as set forth in Section 2.7.
Lower REMIC Subordinated Balance Ratio: As to any Distribution Date,
the ratio of the principal balances of each of the Lower REMIC Interest L-I-A-1,
Lower REMIC Interest L-II-A-1, Lower REMIC Interest L-III-A-1 and Lower REMIC
Interest L-IV-A-1, which shall be maintained pursuant to Section 2.7, equal to
the ratio of the Group Subordinate Amount for Pool I to the Group Subordinate
Amount for Pool II to the Group Subordinate Amount for Pool III to the Group
Subordinate Amount for Pool IV, after distributions are made on such
Distribution Date such ratio of Group Subordinate Amounts is determined assuming
distributions on the Certificates (and allocation of Realized Losses) have been
made on such Distribution Date.
Maintenance: With respect to any Cooperative Unit, the rent paid by the
Mortgagor to the Cooperative Corporation pursuant to the Proprietary Lease.
15
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least 51%
of the Percentage Interests evidenced by all Certificates of such Class.
Master Servicer: First Horizon Home Loan Corporation, a Kansas
corporation, and its successors and assigns, in its capacity as master servicer
hereunder.
Master Servicer Advance Date: As to any Distribution Date, 1:30 p.m.
Central time on the Business Day immediately preceding such Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month of such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loan on such Due Date), subject to
reduction as provided in Section 3.14.
Master Servicing Fee Rate: For each Mortgage Loan in (i) Pool I, a per
annum rate equal to 0.319%, (ii) Pool II, a per annum rate equal to 0.244%,
(iii) Pool III, a per annum rate equal to 0.249%, and (iv) Pool IV, a per annum
rate equal to 0.244%.
MLPA: The Mortgage Loan Purchase Agreement dated as of May 27, 2004, by
and between First Horizon Home Loan Corporation, as seller, and First Horizon
Asset Securities Inc., as purchaser, as related to the transfer, sale and
conveyance of the Mortgage Loans.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.6.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.5(b) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody's may
hereafter furnish to the Depositor or the Master Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.1(b) hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Deleted Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Fund and from time to time subject to this Agreement, attached hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan:
(1) the loan number;
16
(2) the Mortgagor's name and the street address of the Mortgaged
Property, including the zip code;
(3) the maturity date;
(4) the original principal balance;
(5) the Cut-off Date Principal Balance;
(6) the first payment date of the Mortgage Loan;
(7) the Scheduled Payment in effect as of the Cut-off Date;
(8) the Loan-to-Value Ratio at origination;
(9) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(10) a code indicating whether the residential dwelling is either
(a) a detached single family dwelling (b) a dwelling in a de
minimis PUD, (c) a condominium unit or PUD (other than a de
minimis PUD), (d) a two-to-four unit residential property or
(e) a Cooperative Unit;
(11) the Mortgage Rate;
(12) the purpose for the Mortgage Loan;
(13) the type of documentation program pursuant to which the
Mortgage Loan was originated; and
(14) the Master Servicing Fee for the Mortgage Loan.
Such schedule shall also set forth the total of the amounts described
under (4) and (5) above for all of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to the provisions hereof as from time to time are held as a
part of the Trust Fund (including any REO Property), the mortgage loans so held
being identified in the Mortgage Loan Schedule, notwithstanding foreclosure or
other acquisition of title of the related Mortgaged Property.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Pool: Any of Pool I, Pool II, Pool III or Pool IV.
17
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time, net of any insurance premium charged by the mortgagee to
obtain or maintain any Primary Insurance Policy.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net Interest Shortfall: For any Distribution Date and each Mortgage
Pool, the sum of (a) the amount of interest which would otherwise have been
received for any Mortgage Loan in such Mortgage Pool that was the subject of (x)
a Relief Act Reduction or (y) a Special Hazard Loss, Fraud Loss, or Deficient
Valuation, after the exhaustion of the respective amounts of coverage for those
types of losses provided by the Subordinated Certificates; and (b) any Net
Prepayment Interest Shortfalls in respect of such Mortgage Pool.
Net Prepayment Interest Shortfalls: As to any Distribution Date and
each Mortgage Pool, the amount by which the aggregate of Prepayment Interest
Shortfalls in respect of the Mortgage Loans or such Mortgage Pool during the
related Prepayment Period exceeds an amount equal to the Compensating Interest
paid in respect of such Mortgage Loans, if any, for such Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Excess Loss: Any Realized Loss other than an Excess Loss.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.2 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: Not applicable.
Notional Amount Components: Not applicable.
Notional Certificates: Not applicable.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A Certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however
18
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the Assistant Treasurers or Assistant Secretaries of the Depositor or the
Master Servicer, or (ii), if provided for in this Agreement, signed by a
Servicing Officer, as the case may be, and delivered to the Depositor and the
Trustee, as the case may be, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, including, in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of the Depositor and the Master Servicer, (ii) not have
any direct financial interest in the Depositor or the Master Servicer or in any
affiliate of either, and (iii) not be connected with the Depositor or the Master
Servicer as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Optional Termination: The termination of the trust created hereunder in
connection with the purchase of the Mortgage Loans pursuant to Section 9.1(a)
hereof.
Original Group Subordinate Amount: With respect to a Mortgage Pool, the
related Group Subordinate Amount as of the Cut-off Date.
Original Mortgage Loan: The Mortgage Loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee
or delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of
which other Certificates have been executed and delivered by
the Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Rate: For any Class of Certificates, the per annum rate
set forth or calculated in the manner described in the Preliminary Statement.
19
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency
thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) general obligations of or obligations guaranteed
by any state of the United States or the District of Columbia
receiving the highest long-term debt rating of each Rating
Agency;
(iii) commercial or finance company paper which is
then receiving the highest commercial or finance company paper
rating of each Rating Agency;
(iv) certificates of deposit, demand or time
deposits, or bankers' acceptances issued by any depository
institution or trust company incorporated under the laws of
the United States or of any state thereof and subject to
supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long
term unsecured debt obligations of such depository institution
or trust company (or in the case of the principal depository
institution in a holding company system, the commercial paper
or long-term unsecured debt obligations of such holding
company, but only if Xxxxx'x is not a Rating Agency) are then
rated one of the two highest long-term and/or the highest
short-term ratings of each Rating Agency for such securities;
(v) demand or time deposits or certificates of
deposit issued by any bank or trust company or savings
institution to the extent that such deposits are fully insured
by the FDIC and receiving the highest short-term debt rating
of each Rating Agency;
(vi) guaranteed reinvestment agreements issued by any
bank, insurance company or other corporation and receiving the
highest short-term debt rating of each Rating Agency and
containing, at the time of the issuance of such agreements,
such terms and conditions as will not result in the
downgrading or withdrawal of the rating then assigned to the
Certificates by either Rating Agency;
(vii) repurchase obligations with respect to any
security described in clauses (i) and (ii) above, in either
case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(viii) securities (other than stripped bonds,
stripped coupons or instruments sold at a purchase price in
excess of 115% of the face amount thereof) bearing interest or
sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof
which, at the time of such
20
investment, have one of the two highest ratings of each
Rating Agency (except if the Rating Agency is Moody's or
S&P, such rating shall be the highest commercial paper
rating of Moody's or S&P, as applicable, for any such
securities);
(ix) units of a taxable money-market portfolio having
the highest rating assigned by each Rating Agency (except if
Fitch is a Rating Agency and has not rated the portfolio, the
highest rating assigned by Moody's) and restricted to
obligations issued or guaranteed by the United States of
America or entities whose obligations are backed by the full
faith and credit of the United States of America and
repurchase agreements collateralized by such obligations; and
(x) such other investments bearing interest or sold
at a discount acceptable to each Rating Agency as will not
result in the downgrading or withdrawal of the rating then
assigned to the Certificates by either Rating Agency, as
evidenced by a signed writing delivered by each Rating Agency;
provided that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) an "electing large
partnership" as defined in section 775 of the Code, (vi) a Person that is not
(a) a citizen or resident of the United States, (b) a corporation, partnership,
or other entity created or organized in or under the laws of the United States,
any state thereof or the District of Columbia, (c) an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States or (d) a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, unless such Person
has furnished the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8ECI or any applicable successor form, and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Residual Certificate to such
Person may cause any REMIC created hereunder to fail to qualify as a REMIC at
any time that the Certificates are outstanding; provided, however, that if a
person is classified as a partnership under the Code, such person shall only be
a Permitted Transferee if all of its beneficial owners are described in
subclauses (a), (b), (c) or (d) of clause (vi) and the governing documents of
such person prohibits a transfer of any interest in such person to any person
described in clause (vi). The terms "United States," "State" and "International
Organization" shall have the meanings set forth in section 7701 of the
21
Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes 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 government unit.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Balance: Not applicable.
Planned Principal Classes: Not applicable.
Pool I: The aggregate of the Mortgage Loans identified on the Mortgage
Loan Schedule as being included in Pool I.
Pool II: The aggregate of the Mortgage Loans identified on the Mortgage
Loan Schedule as being included in Pool II.
Pool III: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool III.
Pool IV: The aggregate of the Mortgage Loans identified on the Mortgage
Loan Schedule as being included in Pool IV.
Pool Principal Balance: For each Mortgage Pool, with respect to any
Distribution Date, the aggregate of the Stated Principal Balances of the
Mortgage Loans which were Outstanding Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date, and for the first
Distribution Date, as of the Closing Date.
Prepayment Interest Excess: As to any Principal Prepayment received by
the Master Servicer from the first day through the fifteenth day of any calendar
month (other than the calendar month in which the Cut-off Date occurs), all
amounts paid by the related Mortgagor in respect of interest on such Principal
Prepayment. All Prepayment Interest Excess shall be paid to the Master Servicer
as additional master servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received (a) during the period from the sixteenth
day of the month preceding the month of such Distribution Date (or, in the case
of the first Distribution Date, from the Cut-off Date) through the last day of
such month, in the case of a Principal Prepayment in Full, or (b) during the
month preceding the month of such Distribution Date, in the case of a partial
Principal Prepayment, the amount, if any, by which one month's interest at the
related Adjusted Mortgage Rate on such Principal Prepayment exceeds the amount
of interest actually paid by the Mortgagor in connection with such Principal
Prepayment.
22
Prepayment Period: (a) With respect to any Principal Prepayments in
Full and any Distribution Date, the period from the sixteenth day of the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, from the Cut-off Date) through the fifteenth day of the month
of such Distribution Date, and (b) with respect to any other Principal
Prepayments and any Distribution Date, the month preceding the month of such
Distribution Date.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Principal Balance Schedules: Not applicable.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance with
the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Private Certificate: As specified in the Preliminary Statement.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to Section 2.2 or 2.3 hereof or purchased at
the option of the Master Servicer pursuant to Section 3.11, an amount equal to
the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of such purchase, (ii) accrued interest thereon at the applicable Mortgage
Rate (or at the applicable Adjusted Mortgage Rate if the purchaser is the Master
Servicer) from the date through which interest was last paid by the Mortgagor to
the Due Date in the month in which the Purchase Price is to be distributed to
Certificateholders, and (iii) any costs and damages incurred by the Trust in
connection with the noncompliance of such Mortgage Loan with any specifically
applicable predatory or abusive lending law.
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a
FNMA-approved mortgage insurer and having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
23
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein to
a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan which has become
the subject of a Deficient Valuation, if the principal amount due under the
related Mortgage Note has been reduced, the difference between the principal
balance of the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the principal balance of the Mortgage Loan as reduced by the
Deficient Valuation.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the Cooperative Corporation and the originator of such
Mortgage Loan which establishes the rights of such originator in the Cooperative
Property.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Reference Bank: Not applicable.
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Servicemembers Civil Relief Act, or any similar state
or local legislation or regulations.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than interest accrued thereon for such month pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
24
REMIC Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
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.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits L and M, as
appropriate.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement.
Required Recordation States: The states of Florida, Maryland and
Mississippi.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Agreement and also
to whom, with respect to a particular matter, such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Scheduled Balances: Not applicable.
Scheduled Certificates: Not applicable.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Scheduled Principal Classes: Not applicable.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: The security agreement with respect to a
Cooperative Loan.
Seller: First Horizon Home Loan Corporation, a Kansas corporation, and
its successors and assigns, in its capacity as seller of the Mortgage Loans.
Senior Certificates: As specified in the Preliminary Statement.
25
Senior Final Distribution Date: For each Certificate Group, the
Distribution Date on which the Class Certificate Balance of each Class of
related Senior Certificates has been reduced to zero.
Senior Optimal Principal Amount: As to a Mortgage Pool and with respect
to each Distribution Date, an amount equal to the sum of:
(1) the related Senior Percentage of all Scheduled Payments of
principal due on each Mortgage Loan in such Mortgage Pool on the first day of
the month in which the Distribution Date occurs, as specified in the
amortization schedule at the time applicable thereto after adjustment for
previous principal prepayments and the principal portion of Debt Service
Reductions after the Bankruptcy Loss Coverage Amount has been reduced to zero,
but before any adjustment to such amortization schedule by reason of any other
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period;
(2) the related Senior Prepayment Percentage of the Stated
Principal Balance of each Mortgage Loan in such Mortgage Pool which was the
subject of a Principal Prepayment in Full received by the Master Servicer during
the applicable Prepayment Period;
(3) the related Senior Prepayment Percentage of all partial
Principal Prepayments in respect of each Mortgage Loan in such Mortgage Pool
received during the applicable Prepayment Period;
(4) the lesser of:
(a) the related Senior Prepayment Percentage of the
sum of (x) the Liquidation Proceeds allocable to principal on
each Mortgage Loan in such Mortgage Pool which became a
Liquidated Mortgage Loan during the related Prepayment Period,
other than Mortgage Loans described in clause (y), and (y) the
principal balance of each Mortgage Loan in such Mortgage Pool
that was purchased by a private mortgage insurer during the
related Prepayment Period as an alternative to paying a claim
under the related Insurance Policy; and
(b)(i) the related Senior Percentage of the sum of
(x) the Stated Principal Balance of each Mortgage Loan in such
Mortgage Pool which became a Liquidated Mortgage Loan during
the related Prepayment Period, other than Mortgage Loans
described in clause (y), and (y) the Stated Principal Balance
of each Mortgage Loan in such Mortgage Pool that was purchased
by a private mortgage insurer during the related Prepayment
Period as an alternative to paying a claim under the related
Insurance Policy minus (ii) the related Senior Percentage of
the principal portion of Excess Losses (other than Debt
Service Reductions) for such Mortgage Pool during the related
Prepayment Period; and
(5) the related Senior Prepayment Percentage of the sum of (a)
the Stated Principal Balance of each Mortgage Loan in such Mortgage Pool which
was repurchased by the seller in connection with such Distribution Date and (b)
the difference, if any, between the Stated Principal Balance of a Mortgage Loan
in such Mortgage Pool that has been replaced by the seller
26
with a Substitute Mortgage Loan pursuant to this Agreement in connection with
such Distribution Date and the Stated Principal Balance of such Substitute
Mortgage Loan.
Senior Percentage: On any Distribution Date for a Certificate Group,
the lesser of 100% and the percentage (carried to six places rounded up)
obtained by dividing the aggregate Class Certificate Balances of all Classes of
Senior Certificates of such Certificate Group immediately preceding such
Distribution Date by the Pool Principal Balance of the related Mortgage Pool for
the immediately preceding Distribution Date.
Senior Prepayment Percentage: On any Distribution Date occurring during
the periods set forth below, and as to each Certificate Group, the Senior
Prepayment Percentages, described below:
--------------------------------------------------------------------------------------------------------------
Period (Dates Inclusive) Senior Prepayment Percentage
--------------------------------------------------------------------------------------------------------------
June 2004 - May 2009 100%
--------------------------------------------------------------------------------------------------------------
The related Senior Percentage plus 70% of the related Subordinated
June 2009 - May 2010 Percentage
--------------------------------------------------------------------------------------------------------------
The related Senior Percentage plus 60% of the related Subordinated
June 2010 - May 2011 Percentage
--------------------------------------------------------------------------------------------------------------
The related Senior Percentage plus 40% of the related Subordinated
June 2011 - May 2012 Percentage
--------------------------------------------------------------------------------------------------------------
The related Senior Percentage plus 20% of the related Subordinated
June 2012 - May 2013 Percentage
--------------------------------------------------------------------------------------------------------------
June 2013 and thereafter The related Senior Percentage
--------------------------------------------------------------------------------------------------------------
provided however, (i) if on any Distribution Date the Senior Percentage for a
Certificate Group exceeds the initial Senior Percentage for such Certificate
Group, the Senior Prepayment Percentage for each Certificate Croup for such
Distribution Date will equal 100%, (ii) if on any Distribution Date before the
Distribution Date in June 2007, prior to giving effect to any distributions on
such Distribution Date, the Subordinated Percentage for such Certificate Group
for such Distribution Date is equal to or greater than twice the initial
Subordinated Percentage for such Certificate Group, then the Senior Prepayment
Percentage for such Certificate Group for such Distribution Date will equal the
Senior Percentage for such Certificate Group plus 50% of the Subordinated
Percentage for such Certificate Group and (iii) if on any Distribution Date on
or after the Distribution Date in June 2007, prior to giving effect to any
distributions on such Distribution Date, the Subordinated Percentage for such
Certificate Group for such Distribution Date is equal to or greater than twice
the initial Subordinated Percentage for such Certificate Group, then the Senior
Prepayment Percentage for such Certificate Group for such Distribution Date will
equal the Senior Percentage for such Certificate Group.
The reductions in the Senior Prepayment Percentage for each Certificate
Group described above will not occur, and the Senior Prepayment Percentage or
each Certificate Group for such prior period will be calculated without regard
to clause (ii) or (iii) of the paragraph above, unless, as of the last day of
the month preceding the Distribution Date:
27
(1) the aggregate Stated Principal Balance of Mortgage Loans in
any Mortgage Pool delinquent 60 days or more (including for
this purpose any Mortgage Loans in foreclosure or subject to
bankruptcy proceedings and Mortgage Loans with respect to
which the related Mortgaged Property, including REO Property,
has been acquired by the Trust Fund) does not exceed 50% of
the aggregate Certificate Principal Balances of the
Subordinated Certificates as of that date; and
(2) cumulative Realized Losses in any Mortgage Pool do not exceed:
(a) 20% of the related Original Group Subordinate Amount if
such Distribution Date occurs between and including June 2004
and May 2007; and
(b) 30% of the related Original Group Subordinate Amount if
such Distribution Date occurs on or after June 2007.
Senior Support Certificates: Not applicable.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.9.
Servicing Agreement: The servicing agreement, dated as of November 26,
2002 by and between First Horizon Asset Securities Inc. and its assigns, as
owner, and First Tennessee Mortgage Services, Inc., as servicer.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Servicing Rights Transfer and Subservicing Agreement: The servicing
rights transfer and subservicing agreement, dated as of November 26, 2002, by
and between First Horizon Home Loan Corporation, as transferor and subservicer,
and First Tennessee Mortgage Services, Inc., as transferee and servicer.
Special Hazard Coverage Termination Date: The date on which the Special
Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to be
maintained with respect to such Mortgaged Property pursuant to Section 3.9 to
the extent of the amount of such loss covered thereby, or (ii) any loss caused
by or resulting from:
(1) normal wear and tear;
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(2) fraud, conversion or other dishonest act on the part of
the Trustee, the Master Servicer or any of their agents or employees (without
regard to any portion of the loss not covered by any errors and omissions
policy);
(3) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and then only for
the ensuing loss;
(4) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or uncontrolled,
and whether such loss be direct or indirect, proximate or remote or be in whole
or in part caused by, contributed to or aggravated by a peril covered by the
definition of the term "Special Hazard Loss";
(5) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against an actual,
impending or expected attack:
(i) by any government or sovereign power, de jure or
de facto, or by any authority maintaining or using military,
naval or air forces;
(ii) by military, naval or air forces; or
(iii) by an agent of any such government, power,
authority or forces;
(6) any weapon of war employing nuclear fission, fusion or
other radioactive force, whether in time of peace or war; or
(7) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under quarantine or
customs regulations, confiscation by order of any government or public authority
or risks of contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: Upon the initial issuance of the
Certificates, $10,053,506.25. As of any Distribution Date, the Special Hazard
Loss Coverage Amount will equal the greater of
(a) 1.00% (or if greater than 1.00%, the highest percentage of
Mortgage Loans by principal balance secured by Mortgaged Properties in any
single California zip code) of the outstanding principal balance of all the
Mortgage Loans as of the related Determination Date; and
(b) twice the outstanding principal balance of the Mortgage
Loan which has the largest outstanding principal balance as of the related
Determination Date,
less, in each case, the aggregate amount of Special Hazard Losses that would
have been previously allocated to the Subordinated Certificates in the absence
of the Loss Allocation Limitation. As of any Distribution Date on or after the
Cross-over Date, the Special Hazard Loss Coverage Amount will be zero.
29
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
S&P: Standard & Poor's Corporation, a division of The XxXxxx-Xxxx
Companies, Inc. If S&P is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 11.5(b) the address for notices to S&P shall
be Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Mortgage Surveillance Monitoring, or such other address as S&P may
hereafter furnish to the Depositor and the Master Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as specified
in the amortization schedule at the time relating thereto (before any adjustment
to such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor.
Streamlined Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to the Seller's Streamlined Loan Documentation Program then in effect.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Certificate Writedown Amount: As of any Distribution Date,
the amount by which (a) the sum of the Class Certificate Balances of all of the
Certificates, after giving effect to the distribution of principal and the
allocation of Realized Losses in reduction of the Class Certificate Balances of
all of the Certificates on such Distribution Date, exceeds (b) the aggregate
Pool Principal Balance for each Mortgage Pool on the first day of the month of
such Distribution Date less any Deficient Valuations occurring before the
Bankruptcy Loss Coverage Amount has been reduced to zero.
Subordinated Optimal Principal Amount: With respect to each Mortgage
Pool and each Distribution Date, an amount equal to the sum of the following
(but in no event greater than the aggregate Class Certificate Balances of the
Subordinated Certificates immediately prior to such Distribution Date):
(1) the related Subordinated Percentage of all Scheduled
Payments of principal due on each outstanding Mortgage Loan in the related
Mortgage Pool on the first day of the month in which the Distribution Date
occurs, as specified in the amortization schedule at the time applicable
thereto, after adjustment for previous principal prepayments and the principal
portion of Debt Service Reductions after the Bankruptcy Loss Coverage Amount has
been reduced to zero, but before any adjustment to such amortization schedule by
reason of any other bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period;
(2) the related Subordinated Prepayment Percentage of the
Stated Principal Balance of each Mortgage Loan in the related Mortgage Pool
which was the subject of a
30
Principal Prepayment in Full received by the Master Servicer during the related
Prepayment Period;
(3) the related Subordinated Prepayment Percentage of all
partial Principal Prepayments received in respect of each Mortgage Loan in the
related Mortgage Pool during the related Prepayment Period, plus, on the Senior
Final Distribution Date, 100% of any related Senior Optimal Principal Amount
remaining undistributed on such date;
(4) the amount, if any, by which the sum of (a) the net
Liquidation Proceeds allocable to principal received during the related
Prepayment Period in respect of each Liquidated Mortgage Loan in the related
Mortgage Pool, other than Mortgage Loans described in clause (b), and (b) the
principal balance of each Mortgage Loan in the related Mortgage Pool that was
purchased by a private mortgage insurer during the related Prepayment Period as
an alternative to paying a claim under the related Insurance Policy exceeds (c)
the sum of the amounts distributable to the Senior Certificateholders under
clause (4) of the definition of applicable Senior Optimal Principal Amount on
such Distribution Date; and
(5) the related Subordinated Prepayment Percentage of the sum
of (a) the Stated Principal Balance of each Mortgage Loan in the related
Mortgage Pool which was repurchased by the seller in connection with such
Distribution Date and (b) the difference, if any, between the Stated Principal
Balance of a Mortgage Loan in the related Mortgage Pool that has been replaced
by the seller with a Substitute Mortgage Loan pursuant to the Agreement in
connection with such Distribution Date and the Stated Principal Balance of each
such Substitute Mortgage Loan.
Subordinated Percentage: For any Distribution Date and each Certificate
Group, 100% minus the related Senior Percentage.
Subordinated Prepayment Percentage: For any Distribution Date, 100%
minus the Senior Prepayment Percentage.
Subservicer: Any person to whom the Master Servicer has contracted for
the servicing of all or a portion of the Mortgage Loans pursuant to Section 3.2
hereof.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for
a Deleted Mortgage Loan which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit L, (i)
have a Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
more than 10% less than the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) have an Adjusted Net Mortgage Rate not lower than the Adjusted Net
Mortgage Rate of the Deleted Mortgage Loan, provided that the Master Servicing
Fee for the Substitute Mortgage Loan shall be equal to or greater than that of
the Deleted Mortgage Loan; (iii) have a maximum mortgage rate not more than 1%
per annum higher or lower than the maximum mortgage rate of the Deleted Mortgage
Loan; (iv) have a minimum mortgage rate specified in its related Mortgage Note
not more than 1% per annum higher or lower than the minimum mortgage rate of the
Deleted Mortgage Loan; (v) have the same mortgage index, reset period and
periodic rate as the Deleted Mortgage Loan and a gross margin not more than 1%
per
31
annum higher or lower than that of the Deleted Mortgage Loan (vi) be accruing
interest at a rate no lower than and not more than 1% per annum higher than,
that of the Deleted Mortgage Loan; (iv) have a Loan-to-Value Ratio no higher
than that of the Deleted Mortgage Loan; (vii) have a remaining term to maturity
no greater than (and not more than one year less than that of) the Deleted
Mortgage Loan; (viii) not be a Cooperative Loan unless the Deleted Mortgage Loan
was a Cooperative Loan and (ix) comply with each representation and warranty set
forth in Section 2.3 hereof.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.3.
Super Senior Certificates: Not applicable.
Support Classes: Not applicable.
Targeted Balances: Not applicable.
Targeted Principal Classes: Not applicable.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation 'SS' 1.860F-4(d) and Treasury
regulation 'SS' 301.6231(a)(7)-1. Initially, the Tax Matters Person shall be the
Trustee.
Tax Matters Person Certificate: The Class II-A-RU and Class II-A-RL
Certificates, each with a Denomination of $0.01.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trust Fund: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loans and all interest and principal received on or with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance thereof; (ii) all of the Depositor's rights as
purchaser under the MLPA; (iii) the Certificate Account and the Distribution
Account and all amounts deposited therein pursuant to the applicable provisions
of this Agreement; (iv) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; and (v) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trustee Fee: As to any Distribution Date and a Mortgage Pool, an amount
equal to one-twelfth of the Trustee Fee Rate multiplied by the applicable Pool
Principal Balance with respect to such Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, the per annum
rate agreed upon in writing on or prior to the Closing Date by the Trustee and
the Depositor.
32
Two Times Test: A test that is satisfied with respect to a Certificate
Group and any Distribution Date if the related Senior Prepayment Percentage for
such Distribution Date is determined in accordance with clause (ii) and (iii) of
the proviso in the definition of "Senior Prepayment Percentage."
Unanticipated Recovery: As defined in Section 4.2(f).
Undercollateralization Distribution: As defined in Section 4.2(g).
Undercollateralized Group: With respect to any Distribution Date, the
Senior Certificates of any Certificate Group as to which the aggregate
Certificate Principal Balance thereof, after giving effect to distributions
pursuant to Section 4.2(a) on such date, is greater than the Pool Principal
Balance of the related Mortgage Pool for such Distribution Date.
Underwriters: As specified in the Preliminary Statement.
Underwriters' Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department of
Labor.
Upper REMIC: The segregated pool of assets consisting of the Lower
REMIC Interests.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 98% of all Voting Rights will be allocated among all Holders
of the Certificates, other than the Class II-A-RU and Class II-A-RL
Certificates, in proportion to their then outstanding Class Certificate
Balances; and (b) 1.0% of all Voting Rights will be allocated to each of the
Class II-A-RU and Class II-A-RL Certificates (such Voting Rights to be allocated
among the Holders of Certificates of each such Class in accordance with their
respective Percentage Interests).
Weighted Average Adjusted Net Mortgage Rate: For a Mortgage Pool, the
average of the Adjusted Net Mortgage Rates of the Mortgage Loans in the related
Loan Group, weighted on the basis of the Stated Principal Balances thereof.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise
conveys to the Trustee for the benefit of the Certificateholders,
without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund together with (i) the
Depositor's right to (A) require the Seller to cure any breach of
a representation or warranty made by the Seller pursuant to the
MLPA, or (B) repurchase or substitute for any affected Mortgage
Loan in accordance herewith, and (ii) all right, title and
interest of the
33
Depositor in, to and under the Servicing Agreement, which right
has been assigned to the Depositor pursuant to the MLPA.
(b) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be
delivered to the Trustee or the Custodian on its behalf (or, in
the case of the Delay Delivery Mortgage Loans, will deliver or
cause to be delivered to the Trustee or the Custodian on its
behalf within thirty (30) days following the Closing Date) for
the benefit of the Certificateholders the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) (A) the original Mortgage Note endorsed by manual or
facsimile signature in blank in the following form: "Pay
to the order of ________________, without recourse," with
all intervening endorsements showing a complete chain of
endorsement from the originator to the Person endorsing
the Mortgage Note (each such endorsement being sufficient
to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to
that Mortgage Note); or
(B) with respect to any Lost Mortgage Note, a lost note
affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed, together with a copy
of such Mortgage Note;
(ii) except as provided below, the original recorded Mortgage
or a copy of such Mortgage certified by the Seller as
being a true and complete copy of the Mortgage;
(iii) a duly executed assignment of the Mortgage in blank (which
may be included in a blanket assignment or assignments),
together with, except as provided below, all interim
recorded assignments of such mortgage (each such
assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of
and transfer to the assignee thereof, under the Mortgage
to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable
public recording office, such assignment of the Mortgage
may exclude the information to be provided by the
recording office;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
(v) either the original or duplicate original title policy
(including all riders thereto) with respect to the related
Mortgaged Property, if available, provided that the title
policy (including all riders thereto) will be delivered as
soon as it becomes available, and if the title policy is
not available, and to the extent required pursuant to the
second paragraph below or otherwise in connection with the
rating of the Certificates, a written commitment or
interim binder or preliminary report of the title issued
by the title insurance or escrow company with respect to
the Mortgaged Property, and
34
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) The Coop Shares, together with a stock power in
blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
(E) The executed UCC-1 financing statement with evidence
of recording thereon which have been filed in all
places required to perfect the Seller's interest in
the Coop Shares and the Proprietary Lease; and
(F) Executed UCC-3 financing statements 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).
In the event that in connection with any Mortgage Loan the Depositor
cannot deliver (a) the original recorded Mortgage or (b) all interim recorded
assignments satisfying the requirements of clause (ii) or (iii) above,
respectively, concurrently with the execution and delivery hereof because such
document or documents have not been returned from the applicable public
recording office, the Depositor shall promptly deliver or cause to be delivered
to the Trustee or the Custodian on its behalf such original Mortgage or such
interim assignment, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date;
provided, however, in the event the Depositor is unable to deliver or cause to
be delivered by such date each Mortgage and each such interim assignment by
reason of the fact that any such documents have not been returned by the
appropriate recording office, or, in the case of each such interim assignment,
because the related Mortgage has not been returned by the appropriate recording
office, the Depositor shall deliver or cause to be delivered such documents to
the Trustee or the Custodian on its behalf as promptly as possible upon receipt
thereof and, in any event, within 720 days following the Closing Date. The
Depositor shall forward or cause to be forwarded to the Trustee or the Custodian
on its behalf (a) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (b) any other documents
required to be delivered by the Depositor or the Master Servicer to the Trustee.
In the event that the original Mortgage is not delivered and in connection with
the payment in full of the related Mortgage Loan and the public recording office
requires the presentation of a "lost instruments affidavit and indemnity" or any
equivalent document, because only a copy of the Mortgage can be delivered with
the instrument of satisfaction or reconveyance, the Master Servicer shall
execute and deliver or cause to be executed and delivered such a document to the
public recording office. In the case where a
35
public recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, the
Depositor shall deliver or cause to be delivered to the Trustee or the Custodian
on its behalf a copy of such Mortgage certified by such public recording office
to be a true and complete copy of the original recorded Mortgage.
In addition, in the event that in connection with any Mortgage Loan the
Depositor cannot deliver or cause to be delivered the original or duplicate
original lender's title policy (together with all riders thereto), satisfying
the requirements of clause (v) above, concurrently with the execution and
delivery hereof because the related Mortgage has not been returned from the
applicable public recording office, the Depositor shall promptly deliver or
cause to be delivered to the Trustee or the Custodian on its behalf such
original or duplicate original lender's title policy (together with all riders
thereto) upon receipt thereof from the applicable title insurer, but in no event
shall any such delivery of the original or duplicate original lender's title
policy be made later than one year following the Closing Date; provided,
however, in the event the Depositor is unable to deliver or cause to be
delivered by such date the original or duplicate original lender's title policy
(together with all riders thereto) because the related Mortgage has not been
returned by the appropriate recording office, the Depositor shall deliver or
cause to be delivered such documents to the Trustee or the Custodian on its
behalf as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. Notwithstanding the preceding, in
connection with any Mortgage Loan for which either the original or duplicate
original title policy has not been delivered to the Trust, if at any time during
the term of this Agreement the parent company of the Seller does not have a long
term senior debt rating of A- or higher from S&P and A- or higher from Fitch (if
rated by Fitch), then the Depositor shall within 30 days deliver or cause to be
delivered to the Trustee or the Custodian on its behalf (if it has not
previously done so) a written commitment or interim binder or preliminary report
of the title issued by the title insurance or escrow company with respect to the
Mortgaged Property.
Subject to the immediately following sentence, as promptly as
practicable subsequent to such transfer and assignment, and in any event, within
thirty (30) days thereafter, the Master Servicer shall (i) complete each
assignment of Mortgage, as follows: "First Horizon Mortgage Pass-Through
Certificates, Series 2004-AR3, The Bank of New York, as trustee for the holders
of the Certificates", (ii) cause such assignment to be in proper form for
recording in the appropriate public office for real property records and (iii)
cause to be delivered for recording in the appropriate public office for real
property records the assignments of the Mortgages to the Trustee, except that,
with respect to any assignments of Mortgage as to which the Master Servicer has
not received the information required to prepare such assignment in recordable
form, the Master Servicer's obligation to do so and to deliver the same for such
recording shall be as soon as practicable after receipt of such information and
in any event within thirty (30) days after receipt thereof. Notwithstanding the
foregoing, the Master Servicer need not cause to be recorded any assignment
which relates to a Mortgage Loan in any state other than the Required
Recordation States.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee or the Custodian on its behalf, will deposit in the Certificate Account
the portion of such payment that is required to be deposited in the Certificate
Account pursuant to Section 3.8 hereof.
36
Notwithstanding anything to the contrary in this Agreement, within
thirty days after the Closing Date, the Depositor shall either (i) deliver or
cause to be delivered to the Trustee or the Custodian on its behalf the Mortgage
File as required pursuant to this Section 2.1 for each Delay Delivery Mortgage
Loan or (ii) (A) substitute or cause to be substituted a Substitute Mortgage
Loan for the Delay Delivery Mortgage Loan or (B) repurchase or cause to be
repurchased the Delay Delivery Mortgage Loan, which substitution or repurchase
shall be accomplished in the manner and subject to the conditions set forth in
Section 2.3 (treating each Delay Delivery Mortgage Loan as a Deleted Mortgage
Loan for purposes of such Section 2.3), provided, however, that if the Depositor
fails to deliver a Mortgage File for any Delay Delivery Mortgage Loan within the
thirty-day period provided in the prior sentence, the Depositor shall use its
best reasonable efforts to effect or cause to be effected a substitution, rather
than a repurchase of, such Deleted Mortgage Loan and provided further that the
cure period provided for in Section 2.2 or in Section 2.3 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but
rather the Depositor shall have five (5) Business Days to cure or cause to be
cured such failure to deliver. At the end of such thirty-day period, the Trustee
or the Custodian, on its behalf shall send a Delay Delivery Certification for
the Delay Delivery Mortgage Loans delivered during such thirty-day period in
accordance with the provisions of Section 2.2. Notwithstanding anything to the
contrary contained in this Agreement, none of the Mortgage Loans in the Trust
Fund is or will be Delay Delivery Mortgage Loans.
SECTION 2.2 Acceptance by Trustee of the Mortgage Loans.
The Trustee or the Custodian, on behalf of the Trustee, acknowledges
receipt of the documents identified in the Initial Certification in the form
annexed hereto as Exhibit E and declares that it or the Custodian holds and will
hold such documents and the other documents delivered to it or the Custodian, as
applicable, constituting the Mortgage Files, and that it or the Custodian, as
applicable, holds or will hold such other assets as are included in the Trust
Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that the Custodian will maintain
possession of the Mortgage Notes in the State of Illinois, unless otherwise
permitted by the Rating Agencies.
The Trustee agrees to execute and deliver or to cause the Custodian to
execute and deliver on the Closing Date to the Depositor and the Master Servicer
an Initial Certification in the form annexed hereto as Exhibit E. Based on its
or the Custodian's review and examination, and only as to the documents
identified in such Initial Certification, the Custodian, on behalf of the
Trustee, acknowledges that such documents appear regular on their face and
relate to such Mortgage Loan. Neither the Trustee nor the Custodian shall be
under any duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On or about the thirtieth (30th) day after the Closing Date, the
Trustee shall deliver or shall cause the Custodian to deliver to the Depositor
and the Master Servicer a Delay Delivery Certification in the form annexed
hereto as Exhibit F, with any applicable exceptions noted thereon.
Notwithstanding anything to the contrary contained in this Agreement, none of
the Mortgage Loans in the Trust Fund is or will be Delay Delivery Mortgage
Loans.
37
Not later than 90 days after the Closing Date, the Trustee shall
deliver or shall cause the Custodian to deliver to the Depositor and the Master
Servicer a Final Certification in the form annexed hereto as Exhibit G, with any
applicable exceptions noted thereon.
If, in the course of such review, the Trustee or the Custodian, on
behalf of the Trustee, finds any document constituting a part of a Mortgage File
which does not meet the requirements of Section 2.1, the Trustee shall list or
shall cause the Custodian to list such as an exception in the Final
Certification; provided, however that neither the Trustee nor the Custodian
shall make any determination as to whether (i) any endorsement is sufficient to
transfer all right, title and interest of the party so endorsing, as noteholder
or assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or is sufficient to effect the assignment of and transfer to the
assignee thereof under the mortgage to which the assignment relates. The Seller
shall promptly correct or cure such defect within 90 days from the date it was
so notified of such defect and, if the Seller does not correct or cure such
defect within such period, the Seller shall either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.3, or (b) purchase such Mortgage Loan from the Trustee within 90 days from the
date the Seller was notified of such defect in writing at the Purchase Price of
such Mortgage Loan; provided, however, that in no event shall such substitution
or purchase occur more than 540 days from the Closing Date, except that if the
substitution or purchase of a Mortgage Loan pursuant to this provision is
required by reason of a delay in delivery of any documents by the appropriate
recording office, and there is a dispute between either the Master Servicer or
the Seller and the Trustee over the location or status of the recorded document,
then such substitution or purchase shall occur within 720 days from the Closing
Date. The Trustee shall deliver written notice to each Rating Agency within 270
days from the Closing Date indicating each Mortgage Loan (a) which has not been
returned by the appropriate recording office or (b) as to which there is a
dispute as to location or status of such Mortgage Loan. Such notice shall be
delivered every 90 days thereafter until the related Mortgage Loan is returned
to the Trustee or the Custodian on its behalf. Any such substitution pursuant to
(a) above or purchase pursuant to (b) above shall not be effected prior to the
delivery to the Trustee of the Opinion of Counsel required by Section 2.5
hereof, if any, and any substitution pursuant to (a) above shall not be effected
prior to the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit L. No substitution is permitted to be made
in any calendar month after the Determination Date for such month. The Purchase
Price for any such Mortgage Loan shall be deposited by the Seller in the
Certificate Account on or prior to the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form of
Exhibit M hereto, the Trustee shall cause the Custodian to release the related
Mortgage File to the Seller and shall execute and deliver at the Seller's
request such instruments of transfer or assignment prepared by the Seller, in
each case without recourse, as shall be necessary to vest in the Seller, or a
designee, the Trustee's interest in any Mortgage Loan released pursuant hereto.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions set forth herein. The Master Servicer shall promptly
deliver to the Trustee or the Custodian on its behalf, upon the execution or
receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the possession of the Master
Servicer from time to time.
38
It is understood and agreed that the obligation of the Seller to
substitute for or to purchase any Mortgage Loan which does not meet the
requirements of Section 2.1 above shall constitute the sole remedy respecting
such defect available to the Trustee, the Depositor and any Certificateholder
against the Seller.
The mortgage loans permitted by the terms of this Agreement to be
included in the Trust Fund are limited to (i) the Mortgage Loans (which the
Depositor acquired pursuant to the MLPA, which contains, among other
representations and warranties, a representation and warranty of the Seller that
no Mortgage Loan is a "high cost loan" as defined by the specific applicable
predatory and abusive lending laws, which includes the term "High-Cost Home
Loan" as defined in the New Jersey Home Ownership Act, effective November 27,
2003, and the New Mexico Home Loan Protection Act, effective as of April 11,
2003 (collectively, the "Acts")), and (ii) Substitute Mortgage Loans (which, by
definition as set forth in this Agreement and referred to in the MLPA, are
required to conform to, among other representations and warranties, a
representation and warranty of the Seller set forth in the MLPA that no
Substitute Mortgage Loan is a "high cost loan" as defined by the specific
applicable predatory and abusive lending laws, which includes the term
"High-Cost Home Loan" as defined in the Acts). It is therefore understood and
agreed by the parties hereto that it is not intended that any Mortgage Loan be
included in the Trust Fund that is a "High-Cost Home Loan" as defined in the
Acts.
SECTION 2.3 Representations and Warranties of the Master
Servicer; Covenants of the Seller.
(a) The Master Servicer hereby makes the representations and
warranties set forth in Schedule II hereto and by this
reference incorporated herein, to the Depositor and the
Trustee, as of the Closing Date, or if so specified therein,
as of the Cut-off Date.
(b) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Schedule B to the
MLPA that materially and adversely affects the interests of
the Certificateholders in any Mortgage Loan, the party
discovering such breach shall give prompt notice thereof to
the other parties. The Seller hereby covenants that within 90
days of the earlier of its discovery or its receipt of written
notice from any party of a breach of any representation or
warranty made pursuant to Schedule B to the MLPA which
materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such
breach in all material respects, and if such breach is not so
cured, shall, (i) if such 90-day period expires prior to the
second anniversary of the Closing Date, remove such Mortgage
Loan (a "Deleted Mortgage Loan") from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in the
manner and subject to the conditions set forth in this
Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the
manner set forth below; provided, however, that any such
substitution pursuant to (i) above shall not be effected prior
to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.5 hereof, if any, and any such
substitution pursuant to (i) above shall not be effected prior
to the additional delivery to the Trustee or the Custodian on
its behalf of a Request for Release
39
substantially in the form of Exhibit M and the Mortgage File for any
such Substitute Mortgage Loan. The Seller shall promptly reimburse the
Master Servicer and the Trustee for any expenses reasonably incurred by
the Master Servicer or the Trustee in respect of enforcing the remedies
for such breach. With respect to the representations and warranties
described in this Section which are made to the best of the Seller's
knowledge, if it is discovered by either the Depositor, the Seller or
the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the
value of the related Mortgage Loan or the interests of the
Certificateholders therein, notwithstanding the Seller's lack of
knowledge with respect to the substance of such representation or
warranty, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee or the Custodian on its behalf for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.1. No substitution is permitted to be made in any calendar month after
the Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the month of substitution shall not be part of the
Trust Fund and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. The Master Servicer
shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders
to reflect the removal of such Deleted Mortgage Loan and the substitution of the
Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the
amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Substitute Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to Schedule B to
the MLPA with respect to such Mortgage Loan. Upon any such substitution and the
deposit to the Certificate Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee shall release or shall cause the Custodian to release the
Mortgage File held for the benefit of the Certificateholders relating to such
Deleted Mortgage Loan to the Seller and shall execute and deliver at the
Seller's direction such instruments of transfer or assignment prepared by the
Seller, in each case without recourse, as shall be necessary to vest title in
the Seller, or its designee, the Trustee's interest in any Deleted Mortgage Loan
substituted for pursuant to this Section 2.3.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed
Advances with respect to such
40
Deleted Mortgage Loans shall be deposited in the Certificate Account by the
Seller on or before the Distribution Account Deposit Date for the Distribution
Date in the month succeeding the calendar month during which the related
Mortgage Loan became required to be purchased or replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Certificate Account
pursuant to Section 3.5 on or before the Distribution Account Deposit Date for
the Distribution Date in the month following the month during which the Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.5 and receipt of a Request for Release in the form of
Exhibit M hereto, the Trustee shall release or shall cause the Custodian to
release the related Mortgage File held for the benefit of the Certificateholders
to such Person, and the Trustee shall execute and deliver or shall cause the
Custodian to execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of the Seller to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and is
continuing shall constitute the sole remedy against the Seller respecting such
breach available to Certificateholders, the Depositor or the Trustee on their
behalf.
After giving effect to the sale of the Certificates by the Depositor to
the Underwriters, and thereafter, so long as any Certificates remain
outstanding, the Seller, its affiliates and agents, collectively, shall not
beneficially own Certificates the aggregate fair value of which would represent
90% or more of the beneficial interests in the Trust Fund.
The representations and warranties made pursuant to this Section 2.3
shall survive delivery of the respective Mortgage Files to the Trustee or the
Custodian for the benefit of the Certificateholders.
SECTION 2.4 Representations and Warranties of the Depositor as
to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to each Mortgage Loan as of the date hereof or such other date set forth
herein that as of the Closing Date, and following the transfer of the Mortgage
Loans to it pursuant to the MLPA and immediately prior to the conveyance of the
Mortgage Loans by it to the Trustee pursuant to Section 2.1(a) hereof, the
Depositor had good title to the Mortgage Loans and the Mortgage Notes were
subject to no offsets, defenses or counterclaims.
It is understood and agreed that the representations and warranties set
forth in this Section 2.4 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representations and warranties set forth in this Section 2.4
(referred to herein as a "breach"), which breach materially and adversely
affects the interest of the Certificateholders, the party discovering such
breach shall give prompt written notice to the others and to each Rating Agency.
41
SECTION 2.5 Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.2 or Section 2.3 shall be
made more than 90 days after the Closing Date unless the
Depositor delivers to the Trustee an Opinion of Counsel, which
Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the
effect that such substitution will not (i) result in the
imposition of the tax on "prohibited transactions" on the
Trust Fund or contributions after the Startup Date, as defined
in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause any REMIC created hereunder to fail to qualify
as a REMIC at any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Master Servicer or the
Trustee that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code, the party discovering such fact shall promptly
(and in any event within five (5) Business Days of discovery)
give written notice thereof to the other parties. In
connection therewith, the Trustee shall require the Depositor
to cause the Seller, pursuant to the MLPA and at the Seller's
option, to either (i) substitute, if the conditions in Section
2.3(b) with respect to substitutions are satisfied, a
Substitute Mortgage Loan for the affected Mortgage Loan, or
(ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan
for a breach of representation or warranty made pursuant to
Section 2.3. The Trustee shall reconvey or shall cause the
Custodian to reconvey to the Seller the Mortgage Loan to be
released pursuant hereto in the same manner, and on the same
terms and conditions, as it would a Mortgage Loan repurchased
for breach of a representation or warranty contained in
Section 2.3.
SECTION 2.6 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing directly or indirectly the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates and to perform the duties set forth in this Agreement to the best
of its ability, to the end that the interests of the Holders of the Certificates
may be adequately and effectively protected.
SECTION 2.7 REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all REMIC regular
interests created hereby. Each interest identified in the table below by a
designation beginning with "L" shall be a "regular interest" in the Lower REMIC
and the Class II-A-RL Certificates shall be the sole class of residual interest
in the Lower REMIC. The Lower REMIC Interests shall be uncertificated and shall
be held by the Trustee as assets of the Upper REMIC. The assets of the Lower
REMIC shall be as set forth in the definition thereof. The assets of the Upper
REMIC shall be as set forth
42
in the definition thereof. The "Startup Day" for purposes of the REMIC
Provisions shall be the Closing Date. The Tax Matters Person with respect to
each REMIC hereunder shall be the Trustee and the Trustee shall hold the Tax
Matters Person Certificate. Each REMIC's taxable year shall be the calendar year
and its accounts shall be maintained using the accrual method.
-----------------------------------------------------------------------------------------------------------
Lower REMIC Corresponding Class of Certificates
Interest or Lower REMIC Lower REMIC Interest -----------------------------------
Certificate Interest Balance Rate Interest Principal
-----------------------------------------------------------------------------------------------------------
L-I-A-1 $ 71.78 (1) (5) (5)
-----------------------------------------------------------------------------------------------------------
L-I-A-ZZZ $ 25,186,732.21 (1) (5) (5)
-----------------------------------------------------------------------------------------------------------
L-II-A-1 $ 528.31 (2) (5) (5)
-----------------------------------------------------------------------------------------------------------
Class II-A-RL $ 50.00 (2) N/A N/A
-----------------------------------------------------------------------------------------------------------
L-II-A-ZZZ $185,354,647.15 (2) (5) (5)
-----------------------------------------------------------------------------------------------------------
L-III-A-1 $ 156.74 (3) (5) (5)
-----------------------------------------------------------------------------------------------------------
L-III-A-ZZZ $ 55,008,199.64 (3) (5) (5)
-----------------------------------------------------------------------------------------------------------
L-IV-A-1 $ 71.65 (4) (5) (5)
-----------------------------------------------------------------------------------------------------------
L-IV-A-ZZZ $ 25,123,471.61 (4) (5) (5)
-----------------------------------------------------------------------------------------------------------
(1) Equals the Pass-Through Rate for the Class I-A-1 Certificates.
(2) Equals the Pass-Through Rate for the Class II-A-1 Certificates.
(3) Equals the Pass-Through Rate for the Class III-A-1 Certificates.
(4) Equals the Pass-Through Rate for the Class IV-A-1 Certificates.
(5) The Lower REMIC Interest L-I-A-1 and Lower REMIC Interest L-I-A-ZZZ shall be
Corresponding Classes to these Classes of Certificates: X-X-0, X-0, X-0, X-0,
X-0, B-5 and B-6 (provided that with respect to the Subordinated Certificates
such Lower REMIC Interests shall only correspond to the portion supported by
Pool I). The Lower REMIC Interest L-II-A-1 and Lower REMIC Interest L-II-A-ZZZ
shall be Corresponding Classes to these Classes of Certificates: XX-X-0,
XX-X-XX, X-0, X-0, X-0, X-0, B-5 and B-6 (provided that with respect to the
Subordinated Certificates such Lower REMIC Interests shall only correspond to
the portion supported by Pool II). The Lower REMIC Interest L-III-A-1 and Lower
REMIC Interest L-III-A-ZZZ shall be Corresponding Classes to these Classes of
Certificates: III-A-1, X-0, X-0, X-0, X-0, B-5 and B-6 (provided that with
respect to the Subordinated Certificates such Lower REMIC Interests shall only
correspond to the portion supported by Pool III). The Lower REMIC Interest
L-IV-A-1 and Lower REMIC Interest L-IV-A-ZZZ shall be Corresponding Classes to
these Classes of Certificates: XX-X-0, X-0, X-0, X-0, X-0, B-5 and B-6 (provided
that with respect to the Subordinated Certificates such Lower REMIC Interests
shall only correspond to the portion supported by Pool IV).
The Pass-Through Rate on each Class of Subordinated Certificates is
variable and will be equal to the weighted average of the Designated Mortgage
Pool Rates, weighted on the basis of the Group Subordinate Amount for each
Mortgage Pool. For federal income tax purposes, the Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 and Class B-6 Certificates will accrue interest at a
per annum rate equal to the weighted average of the Lower REMIC Interest Rates
on Lower REMIC Interest L-I-A-1, Lower REMIC Interest L-II-A-1, Lower REMIC
Interest L-III-A-1 and Lower REMIC Interest L-IV-A-1, weighted on the basis of
the principal balance of each such Lower REMIC Interest.
On each Distribution Date Available Funds shall be distributed with
respect to the Lower REMIC Interests and the Class II-A-RL Certificate in a
manner such that:
(i) interest accrued on each Lower REMIC Interest is
distributed with respect to each such Lower REMIC
Interest in the same manner that Accrued
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Certificate Interest is distributed with respect to the
Corresponding Class or Classes of Certificates pursuant
to Section 4.2(a)(i) and (ii);
(ii) interest accrued on the Class II-A-RU and Class II-A-RL
Certificates is distributed in the manner provided in
Section 4.2(a)(i) and (ii);
(iii) principal is distributed as provided in the following
paragraph.
Distributions of principal to the Lower REMIC Interests and
the Class II-A-RL Certificate on each Distribution Date shall be deemed to be
made:
(i) first, as to Pool II, to Class II-A-RL Certificate as
provided in Section 4.2(b)(i),
(ii) second, to the Lower REMIC Interests, in each case from
the related Mortgage Pool, to Lower REMIC Interest L-I-A-1, Lower REMIC Interest
L-II-A-1, Lower REMIC Interest L-III-A-1 and Lower REMIC Interest L-IV-A-1, as
applicable, so that the principal balance of each such Lower REMIC Interest is
equal to 0.01% of the Group Subordinate Amount for the related Mortgage Pool,
assuming distributions on the Certificates (and allocation of Realized Losses)
have been made on such Distribution Date (except that if any such Group
Subordinate Amount is a larger number than on the previous Distribution Date,
the least amount of principal shall be distributed to such Lower REMIC Interests
such that the Lower REMIC Subordinated Balance Ratio is maintained); and
(iii) third, any remaining principal in each Mortgage Pool, to
Lower REMIC Interest L-I-A-ZZZ, Lower REMIC Interest L-II-A-ZZZ, Lower REMIC
Interest L-III-A-ZZZ and Lower REMIC Interest L-IV-A-ZZZ, as applicable.
Realized Losses from each Mortgage Pool allocated to the Certificates
pursuant to Section 4.4 shall be applied after all distributions have been made
on each Distribution Date, first, to Lower REMIC Interest L-I-A-1, Lower REMIC
Interest L-II-A-1, Lower REMIC Interest L-III-A-1 and Lower REMIC Interest
L-IV-A-1, as applicable, so that the principal balance of each such Lower REMIC
Interest is equal to 0.01% of the Group Subordinate Amount for the related
Mortgage Pool, assuming distributions on the Certificates have been made on such
Distribution Date (except that if any such Group Subordinate Amount is a larger
number than on the previous Distribution Date, the least amount of Realized
Losses shall be applied to such Lower REMIC Interests such that the Lower REMIC
Subordinated Balance Ratio is maintained); and second, any remaining Realized
Losses from each Mortgage Pool shall be allocated to Lower REMIC Interest
L-I-A-ZZZ, Lower REMIC Interest L-II-A-ZZZ, Lower REMIC Interest L-III-A-ZZZ and
Lower REMIC Interest L-IV-A-ZZZ as applicable.
SECTION 2.8 Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the Trustee
as follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Required Insurance Policy;
and
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(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the
Depositor, any affiliate of the Depositor or the Trustee and
prepared by the Master Servicer pursuant to this Agreement will
contain any untrue statement of a material fact or omit to state
a material fact necessary to make such information, certificate,
statement or report not misleading.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.1 Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with the terms of (i)
the Servicing Rights Transfer and Subservicing Agreement, pursuant to which
First Tennessee Mortgage Services, Inc. engaged the Master Servicer to
subservice the Mortgage Loans, (ii) this Agreement and (iii) the customary and
usual standards of practice of prudent mortgage loan servicers; provided that if
there is a conflict between the terms of the Servicing Agreement and the
Servicing Rights Transfer and Subservicing Agreement, on the one hand, and this
Agreement, on the other hand, the terms of this Agreement shall prevail. In
connection with such servicing and administration, the Master Servicer shall
have full power and authority, acting alone and/or through Subservicers as
provided in Section 3.2 hereof, to do or cause to be done any and all things
that it may deem necessary or desirable in connection with such servicing and
administration, including but not limited to, the power and authority, subject
to the terms hereof (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 (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds, and (iv) to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided that the Master Servicer shall not 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
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 permit any modification, waiver or amendment of any Mortgage
Loan which would cause any REMIC created hereunder 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 the Depositor and the Trustee, is
hereby authorized and empowered by the Depositor and the Trustee, when the
Master Servicer believes it appropriate in its reasonable judgment, to execute
and deliver, on behalf of the Trustee, the Depositor, the Certificateholders 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 held
for the benefit of the Certificateholders. The Master Servicer shall prepare and
deliver to the Depositor and/or the Trustee such documents requiring execution
and delivery by either or both of them as are necessary or appropriate to enable
the Master Servicer to service and administer
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the Mortgage Loans to the extent that the Master Servicer is not permitted to
execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee shall execute such
documents and deliver them to the Master Servicer.
In accordance with the standards of the preceding paragraph, the Master
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.6, and further as
provided in Section 3.8. The costs incurred by the Master Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
SECTION 3.2 Subservicing; Enforcement of the Obligations of
Servicers.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a Subservicer pursuant to a subservicing
agreement; provided, however, that such subservicing
arrangement and the terms of the related subservicing
agreement must provide for the servicing of such Mortgage
Loans in a manner consistent with the servicing arrangements
contemplated hereunder. Unless the context otherwise requires,
references in this Agreement to actions taken or to be taken
by the Master Servicer in servicing the Mortgage Loans include
actions taken or to be taken by a Subservicer on behalf of the
Master Servicer. Notwithstanding the provisions of any
subservicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the
Master Servicer and a Subservicer or reference to actions
taken through a Subservicer or otherwise, the Master Servicer
shall remain obligated and liable to the Depositor, the
Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing
agreements or arrangements or by virtue of indemnification
from the Subservicer and to the same extent and under the same
terms and conditions as if the Master Servicer alone were
servicing and administering the Mortgage Loans. All actions of
each Subservicer performed pursuant to the related
subservicing agreement shall be performed as an agent of the
Master Servicer with the same force and effect as if performed
directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or
payments with respect to the Mortgage Loans that are received
by a Subservicer regardless of whether such payments are
remitted by the Subservicer to the Master Servicer.
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SECTION 3.3 Rights of the Depositor and the Trustee in Respect
of the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. Neither the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by the Master Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Master Servicer hereunder or
otherwise.
SECTION 3.4 Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default), the
Trustee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that the
Trustee shall not be (i) liable for losses of the Master Servicer pursuant to
Section 3.9 hereof or any acts or omissions of the predecessor Master Servicer
hereunder), (ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder including, but not limited to, repurchases or
substitutions of Mortgage Loans pursuant to Section 2.2 or 2.3 hereof, (iv)
responsible for expenses of the Master Servicer pursuant to Section 2.3 or (v)
deemed to have made any representations and warranties of the Master Servicer
hereunder). Any such assumption shall be subject to Section 7.2 hereof. If the
Master Servicer shall for any reason no longer be the Master Servicer (including
by reason of any Event of Default), the Trustee or its successor shall succeed
to any rights and obligations of the Master Servicer under each subservicing
agreement.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best efforts
to effect the orderly and efficient transfer of the substitute subservicing
agreement to the assuming party.
SECTION 3.5 Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account.
(a) The Master Servicer shall make reasonable efforts in
accordance with the customary and usual standards of practice
of prudent mortgage servicers to collect all payments called
for under the terms and provisions of the Mortgage Loans to
the extent such procedures shall be consistent with this
Agreement and the terms and provisions of any related Required
Insurance Policy. Consistent with the foregoing, the Master
Servicer may in its discretion (i) waive any late payment
charge or any prepayment charge or penalty interest in
connection with the
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prepayment of a Mortgage Loan and (ii) extend the due dates
for payments due on a Mortgage Note for a period not greater
than 180 days; provided, however, that the Master Servicer
cannot extend the maturity of any such Mortgage Loan 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 such
arrangement, the Master Servicer shall make Advances on the
related Mortgage Loan in accordance with the provisions of
Section 4.1 during the scheduled period in accordance with the
amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements. The
Master Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether
under a Mortgage, Mortgage Note or otherwise or against any
public or governmental authority with respect to a taking or
condemnation) if it reasonably believes that enforcing the
provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable
law.
(b) The Master Servicer shall establish and maintain the
Certificate Account. The Certificate Account shall consist of
four separate subaccounts, each of which shall relate to a
particular Mortgage Pool. The Master Servicer shall deposit or
cause to be deposited into the appropriate subaccount of the
Certificate Account no later than two Business Days after
receipt, except as otherwise specifically provided herein, the
following payments and collections remitted by Subservicers or
received by it in respect of the Mortgage Loans subsequent to
the Cut-off Date (other than in respect of principal and
interest due on the Mortgage Loans on or before the Cut-off
Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage
Loans in the related Mortgage Pool, including
Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans in the related Mortgage Pool, net of the
related Master Servicing Fee and any Prepayment
Interest Excess;
(iii) all Insurance Proceeds and Liquidation Proceeds in
respect of the related Mortgage Loans in the related
Mortgage Pool, other than proceeds to be applied to
the restoration or repair of the Mortgaged Property
or released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master
Servicer in respect of the related Mortgage Pool
pursuant to Section 3.5(c) in connection with any
losses on Permitted Investments;
(v) any amounts required to be deposited by the Master
Servicer in respect of the related Mortgage Pool
pursuant to Section 3.9(b), 3.9(d), and in respect of
net monthly rental income from any related REO
Property pursuant to Section 3.11 hereof;
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(vi) all Substitution Adjustment Amounts in respect of the
related Mortgage Pool;
(vii) all Advances in respect of the related Mortgage Pool
made by the Master Servicer pursuant to Section 4.1;
and
(viii) any other amounts required to be deposited hereunder
in respect of the related Mortgage Pool.
In addition, with respect to any Mortgage Loan that is subject
to a buydown agreement, on each Due Date for such Mortgage Loan, in
addition to the monthly payment remitted by the Mortgagor, the Master
Servicer shall cause funds to be deposited into the applicable
subaccount of the Certificate Account in an amount required to cause an
amount of interest to be paid with respect to such Mortgage Loan equal
to the amount of interest that has accrued on such Mortgage Loan from
the preceding Due Date at the related Adjusted Mortgage Rate on such
date.
The foregoing requirements for remittance by the Master
Servicer shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the
nature of prepayment penalties, late payment charges, assumption fees
or amounts attributable to reimbursements of Advances, if collected,
need not be remitted by the Master Servicer. In the event that the
Master Servicer shall remit any amount not required to be remitted, it
may at any time withdraw or direct the institution maintaining the
Certificate Account to withdraw such amount from the Certificate
Account, any provision herein to the contrary notwithstanding. Such
withdrawal or direction may be accomplished by delivering written
notice thereof to the Trustee or such other institution maintaining the
Certificate Account which describes the amounts deposited in error in
the Certificate Account. The Master Servicer shall maintain adequate
records with respect to all withdrawals made pursuant to this Section.
All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders until withdrawn in accordance with Section
3.8.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Distribution
Account shall consist of three separate subaccounts, each of
which shall relate to a particular Mortgage Pool. The Trustee
shall, promptly upon receipt, deposit in the Distribution
Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer
to the Trustee in respect of a Mortgage Pool pursuant
to Section 3.8(a)(ix);
(ii) any amount deposited by the Master Servicer pursuant
to this Section 3.5(c) in connection with any losses
on Permitted Investments; and
(iii) any other amounts deposited hereunder which are
required to be deposited in the Distribution Account.
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In the event that the Master Servicer shall remit any amount
not required to be remitted, it may at any time direct the Trustee to
withdraw such amount from the applicable subaccount of the Distribution
Account, any provision herein to the contrary notwithstanding. Such
direction may be accomplished by delivering an Officer's Certificate to
the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account
shall be held by the Trustee in trust for the related
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.8. In no event shall the Trustee
incur liability for withdrawals from the Distribution Account at the
direction of the Master Servicer.
(iv) The institutions at which the Certificate Account and
the Distribution Account are maintained shall invest
funds as directed by the Master Servicer in Permitted
Investments which in both cases shall mature not
later than (i) in the case of the Certificate
Account, the second Business Day next preceding the
related Distribution Account Deposit Date (except
that if such Permitted Investment is an obligation of
the institution that maintains such account, then
such Permitted Investment shall mature not later than
the Business Day next preceding such Distribution
Account Deposit Date) and (ii) in the case of the
Distribution Account, the Business Day next preceding
the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that
maintains such fund or account, then such Permitted
Investment shall mature not later than such
Distribution Date) and, in each case, shall not be
sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of
the Trustee, for the benefit of the
Certificateholders. All income and gain net of any
losses realized from any such investment of funds on
deposit in the Certificate Account shall be for the
benefit of the Master Servicer as servicing
compensation and all income and gain net of any
losses realized from any such investment of funds on
deposit in the Distribution Account shall be for the
benefit of the Trustee. The amount of any Realized
Losses in the Certificate Account in respect of any
such investments shall promptly be deposited by the
Master Servicer in the Certificate Account and the
amount of any Realized Losses in the Distribution
Account in respect of any such investments shall
promptly be deposited by the Trustee into the
Distribution Account. All reinvestment income earned
on amounts on deposit in the Distribution Account
shall be for the benefit of the Trustee. The Trustee
in its fiduciary capacity shall not be liable for the
amount of any loss incurred in respect of any
investment or lack of investment of funds held in the
Certificate Account and made in accordance with this
Section 3.5.
(v) The Master Servicer shall give notice to the Trustee,
the Seller, each Rating Agency and the Depositor of
any proposed change of the location of the
Certificate Account prior to any change thereof. The
Trustee shall give notice to the Master Servicer, the
Seller, each Rating Agency and the
50
Depositor of any proposed change of the location of
the Distribution Account prior to any change thereof.
SECTION 3.6 Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish
and maintain one or more accounts (each, an "Escrow Account")
and deposit and retain therein all collections from the
Mortgagors (or advances by the Master Servicer) for the
payment of taxes, assessments, hazard insurance premiums or
comparable items for the account of the Mortgagors. Nothing
herein shall require the Master Servicer to compel a Mortgagor
to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts
may be made only to effect timely payment of taxes,
assessments, hazard insurance premiums, condominium or PUD
association dues, or comparable items, to reimburse the Master
Servicer out of related collections for any payments made
pursuant to Sections 3.1 hereof (with respect to taxes and
assessments and insurance premiums) and 3.9 hereof (with
respect to hazard insurance), to refund to any Mortgagors any
sums determined to be overages, to pay interest, if required
by law or the terms of the related Mortgage or Mortgage Note,
to Mortgagors on balances in the Escrow Account or to clear
and terminate the Escrow Account at the termination of this
Agreement in accordance with Section 9.1 hereof. The Escrow
Accounts shall not be a part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in
Section 3.6(a) that are not timely paid by the Mortgagors on
the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be
required so to advance only to the extent that such advances,
in the good faith judgment of the Master Servicer, will be
recoverable by the Master Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
SECTION 3.7 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage Loans
and all accounts, insurance information and other matters relating to this
Agreement, such access being afforded without charge, but only upon reasonable
request and during normal business hours at the office designated by the Master
Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder or Certificate Owner which is a savings and
loan association, bank or insurance company certain reports and reasonable
access to information and documentation regarding the Mortgage Loans sufficient
to permit such Certificateholder or Certificate Owner to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the
51
Certificates; provided that the Master Servicer shall be entitled to be
reimbursed by each such Certificateholder or Certificate Owner for actual
expenses incurred by the Master Servicer in providing such reports and access.
SECTION 3.8 Permitted Withdrawals from the Certificate Account
and Distribution Account.
(a) The Master Servicer may from time to time make withdrawals
from the applicable subaccount of the Certificate Account for
the following purposes:
(i) to the extent not previously retained by the Master
Servicer, to pay to the Master Servicer the master
servicing compensation to which it is entitled
pursuant to Section 3.14, and earnings on or
investment income with respect to funds in or
credited to the Certificate Account as additional
master servicing compensation;
(ii) to the extent not previously retained by the Master
Servicer, to reimburse the Master Servicer for
unreimbursed Advances made by it in respect of the
related Mortgage Pool, such right of reimbursement
pursuant to this subclause (ii) being limited to
amounts received on the Mortgage Loan(s) in respect
of which any such Advance was made;
(iii) to reimburse the Master Servicer for any
Nonrecoverable Advance previously made in respect of
the related Mortgage Pool;
(iv) to reimburse the Master Servicer for Insured Expenses
from the related Insurance Proceeds in respect of the
related Mortgage Pool;
(v) to reimburse the Master Servicer for (a) unreimbursed
Servicing Advances in respect of the related Mortgage
Pool, the Master Servicer's right to reimbursement
pursuant to this clause (a) with respect to any
Mortgage Loan being limited to amounts received on
such Mortgage Loan(s) which represent late recoveries
of the payments for which such advances were made
pursuant to Section 3.1 or Section 3.6 and (b) for
unpaid Master Servicing Fees as provided in Section
3.11 hereof;
(vi) to pay to the Seller or Master Servicer, as
applicable, with respect to each Mortgage Loan in
respect of the related Mortgage Pool or property
acquired in respect thereof that has been purchased
pursuant to Section 2.2, 2.3 or 3.11, all amounts
received thereon after the date of such purchase;
(vii) to reimburse the Seller, the Master Servicer or the
Depositor for expenses incurred by any of them and
reimbursable pursuant to Section 6.3 hereof;
(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited therein;
52
(ix) on or prior to the Distribution Account Deposit Date,
to withdraw an amount equal to the related Available
Funds and the Trustee Fee for such Distribution Date
and remit such amount to the Trustee for deposit in
the Distribution Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.1
hereof.
The Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan-by-Mortgage Loan basis and on a Mortgage
Pool-by-Mortgage Pool basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses
(i), (ii), (iv), (v) and (vi). Prior to making any withdrawal from the
Certificate Account pursuant to subclause (iii), the Master Servicer
shall deliver to the Trustee an Officer's Certificate of a Servicing
Officer indicating the amount of any previous Advance determined by the
Master Servicer to be a Nonrecoverable Advance and identifying the
related Mortgage Loans(s), and their respective portions of such
Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the applicable
subaccount of the Distribution Account for distributions to
the related Certificateholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the
amount of any taxes that it is authorized to withhold pursuant
to the last paragraph of Section 8.11). In addition, the
Trustee may prior to making the distribution pursuant to
Section 4.2 from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to pay to itself earnings on or investment income
with respect to funds in the Distribution Account;
(iii) to withdraw and return to the Master Servicer any
amount deposited in the Distribution Account and not
required to be deposited therein; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.1
hereof.
SECTION 3.9 Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies.
(a) The Master Servicer shall cause to be maintained, for each
Mortgage Loan, hazard insurance with extended coverage in an
amount that is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing such Mortgage
Loan or (ii) the greater of (y) the outstanding principal
balance of the Mortgage Loan and (z) an amount such that the
proceeds of such policy shall be sufficient to prevent the
Mortgagor and/or the mortgagee from becoming a co-insurer.
Each such policy of standard hazard insurance shall contain,
or have an accompanying endorsement that contains, a standard
mortgagee clause. Any
53
amounts collected by the Master Servicer under any such
policies (other than the amounts to be applied to the
restoration or repair of the related Mortgaged Property or
amounts released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures) shall be
deposited in the applicable subaccount of the Certificate
Account. Any cost incurred by the Master Servicer in
maintaining any such insurance shall not, for the purpose of
calculating monthly distributions to the Certificateholders or
remittances to the Trustee for their benefit, be added to the
principal balance of the Mortgage Loan, notwithstanding that
the terms of the Mortgage Loan so permit. Such costs shall be
recoverable by the Master Servicer out of late payments by the
related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.8 hereof. It is understood and agreed
that no earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired
in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the
Mortgaged Property is located at the time of origination of
the Mortgage Loan in a federally designated special flood
hazard area and such area is participating in the national
flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan.
Such flood insurance shall be in an amount equal to the least
of (i) the original principal balance of the related Mortgage
Loan, (ii) the replacement value of the improvements which are
part of such Mortgaged Property, and (iii) the maximum amount
of such insurance available for the related Mortgaged Property
under the national flood insurance program.
(b) In the event that the Master Servicer shall obtain and
maintain a blanket policy insuring against hazard losses on
all of the Mortgage Loans, it shall conclusively be deemed to
have satisfied its obligations as set forth in the first
sentence of this Section, it being understood and agreed that
such policy may contain a deductible clause on terms
substantially equivalent to those commercially available and
maintained by comparable servicers. If such policy contains a
deductible clause, the Master Servicer shall, in the event
that there shall not have been maintained on the related
Mortgaged Property a policy complying with the first sentence
of this Section, and there shall have been a loss that would
have been covered by such policy, deposit in the applicable
subaccount of the Certificate Account the amount not otherwise
payable under the blanket policy because of such deductible
clause. In connection with its activities as Master Servicer
of the Mortgage Loans, the Master Servicer agrees to present,
on behalf of itself, the Depositor, and the Trustee for the
benefit of the Certificateholders, claims under any such
blanket policy.
(c) The Master Servicer shall not take any action which would
result in non-coverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of the Master
Servicer, would have been covered thereunder. The Master
Servicer shall not cancel or refuse to renew any such Primary
Insurance Policy that is in effect at the date of the initial
issuance of the Certificates and is required
54
to be kept in force hereunder unless the replacement Primary
Insurance Policy for such canceled or non-renewed policy is
maintained with a Qualified Insurer.
The Master Servicer shall not be required to maintain any Primary
Insurance Policy (i) with respect to any Mortgage Loan with a Loan-to-Value
Ratio less than or equal to 80% as of any date of determination or, based on a
new appraisal, the principal balance of such Mortgage Loan represents 80% or
less of the new appraised value or (ii) if maintaining such Primary Insurance
Policy is prohibited by applicable law.
The Master Servicer agrees to effect the timely payment of the premiums
on each Primary Insurance Policy, and such costs not otherwise recoverable shall
be recoverable by the Master Servicer from the related liquidation proceeds.
(d) In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present on
behalf of itself, the Trustee and Certificateholders, claims
to the insurer under any Primary Insurance Policies and, in
this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Any amounts
collected by the Master Servicer under any Primary Insurance
Policies shall be deposited in the applicable subaccount of
the Certificate Account.
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section, when any
property subject to a Mortgage has been conveyed by the
Mortgagor, the Master Servicer shall to the extent that it has
knowledge of such conveyance, enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations,
but only to the extent that such enforcement will not
adversely affect or jeopardize coverage under any Required
Insurance Policy. Notwithstanding the foregoing, the Master
Servicer is not required to exercise such rights with respect
to a Mortgage Loan if the Person to whom the related Mortgaged
Property has been conveyed or is proposed to be conveyed
satisfies the terms and conditions contained in the Mortgage
Note and Mortgage related thereto and the consent of the
mortgagee under such Mortgage Note or Mortgage is not
otherwise so required under such Mortgage Note or Mortgage as
a condition to such transfer. In the event that the Master
Servicer is prohibited by law from enforcing any such
due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, or if
nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.10(b), to take or
enter into an assumption and modification agreement from or
with the person to whom such property has been or is about to
be conveyed, pursuant to which such person becomes liable
under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon, provided that
the Mortgage Loan shall continue to be covered (if so covered
before the Master Servicer enters such agreement) by the
applicable Required Insurance Policies. The Master Servicer,
subject to Section
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3.10(b), is also authorized with the prior approval of the
insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with such Person, pursuant
to which the original Mortgagor is released from liability and
such Person is substituted as Mortgagor and becomes liable
under the Mortgage Note. Notwithstanding the foregoing, the
Master Servicer shall not be deemed to be in default under
this Section by reason of any transfer or assumption which the
Master Servicer reasonably believes it is restricted by law
from preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any
due-on-sale clause to the extent set forth in Section 3.10(a)
hereof, in any case in which a Mortgaged Property has been
conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement
or supplement to the Mortgage Note or Mortgage that requires
the signature of the Trustee, or if an instrument of release
signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Master Servicer shall
prepare and deliver or cause to be prepared and delivered to
the Trustee for signature and shall direct, in writing, the
Trustee to execute the assumption agreement with the Person to
whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary
to carry out the terms of the Mortgage Note or Mortgage or
otherwise to comply with any applicable laws regarding
assumptions or the transfer of the Mortgaged Property to such
Person. In connection with any such assumption, no material
term of the Mortgage Note may be changed. In addition, the
substitute Mortgagor and the Mortgaged Property must be
acceptable to the Master Servicer in accordance with its
underwriting standards as then in effect. Together with each
such substitution, assumption or other agreement or instrument
delivered to the Trustee for execution by it, the Master
Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this
subsection have been met in connection therewith. The Master
Servicer shall notify the Trustee that any such substitution
or assumption agreement has been completed by forwarding to
the Trustee the original of such substitution or assumption
agreement, which in the case of the original shall be added to
the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as
all other documents and instruments constituting a part
thereof. Any fee collected by the Master Servicer for entering
into an assumption or substitution of liability agreement will
be retained by the Master Servicer as additional servicing
compensation.
SECTION 3.11 Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.
The Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of 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. In
connection with such foreclosure or other conversion, the Master Servicer shall
follow such practices and procedures as it shall deem necessary or
56
advisable and as shall be normal and usual in its general mortgage servicing
activities and meet the requirements of the insurer under any Required Insurance
Policy; provided, however, that the Master Servicer shall not be required to
expend its own funds in connection with any foreclosure 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 after reimbursement to itself of such expenses and (ii) that such expenses
will be recoverable to it through Liquidation Proceeds (respecting which it
shall have priority for purposes of withdrawals from the Certificate Account).
The Master Servicer shall be responsible for all other costs and expenses
incurred by it in any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof from the liquidation proceeds with respect to
the related Mortgaged Property, as provided in the definition of Liquidation
Proceeds. If the Master Servicer has knowledge that a Mortgaged Property which
the Master Servicer is contemplating acquiring in foreclosure or by deed in lieu
of foreclosure is located within a 1 mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or other
site with environmental or hazardous waste risks known to the Master Servicer,
the Master Servicer will, prior to acquiring the Mortgaged Property, consider
such risks and only take action in accordance with its established environmental
review procedures.
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trust Fund for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Master Servicer shall ensure that the title to such REO Property references the
Pooling and Servicing Agreement and the Trust Fund's capacity thereunder.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
either itself or through an agent selected by the Master Servicer protect and
conserve such REO Property in the same manner and to such extent as is customary
in the locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Certificateholders, rent the
same, or any part thereof, as the Master Servicer deems to be in the best
interest of the Certificateholders for the period prior to the sale of such REO
Property. The Master Servicer shall prepare for and deliver to the Trustee a
statement with respect to each REO Property that has been rented showing the
aggregate rental income received and all expenses incurred in connection with
the management and maintenance of such REO Property at such times as is
necessary to enable the Trustee to comply with the reporting requirements of the
REMIC Provisions. The net monthly rental income, if any, from such REO Property
shall be deposited in the Certificate Account no later than the close of
business on each Determination Date. The Master Servicer shall perform the tax
reporting and withholding required by Sections 1445 and 6050J of the Code with
respect to foreclosures and abandonments, the tax reporting required by Section
6050H of the Code with respect to the receipt of mortgage interest from
individuals and any tax reporting required by Section 6050P of the Code with
respect to the cancellation of indebtedness by certain financial entities, by
preparing such tax and information returns as may be required, in the form
required, and delivering the same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to the close of the third taxable year after the taxable year of its
acquisition by the Trust Fund unless the Trustee shall have been supplied with
an Opinion of Counsel to the effect that the holding by the Trust Fund of such
Mortgaged Property subsequent to such three-year period will not result in the
imposition of
57
taxes on "prohibited transactions" of any REMIC hereunder as defined in Section
860F of the Code or cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel). Notwithstanding any other provision of
this Agreement, no Mortgaged Property acquired by the Trust Fund shall be rented
(or allowed to continue to be rented) or otherwise used for the production of
income by or on behalf of the Trust Fund in such a manner or pursuant to any
terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
(ii) subject any REMIC hereunder to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the Master Servicer has agreed
to indemnify and hold harmless the Trust Fund with respect to the imposition of
any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of a
deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer will cause compliance with the provisions of
Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto) necessary
to assure that no withholding tax obligation arises with respect to the proceeds
of such foreclosure except to the extent, if any, that proceeds of such
foreclosure are required to be remitted to the obligors on such Mortgage Loan.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any REO Properties,
net of reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the applicable subaccount of the
Certificate Account. To the extent the net income received during any calendar
month is in excess of the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan for
such calendar month, such excess shall be considered to be a partial prepayment
of principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Master Servicer for any related unreimbursed Servicing
Advances and Master Servicing Fees; second, to reimburse the Master Servicer for
any unreimbursed Advances; third, to reimburse the applicable subaccount of the
Certificate Account for any Nonrecoverable Advances (or portions thereof) that
were previously withdrawn by the Master Servicer pursuant to Section 3.8(a)(iii)
that related to such Mortgage Loan; fourth, to accrued and unpaid interest (to
the extent no Advance has been made for such amount or any such Advance has been
reimbursed) on the Mortgage Loan or related REO Property, at the Adjusted Net
Mortgage Rate to the Due Date occurring in the month in which such amounts are
required to be distributed; and fifth, as a recovery of principal
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of the Mortgage Loan. Excess Proceeds, if any, from the liquidation of a
Liquidated Mortgage Loan will be retained by the Master Servicer as additional
servicing compensation pursuant to Section 3.14.
The Master Servicer, with the consent of the Trustee, shall have the
right to purchase for its own account from the Trust Fund any Mortgage Loan
which is 91 days or more delinquent at a price equal to the Purchase Price. The
Purchase Price for any Mortgage Loan purchased hereunder shall be deposited in
the applicable subaccount of the Certificate Account and the Trustee, upon
receipt of a certificate from the Master Servicer in the form of Exhibit M
hereto, shall release or cause to be released to the purchaser of such Mortgage
Loan the related Mortgage File and shall execute and deliver such instruments of
transfer or assignment prepared by the purchaser of such Mortgage Loan, in each
case without recourse, as shall be necessary to vest in the purchaser of such
Mortgage Loan any Mortgage Loan released pursuant hereto and the purchaser of
such Mortgage Loan shall succeed to all the Trustee's right, title and interest
in and to such Mortgage Loan and all security and documents related thereto.
Such assignment shall be an assignment outright and not for security. The
purchaser of such Mortgage Loan shall thereupon own such Mortgage Loan, and all
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
SECTION 3.12 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by delivering, or causing to be delivered a "Request for Release"
substantially in the form of Exhibit M. Upon receipt of such request, the
Trustee shall or shall cause the Custodian to promptly release the related
Mortgage File to the Master Servicer, and the Trustee shall at the Master
Servicer's direction execute and deliver to the Master Servicer the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage in each case provided by the
Master Servicer, together with the Mortgage Note with written evidence of
cancellation thereon. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor. From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose, collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee shall, upon delivery to the Trustee of a Request for Release
in the form of Exhibit L signed by a Servicing Officer, release the Mortgage
File to the Master Servicer. Subject to the further limitations set forth below,
the Master Servicer shall cause the Mortgage File or documents so released to be
returned to the Trustee or its Custodian when the need therefor by the Master
Servicer no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the applicable subaccount of the Certificate
Account, in which case the Master Servicer shall deliver to the Trustee a
Request for Release in the form of Exhibit M, signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this Agreement,
the Master Servicer shall deliver or
59
cause to be delivered to the Trustee, for signature, as appropriate, any court
pleadings, requests for trustee's sale or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
SECTION 3.13 Documents Records and Funds in Possession of
Master Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or which otherwise are
collected by the Master Servicer as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, the Master Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including but not limited to, any funds on deposit in the
Certificate Account, shall be held by the Master Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer also agrees that it shall not create, incur or subject any Mortgage
File or any funds that are deposited in the Certificate Account, Distribution
Account or any Escrow Account, or any funds that otherwise are or may become due
or payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of setoff
against any Mortgage File or any funds collected on, or in connection with, a
Mortgage Loan, except, however, that the Master Servicer shall be entitled to
set off against and deduct from any such funds any amounts that are properly due
and payable to the Master Servicer under this Agreement.
SECTION 3.14 Master Servicing Compensation.
As compensation for its activities as Master Servicer hereunder and as
a subservicer pursuant to the Servicing Rights Transfer and Subservicing
Agreement, the Master Servicer shall be entitled to retain or withdraw from the
Certificate Account an amount equal to the Master Servicing Fee for each
Mortgage Loan, provided that the aggregate Master Servicing Fee with respect to
any Distribution Date shall be reduced (i) by the amount of any Compensating
Interest paid by the Master Servicer with respect to such Distribution Date, and
(ii) with respect to the first Distribution Date, an amount equal to any amount
to be deposited into the Distribution Account by the Depositor pursuant to
Section 2.1(a) and not so deposited.
Additional servicing compensation in the form of (i) Excess Proceeds,
Prepayment Interest Excess and all income and gain net of any losses realized
from Permitted Investments and (ii) prepayment penalties, assumption fees and
late payment charges in each case under the circumstances and in the manner set
forth in the applicable Mortgage Note or Mortgage shall be retained by the
Master Servicer to the extent not required to be deposited in the Certificate
Account pursuant to Section 3.5 hereof. The Master Servicer shall be required to
pay all expenses incurred by it in connection with its master servicing
activities hereunder (including
60
payment of any premiums for hazard insurance and any Primary Insurance Policy
and maintenance of the other forms of insurance coverage required by this
Agreement) and shall not be entitled to reimbursement therefor except as
specifically provided in this Agreement.
SECTION 3.15 Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Certificates or
Certificate Owners and the examiners and supervisory agents of the OTS, the FDIC
and such other authorities, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the OTS and the FDIC. Such access
shall be afforded without charge, but only upon reasonable and prior written
request and during normal business hours at the offices designated by the Master
Servicer. Nothing in this Section shall limit the obligation of the Master
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Master Servicer to provide
access as provided in this Section as a result of such obligation shall not
constitute a breach of this Section.
SECTION 3.16 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee on
or before 120 days after the end of the Master Servicer's fiscal year,
commencing with its 2004 fiscal year, an Officer's Certificate stating, as to
the signer thereof, that (i) a review of the activities of the Master Servicer
during the preceding calendar year and of the performance of the Master Servicer
under this Agreement has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. The Trustee shall forward a copy of each such statement to each Rating
Agency.
SECTION 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 120 days after the end of the Master Servicer's fiscal
year, commencing with its 2004 fiscal year, the Master Servicer at its expense
shall cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, the
Seller or any affiliate thereof) which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Trustee and the
Depositor to the effect that-such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement or
of mortgage loans under pooling and servicing agreements substantially similar
to this Agreement (such statement to have attached thereto a schedule setting
forth the pooling and servicing agreements covered thereby) and that, on the
basis of such examination, conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FNMA and FHLMC, such servicing has been conducted in
compliance with such pooling and servicing agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
the Uniform Single Attestation Program for Mortgage Bankers or the Audit
61
Program for Mortgages serviced for FNMA and FHLMC requires it to report. In
rendering such statement, such firm may rely, as to matters relating to direct
servicing of mortgage loans by Subservicers, upon comparable statements for
examinations conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FNMA and FHLMC (rendered within one year of such statement) of
independent public accountants with respect to the related Subservicer. Copies
of such statement shall be provided by the Trustee to any Certificateholder or
Certificate Owner upon request at the Master Servicer's expense, provided such
statement is delivered by the Master Servicer to the Trustee.
SECTION 3.18 Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall for so long as it acts as master servicer
under this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
Master Servicer hereunder and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
comply with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. In the event
that any such policy or bond ceases to be in effect, the Master Servicer shall
obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
SECTION 3.19 Notification of Adjustments.
On each Adjustment Date, the Master Servicer shall make interest rate
adjustments for each Mortgage Loan in compliance with the requirements of the
related Mortgage and Mortgage Note and applicable regulations. The Master
Servicer shall execute and deliver the notices required by each Mortgage and
Mortgage Note and applicable regulations regarding interest rate adjustments.
The Master Servicer also shall provide timely notification to the Trustee of all
applicable data and information regarding such interest rate adjustments and the
Master Servicer's methods of implanting such interest rate adjustments. Upon the
discovery by the Master Servicer or the Trustee that the Master Servicer has
failed to adjust or has incorrectly adjusted a Mortgage Rate or a monthly
payment pursuant to the terms of the related Mortgage Note and Mortgage, the
Master Servicer shall immediately deposit in the Certificate Account from its
own funds the amount of any interest loss caused thereby without reimbursement
therefor; provided, however, the Master Servicer shall be held harmless with
respect to any interest rate adjustments made by any servicer prior to the
Master Servicer.
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION 4.1 Advances.
The Master Servicer shall determine on the Business Day prior to each
Master Servicer Advance Date whether it is required to make an Advance pursuant
to the definition thereof. If the Master Servicer determines it is required to
make an Advance, it shall, on or before the Master Servicer Advance Date, either
(i) deposit into the applicable subaccount of the Certificate
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Account an amount equal to the Advance or (ii) make an appropriate entry in its
records relating to the applicable subaccount of the Certificate Account that
any Amount Held for Future Distribution has been used by the Master Servicer in
discharge of its obligation to make any such Advance. Any funds so applied shall
be replaced by the Master Servicer by deposit in the applicable subaccount of
the Certificate Account no later than the close of business on the Business Day
preceding the next Master Servicer Advance Date. The Master Servicer shall be
entitled to be reimbursed from the applicable subaccount of the Certificate
Account for all Advances of its own funds made pursuant to this Section as
provided in Section 3.8. The obligation to make Advances with respect to any
Mortgage Loan shall continue until the ultimate disposition of the REO Property
or Mortgaged Property relating to such Mortgage Loan. As to any Distribution
Date, the Master Servicer shall inform the Trustee in writing of the amount of
the Advance to be made by the Master Servicer on each Master Servicer Advance
Date no later 1:30 p.m. Central time on the second Business Day immediately
preceding such Distribution Date.
The Master Servicer shall deliver to the Trustee on the related Master
Servicer Advance Date an Officer's Certificate of a Servicing Officer indicating
the amount of any proposed Advance determined by the Master Servicer to be a
Nonrecoverable Advance.
SECTION 4.2 Priorities of Distribution.
(a) On each Distribution Date, the Trustee shall withdraw the
Available Funds for each Certificate Group from the applicable
subaccount of the Distribution Account and apply such funds to
distributions on the Certificates of the related Certificate
Group in the following order and priority and, in each case,
to the extent of Available Funds remaining:
(i) to the Classes of Senior Certificates of the related
Certificate Group, the Accrued Certificate Interest
on each such Class for such Distribution Date;
(ii) to the Classes of Senior Certificates of the related
Certificate Group, any Accrued Certificate Interest
thereon remaining undistributed from previous
Distribution Dates, to the extent of remaining
Available Funds from the related Mortgage Pool;
(iii) to the Classes of Senior Certificates of the related
Certificate Group, to the extent of remaining
Available Funds from the related Mortgage Pool, the
related Senior Optimal Principal Amount for such
Distribution Date and, in the case of the Group II
Senior Certificates and Group III Senior
Certificates, in the order of priority set forth
below in Sections 4.2(b), until the respective Class
Certificate Balances thereof have been reduced to
zero;
(iv) to the Class B-1 Certificates, to the extent of
remaining Available Funds for the Mortgage Pools, but
subject to the prior payment of amounts described
under Section 4.2(g), in the following order: (1) the
Accrued Certificate Interest thereon for such
Distribution Date, (2) any Accrued
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Certificate Interest thereon remaining undistributed
from previous Distribution Dates and (3) such Class'
Allocable Share for such Distribution Date;
(v) to the Class B-2 Certificates, to the extent of
remaining Available Funds for the Mortgage Pools, but
subject to the prior payment of amounts described
under Section 4.2(g), in the following order: (1) the
Accrued Certificate Interest thereon for such
Distribution Date, (2) any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates and (3) such Class'
Allocable Share for such Distribution Date;
(vi) to the Class B-3 Certificates, to the extent of
remaining Available Funds for the Mortgage Pools, but
subject to the prior payment of amounts described
under Section 4.2(g), in the following order: (1) the
Accrued Certificate Interest thereon for such
Distribution Date, (2) any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates and (3) such Class'
Allocable Share for such Distribution Date;
(vii) to the Class B-4 Certificates, to the extent of
remaining Available Funds for the Mortgage Pools, but
subject to the prior payment of amounts described
under Section 4.2(g), in the following order: (1) the
Accrued Certificate Interest thereon for such
Distribution Date, (2) any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates and (3) such Class'
Allocable Share for such Distribution Date;
(viii) to the Class B-5 Certificates, to the extent of
remaining Available Funds for the Mortgage Pools, but
subject to the prior payment of amounts described
under Section 4.2(g), in the following order: (1) the
Accrued Certificate Interest thereon for such
Distribution Date, (2) any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates and (3) such Class'
Allocable Share for such Distribution Date; and
(ix) to the Class B-6 Certificates, to the extent of
remaining Available Funds for each Mortgage Pool, but
subject to the prior payment of amounts described
under Section 4.2(g), in the following order: (1) the
Accrued Certificate Interest thereon for such
Distribution Date, (2) any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates and (3) such Class'
Allocable Share for such Distribution Date.
(b) Amounts allocated to the Group II Senior Certificates pursuant
to Section 4.2(a)(iii) above will be distributed in the
following order of priority:
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(i) concurrently, to the Class II-A-RU and Class II-A-RL
Certificates, pro rata, until their respective Class
Certificate Balances have each been reduced to zero;
and
(ii) to the Class II-A-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero.
(c) On each Distribution Date, the Trustee shall distribute to the
Holders of the Class II-A-RU and Class II-A-RL Certificates
any Available Funds remaining in the related REMIC created
hereunder for such Distribution Date after application of all
amounts described in clauses (a), (b) and (c) of this Section
4.2. Any distributions pursuant to this subsection (d) shall
not reduce the respective Class Certificate Balances of the
Class II-A-RU and Class II-A-RL Certificates.
(d) On and after the Cross-Over Date, the amount distributable to
the Group II Senior Certificates pursuant to Section
4.2(a)(iii) for the related Distribution Date shall be
allocated among the related Classes of Senior Certificates,
pro rata, on the basis of their respective Class Certificate
Balances immediately prior to such Distribution Date,
regardless of the priorities and amounts set forth in Section
4.2.
(e) If (i) on any Distribution Date the Class Certificate Balance
of any Class of Subordinated Certificates (other than the
Class of Subordinated Certificates with the highest priority
of distribution) for which the related Class Prepayment
Distribution Trigger was satisfied on such Distribution Date
is reduced to zero and amounts distributable to such Class or
Classes of Subordinated Certificates pursuant to clauses (2),
(3) and (5) of the applicable Subordinated Optimal Principal
Amount remain undistributed on such Distribution Date after
all amounts otherwise distributable on such date pursuant to
clauses (iv) through (ix) of Section 4.2(a) have been
distributed, such amounts, to the extent of such Class'
remaining Allocable Share, shall be distributed on such
Distribution Date to the remaining Classes of Subordinated
Certificates in order of priority, such that no such
distribution shall be made to any Class of Subordinated
Certificates while a Class of Subordinated Certificates having
a distribution priority higher than such Class is outstanding;
and (ii) notwithstanding the priorities and allocations
contained in Section 4.2(a) and (b), with respect to any
Certificate Group, the Two Times Test is not satisfied, each
Class of Subordinated Certificates will be entitled to
receive, in respect of clauses (2), (3) and (5) of the
definition of Subordinated Optimal Principal Amount for each
mortgage pool, an amount equal to the product of (x) their
Allocable Share and (y) the percentages set forth in the
following table:
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Distribution Date occurring in Percentage
June 2004 through May 2009..................................... 0%
June 2009 through May 2010..................................... 30%
June 2010 through May 2011..................................... 40%
June 2011 through May 2012..................................... 60%
June 2012 through May 2013..................................... 80%
June 2013 and thereafter....................................... 100%
(f) In the event that in any calendar month the Master Servicer recovers
an amount (an "Unanticipated Recovery") in respect of principal of a
Mortgage Loan which had previously been allocated as a Realized Loss
to any Class of Certificates pursuant to Section 4.4, on the
Distribution Date in the next succeeding calendar month, the Trustee
shall withdraw the Unanticipated Recovery from the Distribution
Account and sequentially increase the Class Certificate Balance of
each Class of Certificates to which such Realized Losses were
previously allocated by the amount of such Unanticipated Recovery, but
not to exceed the amount of such Realized Loss previously allocated to
such Class, and shall distribute the amount of such Unanticipated
Recovery to each such Class of Certificates in the order of payment
priority described in Section 4.2(a) of this Agreement. When the
Class Certificate Balance of a Class of Certificates has been reduced
to zero, the Holders of such Class shall not be entitled to any share
of an Unanticipated Recovery, and such Unanticipated Recovery shall be
allocated among all outstanding Classes of Certificates entitled
thereto in accordance with the preceding sentence, subject to the
remainder of this subsection (g). In the event that (i) any
Unanticipated Recovery remains undistributed in accordance with the
preceding sentence or (ii) the amount of an Unanticipated Recovery
exceeds the amount of the Realized Loss previously allocated to any
outstanding Classes with respect to the related Mortgage Loan, on the
applicable Distribution Date the Trustee shall distribute such
Unanticipated Recoveries in accordance with the priorities set forth
in Section 4.2(a).
For purposes of the preceding paragraph, the share of an
Unanticipated Recovery allocable to any Class of Certificates with
respect to a Mortgage Loan shall be based on its pro rata share (in
proportion to the Class Certificate Balances thereof with respect to
such Distribution Date) of the principal portion of any such Realized
Loss previously allocated with respect to such Mortgage Loan (or
Loans).
(g) On any Distribution Date on which any Certificate Group constitutes an
Undercollateralized Group, all amounts otherwise distributable as
principal on the Subordinated Certificates, in reverse order of
priority (or, following the Cross-over Date, such other amounts
described in the immediately following sentence), will be distributed
as principal to the Senior Certificates of such Undercollateralized
Group in accordance with the priorities set forth in Section
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4.2(b), as applicable, until the total Class Certificate Balance of
such Senior Certificates (after giving effect to distributions to be
made on that Distribution Date) equals the Stated Principal Balance of
the related Mortgage Pool (such distribution, an
"Undercollateralization Distribution"). If the Senior Certificates of
a Certificate Group constitute an Undercollateralized Group on any
Distribution Date following the Cross-over Date,
Undercollateralization Distributions will be made from the excess of
the Available Funds for the Mortgage Pool not related to an
Undercollateralized Group remaining after all required amounts for
that Distribution Date have been distributed to the Senior
Certificates of such other Certificate Group. In addition, the amount
of any unpaid Net Interest Shortfalls with respect to any
Undercollateralized Group on any Distribution Date (including any Net
Interest Shortfalls for the related Distribution Date) will be
distributed to the Senior Certificates of such Undercollateralized
Group prior to the payment of any Undercollateralization Distributions
from amounts otherwise distributable as principal on the Subordinated
Certificates, in reverse order of priority (or, following the
Cross-over Date, as provided in the preceding sentence). Except as
provided otherwise in this Section 4.2(g), no distribution of
principal will be made to any Class of Subordinated Certificates until
each Undercollateralized Group is no longer undercollateralized. If
more than one Undercollateralized Group on any Distribution Date is
entitled to an Undercollateralization Distribution, such
Undercollateralization Distribution shall be allocated among the
Undercollateralized Groups, pro rata, on the basis of the amount by
which the aggregate Class Certificate Balance of the related Senior
Certificates is greater than the aggregate Stated Principal Balance of
the Mortgage Loans in the related Undercollateralized Groups. If more
than one Certificate Group on any Distribution Date is required to
make an Undercollateralization Distribution to an Undercollateralized
Group, the payment of such Undercollateralization Distributions shall
be allocated among such Certificate Groups, pro rata, on the basis of
the aggregate Class Certificate Balance of the related Senior
Certificates.
In addition, if on any Distribution Date the total Class Certificate
Balance of the Senior Certificates of a Certificate Group (after
giving effect to distributions to be made on that Distribution Date)
has been reduced to zero, all amounts otherwise distributable as
prepayments of principal to the Subordinated Certificates, in reverse
order of priority, will instead be distributed as principal to the
Senior Certificates of the other Certificate Groups pro rata, on the
basis of the aggregate Class Certificate Balance of the related Senior
Certificates, unless (a) the weighted average of the Subordinated
Percentages for the Mortgage Pools, weighted on the basis of the
Stated Principal Balance of the Mortgage Loans in the related Mortgage
Pool, is at least two times the weighted average of the initial
Subordinate Percentage for the Mortgage Pools (calculated on such
basis) and (b) the aggregate Stated Principal Balance of all of the
Mortgage Loans in the Mortgage Pools delinquent 60 days or more
(including for this purpose any such Mortgage Loans in foreclosure or
subject to bankruptcy proceedings and Mortgage Loans with respect to
which the related Mortgaged Property has been acquired by the Trust
Fund), averaged over the preceding six month period, as a
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percentage of the then current aggregate Class Certificate Balance of
the Subordinated Certificates, is less than 50%. Except as provided
otherwise in this Section 4.2(g), all distributions described above
will be made in accordance with the priorities set forth in Section
4.2(a) and (b).
SECTION 4.3 Method of Distribution.
(a) All distributions with respect to each Class of Certificates on each
Distribution Date shall be made pro rata among the outstanding
Certificates of such Class, based on the Percentage Interest in such
Class represented by each Certificate. Payments to the
Certificateholders on each Distribution Date will be made by the
Trustee to the Certificateholders of record on the related Record Date
by check or money order mailed to a Certificateholder at the address
appearing in the Certificate Register, or upon written request by such
Certificateholder to the Trustee made not later than the applicable
Record Date, by wire transfer to a U.S. depository institution
acceptable to the Trustee, or by such other means of payment as such
Certificateholder and the Trustee shall agree.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such
distribution to the accounts of its Depository Participants in
accordance with its normal procedures. Each Depository Participant
shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each financial
intermediary for which it acts as agent. Each such financial
intermediary shall be responsible for disbursing funds to the
Certificate Owners that it represents. All such credits and
disbursements with respect to a Book-Entry Certificate are to be made
by the Depository and the Depository Participants in accordance with
the provisions of the applicable Certificates. Neither the Trustee nor
the Master Servicer shall have any responsibility therefor except as
otherwise provided by applicable law.
(c) The Trustee shall withhold or cause to be withheld such amounts as it
reasonably determines are required by the Code (giving full effect to
any exemptions from withholding and related certifications required to
be furnished by Certificateholders or Certificate Owners and any
reductions to withholding by virtue of any bilateral tax treaties and
any applicable certification required to be furnished by
Certificateholders or Certificate Owners with respect thereto) from
distributions to be made to Non-U.S. Persons. If the Trustee
reasonably determines that a more accurate determination of the amount
required to be withheld for a distribution can be made within a
reasonable period after the scheduled date for such distribution, it
may hold such distribution in trust for a Holder of a Residual
Certificate until such determination can be made. For the purposes of
this paragraph, a "Non-U.S. Person" is (i) an individual other than a
citizen or resident of the United States, (ii) a partnership,
corporation or entity treated as a partnership or corporation for U.S.
federal income tax purposes not formed under the laws of the United
States, any state thereof or the District of Columbia (unless, in the
case of a partnership, Treasury regulations provide otherwise), (iii)
any estate, the income of which is not subject to U.S. federal
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income taxation, regardless of source, and (iv) any trust, other than
a trust that 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 the authority to control all substantial
decisions of the trust.
SECTION 4.4 Allocation of Losses.
(a) On or prior to each Determination Date, the Master Servicer shall
determine the amount of any Realized Loss in respect of each Mortgage
Loan that occurred during the immediately preceding calendar month.
(b) With respect to any Distribution Date, the principal portion of each
Realized Loss (other than any Excess Loss) with respect to a Mortgage
Pool shall be allocated in the following order of priority:
(i) to the Class B-6 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(ii) to the Class B-5 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(iii) to the Class B-4 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(iv) to the Class B-3 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(v) to the Class B-2 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(vi) to the Class B-1 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(vii) to the Classes of Senior Certificates of the related Certificate
Group, pro rata, in accordance with their Class Certificate
Balances.
(c) With respect to any Distribution Date, the principal portion of any
Excess Loss with respect to a Mortgage Pool (other than Excess
Bankruptcy Losses attributable to Debt Service Reductions) shall be
allocated pro rata to each Class of Certificates of the related
Certificate Group based on their respective Class Certificate Balances
(in the case of the Senior Certificates) or Apportioned Principal
Balances (in the case of the Subordinated Certificates).
(d) Any Realized Losses allocated to a Class of Certificates pursuant to
Section 4.4(b) or (c) shall be allocated among the Certificates of
such Class in proportion to their respective Certificate Principal
Balances. Any allocation of Realized Losses pursuant to this paragraph
(d) shall be accomplished by reducing the
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Certificate Principal Balances of the related Certificates on the
related Distribution Date in accordance with Section 4.4(e).
(e) Realized Losses allocated in accordance with this Section 4.4 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 the distributions made on such
Distribution Date.
(f) On each Distribution Date, the Master Servicer shall determine the
Subordinated Certificate Writedown Amount, if any. Any such
Subordinated Certificate Writedown Amount shall effect, without
duplication of any other provision in this Section 4.4 that provides
for a reduction in the Class Certificate Balance of the Subordinated
Certificates, a corresponding reduction in the Class Certificate
Balance of the Subordinated Certificates, which reduction shall occur
on such Distribution Date after giving effect to distributions made on
such Distribution Date.
(g) Notwithstanding the foregoing, no such allocation of any Realized Loss
shall be made on a Distribution Date to a Class of Certificates to the
extent that such allocation would result in the reduction of the
aggregate Class Certificate Balances of all the Senior Certificates of
a related Certificate Group as of such Distribution Date plus the
Apportioned Principal Balances of the Subordinated Certificates of
such Certificate Group as of such Distribution Date, after giving
effect to all distributions and prior allocations of Realized Losses
on such date, to an amount less than the aggregate Stated Principal
Balance of the Mortgage Loans in the related Mortgage Pool as of the
first day of the month of such Distribution Date, less any Deficient
Valuations occurring on or prior to the Bankruptcy Coverage
Termination Date (such limitation, the "Loss Allocation Limitation").
SECTION 4.5 [RESERVED]
SECTION 4.6 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
cause to be forwarded by first class mail to each Certificateholder,
the Master Servicer, the Depositor and each Rating Agency a statement
setting forth with respect to the related distribution and/or may post
such statement on its website located at xxx.xxxxxxxxxxxx.xxx:
(i) the amount thereof allocable to principal, separately identifying
the aggregate amount of any Principal Prepayments and Liquidation
Proceeds included therein;
(ii) the amount thereof allocable to interest, the amount of any
Compensating Interest included in such distribution and any
remaining Net Interest Shortfalls after giving effect to such
distribution;
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(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be
distributable to such Holders if there were sufficient funds
available therefor, the amount of the shortfall and the
allocation thereof as between principal and interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such
Distribution Date;
(v) the Pool Principal Balance for each Mortgage Pool for the
following Distribution Date;
(vi) the Senior Percentage and Subordinated Percentage for each
Certificate Group for the following Distribution Date;
(vii) the amount of the Master Servicing Fees paid to or retained by
the Master Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(ix) the amount of Advances for each Mortgage Pool included in the
distribution on such Distribution Date and the aggregate amount
of Advances for each Mortgage Pool outstanding as of the close
of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure) (1)
1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or
more days and (B) in foreclosure and delinquent (1) 1 to 30
days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more
days, as of the close of business on the last day of the
calendar month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan in a Mortgage Pool that
became an REO Property during the preceding calendar month, the
loan number and Stated Principal Balance of such Mortgage Loan
as of the close of business on the Determination Date preceding
such Distribution Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) in each Mortgage Pool as of
the close of business on the Determination Date preceding such
Distribution Date;
(xiii) the Senior Prepayment Percentage for each Certificate Group for
the following Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred in respect of
each Mortgage Pool during the preceding calendar month;
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(xv) the cumulative amount of Realized Losses applied in reduction
of the principal balance of each class of Certificates since
the Closing Date; (xvi) the Special Hazard Loss Coverage
Amount, the Fraud Loss Coverage Amount and the Bankruptcy Loss
Coverage Amount, in each case as of the related Determination
Date; and
(xvii) with respect to the second Distribution Date, the number and
aggregate balance of any Delay Delivery Mortgage Loans not
delivered within thirty days after the Closing Date.
(b) The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness and
accuracy of the information provided by the Master Servicer.
(c) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day
prior to the related Distribution Date), the Master Servicer shall
deliver to the Trustee (which delivery may be by electronic data
transmission) a report in substantially the form set forth as Schedule
III hereto.
(d) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and
(a)(vii) of this Section 4.6 aggregated for such calendar year or
applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
ARTICLE V
THE CERTIFICATES
SECTION 5.1 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount which must be in excess of the
applicable minimum denomination) and aggregate denominations per Class set forth
in the Preliminary Statement.
Subject to Section 9.2 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such Holder at a bank
or other entity having appropriate facilities therefor, if (i) such Holder has
so notified the Trustee at least five Business Days prior to the related Record
Date and (ii) such Holder shall hold (A) 100% of the Class Certificate Balance
of any Class of Certificates or
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(B) Certificates of any Class with aggregate principal Denominations
of not less than $1,000,000 or (y) by check mailed by first class mail
to such Certificateholder at the address of such Holder appearing in
the Certificate Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the countersignature and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate transfers.
SECTION 5.2 Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.6 hereof, a Certificate Register for
the Trust Fund in which, subject to the provisions of subsections (b)
and (c) below and to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Upon
surrender for registration of transfer of any Certificate, the Trustee
shall execute and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee.
Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute, authenticate, and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
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All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under
the Securities Act and any applicable state securities laws or is
exempt from the registration requirements under said Act and such
state securities laws. In the event that a transfer is to be made in
reliance upon an exemption from the Securities Act and such laws, in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer in substantially
the forms set forth in Exhibit I (the "Transferor Certificate") and
(i) deliver a letter in substantially the form of either Exhibit J
(the "Investment Letter") or Exhibit K (the "Rule 144A Letter") or
(ii) there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Securities Act. The Depositor shall
provide to any Holder of a Private Certificate and any prospective
transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information
as shall be necessary to satisfy the condition to eligibility set
forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the
Master Servicer shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including
providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust
Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor, the Seller and the Master
Servicer against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state
laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received a Transferor Certificate from the related
transferor and either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit J or
Exhibit K), to the effect that such transferee is not an employee benefit
plan or arrangement subject to Section 406 of ERISA or a plan or
arrangement subject to Section 4975 of the Code, nor a person acting on
behalf of any such plan or arrangement, nor using the assets of any such
plan or arrangement to effect such transfer, (ii) in the case of a Private
Certificate (that has been subject to an ERISA-Qualified Underwriting) or a
Residual Certificate, if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class
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Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in
the case of any such ERISA-Restricted Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or
any other person acting on behalf of any such plan or arrangement, or using
such plan's or arrangement's assets, an Opinion of Counsel satisfactory to
the Trustee, which Opinion of Counsel shall not be an expense of either the
Trustee, the Depositor, the Master Servicer or the Trust Fund, addressed to
the Trustee to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not result in prohibited transactions
under Section 406 of ERISA and Section 4975 of the Code and will not
subject the Trustee, the Depositor or the Master Servicer to any obligation
in addition to those expressly undertaken in this Agreement or to any
liability. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code 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.
To the extent permitted under applicable law (including, but not
limited to, ERISA), 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 5.2(b) 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 by the Trustee in accordance with the
foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition
of such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in
its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered
to the Trustee under subparagraph (b) above, the Trustee shall
have been furnished with an affidavit (a "Transfer Affidavit") of
the initial owner or the proposed transferee in the form attached
hereto as Exhibit H.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other
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Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of a
Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an
Ownership Interest in a Residual Certificate to any other Person
if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this
Section 5.2(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.2(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of
Transfer of such 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 Section
5.2(b) and this Section 5.2(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action
with respect to such Holder under the provisions of this
Agreement so long as the Transfer was registered after receipt of
the related Transfer Affidavit, Transferor Certificate and, in
the case of a Residual Certificate which is also a Private
Certificate, either the Rule 144A Letter or the Investment
Letter. The Trustee shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in
fact not a Permitted Transferee at the time it became a Holder
or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual 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 Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the
Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted
Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.2(c) shall cease to apply (and the applicable portions of
the legend on a Residual Certificate may be deleted) with respect to
Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trust Fund, the
Trustee, the Seller or the Master Servicer, to the effect that the
elimination of such restrictions will not cause any REMIC created hereunder
to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel
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furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate
is not transferred, directly or indirectly, to a Person that is not a
Permitted Transferee and (b) to provide for a means to compel the Transfer
of a Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.2 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee
and at all times: (i) registration of the Certificates may not be
transferred by the Trustee except to another Depository; (ii) the
Depository shall maintain book-entry records with respect to the
Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (iii) ownership and transfers of registration
of the Book-Entry Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal
with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of
the Book-Entry Certificates for purposes of exercising the rights of
holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent
if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect
to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or the
Depositor is unable to locate a qualified successor, (y) the Depositor at
its option advises the Trustee in writing that it elects to terminate the
book-entry system through the Depository or (z) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the Class
Certificate Balance of the Book-Entry Certificates together advise the
Trustee and the Depository through the Depository Participants in writing
that the continuation of a book-entry system through the Depository is no
longer in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners, through the Depository, of the occurrence of
any such event and of the availability of definitive, fully-registered
Certificates (the "Definitive
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Certificates") to Certificate Owners requesting the same. Upon surrender to
the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Master
Servicer, the Depositor nor the Trustee shall be liable for any delay in
delivery of such instruction and each may conclusively rely on, and shall
be protected in relying on, such instructions. The Master Servicer shall
provide the Trustee with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
SECTION 5.3 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Master Servicer and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.3, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.3 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.4 Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer or
the Trustee may treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Master Servicer the Trustee nor any agent of the Master Servicer or the
Trustee shall be affected by any notice to the contrary.
SECTION 5.5 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders or Certificate Owners (a) request such
information in writing from the Trustee, (b) state that such Certificateholders
or Certificate Owners desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication which such Certificateholders or Certificate
Owners propose to transmit, or if the Depositor or Master Servicer shall request
such information in writing from the Trustee, then the Trustee shall, within
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ten Business Days after the receipt of such request, provide the Depositor, the
Master Servicer or such Certificateholders or Certificate Owners at such
recipients' expense the most recent list of the Certificateholders of such Trust
Fund held by the Trustee, if any. The Depositor and every Certificateholder or
Certificate Owner, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.6 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates may
be surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.1 Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
SECTION 6.2 Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation under the laws of the United
States or under the laws of one of the states thereof and will each obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, or any of the Mortgage Loans and
to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Master Servicer shall be a party, or any person succeeding
to the business of the Depositor or the Master Servicer, shall be the successor
of the Depositor or the Master Servicer, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person to the Master Servicer shall be
qualified to sell mortgage loans to, and to service mortgage loans on behalf of,
FNMA or FHLMC.
SECTION 6.3 Limitation on Liability of the Depositor, the Master
Servicer and Others.
None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor or the Master Servicer shall be
under any liability to the
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Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Master Servicer or any such Person against any breach of representations or
warranties made by it herein or protect the Depositor, the Master Servicer or
any such Person from any liability which would otherwise be imposed by reasons
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor, the Master Servicer and any director, officer, employee or agent
of the Depositor or 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 Depositor, the Master Servicer and any
director, officer, employee or agent of the Depositor or the Master Servicer
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. Neither the Depositor nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that either the
Depositor, or the Master Servicer may in its discretion undertake any such
action that it may deem necessary or desirable in respect of this Agreement and
the rights and duties of the parties hereto and interests of the Trustee and 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 Depositor, and the Master Servicer shall
be entitled to be reimbursed therefor out of the applicable subaccount of the
Certificate Account.
SECTION 6.4 Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) upon appointment of a successor servicer and receipt by
the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading of the rating of any of the
Certificates, or (b) upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination under clause (b)
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a successor master servicer shall
have assumed the Master Servicer's responsibilities, duties, liabilities and
obligations hereunder.
ARTICLE VII
DEFAULT
SECTION 7.1 Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
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(i) any failure by the Master Servicer to deposit in the applicable
subaccount of the Certificate Account or remit to the Trustee any
payment required to be made under the terms of this Agreement,
which failure shall continue unremedied for five days after the
date upon which written notice of such failure shall have been
given to the Master Servicer by the Trustee or the Depositor or
to the Master Servicer and the Trustee by the Holders of
Certificates having not less than 25% of the Voting Rights
evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the
part of the Master Servicer contained in this Agreement, which
failure materially affects the rights of Certificateholders,
which failure continues unremedied for a period of 60 days after
the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee or the Depositor, or
to the Master Servicer and the Trustee by the Holders of
Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates; provided, however, that the 60-day
cure period shall not apply to the initial delivery of the
Mortgage File for Delay Delivery Mortgage Loans nor the failure
to substitute or repurchase in lieu thereof; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a
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 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of
or relating to the Master Servicer or all or substantially all of
the property of the Master Servicer; 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, or commence a voluntary case under, 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 failure of the Master Servicer to remit any Advance required
to be remitted by the Master Servicer pursuant to Section 4.1
which failure continues unremedied at 11:00 a.m., Central time,
on the related Distribution Date.
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If an Event of Default described in clauses (i) to (v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trustee may, or at the direction of
the Holders of Certificates evidencing not less than 66 2/3% of the Voting
Rights evidenced by the Certificates, the Trustee shall by notice in writing to
the Master Servicer (with a copy to each Rating Agency), terminate all of the
rights and obligations of the Master Servicer under this Agreement and in and to
the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. If an Event of Default described in clause (vi) of
this Section shall occur, the Trustee shall immediately, by notice in writing to
the Master Servicer (with a copy to each Rating Agency), terminate all of the
rights and obligations of the Master Servicer under this Agreement and in and to
the Mortgage Loans and proceeds thereof, other than its rights as a
Certificateholder hereunder. On and after the receipt by the Master Servicer of
such written notice, all authority and power of the Master Servicer hereunder,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee or another successor to the Master Servicer appointed by
the Trustee pursuant to Section 7.2. The Trustee, in its capacity as successor
to the Master Servicer, shall thereupon make any Advance which the Master
Servicer failed to make subject to Section 4.1 hereof. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Master Servicer
to pay amounts owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be credited
to the Certificate Account, or thereafter be received with respect to the
Mortgage Loans. All expenses incurred in the transferring of the servicing
duties from the Master Servicer to a Successor Servicer shall be paid by the
Master Servicer, and if not paid by the Master Servicer, shall be paid from
amounts on deposit in the Certificate Account.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due prior to the
notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3.8(a)(i)
through (viii),and any other amounts payable to such Master Servicer hereunder
the entitlement to which arose prior to the termination of its activities
hereunder. Any termination of the activities of the Master Servicer hereunder
will simultaneously result in the termination of the Master Servicer's duties as
a subservicer pursuant to the Servicing Rights Transfer and Subservicing
Agreement.
SECTION 7.2 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.1 hereof, the Trustee shall, subject to and to the extent
provided in Section 3.4, be the successor to the Master Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Master Servicer by the terms and provisions hereof and applicable
law including
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the obligation to make Advances pursuant to Section 4.1. As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans that the Master Servicer would have been entitled to charge to the
Certificate Account or Distribution Account if the Master Servicer had continued
to act hereunder. Notwithstanding the foregoing, if the Trustee has become the
successor to the Master Servicer in accordance with Section 7.1 hereof, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.1 hereof or if it
is otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution the
appointment of which does not adversely affect the then current rating of the
Certificates by each Rating Agency as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder. Any successor to the Master
Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least $10,000,000,
and which is willing to service the Mortgage Loans and executes and delivers to
the Depositor and the Trustee an agreement accepting such delegation and
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Master Servicer
(other than liabilities of the Master Servicer under Section 6.3 hereof incurred
prior to termination of the Master Servicer under Section 7.1), with like effect
as if originally named as a party to this Agreement; and provided further that
each Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced, as a result of such assignment and delegation. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to Section 3.4 hereof, act in
such capacity as provided above. 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 the
Master Servicing Fee permitted the Master Servicer hereunder. The Trustee and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. 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 or any failure to perform, or any delay in
performing, any duties or responsibilities hereunder, in either case caused by
the failure of the Master Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give notice
to the Mortgagors of such change of servicer and shall, during the term of its
service as master servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 3.18.
SECTION 7.3 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
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(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of
each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.1 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge and after the curing of
all Events of Default that may have occurred, shall undertake to perform such
duties and only such duties as are specifically set forth in this Agreement. In
case an Event of Default of which a Responsible Officer of the Trustee has
actual knowledge has occurred and remains uncured, 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.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that 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. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Trustee shall notify the Certificateholders of such
instrument in the event that the Trustee, after so requesting, does not receive
a satisfactorily corrected instrument.
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) unless an Event of Default of which a Responsible Officer of the
Trustee has actual knowledge shall have occurred and be
continuing, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
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(ii) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be finally proven that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates
relating 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;
(iv) the Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any
of its duties hereunder or the exercise of any of its rights or
powers if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk
or liability is not 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 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; and
(v) without limiting the generality of this Section 8.1, 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 deposit or to any rerecording, refiling or
redepositing 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 Distribution
Account (D) to confirm or verify the contents of any reports or
certificates of the Servicer delivered to the Trustee pursuant to
this Agreement believed by the Trustee to be genuine and to have
been signed or presented by the proper party or parties.
SECTION 8.2 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.1:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other
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paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties and the
Trustee shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to
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
assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require indemnity
satisfactory to the Trustee against such cost, expense or
liability as a condition to taking any such action. The
reasonable expense of every such examination shall be paid by the
Master Servicer or, if paid by the Trustee, shall be repaid by
the Master Servicer upon demand from the Servicer's own funds.
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents, accountants or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of such
agent, accountant or attorney appointed by the Trustee with due
care;
(vi) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of
any of its duties or in the exercise of any of its rights or
powers hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not assured to it;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
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(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have
received written notice thereof and in the absence of such
notice, the Trustee may conclusively assume that there is no
Event of Default;
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which may be incurred
therein or thereby;
(x) 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
(xi) 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 8.3 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
counter-signature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or the Master Servicer of any funds paid
to the Depositor or the Master Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from the Certificate Account by the Depositor or the
Master Servicer.
SECTION 8.4 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights as it would have if it were not the
Trustee.
SECTION 8.5 Trustee's Fees and Expenses.
The Trustee, as compensation for its activities prior to making the
distributions pursuant to Section 4.2 hereunder, shall be entitled to withdraw
from the Distribution Account on each Distribution Date an amount equal to the
Trustee Fee for such Distribution Date. The Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified by the Master Servicer and
held harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal action
relating to (a) this Agreement, (b) the Certificates or (c) in connection with
the performance of any of the Trustee's duties
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hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from any
error in any tax or information return prepared by the Master Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Trustee hereunder. Without limiting the foregoing, the Master
Servicer covenants and agrees, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any such expense, disbursement or
advance as may arise from the Trustee's negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that the
Trustee must engage such persons to perform acts or services hereunder and (C)
printing and engraving expenses in connection with preparing any Definitive
Certificates. Except as otherwise provided herein, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, Tax
Matters Person or Paying Agent hereunder or for any other expenses.
SECTION 8.6 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction). If such corporation or 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 8.6 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.6, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.7 hereof. The entity serving
as Trustee may have normal banking and trust relationships with the Depositor
and its affiliates or the Master Servicer and its affiliates; provided, however,
that such entity cannot be an affiliate of the Master Servicer other than the
Trustee in its role as successor to the Master Servicer.
SECTION 8.7 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice of resignation to the Depositor and the Master
Servicer and each Rating Agency not less than 60 days before the date specified
in such notice when, subject to Section 8.8, such resignation is to take effect,
and acceptance by a successor trustee in accordance with Section 8.8 meeting the
qualifications set forth in Section 8.6. If no successor trustee meeting such
qualifications shall have been so appointed and have accepted appointment within
30 days
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after the giving of such notice or resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.6 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor or the Master Servicer
may remove the Trustee and appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee, one
copy of which shall be delivered to the Master Servicer and one copy to the
successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor Trustee to the Master Servicer, one complete set
to the Trustee so removed and one complete set to the successor so appointed.
Notice of any removal of the Trustee shall be given to each Rating Agency by the
Successor Trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.7 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.8 hereof.
SECTION 8.8 Successor Trustee.
Any successor trustee appointed as provided in Section 8.7 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor trustee
and the Master Servicer an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Master Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.8 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.6 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.8, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of
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Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Depositor.
SECTION 8.9 Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.6 hereof without the execution or filing of any
paper or further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 8.6 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.8.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the
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applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of
the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any
such separate trustee or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(iv) The Master Servicer, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and
indemnification to any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the 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 and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11 Tax Matters.
It is intended that the assets with respect to which each REMIC election is
to be made, as set forth in the preliminary statement shall constitute, and that
the conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of any such REMIC and that in such
capacity it shall: (a) prepare and file, or cause to be prepared and filed, in a
timely manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax Return
(Form 1066 or any successor form adopted by the Internal Revenue Service) and
prepare and file or cause to be prepared and filed with the Internal Revenue
Service and applicable state or local tax authorities income tax or information
returns for each taxable year with respect to any such REMIC, containing such
information and at the times and in the
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manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish or cause to be furnished to Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby; (b) within thirty days of the Closing Date, furnish or cause
to be furnished to the Internal Revenue Service, on Forms 8811 or as otherwise
may be required by the Code, the name, title, address, and telephone number of
the person that the Holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code; (c) make or cause to be made elections that such assets be
treated as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law); (d) prepare and forward, or cause to be
prepared and forwarded, to the Certificateholders and to the Internal Revenue
Service and, if necessary, state tax authorities, all information returns and
reports as and when required to be provided to them in accordance with the REMIC
Provisions, including without limitation, the calculation of any original issue
discount using the prepayment assumption; (e) provide information necessary for
the computation of tax imposed on the transfer of a Residual Certificate to a
Person that is not a Permitted Transferee, or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax); (f) to the extent that they are under its
control conduct matters relating to such assets at all times that any
Certificates are outstanding so as to maintain the status as a REMIC under the
REMIC Provisions; (g) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of any REMIC status; (h) pay,
from the sources specified in the last paragraph of this Section 8.11, the
amount of any federal or state tax, including prohibited transaction taxes as
described below, imposed on any such REMIC prior to its termination when and as
the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); (i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to any such REMIC, including but not limited to
the income, expenses, assets and liabilities thereof and the fair market value
and adjusted basis of the assets determined at such intervals as may be required
by the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and (k) as and when necessary and appropriate,
represent any such REMIC in any administrative or judicial proceedings relating
to an examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of any such REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any such REMIC, and otherwise act on
behalf of any such REMIC in relation to any tax matter or controversy involving
it.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor shall provide, or cause to be provided, to the Trustee within ten
(10) days after the Closing Date all information or data that the Trustee
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written
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request therefor, any such additional information or data that the Trustee may,
from time to time, reasonably request in order to enable the Trustee to perform
its duties as set forth herein. The Depositor hereby indemnifies the Trustee for
any losses, liabilities, damages, claims or expenses of the Trustee arising from
any errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of any
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of any REMIC as defined in Section 860G(c) of the Code, on
any contribution to any REMIC after the Startup Day pursuant to Section 860G(d)
of the Code, or any other tax is imposed, if not paid as otherwise provided for
herein, such tax shall be paid by (i) the Trustee, if any such other tax arises
out of or results from a breach by the Trustee of any of its obligations under
this Agreement which breach was caused by its negligence or willful misconduct,
(ii) the Master Servicer, in the case of any such minimum tax, or if such tax
arises out of or results from a breach by the Master Servicer of any of their
obligations under this Agreement, (iii) the Seller, if any such tax arises out
of or results from the Seller's obligation to repurchase a Mortgage Loan
pursuant to Section 2.2 or 2.3 or (iv) in all other cases, or in the event that
the Trustee, the Master Servicer or the Seller fails to honor its obligations
under the preceding clauses (i), (ii) or (iii), any such tax will be paid with
amounts otherwise to be distributed to the Certificateholders, as provided in
Section 3.8(b).
SECTION 8.12 Periodic Filings.
The Depositor hereby directs the Trustee to prepare, execute (pursuant to a
limited power of attorney given to the Trustee by the Depositor) and file on
behalf of the Depositor all periodic reports required under the Securities
Exchange Act of 1934 in conformity with the terms of the "no-action" relief
granted by the SEC to issuers of asset-backed securities such as the
Certificates and the Trustee hereby agrees to do so. The Master Servicer will
also prepare and execute any certifications to be filed with the Form 10-K as
required under the Xxxxxxxx-Xxxxx Act of 2002. In connection with the
preparation and filing of such periodic reports, the Depositor and the Master
Servicer shall timely provide to the Trustee all material information available
to them which is required to be included in such reports and not known to them
to be in the possession of the Trustee and such other information as the Trustee
reasonably may request from either of them and otherwise reasonably shall
cooperate with the Trustee. The Trustee shall have no liability with respect to
any failure to properly prepare or file such periodic reports resulting from or
relating to the Trustee's inability or failure to obtain any information not
resulting from its own negligence or willful misconduct.
ARTICLE IX
TERMINATION
SECTION 9.1 Termination upon Liquidation or Purchase of all Mortgage
Loans.
Subject to Section 9.3, the obligations and responsibilities of the
Depositor, the Master Servicer and the Trustee created hereby with respect to
the Trust Fund shall terminate upon the earlier of (a) the purchase by the
Master Servicer of all Mortgage Loans (and REO Properties)
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remaining in the Trust Fund at the price equal to the sum of (i) 100% of the
Stated Principal Balance of each Mortgage Loan (other than a Mortgage Loan that
has been foreclosed and subject to clause (ii)) plus one month's accrued
interest thereon at the applicable Adjusted Mortgage Rate, (ii) the lesser of
(x) the appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the Stated Principal
Balance of each Mortgage Loan related to any REO Property plus accrued and
unpaid interest thereon at the applicable Adjusted Mortgage Rate, and (iii) any
costs and damages incurred by the Trust in connection with the noncompliance of
such Mortgage Loan with any specifically applicable predatory or abusive lending
law, and (b) the later of (i) the maturity or other liquidation (or any Advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and
the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement. In no event shall the trusts created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. James's, living on the date hereof, and (ii) the Latest
Possible Maturity Date. The right to purchase all Mortgage Loans and REO
Properties pursuant to clause (a) above shall be conditioned upon the Pool
Principal Balance for each Mortgage Pool, at the time of any such repurchase,
aggregating less than ten percent of the aggregate Cut-off Date Principal
Balance of the Mortgage Loans.
SECTION 9.2 Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that there are
no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Certificate Account, the Master Servicer shall
direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 9.1, at least 20 days prior to the date notice
is to be mailed to the affected Certificateholders, the Master Servicer shall
notify the Depositor and the Trustee of the date the Master Servicer intends to
terminate the Trust Fund and of the applicable repurchase price of the Mortgage
Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the Trustee
by letter to Certificateholders mailed not earlier than the 10th day and no
later than the 15th day of the month next preceding the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Master Servicer will give such notice to each Rating Agency at
the time such notice is given to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Certificate Account to be remitted to the Trustee for deposit in
the applicable subaccounts of the
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Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in the order
set forth in Section 4.2 hereof, on the final Distribution Date, in the case of
the Certificateholders, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount equal to (i) as
to each Class of Regular Certificates, the Class Certificate Balance thereof
plus accrued interest thereon in the case of an interest bearing Certificate,
and (ii) as to the Residual Certificates, the amount, if any, which remains on
deposit in the Distribution Account (other than the amounts retained to meet
claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the 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
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Holders of each of the
Class II-A-RU and Class II-A-RL Certificates shall be entitled to all unclaimed
funds and other assets of the Trust Fund, held for distribution to such
Certificateholders, which remain subject hereto.
SECTION 9.3 Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option as
provided in Section 9.1, the Trust Fund and each REMIC created
hereunder shall be terminated in accordance with the following
additional requirements, unless the Trustee has been supplied with an
Opinion of Counsel, at the expense of the Master Servicer, to the
effect that the failure to comply with the requirements of this
Section 9.3 will not (i) result in the imposition of taxes on
"prohibited transactions" on any REMIC as defined in Section 860F of
the Code, or (ii) cause any REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(1) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Master Servicer under
Section 9.2, the Master Servicer shall prepare and the
Trustee, at the expense of the "tax matters person," shall
adopt a plan of complete liquidation within the meaning of
Section 860F(a)(4) of the Code for each REMIC created
hereunder which, as evidenced by an Opinion of Counsel
addressed to the Trustee (which opinion shall not be an
expense of the Trustee or the Tax Matters Person), meets the
requirements of a qualified liquidation; and
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(2) Within 90 days after the time of adoption of such plans of
complete liquidation, the Trustee shall sell all of the
assets of the Trust Fund to the Master Servicer for cash in
accordance with Section 9.1.
(b) The Trustee as agent for any REMIC established hereunder hereby agrees
to adopt and sign such a plan of complete liquidation upon the written
request of the Master Servicer, and the receipt of the Opinion of
Counsel referred to in Section 9.3(a)(1) and to take such other action
in connection therewith as may be reasonably requested by the Master
Servicer.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Master Servicer to prepare and the Trustee to adopt and
sign plans of complete liquidation.
ARTICLE X
[RESERVED]
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor, the Seller or the Master Servicer, (iv) to add any other provisions
with respect to matters or questions arising hereunder or (v) to modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement; provided that any action pursuant to clauses (iv) or (v) above shall
not, as evidenced by an Opinion of Counsel delivered to the Trustee (which
Opinion of Counsel shall not be an expense of the Trustee or the Trust Fund),
adversely affect in any material respect the interests of any Certificateholder;
provided, however, that the amendment shall not be deemed to adversely affect in
any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. The Trustee, the
Depositor and the Master Servicer also may at any time and from time to time
amend this Agreement without the consent of the Certificateholders to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or helpful to (i) maintain the qualification of any REMIC established hereunder
as a REMIC under the Code, (ii) avoid or minimize the risk of the imposition of
any tax on any REMIC established hereunder pursuant to the Code that would be a
claim at any time prior to the final redemption of the Certificates or (iii)
comply with any other requirements of the Code, provided that the Trustee has
been provided an Opinion of Counsel, which opinion shall be an expense of the
party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action
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is necessary or helpful to, as applicable, (i) maintain such qualification, (ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply with
any such requirements of the Code.
This Agreement may also be amended from time to time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of a Majority in
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 of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i),
without the consent of the Holders of Certificates of such Class evidencing, as
to such Class, Percentage Interests aggregating 66%, or (iii) reduce the
aforesaid percentages of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any REMIC established hereunder or the
Certificateholders or cause any REMIC established hereunder to fail to qualify
as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 11.1.
SECTION 11.2 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Master Servicer at its expense, but only upon
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direction a majority of the Certificateholders to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed (by facsimile or
otherwise) simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.3 Governing Law.
THIS AGREEMENT (OTHER THAN SECTION 2.1 HEREOF) SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. SECTION 2.1
OF THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS UNDER SUCH SECTION SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.4 Intention of Parties.
(a) It is the express intent of the parties hereto that the conveyance of
the Trust Fund by the Depositor to the Trustee be, and be construed
as, absolute sales thereof to the Trustee. It is, further, not the
intention of the parties that such conveyances be deemed a pledge
thereof by the Depositor to the Trustee. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be
the property of the Depositor, or if for any other reason this
Agreement is held or deemed to create a security interest in such
assets, then (i) this Agreement shall be deemed to be a security
agreement within the meaning of the Uniform Commercial Code of the
State of New York and (ii) the conveyance provided for in this
Agreement shall be deemed to be an assignment and a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders,
of a security interest in all of the assets that constitute the Trust
Fund, whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall,
to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Trust Fund, such security interest would be
deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of
the Agreement. The Depositor shall arrange for filing any Uniform
Commercial Code continuation statements in connection with any
security interest granted or assigned to the Trustee for the benefit
of the Certificateholders.
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SECTION 11.5 Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency with respect to each of the following of which it
has actual knowledge:
(1) Any material change or amendment to this Agreement;
(2) The occurrence of any Event of Default that has not been
cured;
(3) The resignation or termination of the Master Servicer or the
Trustee and the appointment of any successor;
(4) The repurchase or substitution of Mortgage Loans pursuant to
Section 2.3; and
(5) The final payment to Certificateholders.
(6) Any rating action involving the long-term credit rating of
the Master Servicer, which notice shall be made by
first-class mail within two Business Days after the Trustee
gains actual knowledge thereof.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
(7) Each report to Certificateholders described in Section 4.6;
(8) Each annual statement as to compliance described in Section
3.16;
(9) Each annual independent public accountants' servicing report
described in Section 3.17; and
(10) Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.2, 2.3 or 3.11.
(b) All directions, demands, authorizations, consents, waivers,
communications and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to by first class mail,
facsimile or courier (a) in the case of the Depositor, First Horizon
Asset Securities Inc., 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxx 00000,
Attention: Xxxx Xxxxxx; (b) in the case of the Master Servicer, First
Horizon Home Loan Corporation, 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx X. Xxxx or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in
writing; (c) in the case of the Trustee, The Bank of New York, 000
Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxxx, or such other address as the Trustee may hereafter furnish to
the Depositor or Master Servicer; and (d) in the case of the Rating
Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed
99
given when mailed, first class postage prepaid, to their respective
addresses appearing in the Certificate Register.
SECTION 11.6 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 11.7 Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.2, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
SECTION 11.8 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of 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
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions 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 herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; 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 itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the 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
100
herein provided and for the common benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section 11.8, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
SECTION 11.9 Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will permit
and will cause each Subservicer to permit any representative of the Depositor or
the Trustee during the Master Servicer's normal business hours, to examine all
the books of account, records, reports and other papers of the Master Servicer
relating to the Mortgage Loans, to make copies and extracts therefrom, to cause
such books to be audited by independent certified public accountants selected by
the Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Master Servicer hereby authorizes
said accountants to discuss with such representative such affairs, finances and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the Depositor
or the Trustee of any right under this Section 11.9 shall be borne by the party
requesting such inspection; all other such expenses shall be borne by the Master
Servicer or the related Subservicer.
SECTION 11.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 11.11 Limitations on Actions; No Proceedings.
(a) Other than pursuant to this Agreement, or in connection with or
incidental to the provisions or purposes of this Agreement, the trust
created hereunder shall not (i) issue debt or otherwise borrow money,
(ii) merge or consolidate with any other entity reorganize, liquidate
or transfer all or substantially all of its assets to any other
entity, or (iii) otherwise engage in any activity or exercise any
power not provided for in this Agreement.
(b) Notwithstanding any prior termination of this Agreement, the Trustee,
the Master Servicer and the Depositor shall not, prior to the date
which is one year and one day after the termination of this Agreement,
acquiesce, petition or otherwise invoke or cause any Person to invoke
the process of any court or government authority for the purpose of
commencing or sustaining a case against the Depositor or the Trust
Fund under any federal or state bankruptcy, insolvency or other
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Depositor or
the Trust Fund or any substantial part of their respective property,
or ordering the winding up or liquidation of the affairs of the
Depositor or the Trust Fund.
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SECTION 11.12 Acknowledgment of Seller.
Seller hereby acknowledges the provisions of this Agreement, including the
obligations under Sections 2.1(a), 2.2, 2.3(b) and 8.11 of this Agreement and
further acknowledges the Depositor's assignment of its rights and remedies for
the breach of the representations and warranties made by the Seller under the
MLPA.
* * * * * *
102
IN WITNESS WHEREOF, the Depositor, the Trustee and the Master Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
FIRST HORIZON ASSET SECURITIES INC.,
as Depositor
By: __________________________________________________
Xxxx Xxxxxx
Senior Vice President - Asset Securitization
THE BANK OF NEW YORK,
not in its individual capacity, but solely as Trustee
By: __________________________________________________
Xxxxx Xxxxxxx
Vice President
FIRST HORIZON HOME LOAN
CORPORATION, in its capacity as Master Servicer
By: __________________________________________________
Xxxx Xxxxxx
Senior Vice President - Asset Securitization
The foregoing agreement is hereby
acknowledged and accepted as of the
date first above written:
FIRST HORIZON HOME LOAN CORPORATION,
in its capacity as Seller
By: ___________________________________
Xxxx Xxxxxx
Senior Vice President - Asset Securitization
SCHEDULE I
First Horizon Asset Securities Inc.
Mortgage Pass-Through Certificates Series 2004-AR3
Mortgage Loan Schedule
[Available Upon Request from Trustee]
I-1
SCHEDULE II
First Horizon Asset Securities Inc.
Mortgage Pass-Through Certificates Series 2004-AR3
Representations and Warranties of the Master Servicer
First Horizon Home Loan Corporation ("First Horizon") hereby makes the
representations and warranties set forth in this Schedule II to the Depositor
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
II shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among First Horizon, as master servicer, First Horizon
Asset Securities Inc., as depositor, and The Bank of New York, as trustee.
(1) First Horizon is duly organized as a Kansas corporation and is
validly existing and in good standing under the laws of the State of Kansas
and is duly authorized and qualified to transact any and all business
contemplated by the Pooling and Servicing Agreement to be conducted by
First Horizon in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to ensure its ability to enforce each
Mortgage Loan, to service the Mortgage Loans in accordance with the terms
of the Pooling and Servicing Agreement and to perform any of its other
obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(2) First Horizon has the full corporate power and authority to
service each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and has duly authorized by all necessary corporate
action on the part of First Horizon the execution, delivery and performance
of the Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding
obligation of First Horizon, enforceable against First Horizon in
accordance with its terms, except that (a) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement
by First Horizon, the servicing of the Mortgage Loans by First Horizon
under the Pooling and Servicing Agreement, the consummation of any other of
the transactions contemplated by the Pooling and Servicing Agreement, and
the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of First Horizon and will not (A) result in a material
breach of any term or provision of the charter or by-laws of First Horizon
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which First Horizon is a party or
by which it may be bound,
II-1
or (C) constitute a material violation of any statute, order or regulation
applicable to First Horizon of any court, regulatory body, administrative
agency or governmental body having jurisdiction over First Horizon; and
First Horizon is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation may
materially impair First Horizon's ability to perform or meet any of its
obligations under the Pooling and Servicing Agreement.
(4) No litigation is pending or, to the best of First Horizon's
knowledge, threatened against First Horizon that would prohibit the
execution or delivery of, or performance under, the Pooling and Servicing
Agreement by First Horizon.
II-2
SCHEDULE III
First Horizon Asset Securities Inc.
Mortgage Pass-Through Certificates Series 2004-AR3
Form of Monthly Master Servicer Report
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