EXHIBIT 4.2.6
FORM OF POOLING AND SERVICING AGREEMENT
(REMIC, FIXED/FLOATING RATE CERTIFICATES, MORTGAGE LOANS)
XXXXXXX XXXXX ASSET BACKED SECURITIES CORP.,
Depositor
and
[NAME OF TRUSTEE],
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of __________, 200_
relating to
CONDUIT MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans...........................................................................21
Section 2.02 Acceptance by Trustee..................................................................................23
Section 2.03 Representations, Warranties and Covenants of the Depositor as to the Mortgage Loans....................24
Section 2.04 Representations and Warranties of Servicers............................................................26
Section 2.05 Substitution...........................................................................................27
Section 2.06 Issuance of Certificates Evidencing Interest in REMIC I................................................27
Section 2.07 Conveyance of Uncertificated REMIC I Regular Interests: Acceptance by the Trustee......................27
Section 2.08 Issuance of Certificates Evidencing Interest in REMIC II...............................................28
Section 2.09 REMIC Provisions.......................................................................................28
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicing Standard.....................................................................................30
Section 3.02 Enforcement of the Obligations of Servicers............................................................31
Section 3.03 Rights of the Depositor in Respect of the Trustee and the Servicers....................................31
Section 3.04 Custodial Accounts.....................................................................................31
Section 3.05 Collection of Taxes, Assessments and Similar Items; Escrow Accounts....................................32
Section 3.06 Access to Certain Documentation and Information Regarding the Mortgage Loans...........................32
Section 3.07 Maintenance of the Pool Insurance Policy, Primary Mortgage Insurance Policies, Collections Thereunder..32
Section 3.08 Maintenance of Hazard Insurance, the Special Hazard Insurance Policy and Other Insurance...............33
Section 3.09 Trustee to Cooperate; Release of Mortgage Files........................................................33
Section 3.10 Account Statements.....................................................................................34
Section 3.11 Maintenance of the Mortgagor Bankruptcy Bond; Collections Thereunder...................................34
ARTICLE IV PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01 Accounts...............................................................................................35
Section 4.02 Distributions..........................................................................................36
Section 4.03 Subordination; Priority of Distributions...............................................................38
Section 4.04 Distribution on the Uncertificated REMIC I Regular Interests...........................................39
Section 4.05 Monthly Statements to Certificateholders...............................................................40
ARTICLE V THE CERTIFICATES
Section 5.01 The Certificates.......................................................................................41
Section 5.02 Registration of Transfer and Exchange of Certificates..................................................42
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates......................................................45
Section 5.04 Persons Deemed Owners..................................................................................45
Section 5.05 Access to List of Certificateholders' Names and Addresses..............................................45
Section 5.06 Maintenance of Office or Agency........................................................................46
ARTICLE VI THE DEPOSITOR
Section 6.01 Liabilities of the Depositor...........................................................................46
Section 6.02 Merger or Consolidation of the Depositor...............................................................46
Section 6.03 Limitation on Liability of the Depositor and Others....................................................47
ARTICLE VII DEFAULT
Section 7.01 Events of Default......................................................................................47
Section 7.02 Trustee to Act; Appointment of Successor...............................................................49
Section 7.03 Notification to Certificateholders.....................................................................49
ARTICLE VIII CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee......................................................................................50
Section 8.02 Certain Matters Affecting the Trustee..................................................................51
Section 8.03 Trustee not Liable for Certificates or Mortgage Loans..................................................52
Section 8.04 Trustee May Own Certificates...........................................................................53
Section 8.05 Trustee's Expenses.....................................................................................53
Section 8.06 Eligibility Requirements for Trustee...................................................................53
Section 8.07 Resignation and Removal of Trustee.....................................................................54
Section 8.08 Successor Trustee......................................................................................54
Section 8.09 Merger or Consolidation of Trustee.....................................................................55
Section 8.10 Appointment of Authentication Agent....................................................................55
Section 8.11 Appointment of Co-Trustee or Separate Trustee..........................................................56
Section 8.12 Paying Agent...........................................................................................57
Section 8.13 Certificate Register...................................................................................58
Section 8.14 Monthly Advances.......................................................................................58
ARTICLE IX TERMINATION
Section 9.01 Termination upon Liquidation or Repurchase of All Mortgage Loans.......................................58
Section 9.02 Procedure Upon Optional Termination....................................................................59
Section 9.03 Termination of REMIC II................................................................................60
Section 9.04 Additional Termination Requirements....................................................................60
ARTICLE X MISCELLANEOUS PROVISIONS
Section 10.01 Amendment..............................................................................................60
Section 10.02 Recordation of Agreement; Counterparts.................................................................61
Section 10.03 Governing Law..........................................................................................61
Section 10.04 Intention of Parties...................................................................................62
Section 10.05 Notices................................................................................................62
Section 10.06 Severability of Provisions.............................................................................63
Section 10.07 Limitation on Rights of Certificateholders.............................................................63
Section 10.08 Certificates Nonassessable and Fully Paid..............................................................64
EXHIBITS
Exhibit A: Form of Priority and Class 1-M Certificates...........................................................A-1
Exhibit B: Form of Class 1-RS Certificates.......................................................................B-1
Exhibit C: Mortgage Loan Schedule................................................................................C-1
Exhibit D-1: Form of Initial Certification of Trustee............................................................D-1-1
Exhibit D-2: Form of Interim Certification of Trustee............................................................D-2-1
Exhibit E: Form of Final Certification of Trustee................................................................E-1
Exhibit F: Form of Request for Release...........................................................................F-1
Exhibit G: Specimen Special Hazard Insurance Policy..............................................................G-1
Exhibit H: Specimen Pool Insurance Policy........................................................................H-1
Exhibit I: Specimen Mortgagor Bankruptcy Bond....................................................................I-1
Exhibit J: Transfer Affidavit and Agreement......................................................................J-1
Exhibit K: Form of Transferor Certificate........................................................................K-1
Exhibit L: Form of Investor Representation Letter................................................................L-1
Exhibit M: Form of Transferor Representation Letter..............................................................M-1
THIS POOLING AND SERVICING AGREEMENT is dated as of __________,
200_ between Xxxxxxx Sachs Asset Backed Securities Corp., as depositor (the
"Depositor") and ______________, as trustee (the "Trustee"). The Depositor
has purchased from ________________ and ________________ (each referred to
in such capacity as a "Seller" and together as the "Sellers") and is the
owner of the Mortgage Loans (as hereinafter defined) and the other property
being conveyed by it to the Trustee in its capacity as trustee of the Trust
Fund (as hereinafter defined), in accordance with this Agreement, and the
Depositor has duly authorized the execution and delivery of this Agreement
to provide for the conveyance to the Trustee of the Trust Fund. As provided
herein, the Depositor will make an election to treat a segregated pool of
assets consisting of Mortgage Loans and certain other assets as described
herein as a real estate mortgage investment conduit (a "REMIC") for federal
income tax purposes and such segregated pool of assets will be designated
as "REMIC I". Six partial undivided beneficial ownership interests in each
of the Mortgage Loans (the "Uncertificated REMIC I Regular Interests") will
be the "regular interests" in REMIC I and the Class 1- RS Certificates will
be the "residual interest" in REMIC I, for purposes of the REMIC Provisions
(as defined herein) under federal income tax law. A segregated pool of
assets consisting of the Uncertificated REMIC I Regular Interests will be
designated as "REMIC II", and the Depositor will make a separate REMIC
election with respect thereto. The Class 1-A, Class 1-B, Class 1-C, Class
1-D, Class 1-E, Class 1-F, Class 1-G, Class 1-H and Class 1-M Certificates
will be the "regular interests" in REMIC II, and the Class 1-R Certificates
will be the "residual interest" therein. All covenants and agreements made
by the Depositor herein are for the benefit and security of the
Certificateholders. The Depositor is entering into this Agreement, and the
Trustee is accepting the trusts created hereby and thereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged. The principal balance of the Mortgage Loans as of the Cut-Off
Date is $_________.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Administrative Fee: The fee reserved for the payment of the
premiums on the Pool Insurance Policy, the Special Hazard Insurance Policy
and the Mortgagor Bankruptcy Bond and the Trustee Fee equal to the product
of the Administrative Fee Rate and the aggregate Principal Balance of the
Mortgage Loans.
Administrative Fee Rate: With respect to any Mortgage Loan, a rate
per annum equal to ___%.
Agreement: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto.
Authenticating Agent: If applicable, the Authenticating Agent
appointed pursuant to Section 8.10 hereof and which is authorized by the
Trustee to act on behalf of the Trustee to authenticate the Certificates.
The Authenticating Agent may be the Depositor or any Person directly or
indirectly controlling or controlled by or under common control with the
Depositor.
Available Distribution Amount: With respect to any Distribution
Date, the excess of: (a) the sum of: (x) the aggregate amount of payments
and collections received by the Servicers in respect of each Mortgage Loan
during or prior to the Collection Period immediately preceding such
Distribution Date and not previously remitted, from any source, including
amounts received from the related Mortgagor, Insurance Proceeds,
Liquidation Proceeds (net of related Liquidation Expenses) and condemnation
awards, and amounts received in connection with the substitution of
Replacement Mortgage Loans and all amounts required to be remitted by the
Servicers in respect of Prepayment Interest Shortfall Amounts under the
related Warranty and Servicing Agreements but not in excess of the related
Servicing Fee, and (y) the aggregate amount of Monthly Advances required to
be remitted by the Servicers or the Pool Insurer relating to such
Distribution Date; over (b) the sum of: (i) the aggregate amount of the
servicing compensation (including Servicing Fees) payable therefrom and
included therein pursuant to the Warranty and Servicing Agreements, (ii)
any amount included therein representing late payments or other recoveries
of principal or interest (including Liquidation Proceeds (net of
Liquidation Expenses), Insurance Proceeds, and condemnation awards) with
respect to any Mortgage Loans in respect of which the Servicer or the Pool
Insurer has made a previously unreimbursed Monthly Advance, (iii) amounts
included therein representing reimbursement of Nonrecoverable Advances and
other amounts permitted to be withdrawn from the Custodial Accounts or the
Certificate Account, (iv) all Monthly Payments or portions thereof received
in respect to scheduled principal and interest on any Mortgage Loan due
after such Collection Period and included therein, (v) all payments due on
any Mortgage Loan on or prior to the Cut-Off Date and included thereon,
(vi) the Principal Balance of each Mortgage Loan multiplied by the
Administrative Fee Rate, and (vii) Principal Prepayments and other
unscheduled collections of principal received after the related Prepayment
Period and included therein.
Bankruptcy Code: The United States Bankruptcy Code, as amended
from time to time.
Bankruptcy Loss: A Debt Service Reduction or a Deficient Valuation.
Bankruptcy Loss Loan: A Mortgage Loan as to which a Bankruptcy
Loss has occurred after the Mortgagor Bankruptcy Bond has been exhausted.
BIF: The Bank Insurance Fund.
Business Day: Any day other than: (i) a Saturday or a Sunday, or
(ii) a day on which banking institutions in New York or the state in which
the Corporate Trust Office is located are authorized or obligated by law or
executive order to be closed.
Certificate: Any Class 1-A, Class 1-B, Class 1-C, Class 1-D, Class
1-E, Class 1-F, Class 1-G, Class 1-H, Class 1-M, Class 1-R or Class 1-RS
Certificate executed by the Depositor and authenticated by or on behalf of
the Trustee for the benefit of the Certificateholders in substantially the
form or forms attached as Exhibits hereto.
Certificate Account: The separate account or accounts created and
maintained by the Trustee pursuant to Section 4.01, in the name of the
Trustee for the benefit of the Certificateholders for deposit of payments
and collections in respect of the Mortgage Loans pursuant to Section 4.01
hereof, which account or accounts must be an Eligible Account or Accounts.
Certificate Principal Balance: On any date and with respect to any
Class of Certificates, the Initial Certificate Principal Balance of such
Class less the sum of: (A) all amounts previously distributed to holders of
such Class of Certificates pursuant to Section 4.02(a)(i)(B), 4.02(a)(iii)
or 4.02(a)(iv) as applicable, and (B) all amounts of Realized Losses
previously allocated to such Class of the Certificates pursuant to Section 4.03.
Certificate Rate: With respect to the Class 1-A Certificates,
Class 1-B Certificates, Class 1-E Certificates, Class 1-M Certificates and
Class 1-R Certificates, ___% per annum. With respect to the Class 1-C
Certificates, ___% per annum. With respect to the Class 1-D Certificates,
___% per annum. With respect to the Class 1-F Certificates and the Class
1-G Certificates, the applicable Variable Certificate Rate. Interest on the
Certificates listed above will be computed on the basis of a 360-day year
composed of twelve 30-day months.
Certificate Register and Certificate Registrar: Respectively, the
register maintained and the registrar appointed pursuant to Section 5.02(a)
hereof.
Certificateholder or Holder: The person in whose name a
Certificate is registered in the Certificate Register.
Class: With respect to the Certificates, all of the Certificates
designated as a class.
Class 1-A Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as
Class A-1 Certificate.
Class 1-B Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as
Class 1-B Certificate.
Class 1-C Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as
Class 1-C Certificate.
Class 1-D Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as
Class 1-D Certificate.
Class 1-E Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as
Class 1-E Certificate.
Class 1-F Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as
Class 1-F Certificate.
Class 1-F Mortgage Loan: Any of the Mortgage Loans listed on
Exhibit C hereto.
Class 1-G Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as
Class 1-G Certificate.
Class 1-G Mortgage Loan: Any of the Mortgage Loans listed on
Exhibit C hereto.
Class 1-H Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as a
Class 1-H Certificate.
Class 1-H Fraction: For each Mortgage Loan, the fraction for each
Mortgage Loan indicated in Mortgage Loan Schedule.
Class 1-M Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as
Class 1-M Certificate.
Class 1-M Certificate Principal Distribution Amount: On any
Distribution Date, the sum of: (i) the Class 1-M Percentage multiplied by
the principal due on the related Due Date on such Mortgage Loan, whether or
not received during the related Collection Period, (ii) for each Mortgage
Loan which was prepaid during the related Prepayment Period, the Class 1-M
Percentage multiplied by the amount of the Principal Prepayment including,
with respect to any Mortgage Loan that was the subject of a Debt Service
Reduction in any prior Prepayment Period, the amount of any such Principal
Prepayment that exceeds the Principal Balance of such Mortgage Loan as of
the date of the prepayment, (iii) for each Mortgage Loan which was
repurchased by the Servicer, the Seller or the Depositor during the related
Prepayment Period pursuant to Section 2.01, 2.02, 2.03, or 2.04 hereof,
Article IX or the related Warranty and Servicing Agreement, the Class 1-M
Percentage multiplied by the principal amount of the Purchase Price or
Mortgage Loan Repurchase Price (net of amounts with respect to which a
distribution of principal has already been made), (iv) for each Mortgage
Loan that became a Liquidated Loan during the related Prepayment Period and
with respect to which a Depletion Loss occurred, an amount equal to the
aggregate amount of Liquidation Proceeds and Insurance Proceeds received
with respect to such Mortgage Loan (net of any withdrawals permitted to be
made by the Servicer from the related Custodial Account with respect to
such Mortgage Loan) remaining after the allocation thereof to the Priority
Certificates pursuant to clause (iv) of the definition of Priority
Certificate Principal Distribution Amount herein, (v) for each Mortgage
Loan that became a Liquidated Loan during the related Prepayment Period not
described in clause (iv) above, the Class 1-M Percentage multiplied by the
aggregate amount of Liquidation Proceeds and Insurance Proceeds received
with respect to such Mortgage Loan net of any withdrawals permitted to be
made by the Servicer from the related Custodial Account with respect to
such Mortgage Loan and (vi) for each Mortgage Loan with respect to which
any other unscheduled recovery of principal has been received during the
related Prepayment Period, the Class 1-M Percentage of such unscheduled
recovery.
Class 1-M Percentage: 100% minus the Priority Percentage.
Class 1-R Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit A hereto and designated as a
Class 1-R Certificate.
Class 1-RS Certificate: A Certificate executed by or on behalf of
the Depositor and authenticated by or on behalf of the Trustee in
substantially the form set forth in Exhibit B hereto and designated as a
Class 1-RS Certificate.
Code: The Internal Revenue Code of 1936.
Collection Period: With respect to any Distribution Date, the
period commencing on the end of the preceding Collection Period (in the
case of the first Distribution Date, on the Cut-off Date) and ending on the
Business Day prior to the Determination Date immediately preceding such
Distribution Date.
Corporate Trust Office: The designated office of the Trustee in
the State of ____________ at which at any particular time its corporate
trust business shall be administered, which office at the date of the
execution of this Agreement is located at ___________________.
Custodial Account: The deposit accounts created and maintained by
each of the Servicers pursuant to Section 4.4 of the related Warranty and
Servicing Agreements in the name of the Trustee for the benefit of the
Certificateholders, which accounts each must be an Eligible Account.
Amounts in each such Custodial Account will be remitted, net of amounts
withdrawn pursuant to Section 4.5 of the related Warranty and Servicing
Agreement, to the Certificate Account maintained by the Trustee pursuant to
Section 4.01.
Cut-off Date: ___________ 1, 200_.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a
court of competent jurisdiction in a proceeding under the Bankruptcy Code,
except such a reduction constituting a Deficient Valuation or any reduction
that results in a permanent forgiveness of principal.
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, which valuation results from a proceeding under the Bankruptcy Code.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced
by a Replacement Mortgage Loan.
Delivery Date: ____________, 200_.
Depletion Loss: A Realized Loss or a shortfall in payment of
interest or principal with respect to a Mortgage Loan which would have been
covered by the Pool Insurance Policy had its coverage not been exhausted
(other than Fraud Losses that would have been covered under the Fraud Loss
Waiver) through the payment of claims (or the failure of the Pool Insurer
to pay valid claims for any reason including failure to make payments under
the Fraud Loss Waiver).
Depositor: Xxxxxxx Xxxxx Asset Backed Securities Corp., a Delaware
corporation, or its successor in interest.
Determination Date: The [15th] day (or if such [15th] day is not a
Business Day, the Business Day immediately preceding such [15th] day) of
the month of the related Distribution Date.
Distribution Date: The [25th] day of each calendar month, or if
such [25th] day is not a Business Day, the next succeeding Business Day,
commencing ___________ [25], 200_.
Due Date: The first day of the month in which the related
Distribution Date occurs.
Due Period: The period from and including the second day of the
calendar month preceding any Distribution Date to and including the first
day of the calendar month in which such Distribution Date occurs.
Eligible Account: Either: (i) an account or accounts maintained
with a federal or state-chartered depository institution or trust company
(which may be an Affiliate of the Seller or the Master Servicer or which
may be the Trustee or an Affiliate of the Trustee) the long-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
long-term unsecured debt obligations of such holding company) are rated by
each Rating Agency either (a) not lower than the rating on the Certificates
or (b) AA or AAA by Standard & Poor's and Fitch and A-1+ by Standard &
Poor's and F-1+ by Fitch (or such other ratings as will not result in the
rating of the Certificates being reduced below the rating on the Closing
Date and as to which the Rating Agencies may otherwise agree), (ii) an
account or accounts the deposits in which are fully insured by the FDIC,
provided that any such deposits not so insured shall be otherwise
maintained such that (as evidenced by an Opinion of Counsel delivered to
the Trustee and the Rating Agencies) the applicable 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 Eligible Investments) securing such funds that is superior to claims of
any other depositors or creditors of the depository institution or trust
company with which such account is maintained and (iii) a trust account or
accounts maintained with the trust department of a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity.
Eligible Investments: At any time, any one or more of the
following obligations, instruments 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 rating of S&P and, if rated
by Fitch, by Fitch, or such lower ratings as will not result
in the downgrading or withdrawal of the rating, if any, then
assigned to any Class of Certificates by each applicable
Rating Agency;
(iii) commercial paper which is then rated in the highest
commercial paper rating categories of S&P and, if rated by
Fitch, by Fitch, or such lower category as will not result
in the downgrading or withdrawal of the rating then assigned
to the Certificates by each applicable Rating Agency;
(iv) certificates of deposit, demand or time deposits, federal
funds or bankers' acceptances issued by any depository
institution or trust company incorporated under the laws of
the United States 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 debt obligations of such depository institution or
trust company (or in the case of the principal depository
institution is a holding company system, the commercial
paper or long-term debt obligations of such holding company)
are then rated in the highest rating category of S&P and, if
rated by Fitch, Fitch, in the case of commercial paper, or
in the second highest category in the case of long-term debt
obligations, or such lower categories as will not result in
the downgrading or withdrawal of the rating then assigned to
the Certificates by each applicable Rating Agency, or, in
the case of short-term debt obligations which have
maturities of 30 days or less, a rating of A-1 by S&P;
(v) demand or time deposits or certificates of deposit issued by
any bank or trust company or savings and loan association
and fully insured by the FDIC (either the BIF or the SAIF);
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation which do not
adversely affect the rating on any Class of the Certificates
at the time of the issuance of or investing in such
guaranteed reinvestment agreements;
(vii) repurchase obligations with respect to any security
described in (i) and (ii) above or any other security issued
or guaranteed by an agency or instrumentality of the United
States, in either case entered into with a depository
institution or trust company (acting as principal) described
in (iv) above;
(viii) securities 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
investment or contractual commitment providing for such
investments are then rated in the highest rating category of
S&P and, if rated by Fitch, Fitch, or in such lower rating
category as will not result in the downgrading or withdrawal
of the rating, if any, then assigned to any Class of the
Certificates by each applicable Rating Agency;
(ix) such other investments which do not adversely affect the
rating, if any, on any Class of Certificates by each
applicable Rating Agency; and
(x) units of taxable money-market portfolios rated AAA by S&P
and not restricted to obligations issued or guaranteed by
any agency or instrumentality of the United States or
entities whose obligations are backed by the full faith and
credit of the United States and repurchase agreements
collateralized by such obligations.
Unless otherwise specified herein: (i) any such Eligible Investments must
be available for withdrawal without penalty and must mature no later than
the Business Day immediately preceding the first succeeding Distribution
Date, and (ii) no such instrument set forth above shall constitute an
Eligible Investment if such instrument evidences either: (a) a right to
receive only interest payments with respect to the obligations underlying
such instrument, or (b) a right to receive both principal and interest
payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide for
a yield to maturity of greater than 120% of the yield to maturity at par of
such underlying obligations.
Event of Default: As defined in Section 7.01 hereof.
Expense Reserve Fund: The trust account or accounts created and
maintained pursuant to Section 4.01 for payment of certain expenses.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III
of the Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Final Scheduled Distribution Date: For each Class of Certificates,
the date so indicated in the following table:
Class of Final Scheduled
Certificates Distribution Date
------------ -----------------
Class 1-A Certificates
Class 1-B Certificates
Class 1-C Certificates
Class 1-D Certificates
Class 1-E Certificates
Class 1-F Certificates
Class 1-G Certificates
Class 1-H Certificates
Class 1-M Certificates
Class 1-R Certificates
Fitch: Fitch Investors Service, Inc.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor
thereto.
Fraud Loss: A loss on a Mortgage Loan as to which there was fraud,
dishonesty or misrepresentation in connection with such Mortgage Loan.
Fraud Loss Loan: A Mortgage Loan as to which a Fraud Loss has
occurred after the Fraud Loss Waiver has been exhausted or has expired.
Fraud Loss Waiver: The letter, dated __________, 200_ from the
Pool Insurer to the Trustee, pursuant to which the Pool Insurer has agreed
to waive its right to deny a claim under the Pool Insurance Policy
resulting from a Fraud Loss.
Initial Certificate Principal Balance: With respect to each Class
1- A, Class 1-B, Class 1-C, Class 1-E, Class 1-H, Class 1-M and Class 1-R
Certificate, the amount designated as such on the face thereof, the
aggregate of the Initial Certificate Principal Balances of such
Certificates being equal to the aggregate of the Certificate Principal
Balances of the Certificates at the close of business on the Cut-off Date.
Insurance Proceeds: Amounts paid pursuant to any Primary Mortgage
Insurance Policy, Pool Insurance Policy or Mortgagor Bankruptcy Bond, if
any, with respect to the Certificates and amounts paid pursuant to the
Special Hazard Insurance Policy with respect to the Certificates, that have
not been used to restore the related property, and amounts paid by any
insurer pursuant to any other insurance policy covering a Mortgage Loan.
Interest Distribution Amount: With respect to any Distribution
Date and any Class of the Certificates except for the Variable Rate
Certificates and the Class 1-H Certificates, an amount equal to 30 days'
interest accrued at the applicable Certificate Rate on the Certificate
Principal Balance or Notional Amount of such Class as of the day
immediately preceding the related Distribution Date. With respect to any
Distribution Date and any Class of the Variable Rate Certificates, an
amount equal to 30 days' interest accrued at the applicable Variable
Certificate Rate on the applicable Notional Amount of such Class as of the
day immediately preceding the related Distribution Date.
Liquidated Loan: With respect to any Distribution Date, a Mortgage
Loan which, as of the close of business on the Business Day next preceding
the related Determination Date: (a) has been liquidated through deed in
lieu of foreclosure, sale in foreclosure, trustee's sale or other
realization as provided by applicable law of real property subject to the
related Mortgage and any security agreements or with respect to which
payment under related private mortgage insurance or hazard insurance and/or
from any public or governmental authority on account of a taking or
condemnation of any such property has been received, or (b) has been the
subject of a Debt Service Reduction or a Deficient Valuation; provided that
any REO Property shall not be treated as a Liquidated Loan until such
property has been finally liquidated.
Liquidation Expenses: Expense incurred by the related Servicer in
connection with the liquidation of any defaulted Mortgage Loan and not
recovered by such Servicer under a Primary Mortgage Insurance policy for
reasons other than such Servicer's failure to comply with Section 4.8 of
the related Warranty and Servicing Agreement, such expenses including,
without limitation, legal fees and expenses, any unreimbursed amount
expended by such Servicer pursuant to Section 4.10 of the related Warranty
and Servicing Agreement respecting the related Mortgage and any related and
unreimbursed expenditures for real estate property taxes or for property
restoration or preservation to the extent not previously reimbursed under
any hazard insurance policy for reasons other than such Servicer's failure
to comply with Section 4.10 of the related Warranty and Servicing
Agreement.
Liquidation Proceeds: Amounts other than Insurance Proceeds
received in connection with the 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.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the appraised value of the Mortgaged Property based upon the
appraisal made for the originator at the time of origination of the related
Mortgage Loan, or the sales price of the Mortgaged Property at the time of
such origination, whichever is less, or with respect to any Mortgage Loan
that represents a refinancing, the appraised value of the Mortgaged
Property based upon the appraisal made at the time of such refinancing or
the acquisition cost of the property plus documented improvements.
Maturity Date: The latest possible maturity date, solely for
purposes of Section 1.860G-1(a)(4)(iii) of the proposed Treasury
regulations, by which the Certificate Principal Balance of each Class of
Certificates representing a regular interest in REMIC II (other than the
Class 1-F, Class 1-G and Class 1-H Certificates), and the Uncertificated
Principal Balance of each Uncertificated REMIC I Regular Interest, would be
reduced to zero as determined under a hypothetical scenario which assumes,
among other things, that: (i) scheduled interest and principal payments on
the Mortgage Loans are received in a timely manner, with no delinquencies
or losses, (ii) there are no principal prepayments, (iii) each Mortgage
Loan has a principal amortization schedule equivalent to that which would
result if the interest rate thereon were equal to ___% per annum, (iv)
neither the Depositor nor any Servicer will repurchase any Mortgage Loan
and the Depositor will not exercise its option to purchase the Mortgage
Loans and thereby cause a termination of the Trust Fund, and (v) the
Mortgage Loans have an original term to maturity and a remaining term to
maturity of 360 months. The Maturity Date for the Class 1-F, Class 1-G and
Class 1-H Certificates is the latest Maturity Date of any other Class of
Certificates.
Monthly Advance: The aggregate of the advances made by or on
behalf of the Servicers with respect to any Distribution Date pursuant to
the related Warranty and Servicing Agreement or Section 8.14, the amount of
any such advances being equal to the aggregate of payments of principal and
interest on the Mortgage Loans that were due on the Due Date and delinquent
as of the close of business on the related Determination Date, after
adjustment of any delinquent interest payment to interest at a rate equal
to the sum of the Net Mortgage Rate and the Administrative Fee Rate on the
Principal Balance of the Mortgage Loans, less the aggregate amount of any
such delinquent payments that the Servicer has determined would constitute
a Nonrecoverable Advance if made.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument creating
a first lien on an estate in fee simple in real property securing a
Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loan: Each 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, evidenced by a Mortgage Note and secured
by a Mortgage, the Mortgage Loans so held being identified in the Mortgage
Loan Schedule.
Mortgage Loan Repurchase Price: The price, calculated as set forth
in Section 9.01, to be paid in connection with the repurchase of the
Mortgage Loans pursuant to an Optional Termination of the Trust Fund.
Mortgage Loan Schedule: The list of Mortgage Loans transferred to
the Trustee as part of the Trust Fund for the Certificates and from time to
time subject to this Agreement (as from time to time amended by the
Depositor to reflect the addition of Replacement Mortgage Loans and the
deletion of Deleted Mortgage Loans pursuant to the provisions of this
Agreement and the related Warranty and Servicing Agreements), attached
hereto as Exhibit C, setting forth the following information with respect
to each Mortgage Loan:
(i) the loan number;
(ii) the street address of the Mortgaged Property, including the
zip code, and name of the Mortgagor;
(iii) the Mortgage Rate;
(iv) the original term to maturity;
(v) the original principal balance;
(vi) the Principal Balance as of the Cut-off Date;
(vii) the first Due Date;
(viii) the current monthly payment in effect as of the Cut-off
Date;
(ix) the Loan-to-Value Ratio at origination;
(x) the Servicing Fee Rate;
(xi) the Class 1-H Fraction and whether such Mortgage Loan is a
Class 1-F or Class 1-G Mortgage Loan;
(xii) whether the residential dwelling is either: (a) a detached
single family dwelling or a de minimis planned unit
development, (b) a condominium unit or a dwelling in a
planned unit development, or (c) a two- to four-unit
residential property; and
(xiii) the purpose for which the financing was made.
Such schedule shall also set forth the total of the amounts described under
(vi) above for all of the Mortgage Loans. Such schedule may be in the form
of more than one list collectively setting forth all of the information
required and shall be in a computer-readable format acceptable to the
Trustee.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage
Note, which is set forth in the related Mortgage Note.
Mortgaged Property: The underlying property securing a Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Mortgagor Bankruptcy Bond: The bankruptcy bond obtained pursuant
to Section 3.11, a specimen of which is attached as Exhibit I hereto, or
any replacement policy obtained pursuant to Section 3.11.
Net Mortgage Rate: As to each Mortgage Loan, as of any date of
determination, the rate per annum equal to the excess of the Mortgage Rate
in effect over the sum of Servicing Fee Rate and the Administrative Fee Rate.
Nonrecoverable Advance: Any portion of the Monthly Advance
previously made or proposed to be made by any Servicer or the Pool Insurer
or other advance previously made by any Servicer or the Pool Insurer under
the related Warranty and Servicing Agreement or the Pool Insurance Policy
that, in the good faith judgment of such Servicer, will not or, in the case
of a current delinquency, would not be, ultimately recoverable by such
Servicer or the Pool Insurer from Insurance Proceeds, Liquidation Proceeds
or otherwise.
Notional Amount: As to the Class 1-D Certificates for any
Distribution Date, the Certificate Principal Balance of the Class 1-C
Certificates as of the day immediately preceding such Distribution Date. As
to the Class 1-F and Class 1-G Certificates for any Distribution Date an
amount equal to the aggregate outstanding Principal Balance of the Class
1-F and Class 1-G Mortgage Loans, respectively, as of the first day of the
month immediately preceding the month in which the related Distribution
Date occurs, reduced by the principal portion of advances previously made
by the applicable Servicer with respect to each Class 1-F or Class 1-G
Mortgage Loan, as applicable, and by the Principal Balance of any Class 1-F
or Class 1-G Mortgage Loan, as applicable, with respect to which title to
the related Mortgaged Property has been acquired by or on behalf of the
Trustee for the benefit of the Certificateholders.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a vice president or a
member of the Executive Group, and by the Treasurer, the Secretary, or one
of the assistant treasurers or assistant secretaries of the Depositor, a
Seller, a Servicer or a Trustee, as the case may be, and delivered to the
Depositor, the Seller, a Servicer or the Trustee, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Depositor or a Servicer, acceptable to the Trustee. With
respect to Sections 5.02, 9.04 and 10.01 and any opinion dealing with the
qualification of REMIC I or REMIC II as a REMIC or compliance with the
REMIC Provisions, such counsel must: (i) in fact be independent of the
Depositor and each Servicer, (ii) not have any direct financial interest in
the Depositor or any Servicer or in any affiliate of either, and (iii) not
be connected with the Depositor or any Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing
similar functions.
Optional Termination: The purchase of the Mortgage Loans pursuant
to Section 9.01.
Optional Termination Date: The date fixed by the Depositor for the
purchase of the Mortgage Loans pursuant to Section 9.01.
Paying Agent: The Paying Agent, if any, appointed pursuant to
Section 8.12, authorized to make distributions on behalf of the Trustee.
Percentage Interest: The percentage interest (which may be
expressed as a fraction) evidenced by any Class in certain monthly
distributions payable hereunder to Certificateholders, as specified in
Section 4.02.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Pool Insurance Policy: The policy of mortgage pool guaranty
insurance obtained pursuant to Section 3.07, a specimen of which is
attached as Exhibit H hereto, including the Fraud Loss Waiver and cash
advance endorsement thereto, naming the Trustee as loss payee, or any
replacement insurance policy obtained pursuant to Section 3.07 hereof.
Pool Insurer: ________________, a __________ corporation, or any
successor thereto or the named insurer in any replacement policy obtained
pursuant to Section 3.07 hereof.
Prepayment Period: With respect to any Distribution Date, the
month prior to the month in which such Distribution Date occurs.
Primary Mortgage Insurance Policy: Each primary policy of mortgage
guaranty insurance with respect to the Mortgage Loans, or any replacement
policy therefor.
Principal Balance: With respect to any Mortgage Loan, as of the
date of any determination, the principal balance of such Mortgage Loan
remaining to be paid by the Mortgagor as of the Cut-off Date after
deduction of all payments due on or before the Cut-off Date, reduced (but
not below zero) by the sums of:
(i) all amounts previously received or collected by the related
Servicer in respect of principal on such Mortgage Loan
subsequent to the Cut-off Date, other than amounts
representing payments due on such Mortgage Loan on or prior
to the Cut-off Date;
(ii) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds received in connection with a Bankruptcy
Loss and allocated to principal; and
(iii) all amounts allocable to the principal of such Mortgage
Loan previously paid by the related Servicer or the Pool
Insurer as part of a Monthly Advance.
Principal Prepayment: Any Mortgagor payment or other recovery of
principal on a Mortgage Loan that is received in advance of its scheduled
Due Date and is not accompanied by an amount as to interest representing
scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Priority Certificate Principal Distribution Amount: On any
Distribution Date, the sum of: (i) for each Mortgage Loan, the Priority
Percentage multiplied by the payment of principal due on the related Due
Date on such Mortgage Loan, whether or not received during the related
Collection Period, (ii) for each Mortgage Loan which was prepaid during the
related Prepayment Period, the Priority Percentage multiplied by the amount
of the Principal Prepayment including with respect to any Mortgage Loan
that was the subject of a Debt Service Reduction in any prior Prepayment
Period, the amount of any such Principal Prepayment that exceeds the
Principal Balance of such Mortgage Loan as of the date of the prepayment,
(iii) for each Mortgage Loan which was repurchased by the Servicer or the
Depositor during the related Prepayment Period pursuant to Section 2.01,
2.02, 2.03, or 2.04 hereof, Article IX hereof or the related Warranty and
Servicing Agreement, the Priority Percentage multiplied by the principal
amount of the Purchase Price or Mortgage Loan Repurchase Price (net of
amounts with respect to which a distribution of principal has already been
made), (iv) for each Mortgage Loan that became a Liquidated Loan during the
related Prepayment Period and with respect to which a Depletion Loss
occurred, the Priority Percentage multiplied by the Principal Balance of
such Mortgage Loan as of the date it became a Liquidated Loan, (v) for each
Mortgage Loan that became a Liquidated Loan during the related Prepayment
Period not described in clause (iv) above, the Priority Percentage
multiplied by the aggregate amount of Liquidation Proceeds and Insurance
Proceeds received with respect to such Mortgage Loan net of any withdrawals
permitted to be made by the Servicer from the related Custodial Account
with respect to such Mortgage Loan and (vi) for each Mortgage Loan with
respect to which any other unscheduled recovery of principal has been
received during the related Prepayment Period, the Priority Percentage of
such unscheduled recovery.
Priority Certificates: Class 1-A, Class 1-B, Class 1-C, Class 1-D,
Class 1-E, Class 1-F, Class 1-G, Class 1-H and Class 1-R Certificates.
Priority Percentage: The aggregate Certificate Principal Balance
of the Priority Certificates divided by the aggregate Certificate Principal
Balance of all the Certificates.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Servicer, Seller or Depositor pursuant to Section 2.01,
2.02, 2.03, or 2.04 hereof, or by a Servicer pursuant to the related
Warranty and Servicing Agreement, an amount equal to: (a) the sum of: (i)
100% of the Principal Balance of the Mortgage Loan on the date of such
purchase, (ii) accrued and unpaid interest on the Mortgage Loan at a rate
equal to the Mortgage Rate minus the related Servicing Fee Rate to the
first day of the month following such purchase, net of the interest portion
of any Monthly Advances made by the Servicer with respect to such Mortgage
Loan and (iii) the amount of any unreimbursed Monthly Advances made by the
Servicer with respect to such Mortgage Loan, or (b) if, in the Opinion of
Counsel, in form and substance satisfactory to the Trustee, the repurchase
of such Mortgage Loan or property acquired in respect thereto at the price
calculated as set forth in (a) would result in net income to the Trust Fund
that would be subject to tax as income derived from a "prohibited
transaction," as defined in Section 860F(a)(2) of the Code, or would
otherwise subject the Trust Fund to tax, then, the highest amount
determined in accordance with such Opinion of Counsel as will result in no
such net income. With respect to any Mortgage Loan required or allowed to
be purchased, the Servicer or Depositor, as applicable, shall deliver to
the Trustee an Officers' Certificate as to the calculation of the Purchase
Price. Any Opinion of Counsel delivered in accordance with (b) above shall
be the expense of the person that is required to repurchase the related
Mortgage Loan pursuant to this Agreement.
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 other state having jurisdiction over such insurer in
connection with the insurance policy issued by such insurer, duly
authorized and licensed by the insurance regulatory authority of the state
of its principal place of business and, to the extent required by
applicable law, each such other state, to transact a mortgage guaranty
insurance business in such state and each such other state and to write the
insurance provided by the insurance policy issued by it and approved as an
insurer by FHLMC or FNMA and whose claims-paying ability will not adversely
affect the rating on the Certificates.
Rating Agencies: Any nationally recognized statistical rating
organization, or any successor thereto, that rated the Certificates at the
request of the Depositor at the time of their initial issuance. If such
organization or successor is no longer in existence, "Rating Agencies"
shall be such nationally recognized statistical rating organization or
other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee.
Realized Loss: An amount determined by the Servicer and evidenced
by an Officers' Certificate delivered to the Trustee, in connection with
any Liquidated Loan equal to: (a) with respect to any Liquidated Loan
(other than a Liquidated Loan with respect to which a Bankruptcy Loss has
occurred), the excess of the Principal Balance of such Liquidated Loan plus
interest thereon at a rate equal to the sum of the applicable Net Mortgage
Rate and the Administrative Fee Rate from the Due Date as to which interest
was last paid up to the Due Date next succeeding such liquidation, over
proceeds, if any, received in connection with such liquidation, after
application of all withdrawals permitted to be made by the Servicer from
the related Custodial Account with respect to such Mortgage Loan, (b) with
respect to any Mortgage Loan which has become the subject of a Deficient
Valuation, the excess of the outstanding principal balance of the Mortgage
Loan over the principal amount as reduced in connection with the proceeding
resulting in the Deficient Valuation, (c) with respect to any Mortgage Loan
which has become the subject of a Debt Service Reduction, the present value
of all monthly Debt Service Reductions on such Mortgage Loan, assuming that
the Mortgagor pays each Monthly Payment on the applicable Due Date and that
no Principal Prepayments are received with respect to such Mortgage Loan,
discounted monthly at the applicable Mortgage Rate or (d) with respect to
any Mortgage Loan which has been purchased by the Depositor or a Servicer
pursuant to Section 2.01, 2.02, 2.03 or 2.04 hereof or the related Warranty
and Servicing Agreement, the excess, if any, of the amount calculated as
set forth in: (a) of the definition of Purchase Price over the amount
calculated as set forth in (b) of the definition of Purchase Price.
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
the applicable Distribution Date occurs.
REMIC: A real estate mortgage investment conduit, as defined in
the Code.
REMIC I: A segregated pool of assets, with respect to which a
REMIC election is to be made, consisting of: (i) the Mortgage Loans and all
distributions thereon payable after the Cut-off Date, (ii) the Certificate
Account and all amounts deposited therein pursuant to the applicable
provisions of this Agreement, (iii) property that secured a Mortgage Loan
and has been acquired by foreclosure, deed in lieu of foreclosure or
otherwise, (iv) the Primary Mortgage Insurance Policies, the Special Hazard
Insurance Policy, the Pool Insurance Policy, the Mortgagor Bankruptcy Bond
and any other insurance policies with respect to the Mortgage Loans, (v)
the rights of the Depositor assigned to the Trustee pursuant to Section
2.03 hereof and (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
REMIC I Certificates: The Class 1-RS Certificates.
REMIC II: The segregated pool of assets consisting of the
Uncertificated REMIC I Regular Interests, conveyed in trust to the Trustee
for the benefit of the holders of the REMIC II Certificates pursuant to
this Agreement, with respect to which a separate REMIC election is to be
made.
REMIC II Certificates: Any of the Class 1-A, Class 1-B, Class 1-C,
Class 1-D, Class 1-E, Class 1-F, Class 1-G, Class 1-H, Class 1-M and Class
1-R Certificates.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at
Section 860A through 860G of Subchapter M of Chapter 1 of the Code and
related provisions, and regulations promulgated thereunder, as the
foregoing may be in effect from time to time.
REO Property: Any Mortgaged Property acquired in foreclosure or by
deed-in-lieu of foreclosure.
Replacement Mortgage Loan: A "Qualified Substitute Mortgage Loan"
as defined in each Warranty and Servicing Agreement.
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 or the related Warranty and Servicing Agreement in respect
of such Mortgage Loan, including each Primary Mortgage Insurance Policy,
each standard hazard and flood insurance policy, the Special Hazard
Insurance Policy, the Pool Insurance Policy and the Bankruptcy Bond.
Responsible Officer: When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the
Chairman or Vice Chairman of the Executive or Standing Committee of the
Board of Directors or Trustees, the President, the Chairman of the
Committee on Trust Matters, any Vice President, any Assistant Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, the Cashier, any Assistant Cashier, any Trust Officer
or Assistant Trust Officer, the Controller and any Assistant Controller or
any other officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
S&P: Standard & Poor's Corporation.
SAIF: The Savings Association Insurance Fund.
Seller: Each of _____________ and ______________, as to a Mortgage
Loan sold by such party.
Servicer: Each of _____________ and ______________, with respect
to any Mortgage Loan under the related Warranty and Servicing Agreement
applicable to such Mortgage Loan and any successors and assigns under such
Warranty and Servicing Agreement.
Servicer Advance Date: The date on which a Servicer is required to
make a Monthly Advance pursuant to the related Warranty and Servicing
Agreement.
Servicer Remittance Date: The date on or before which a Servicer
is required to remit amounts collected on Mortgage Loans to the Trustee, as
set forth in the related Warranty and Servicing Agreement.
Servicing Fee: With respect to each Mortgage Loan, the Servicing
Fee Set forth in the related Warranty and Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the fixed
percentage amount set forth in the Mortgage Loan Schedule.
Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans
whose name and specimen signature appear on a list of servicing officers
furnished to the Trustee on the Delivery Date by the related Servicer
pursuant to this Agreement, as such list may from time to time be amended.
Special Hazard: Any risk of direct physical loss which may be
suffered by a Mortgaged Property, exclusive of: (i) any loss covered by a
hazard policy or a flood insurance policy, or blanket policy in respect
thereof (without regard to any portion of the loss not covered by reason of
any deductible thereunder), maintained in respect of such Mortgaged
Property pursuant to Section 3.03 and (ii) any loss caused by or resulting
from:
(a) wear and tear, deterioration, rust or corrosion, mold, wet or
dry rot; inherent vice or latent defect; animals, birds, vermin, or
Insects;
(b) smog, smoke, vapor, liquid or dust discharge from agricultural
or industrial operations; pollution; contamination;
(c) settling, subsidence, cracking, shrinkage, bulging or
expansion of pavements, foundations, walls, floors, roofs or ceilings;
(d) 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 insured against in this policy;
(e) hostile or warlike action in time of peace or 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;
(f) any weapon of war employing atomic fission or radioactive
force whether in time of peace or war;
(g) insurrection, rebellion, revolution, civil war, terrorism,
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; or
(h) 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.
Special Hazard Insurance Policy: With respect to the Mortgage
Loans, credit support which is provided by a Special Hazard Insurance
Policy, a specimen of which is attached as Exhibit G hereto, or any
replacement policy obtained pursuant to Section 4.10 of the related
Warranty and Servicing Agreement.
Special Hazard Insurer: ________________________, a ___________
property and casualty insurance company, or any successor thereto, or the
named insurer in any replacement policy obtained pursuant to the related
Warranty and Servicing Agreement.
Special Hazard Loss: With respect to any Mortgage Loan which has
been finally liquidated in connection with a Special Hazard, and for which
a claim could not be made under the Special Hazard Insurance Policy because
the amount available under such Policy has been reduced to zero or for
which such a claim was made but the full amount of such claim was not paid,
an amount (not less than zero or more than the amount described in (i) as
follows) equal to: (i) the Principal Balance of the Mortgage Loan as of the
date of such liquidation, plus (ii) interest thereon at a rate equal to the
sum of the applicable Net Mortgage Rate and the Administrative Fee Rate
from the Due Date as to which interest was last paid up to the Due Date
next succeeding such liquidation, minus (iii) the proceeds, if any,
received in connection with such liquidation, after application of all
withdrawals permitted to be made by the Servicer from the related Custodial
Account with respect to such Mortgage Loan.
Special Hazard Loss Loan: A Mortgage Loan as to which a Special
Hazard Loss has occurred.
Stripped Interest Rate: As to each Mortgage Loan and with respect to
the Class 1-F Certificates, the rate per annum designated as "F-Strip" in
Exhibit C hereto. As to each Mortgage Loan and with respect to the Class 1-G
Certificates, the rate per annum designated as "G-Strip" in Exhibit C hereto.
Trust Fund: REMIC I and REMIC II.
Trustee: ___________________, a ________________, not in its
individual capacity, but solely in its capacity as trustee for the benefit
of the Certificateholders under this Agreement, and any successor thereto,
as provided herein.
Trustee Fee: The fee payable to the Trustee for its services as
Trustee hereunder, in an amount equal to the Trustee Fee Rate multiplied by
the Principal Balance of the Mortgage Loans.
Trustee Fee Rate: ___% per annum.
Uncertificated Accrued Interest: With respect to each Distribution
Date: (i) as to the Uncertificated REMIC I Regular Interest U, an amount
equal to the aggregate amount of the Interest Distribution Amount that
would result under the terms of the definition thereof on the Class 1-R
Certificates, if the Certificate Rate on such Class were equal to the
Uncertificated Certificate Rate, (ii) as to the Uncertificated REMIC I
Regular Interest V, an amount equal to the aggregate amount of the Interest
Distribution Amount that would result under the terms of the definition
thereof on the Class 1-A, 1-B, 1-E and 1-M Certificates, if the Certificate
Rate on such Classes were equal to the Uncertificated Certificate Rate,
(iii) as to the Uncertificated REMIC I Regular Interest W, an amount equal
to the aggregate amount of the Interest Distribution Amount that would
result under the terms of the definition thereof on the Class 1-C
Certificates if the Certificate Rate on such Class were equal to the
Uncertificated Certificate Rate, (iv) as to the Uncertificated REMIC I
Regular Interest X, an amount equal to the aggregate amount of the Interest
Distribution Amount that would result under the terms of the definition
thereof on the Class 1-F Certificates if the Certificate Rate on such Class
were equal to the Uncertificated Certificate Rate and (v) as to the
Uncertificated REMIC I Regular Interest Y, an amount equal to the aggregate
amount of the Interest Distribution Amount that would result under the
terms of the definition thereof on the Class 1-G Certificates if the
Certificate Rate on such Class were equal to the Uncertificated Certificate
Rate.
Uncertificated Certificate Rate: With respect to the
Uncertificated REMIC I Regular Interests: U, V, and W, ___%. With respect
to Uncertificated REMIC I Regular Interests X and Y: the weighted average
of the Stripped Interest Rates on the aggregate Principal Balance of all
Class 1-F Mortgage Loans and Class 1-G Mortgage Loans, respectively,
reduced by the Principal Balance of any Class 1-F Mortgage Loans or Class
1-G Mortgage Loans, as appropriate, with respect to which title to the
related Mortgage Property has been acquired by or on behalf of the Trustee
for the benefit of the Certificateholders.
Uncertificated Notional Principal Balance: With respect to
Uncertificated REMIC I Regular Interest X, the aggregate Principal Balance
of all Class 1-F Mortgage Loans, and with respect to Uncertificated REMIC I
Regular Interest Y, the aggregate Principal Balance of all Class 1-G
Mortgage Loans, in each case reduced by the Principal Balance of any Class
1-F Mortgage Loans or Class 1-G Mortgage Loans, as appropriate, with
respect to which title has been acquired by or on behalf of the Trustee for
the benefit of the Certificateholders. With respect to each Uncertificated
REMIC I Regular Interest on any date of determination, an amount equal to:
(i) $_________ with respect to Uncertificated REMIC I Regular Interest U,
$__________ with respect to Uncertificated REMIC I Regular Interest V,
$__________ with respect to Uncertificated REMIC I Regular Interest W,
$______ with respect to Uncertificated REMIC I Regular Interest X, $______
with respect to Uncertificated REMIC I Regular Interest Y, and $______ with
respect to Uncertificated REMIC I Regular Interest Z, minus (ii) the sum
of: (x) the aggregate of all amounts previously deemed distributed with
respect to such interest and applied to reduce the Uncertificated Principal
Balance thereof pursuant to Section 4.04(a)(ii) and (y) the aggregate of
all reductions in Certificate Principal Balance deemed to have occurred in
connection with Realized Losses that were previously deemed allocated to
the Uncertificated Principal Balance of such Uncertificated REMIC I Regular
Interest pursuant to Section 4.04(c).
Uncertificated REMIC I Regular Interest U: An uncertificated
partial undivided beneficial ownership interest in REMIC I having a
principal balance equal to the Principal Balance of the Mortgage Loans and
REO Property from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class 1-R
Certificates and the denominator of which is the aggregate Certificate
Principal Balance of all the Certificates, and which bears interest at ___%
per annum.
Uncertificated REMIC I Regular Interest V: An uncertificated
partial undivided beneficial ownership interest in REMIC I having a
principal balance equal to the Principal Balance of the Mortgage Loans and
REO Property from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class 1-A, 1-B,
1-E and 1-M Certificates and the denominator of which is the aggregate
Certificate Principal Balance of all of the Certificates, and which bears
interest at ___% per annum.
Uncertificated REMIC I Regular Interest W: An uncertificated
partial undivided beneficial ownership interest in REMIC I having a
principal balance equal to the Principal Balance of the Mortgage Loans and
REO Property from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class 1-C
Certificates and the denominator of which is the aggregate Certificate
Principal Balance of all of the Certificates, and which bears interest at
___% per annum.
Uncertificated REMIC I Regular Interest X: An uncertificated
partial undivided beneficial ownership interest in REMIC I having no
principal balance, and which bears interest at a rate equal to the weighted
average of the Stripped Interest Rates on the aggregate Principal Balance
of all Class 1-F Mortgage Loans.
Uncertificated REMIC I Regular Interest Y: An uncertificated
partial undivided beneficial ownership interest in REMIC I having no
principal balance, and which bears interest at a rate equal to the weighted
average of the Stripped Interest Rates on the aggregate Principal Balance
of all Class 1-G Mortgage Loans.
Uncertificated REMIC I Regular Interest Z: An uncertificated
partial undivided beneficial ownership interest in REMIC I having a
principal balance equal to the Principal Balance of the Mortgage Loans and
REO Property from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class 1-H
Certificates and the denominator of which is the aggregate Certificate
Principal Balance of all the Certificates, and which bears no interest.
Uncertificated REMIC I Regular Interest U Distribution Amount.
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interest U for such
Distribution Date pursuant to Section 4.04.
Uncertificated REMIC I Regular Interest V Distribution Amount.
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interest V for such
Distribution Date pursuant to Section 4.04.
Uncertificated REMIC I Regular Interest W Distribution Amount.
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interest W for such
Distribution Date pursuant to Section 4.04.
Uncertificated REMIC I Regular Interest X Distribution Amount.
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interest X for such
Distribution Date pursuant to Section 4.04.
Uncertificated REMIC I Regular Interest Y Distribution Amount.
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interest Y for such
Distribution Date pursuant to Section 4.04.
Uncertificated REMIC I Regular Interest Z Distribution Amount.
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interest Z for such
Distribution Date pursuant to Section 4.04.
Uncertificated REMIC I Regular Interest Distribution Amounts: The
Uncertificated REMIC I Regular Interest U Distribution Amount,
Uncertificated REMIC I Regular Interest V Distribution Amount,
Uncertificated REMIC I Regular Interest W Distribution Amount,
Uncertificated REMIC I Regular Interest X Distribution Amount,
Uncertificated REMIC I Regular Interest Y Distribution Amount and
Uncertificated REMIC I Regular Interest Z Distribution Amount.
Uncertificated REMIC I Regular Interests: The Uncertificated REMIC
I Regular Interest U, Uncertificated REMIC I Interest V, Uncertificated
REMIC I Regular Interest W, Uncertificated REMIC I Regular Interest X,
Uncertificated REMIC I Regular Interest Y, and Uncertificated REMIC I
Regular Interest Z.
Variable Certificate Rate: The weighted average, as determined as
of the Due Date occurring in the month preceding the applicable
Distribution Date, after giving effect to principal payments made on such
date, of the Stripped Interest Rates for each of the Class 1-F or Class 1-G
Mortgage Loans applicable to the Class 1-F or Class 1-G Certificates, as
appropriate.
Variable Rate Certificates: The Class 1-F Certificates and the
Class 1-G Certificates.
Voting Rights: The portion of the aggregate voting rights of all
the Certificates evidenced by a Certificate. At any time that any of the
Priority Certificates or the Class 1-M Certificates are outstanding, ___%
of all Voting Rights will be allocated among the holders of the Class 1-A,
Class 1-B, Class 1- C, Class 1-E, Class 1-H, Class 1-M and Class 1-R
Certificates, in proportion to their then outstanding Certificate Principal
Balances, and __%, __%, __% and __% of all Voting Rights will be allocated
among holders of the Class 1-D, Class 1- F, Class 1-G and Class 1-RS
Certificates, respectively, in proportion to the percentage interests
evidenced by their respective Certificate Principal Balances or interests.
Warranty and Servicing Agreement: Each of: (a) the Seller's
Warranties and Servicing Agreement dated as of ___________, ____ between
__________ and ___________, and (b) the Seller's Warranties and Servicing
Agreement dated as of ___________, ____ between _______ and ________.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
The Depositor hereby sells, transfers, assigns, delivers, sets
over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, the Depositor's right, title and
interest in and to: (a) the Mortgage Loans listed in Exhibit C to this
Agreement, including all interest and principal received or receivable by
the Depositor on or with respect to the Mortgage Loans after the Cut-off
Date, but not including payments of principal and interest due and payable
on the Mortgage Loans on or before the Cut-off Date, which Mortgage Loans
the Depositor causes to be delivered to the Trustee on or prior to the
Delivery Date, together with the Mortgage Files relating to the Mortgage
Loans, (b) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed in lieu of foreclosure or otherwise, (c) the Certificate
Account and all amounts deposited therein pursuant to the applicable
provisions of the Agreement, (d) the Primary Mortgage Insurance Policies,
the Special Hazard Insurance Policy, the Pool Insurance Policy, the
Mortgagor Bankruptcy Bond and any other insurance policies with respect to
the Mortgage Loans, (e) the rights of the Depositor assigned to the Trustee
pursuant to Section 2.03 hereof and (f) all proceeds of the conversion,
voluntary or involuntary, or any of the foregoing into cash or other liquid
property.
The Depositor shall or shall cause the related Servicer to, at the
Depositor's expense, promptly record or cause to be recorded in the
appropriate public real property or other records the assignments required
by this Agreement.
In connection with any such transfer and assignment, the Depositor
shall deliver to, and deposit with, the Trustee the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the Mortgage Note, endorsed in blank, with all intervening
endorsements showing a complete chain or endorsement from the
originator to the last endorser, and if the Mortgage Note or Mortgage
or any other material document or instrument relating to the Mortgage
Loan has been signed on behalf of the Mortgagor by another person, the
original power of attorney or other instrument that authorized and
empowered such person to sign, or a copy of the original power of
attorney or other instrument certified by the relevant public
recording office in those instances in which the public recording
office retains the original;
(ii) the original Mortgage, and any intervening assignment
thereof, in each case as recorded, with evidence of recording
indicated thereon, or a copy of the Mortgage (and any such assignment)
certified by the applicable public recording office to be a true and
complete copy of the recorded original thereof, or in the case of an
intervening assignment a copy of such assignment certified by the
Servicer to be a true and complete copy of the original assignment
submitted or to be submitted for recording;
(iii) an original assignment from the last preceding assignee in
blank;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with respect to
such Mortgage Loan, as identified on the Mortgage Loan Schedule;
(v) the original or a copy of each Primary Mortgage Insurance
Policy and riders for those Mortgage Loans identified on the Mortgage
Loan Schedule as having a Loan-to-Value at origination greater than
80%; and
(vi) the original title policy and all riders thereto or, in the
event such original title policy has not been received from the
insurer, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof
certified by the title company with the original policy of title
insurance to be delivered within 120 days of the Delivery Date. The
policy must affirmatively insure against encroachments by or upon the
Mortgage Property or any interest therein.
In the event that, in connection with any Mortgage Loan the
Depositor cannot deliver the original recorded Mortgage or an original
recorded assignment, assumption agreement or modification agreement of the
Mortgage with evidence of recording thereon (other than the assignment
referred to in Section 2.01(iii)) concurrently with the execution and
delivery hereof, the Depositor shall deliver, or cause the Servicer to
deliver, to the Trustee a true copy of such Mortgage, assignment,
assumption or modification agreement of the Mortgage certified by the
Depositor to be a true and complete copy of the original thereof submitted
for recording, or a copy of the Mortgage certified by a title insurance or
escrow company or companies reasonably acceptable to the Depositor,
evidencing that such Mortgage or assignment of the Mortgage has been
delivered to the appropriate public recording official for recordation. The
Depositor shall promptly deliver, or cause the Servicer to deliver, to the
Trustee: (i) such original Mortgage or assignment of the Mortgage with
evidence of recording indicated thereon or a photocopy of such Mortgage or
assignment certified by the appropriate county recorder's office to be a
true and complete copy of the original thereof, upon receipt thereof from
the public recording official or from the Servicer, and (ii) upon discovery
of any defect or omission in the deliveries of any of items (ii) through
(v) above with respect to any mortgage Loan, a correct and complete
document or instrument meeting the requirements of such item or a certified
copy thereof, certified by the relevant recording office, but in no event
shall any such delivery be made later than 180 days following the date of
initial issuance of the Certificates. From time to time the Servicers may
forward or cause to be forwarded to the Trustee for the benefit of the
Certificateholders additional original documents evidencing an assumption
or modification of a Mortgage Loan.
The Trustee shall complete the endorsement of the Mortgage Note
referred to in: (i) above and the assignment of Mortgage referred to in
(iii) above to ________, as trustee for the benefit of the holders of the [
] Conduit Mortgage Pass-Through Certificates, Series _____ under the
Pooling and Servicing Agreement dated as of ________, 200_. The Depositor
shall or shall cause the Servicer to promptly record in the appropriate
public office for real property records each original assignment referred
to in (iii) above with respect to each Mortgaged Property, and the Trustee
shall release any such assignment to the Depositor for such purpose. If any
assignment is returned unrecorded to the Depositor because of any defect
therein, the Depositor shall cure or correct such defect and cause such
assignment to be recorded in accordance with this paragraph or, if the
Depositor does not cure or correct such defect or in the event such defect
cannot be so cured, the Depositor shall either: (a) substitute a
Replacement Mortgage Loan or Loans for the related Mortgage Loan, which
substitution shall be accomplished within the time period specified in
Section 2.05, in the manner and subject to the conditions set forth in
Section 2.03 and the terms and conditions with respect to substitution in
Section 2.05; or (b) purchase such Mortgage Loan at the Purchase Price
therefor. The Trustee shall give notice in writing to the Rating Agencies
in the event of either (a) or (b) above.
In the case of the Mortgage Loans that have been prepaid in full
after the Cut-off Date and prior to the Delivery Date the Depositor, in
lieu of delivering the above documents to the Trustee, will deposit in the
related Custodial Account the amount with respect to such payment that is
required to be deposited in the Custodial Account pursuant to the related
Warranty and Servicing Agreement and will provide the Trustee with written
notice of such prepayment.
Section 2.02 Acceptance by Trustee. The Trustee will hold the
documents referred to in Section 2.01 above and the other documents
constituting a part of the Mortgage Files delivered to it in trust for the use
and benefit of all present and future Certificateholders. Upon execution and
delivery or this Agreement the Trustee shall provide the Depositor with an
initial certification in the form set forth in Exhibit D hereto, subject to
any exceptions noted therein, acknowledging receipt of: (a) an original
Mortgage Note, endorsed as provided in Section 2.01(i) with respect to each
Mortgage Loan listed on the Mortgage Loan Schedule, and (b) a number of
Mortgage Files equal to the number of Mortgage Loans included in the Mortgage
Loan Schedule as of the Delivery Date, which have not been reviewed except as
set forth in (a) above. Within 15 days after the execution and delivery of
this Agreement, the Trustee shall provide the Depositor with an interim
certification in the form set forth in Exhibit D hereto, subject to any
exceptions noted therein, acknowledging receipt of an original Mortgage (or a
certified copy thereof, as provided in Section 2.01(ii)) with respect to each
Mortgage Loan listed on the Mortgage Loan Schedule and acknowledging that each
Mortgage Note has been endorsed and that each assignment of Mortgage has been
completed by the Trustee in accordance with Section 2.01. Within 60 days after
the execution and delivery of this Agreement, the Trustee shall ascertain
whether all documents required to be delivered to it pursuant to Section 2.01
hereof are in its possession, and shall deliver to the Depositor a
certification (the "Final Certification") in the form set forth as Exhibit E
hereto to the effect that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule: (i) all documents required to be delivered to the Trustee
pursuant to this Agreement are in its possession, (ii) such documents have
been reviewed by it and have not been mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(iii) based on its examination and only as to the foregoing documents, the
information set forth in items (i)-(ii), (iv) and (vi) of the definition of
Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the
information contained in the documents in the Mortgage File and (iv) each
Mortgage Note has been endorsed and each assignment of mortgage has been
prepared as provided in Section 2.01 thereof. The Trustee shall deliver to the
Servicers a copy of such Final Certification. If, in the course of such
review, the Trustee finds any document or documents constituting a part of a
Mortgage File which do not meet the requirements of (i)-(iv) above, the
Trustee shall promptly notify the Servicer and the Depositor in writing, and
request that such Servicer correct or cure such defect within 60 days from the
date the Servicer was so notified of such defect and, if the Servicer does not
correct or cure such defect within such period, that the Servicer pursuant to
the assignment by the Depositor to the Trustee for the benefit of the
Certificateholders of the benefit of the Servicer's obligation to repurchase
defective Mortgage Loans, either: (a) substitute for the related Mortgage Loan
a Replacement Mortgage Loan or Loans, which substitution shall be accomplished
within the time period set forth in Section 2.05, in the manner and subject to
the conditions set forth in Section 2.03 and the terms and conditions with
respect to substitution in Section 2.05; or (b) purchase such Mortgage Loan
from the Trust Fund at the Purchase Price therefor. The Purchase Price for any
such Mortgage Loan shall be deposited by the Servicer in the Custodial Account
maintained by the Servicer pursuant to the related Warranty and Servicing
Agreement and, upon receipt by the Trustee of written notification of such
deposit signed by a Servicing Officer (which notification shall include a
statement as to the accuracy of the Purchase Price), the Trustee shall release
the related Mortgage File to the Servicer, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Servicer, or a designee, title (to the extent that
such title was transferred to the Trustee) to any Mortgage Loan released
pursuant hereto.
The Trustee shall retain possession and custody of each Mortgage
File in accordance with and subject to the terms and conditions set forth
herein.
It is understood and agreed that the obligation of the Servicer
under the related Warranty and Servicing Agreement to substitute for or to
purchase any Mortgage Loan which does not meet the requirements of this
Section 2.02 (i) - (iv) above shall constitute the sole remedy respecting
such defect available to the Trustee.
Section 2.03 Representations, Warranties and Covenants of the Depositor as
to the Mortgage Loans. The Depositor hereby assigns to the Trustee for the
benefit of the Certificateholders all of its rights and obligations under
each Warranty and Servicing Agreement, including, but not limited to, the
right to require the Servicer to repurchase or substitute for defective
Mortgage Loans under certain circumstances, as contained in the related
Warranty and Servicing Agreement. The Trustee shall enforce the provisions
of the Warranty and Servicing Agreements relating to the administration and
servicing of the Mortgage Loans serviced thereunder in accordance with the
provisions of Article III and subject to the provisions of Article VIII.
The Depositor hereby additionally 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:
(i) as of the Cut-off Date, no Mortgage Loan is more than 30 days
delinquent in payment of principal and interest;
(ii) the information set forth in the Mortgage Loan Schedule is
true and correct in all material respects at the date or dates
respecting which such information is furnished;
(iii) as of the date of the initial issuance of the Certificates,
and except as set forth in the Mortgage Loan Schedule, no Mortgage
Loan has an initial Loan-to-Value Ratio in excess of 90.0%;
(iv) the Mortgaged Property consists of a single parcel of real
property with a detached single-family residence or an attached or
detached dwelling in a planned unit development; and the residence or
dwelling is not a mobile home or a manufactured dwelling; and
(v) immediately prior to the date of the initial issuance of the
Certificates, the Depositor had good title to each Mortgage Loan and
each such Mortgage Loan was free of offsets, defenses or
counterclaims.
It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive delivery of the
respective Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee (or upon written notice thereof from any Certificateholder)
of a breach or breaches of any of the representations and warranties set
forth in this Section 2.03 or in a Warranty and Servicing Agreement that
materially and adversely affects the interests of the Certificateholders in
the related Mortgage Loan, the party discovering such breach or breaches
shall give prompt written notice to the other parties. The Trustee shall
promptly notify the related Servicer of such breach and request that the
Servicer correct or cure such breach within 60 days from the date the
Servicer was notified in writing of such breach and, if such Servicer does
not correct or cure such breach within such period, or if such breach
cannot be so cured, that such Servicer, if and to the extent that the
Servicer is obligated to under the related Warranty and Servicing
Agreement, either: (a) substitute for such Mortgage Loan a Replacement
Mortgage Loan or Loans, which substitution shall be accomplished within the
time period specified in Section 2.05, in the manner and subject to the
conditions set forth in this Section and the terms and conditions with
respect to substitution in Section 2.05; or (b) purchase the affected
Mortgage Loan at the Purchase Price therefore. If the Servicer fails to
substitute for or repurchase any Mortgage Loan with respect to which a
material breach of any representation or warranty made by the Depositor
pursuant to this Section 2.04 has occurred, the Depositor shall substitute
for or repurchase the Mortgage Loan as provided above.
Subject to the terms and conditions set forth in Section 2.05 with
respect to such substitution, as to any Replacement Mortgage Loan or Loans,
the related Servicer or the Depositor, as the case may be, shall deliver to
the Trustee for such Replacement Mortgage Loan or Loans, the Mortgage Note,
the Mortgage, the related assignment of the Mortgage, and such other
documents and agreements as are required by Section 2.01, with the Mortgage
Note endorsed as required by Section 2.01. No substitution will be made in
any calendar month after the Determination Date for such month. Monthly
payments due with respect to Replacement Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by
the Servicer or remitted by the Servicer to the Depositor, as the case may
be, on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on such Deleted Mortgage Loan for such month and thereafter
such Servicer or the Depositor, as the case may be, shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan. The
Depositor shall amend or cause to be amended the Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan and the substitution of
the Replacement Mortgage Loan or Loans. Upon such substitution, the
Replacement Mortgage Loan or Loans shall be subject to the terms of this
Agreement and the related Warranty and Servicing Agreement in all respects,
the Servicer shall be deemed to have made the representations and
warranties with respect to any Mortgage Loan contained in the related
Warranty and Servicing Agreement, as of the date of substitution, and the
Depositor shall be deemed to have made with respect to any Replacement
Mortgage Loan or Loans, as of the date of substitution, the covenants,
representations and warranties set forth in this Section 2.03. Upon any
such substitution, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to such Deleted Mortgage Loan to
the related Servicer or the Depositor, as the case may be, and shall
execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be necessary to vest title (to the extent
that such title was transferred to the Trustee) in such Person, or its
respective designee to any Deleted Mortgage Loan substituted for pursuant
to this Section 2.03.
In the event that a Person shall have repurchased a Mortgage Loan,
upon receipt by the Trustee of written notification of the deposit of the
Purchase Price signed by a Servicing Officer, the Trustee shall release the
related Mortgage File held for the benefit of the Certificateholders to the
related Servicer or the Depositor, as the case may be, and the Trustee
shall execute and deliver the related instruments of transfer or
assignment, in each case without recourse, as shall be necessary to
transfer title (to the extent that such title was transferred to the
Trustee) from the Trustee for the benefit of the Certificateholders and
vest title in such related Servicer or the Depositor, or the respective
designee of either, as the case may be, to any Mortgage Loan purchased
pursuant to this Section 2.03. In the event that the related Servicer does
not repurchase or substitute for a Mortgage Loan as to which a material
breach with respect to any representation or warranty contained in this
Section 2.03 has occurred and is continuing, which breach materially and
adversely affects the interests of the Certificateholders on the related
Mortgage Loan, the Depositor shall either repurchase such Mortgage Loan or
substitute a Replacement Mortgage Loan, in the manner specified in this
Section 2.03. It is understood and agreed that the obligation under this
Agreement or under the Warranty and Servicing Agreement of any Person to
repurchase or substitute any Mortgage Loan as to which such breach has
occurred and is continuing shall constitute the sole remedy respecting such
breach available to Certificateholders or the Trustee on their behalf,
except as provided in Section 2.04 hereof.
Section 2.04 Representations and Warranties of Servicers.
(a) Upon the discovery by the Depositor, a Servicer or the Trustee
(or upon notice thereof in writing from a Certificateholder) of a breach or
breaches of any of the representations and warranties made in a Warranty
and Servicing Agreement in respect of any Mortgage Loan, which breach or
breaches, individually or in the aggregate, materially and adversely affect
the interests of the Certificateholders, the party discovering such breach
shall give prompt written notice to the other parties. The Trustee shall
promptly notify the related Servicer of such breach and request that such
Servicer cure such breach within 90 days from the date the Trustee
discovers, or received written notification of, such breach, and if such
Servicer does not cure such breach in all material respects, the related
Servicer, if and to the extent that such Servicer is obligated to do so
under the related Warranty and Servicing Agreement, shall either: (a)
substitute a Replacement Mortgage Loan or Loans for the related Mortgage
Loan, which substitution must be made as specified in Section 2.05 and
shall be subject to the conditions set forth in the related Warranty and
Servicing Agreement and Section 2.05, or (b) purchase such Mortgage Loan
held for the benefit of the Certificateholders from the Trustee at the
Purchase Price and in the manner set forth in the related Warranty and
Servicing Agreement. Upon receipt by the Trustee of written notification
(which notification shall include a statement as to the accuracy of such
Purchase Price) of the deposit of the Purchase Price pursuant to the
Warranty and Servicing Agreement by the Servicer signed by a Servicing
Officer, the Trustee shall release the related Mortgage File to the
Servicer and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest
title (to the extent that such title was transferred to the Trustee) to any
Mortgage Loan purchased pursuant to this Section 2.04(a) in such Servicer
or its respective designees. Except as set forth in Section 2.04(b) hereof,
it is understood and agreed that the obligation of such Servicer to
substitute for or to purchase any Mortgage Loan as to which such breach (or
breaches) has occurred and is continuing shall constitute the sole remedy
respecting such breach or breaches available to the Trustee on behalf of
the Certificateholders.
(b) In the case of a Mortgage Loan that a Servicer becomes
obligated to purchase pursuant to Section 2.04(a) hereof, the Trustee
shall, so long as all advances are being made in respect of such Mortgage
Loan pursuant to the related Warranty and Servicing Agreement, first
require the Servicer to substitute for or to purchase such Mortgage Loan
pursuant to Section 2.04(a) hereof and second, if such Servicer has
defaulted in its obligation to substitute for or to purchase Such Mortgage
Loan (but without relieving it of its obligation to make such purchase),
present claims under the relevant Required Insurance Policies to the extent
the Trustee believes any such Required Insurance Policy may cover the loss
in respect of such Mortgage Loan.
Section 2.05 Substitution. The Depositor or the applicable
Servicer may substitute a Replacement Mortgage Loan or Loans for any
Mortgage Loan required to be repurchased pursuant to Section 2.01, 2.02,
2.03 or 2.04 or the applicable Warranty and Servicing Agreement, which
substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.03 or the applicable Warranty and
Servicing Agreement; provided that any such substitution must be effected
within three months after the Delivery Date (or within two years after the
Delivery Date if the related Mortgage Loan is a "defective obligation"
within the meaning of Section 860G(a)(4)(A)(ii) of the Code) and must be
accompanied by an Officers' Certificate delivered to the Trustee,
certifying that such Replacement Mortgage Loan conforms to the requirements
of this Agreement, and by an Opinion of Counsel to the effect that such
substitution will not cause REMIC I or REMIC II to fail to qualify as a
REMIC and will not result in a prohibited transaction tax, which Opinion of
Counsel shall be paid for by the Person desiring to make such substitution.
In connection with the substitution of one or more Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, the Trustee will
determine the amount (if any) by which the aggregate principal balance of
all such Replacement Mortgage Loans as of the date of substitution is less
than the aggregate Principal Balance of all such Deleted Mortgage Loans (in
each case after application of the principal portion of the Monthly
Payments due in the month of substitution that are to be distributed to
Certificateholders in the month of substitution). The Depositor or the
Servicer, as the case may be, shall deposit the amount of such shortfall
into the Certificate Account on the day of substitution, without any
reimbursement therefor. The Depositor or the Servicer, as the case may be,
shall give notice in writing to the Trustee of such event, which notice
shall be accompanied by an Officers' Certificate as to the calculation of
such shortfall and by an Opinion of Counsel to the effect that such
substitution will not cause: (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on contributions
after the startup date" under Section 860G(d)(1) of the Code or (b) any
portion of the Trust Fund to fail to qualify as a REMIC at any time that
any Certificate is outstanding.
Section 2.06 Issuance of Certificates Evidencing Interest in REMIC
I. The Trustee acknowledges the assignment to it of the Mortgage Loans
together with the assignment to it of all other assets included in REMIC I,
receipt of which is hereby acknowledged. Concurrently with such assignment
and delivery and in exchange therefor, the Trustee, pursuant to the written
request of the Depositor executed by an officer of the Company, has
executed and caused to be authenticated and delivered to or upon the order
of the Depositor the Class 1-RS Certificates in authorized denominations
which, together with Uncertificated REMIC I Regular Interests, evidence
ownership of REMIC I. The rights of the Class 1-RS Certificateholders and
REMIC II to receive distributions from the proceeds of REMIC I in respect
of the Class 1-RS Certificates and the Uncertificated REMIC I Regular
Interests, and all ownership interests of the Class 1-RS Certificateholders
and REMIC II in such distributions, shall be as set forth in this Agreement.
Section 2.07 Conveyance of Uncertificated REMIC I Regular
Interests: Acceptance by the Trustee. The Depositor, as of the Delivery
Date, and concurrently with the execution and delivery hereof, does hereby
assign without recourse all the right, title and interest of the Depositor
in and to the Uncertificated REMIC I Regular Interests to the Trustee for
the benefit of the Class 1-A, Class 1-B, Class 1-C, Class 1-D, Class 1-E,
Class 1-F, Class 1-G, Class 1-H, Class 1-M and Class 1-R
Certificateholders. The Trustee acknowledges receipt of the Uncertificated
REMIC I Regular Interests and declares that it holds and will hold the same
in trust for the exclusive use and benefit of all present and future Class
1-A, Class 1-B, Class 1-C, Class 1-D, Class 1-E, Class 1-F, Class 1-G,
Class 1-H, Class 1-M and Class 1-R Certificateholders. The rights of the
REMIC II Certificateholders to receive distributions from the proceeds of
REMIC II in respect of such Certificates, and all ownership interests of
the Class 1- A, Class I-B, Class 1-C, Class 1-D, Class 1-E, Class 1-F,
Class 1-G, Class 1-H, Class 1-M and Class 1-R Certificateholders in such
distributions, shall be as set forth in this Agreement.
Section 2.08 Issuance of Certificates Evidencing Interest in REMIC II.
The Trustee acknowledges the assignment to it of the Uncertificated REMIC I
Regular Interests and, currently therewith and in exchange therefor,
pursuant to the written request of the Depositor executed by an officer of the
Company, the Trustee has executed and caused to be authenticated and delivered
to or upon the order of the Depositor, the Class 1-A, Class 1-B, Class 1-D,
Class 1-E, Class 1-F, Class 1-G, Class 1-H, Class 1-M and Class 1-R
Certificates in authorized denominations evidencing ownership of the entire
REMIC II.
Section 2.09 REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trustee to
treat REMIC I and REMIC II as separate REMICs under the Code. This
Agreement shall be construed so as to carry out the intention of the
Depositor that REMIC I and REMIC II each be treated as a REMIC at all times
prior to the date on which final payment is made (or made available on
demand) to the Holders of any Class 1-A, Class 1-B, Class 1-C, Class 1-D,
Class 1-E, Class 1-F, Class 1-G, Class 1-H and Class 1-M. The Delivery Date
is hereby designated as the "startup day" of REMIC I and REMIC II within
the meaning of Section 860G(a)(9) of the Code. The "regular interests"
(within the meaning of Section 860G of the Code) in REMIC II shall consist
of the Priority Certificates (other than the Class 1-R Certificates) and
the Class 1-M Certificates. The Class 1-R Certificates shall be designated
as the "regular interest" (within the meaning of the Section 860G of the
Code) in REMIC II. The "regular interests" (within the meaning of Section
860G of the Code) in REMIC I shall consist of the Uncertificated REMIC I
Regular Interests and the "residual interest" (within the meaning of
Section 860G of the Code) in REMIC I shall consist of the Class 1-RS
Certificates.
(b) The Holder of the Class 1-R Certificates shall act as the "tax
matters person" (within the meaning of the REMIC Provisions and Section
6231(a)(7) of the Code) with respect to REMIC II and the Holder of the
Class 1-RS Certificates shall act as the "tax matters person" with respect
to REMIC I. By its acceptance of the Class 1-R Certificate or the Class
1-RS Certificates, a Holder shall have agreed to such appointment and shall
have consented to the appointment of the Trustee as agent to act on behalf
of the applicable REMIC I pursuant to the specific duties outlined in
Section 2.09(d).
(c) The Holder of the Class 1-RS Certificates and the Holder of
the Class 1-R Certificates, by the purchase of such Certificates, shall be
deemed to have agreed to timely pay, upon demand by the Trustee, the amount
of any minimum California state franchise taxes due with respect to REMIC I
and REMIC II, respectively, under Sections 23151(a) and 23153(a) of the
California Revenue and Taxation Code. Notwithstanding the foregoing, the
Trustee shall be authorized to retain from amounts otherwise distributable
to the Holders of the Class 1-RS and Class 1-R Certificates, the amount of
such tax in the event such Holders do not promptly pay such amount upon
demand by the Trustee. In the event that any other federal, state or local
tax is imposed, including without limitation taxes imposed on a "prohibited
transaction" of a REMIC as defined in section 860F of the Code, such tax
shall be charged against amounts otherwise available for distribution to
the Certificateholders in accordance with the provisions set forth in
Section 4.02. The Trustee shall promptly deposit in the Certificate Account
any amount of "prohibited transaction" tax that results from a breach of
the Trustee's duties under this Agreement.
(d) The Trustee shall act as attorney-in-fact and as agent on
behalf of the tax matters person of REMIC I and REMIC II and in such
capacity the Trustee shall: (a) prepare, sign and file, or cause to be
prepared, signed and filed, federal and state tax returns using a calendar
year as the taxable year for REMIC I and REMIC II when and as required by
the REMIC Provisions and other applicable federal income tax laws as the
direct representative of REMIC I and REMIC II in compliance with the Code
and shall provide copies of such returns as required by the Code; (b) make
an election, on behalf of each of REMIC I and REMIC II, to be treated as a
REMIC on the federal tax return of each of REMIC I and REMIC II for its
first taxable year, in accordance with the REMIC Provisions; and (c)
prepare and forward, or cause to be prepared, and forwarded, to the
Certificateholders and to any governmental taxing authority all information
reports as and when required to be provided to them in accordance with the
REMIC Provisions. The expenses of preparing and filing such returns shall
be borne by the Trustee. The Depositor shall provide on a prompt and timely
basis to the Trustee or its designee such information with respect to the
REMIC as is in its possession and reasonably required or requested by the
Trustee to enable it to perform its obligations under this subsection. In
its capacity as attorney-in-fact and as agent on behalf of the tax matters
person, the Trustee shall also: (a) represent REMIC I and REMIC II in any
audit, controversy or judicial proceeding relating to a governmental taxing
authority; and (b) cause to be paid solely from the sources and in
accordance with Section 2.09(c) the amount of any taxes imposed on REMIC I
or REMIC II 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).
(e) The Trustee, the Depositor, the Holder of the Class 1-RS
Certificates and the Holder of the Class 1-RS Certificates shall take any
action or cause the Trust Fund to take any action necessary to create or
maintain the status of REMIC I and REMIC II as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain
such status. Neither the Trustee nor the Holder of the Class 1-R
Certificates or the Class 1-R Certificates shall take any action, cause the
Trust Fund to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could: (i) endanger the status of either REMIC I or
REMIC II as a REMIC or (ii) result in the imposition of a tax upon either
REMIC I or REMIC II (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on
prohibited contributions set forth in Section 860G(d) of the Code) (either
such event, an "Adverse REMIC Event") unless the Trustee has received an
Opinion of Counsel (at the expense of the party seeking to take such action
or as otherwise provided in Section 8.05) to the effect that the
contemplated action will not endanger such status or result in the
imposition of such a tax. In addition, prior to taking any action with
respect to either REMIC I or REMIC II or the assets therein, or causing the
Trust Fund to take any action, which is not expressly permitted under the
terms of this Agreement, the Holder of the Class I-R Certificates or the
Holder of the Class 1-RS Certificates, as the case may be, will consult
with the Trustee or its designee, in writing, with respect to whether such
action could cause an Adverse REMIC Event to occur with respect to either
REMIC, and no such Person shall take any action or cause the Trust Fund to
take any such action as to which the Trustee has advised it in writing than
an Adverse REMIC Event could occur. The Trustee may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take action not permitted by this Agreement.
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 Delivery Date, all information or
data that the Trustee 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 and the Trustee shall be
entitled to rely upon any and all such information and data in the
performance of its duties set forth herein. Thereafter, the Depositor shall
provide, promptly upon request therefor, any such additional information or
data that the Trustee may from time to time request in order to enable the
Trustee to perform its duties as set forth herein and the Trustee shall be
entitled to rely upon any and all such information and data in the
performance of its duties set forth herein. The Depositor shall indemnify
the Trustee and hold it harmless for any loss, liability, damage, claim or
expense of the Trustee arising from any failure of the Depositor or the
related Servicer to provide, or to cause to be provided, accurate
information or data to the Trustee on a timely basis. The indemnification
provisions hereunder shall survive the termination of this Agreement and
shall extend to any co- trustee appointed pursuant to this Agreement.
(f) The Maturity Date for each of the Uncertificated REMIC I
Regular Interests and each of the regular interests in REMIC I is as follows:
Uncertificated REMIC I Regular Interest U:
Uncertificated REMIC I Regular Interest V:
Uncertificated REMIC I Regular Interest W:
Uncertificated REMIC I Regular Interest X:
Uncertificated REMIC I Regular Interest Y:
Uncertificated REMIC I Regular Interest Z:
Class 1-A Certificates:
Class 1-B Certificates:
Class 1-C Certificates:
Class 1-D Certificates:
Class 1-E Certificates:
Class 1-F Certificates:
Class 1-G Certificates:
Class 1-H Certificates:
Class 1-M Certificates:
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicing Standard. Except as otherwise provided in
Section 2.09, any funds advanced by the Servicers as necessary for the
purpose of effecting the timely payment of taxes on the Mortgaged Property
assessments, hazard insurance premiums or Primary Mortgage Insurance Policy
premiums, condominium or planned unit development association dues, or
comparable items that are not timely paid by the Mortgagors shall be
recoverable by the related Servicer out of payments by the related
Mortgagor or out of Liquidation Proceeds or Insurance Proceeds to the
extent permitted by the applicable Warranty and Servicing Agreement. All
costs incurred by the related Servicers 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 Principal Balance under the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit. Each Servicer shall be entitled to retain an amount in respect of
each interest payment on a Mortgage Loan equal to the Servicing Fee, and
such other amounts as provided in this Agreement and the applicable
Warranty and Servicing Agreement.
Section 3.02 Enforcement of the Obligations of Servicers.
(a) The Trustee and the related Servicer may enter into amendments
to the Warranty and Servicing Agreement; provided, however, that any such
amendments shall be consistent with and shall not violate the provisions of
this Agreement; and provided further, that the substance of any such
material amendment or material change shall be transmitted promptly to the
Depositor and the Rating Agencies.
(b) The Trustee, for the benefit of the Depositor and the
Certificateholders, shall enforce the obligations of each Servicer under
the related Warranty and Servicing Agreement. Such enforcement shall
include, without limitation, the legal prosecution of claims, termination
of Warranty and Servicing Agreements, as appropriate, and the pursuit of
other appropriate remedies, and shall be in such form and carried out to
such an extent and at such time as the Trustee, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans.
The Trustee shall not waive any event of default by a Servicer under the
Warranty and Servicing Agreement which is a failure to remit any payment
required to be made by such Servicer that would result in an Event of
Default under this Agreement.
(c) During the term of this Agreement, the Trustee shall consult
fully with each of the Servicers as may be necessary from time to time to
perform and carry out the Trustee's obligations hereunder and receive,
review and evaluate all reports, information and other data that are
provided to the Trustee by each Servicer and otherwise exercise reasonable
efforts to cause each Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by it under its
Warranty and Servicing Agreement. If any Servicer materially breaches or
fails to perform or observe any material obligations or conditions of its
Warranty and Servicing Agreement, the Trustee shall promptly deliver to the
Depositor an Officers' Certificate certifying that such Servicer is in
default and describing the events and circumstances giving rise to the
default and what action (if any) has been, or is to be, taken by the
Servicer to cure the default and setting forth the action to be taken by
the Trustee.
Section 3.03 Rights of the Depositor in Respect of the Trustee and
the Servicers. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Trustee or the Servicers and is not
obligated to supervise the performance of the Trustee or the Servicers
hereunder or otherwise.
Section 3.04 Custodial Accounts. Each Servicer will, pursuant to
the related Warranty and Servicing Agreement, be required to establish and
maintain one or more Custodial Accounts. The Servicer will be required
thereby to deposit into the Custodial Account on a daily basis all proceeds
of Mortgage Loans received by the Servicer, subject to withdrawal to the
extent permitted by such Warranty and Servicing Agreement. The Servicer may
deduct from each remittance, as provided above, an amount equal to the
Servicing Fee to which it is then entitled pursuant to the Warranty and
Servicing Agreement, to the extent not previously paid to or retained by it.
Section 3.05 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. In addition to the Custodial Accounts, the Servicers,
pursuant to the Warranty and Servicing Agreements, will be required to
establish and maintain one or more custodial accounts (each, an "Escrow
Account") and deposit and retain therein all collections from the
Mortgagors (or advances by Servicers) for the payment of taxes,
assessments, hazard insurance premiums and Primary Mortgage Insurance
Policy premiums or comparable items for the account of the Mortgagors.
Section 3.06 Access to Certain Documentation and Information
Regarding the Mortgage Loans. In order to permit any Person to comply with
Sections 171 and 1276 of the Code, the Trustee shall, upon request, furnish
such Person with a statement setting forth the number and principal balance
of Mortgage Loans that were originated before September 27, 1985 and before
July 18, 1984, respectively.
Section 3.07 Maintenance of the Pool Insurance Policy, Primary
Mortgage Insurance Policies, Collections Thereunder. The Depositor shall
exercise its best reasonable efforts to maintain the Pool Insurance Policy
in full force and effect throughout the term of this Agreement, unless
coverage thereunder has been exhausted through payment of claims; provided
that it shall be the obligation of the Trustee to pay the premiums for the
Pool Insurance Policy on a timely basis to the extent of amounts received
in respect of the Administrative Fee, after payment of the Trustee Fee. In
the event that the Pool Insurer shall cease to be a Qualified Insurer
because it shall not be qualified to transact a mortgage guaranty insurance
business under the laws of the state of its principal place of business or
any other state that has jurisdiction over the Pool Insurer in connection
with the Pool Insurance Policy or if the Pool Insurance Policy is cancelled
or terminated for any reason (other than the exhaustion of the total policy
coverage), the Depositor shall give notice of the same to the
Certificateholders and the Rating Agencies and shall exercise its best
reasonable efforts to obtain from another Qualified Insurer a replacement
policy comparable to the Pool Insurance Policy with a total coverage that
is equal to the then existing coverage of the Pool Insurance Policy;
provided, however, that if the cost of any such replacement policy shall be
greater than the cost of the Pool Insurance Policy, the amount of coverage
of such replacement policy shall, unless the Depositor consents to coverage
at a higher level, be reduced to a level such that the premium rate
therefor shall not exceed the premium rate on such Pool Insurance Policy.
In the event the Pool Insurer shall cease to be a Qualified Insurer because
it is approved as an insurer by neither FHLMC nor FNMA, the Depositor
agrees to review, not less often than monthly, the financial condition of
the Pool Insurer with a view towards determining whether recoveries under
the Pool Insurance Policy are jeopardized for reasons related to the
financial condition of the Pool Insurer. If the Depositor determines that
recoveries are so jeopardized, it shall exercise its best reasonable
efforts to obtain, from another Qualified Insurer, a replacement pool
insurance policy, subject to the cost limitation set forth above. Prior to
obtaining any replacement pool insurance policy, the Depositor shall notify
the Trustee of the replacement pool insurance policy the Depositor intends
to obtain and, if the Trustee so directs, obtain a replacement pool
insurance policy approved by the Trustee.
The Trustee shall not consent to any action that would result in
loss of coverage under any applicable Primary Mortgage Insurance Policy of
any loss which, but for the actions of the Servicer, would have been
covered thereunder or to the cancellation or refusal to renew any such
Primary Mortgage Insurance Policy, which is in effect at the date of the
initial issuance of the Certificates and is required to be kept in force
hereunder unless the replacement Primary Mortgage Insurance Policy for such
cancelled or non-renewed policy is maintained with an insurer whose claims
paying ability is acceptable to the Rating Agencies with respect to
mortgage pass-through certificates having a rating equal to that of the
then applicable rating of the Certificates.
Each Servicer, on behalf of itself, the Depositor, the Trustee,
and the Certificateholders, will, pursuant to the related Warranty and
Servicing Agreement, be required to present claims to the insurer under the
Primary Mortgage Insurance Policy and the Pool Insurance Policy and deposit
all collections thereunder in the related Custodial Account.
Section 3.08 Maintenance of Hazard Insurance, the Special Hazard
Insurance Policy and Other Insurance. Each Warranty and Servicing Agreement
shall require the related Servicer to cause to be maintained for each
Mortgage Loan, hazard insurance with extended coverage in an amount that is
at least equal to the maximum insurable value of improvements that such
Mortgage Loan or its Principal Balance, whichever is less. Any cost
incurred by the 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 related
Servicer out of payments by the related Mortgagor or out of Insurance
Proceeds or Liquidation Proceeds to the extent permitted by the applicable
Warranty and Servicing Agreement.
The Depositor shall exercise its best reasonable efforts to
maintain the Special Hazard Insurance Policy in full force and effect
throughout the term of this Agreement, unless coverage thereunder has been
exhausted through payment of claims; provided that it shall be the
obligation of the Trustee to pay the premiums for the Special Hazard
Insurance Policy on a timely basis to the extent of amounts received in
respect of the Administrative Fee, after payment of the Trustee Fee. In the
event that the Special Hazard Insurance Policy shall be cancelled or
terminated for any reason (other than the exhaustion of total policy
coverage), the Depositor shall exercise its best reasonable efforts to
obtain from another insurer, the claims- paying ability of which shall be
acceptable to the Rating Agencies with respect to mortgage pass-through
certificates having a rating equal to that of the then applicable rating of
the Certificates, a replacement policy comparable to the Special Hazard
Insurance Policy with a total coverage that is equal to the then existing
coverage of the Special Hazard Insurance Policy; provided, however, that if
the cost of any replacement policy shall be greater than the cost of the
Special Hazard Insurance Policy at the time of such replacement, the amount
of coverage of such replacement policy shall, unless the Depositor consents
to coverage at a higher level, be reduced to a level such that the cost of
such replacement policy shall not exceed the cost of the Special Hazard
Insurance Policy at the time of such replacement. The original Special
Hazard Insurance Policy shall be delivered to the Trustee on the Delivery
Date.
Section 3.09 Trustee to Cooperate; Release of Mortgage Files. Upon
the payment in full of any Mortgage Loan, or the receipt by any Servicer of
a notification that payment in full will be escrowed in a manner customary
for such purposes, and upon notification by such Servicer in the form of a
certification (which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Custodial Account have been or
will be so deposited) of a Servicing Officer and a Request for Release of
the Mortgage File in the form of Exhibit F the Trustee shall promptly
release the related Mortgage File to such Servicer, and the Trustee shall
execute and deliver to the Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage, together with the Mortgage Note with
written evidence of cancellation thereon. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance
shall be chargeable to the Certificate Account but shall be paid by such
Servicer. 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 Primary Mortgage Insurance Policy or 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 request of any Servicer and the delivery to
the Trustee of a Request for Release signed by a Servicing Officer in the
form of Exhibit F and reasonably acceptable to the Trustee, release the
Mortgage File to such Servicer. If a Servicer at any time seeks to initiate
a foreclosure proceeding in respect of any Mortgaged Property as authorized
by the related Warranty and Servicing Agreement the Servicer shall deliver
to the Depositor or 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, together with a certificate of a Servicing Officer requesting that
such pleadings or documents to be executed by the Trustee and a Servicing
Officer shall certify as to the reason such documents or pleadings are
required and that the execution and delivery thereof by the Trustee will
not invalidate the insurance coverage under any Required Insurance Policy
or invalidate or otherwise affect the lien of the Mortgage except for the
termination of such lien upon completion of the foreclosure.
Section 3.10 Account Statements. Within 20 days following each
Distribution Date, the Trustee shall deliver to the Depositor a statement
setting forth the status of the Certificate Account as of the close of
business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the Certificate
Account. The Trustee shall forward a copy of such statement upon request to
the Rating Agencies.
Section 3.11 Maintenance of the Mortgagor Bankruptcy Bond;
Collections Thereunder. The Depositor shall exercise its best reasonable
efforts to maintain and keep the Mortgagor, Bankruptcy Bond in full force
and effect throughout the term of this Agreement, unless coverage has been
exhausted through payment of claims; provided that it shall be the
obligation of the Trustee to pay the premiums for the Mortgagor Bankruptcy
Bond on a timely basis to the extent of amounts received in respect of the
Administrative Fee, after payment of the Trustee Fee. In the event that the
Mortgagor Bankruptcy Bond shall be cancelled or terminated for any reason
(other than the exhaustion of total policy coverage), the Depositor shall
exercise its reasonable efforts to obtain from another insurer, the
claims-paying ability of which shall be acceptable to the Rating Agencies
with respect to mortgage pass-through certificates having a rating equal to
that of the then applicable rating of the Certificates, a replacement
policy comparable to the Mortgagor Bankruptcy Bond with a total coverage
that is equal to the then existing coverage of the Mortgagor Bankruptcy
Bond; provided, however, that if the cost of any replacement policy shall
be greater than the cost of the Mortgagor Bankruptcy Bond at the time of
such replacement, the amount of coverage of such replacement policy shall,
unless the Depositor consents to coverage at a higher level, be reduced to
a level such that the premium rate therefor shall not exceed the premium
rate on such Mortgagor Bankruptcy Bond. At the request of the Depositor,
coverage under the Mortgagor Bankruptcy Bond shall be cancelled or reduced
by the Trustee to the extent permitted by the Rating Agencies, provided the
outstanding rating of the Certificates by the Rating Agencies at the time
of such cancellation or reduction is not reduced.
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01 Accounts. Each Servicer is required pursuant to the
related Warranty and Servicing Agreement to establish and maintain, in the
name of the Trustee on behalf of the Holders of interests in the Trust
Fund, a Custodial Account, which shall be an Eligible Account, into which
such Servicer shall deposit all amounts, except as otherwise set forth
therein, required by the terms thereof, and from which the Servicer shall
withdraw such amounts as set forth therein. Funds held in any Custodial
Account at any time may be delivered by a Servicer to the Trustee for
deposit in an account (which may be the Certificate Account and must
satisfy the standards for the Certificate Account as set forth in the
definition thereof) and for all purposes of this Agreement shall be deemed
to be a part of such Custodial Account; provided, however, that the Trustee
shall have the sole authority to withdraw any funds held in such account.
The Trustee shall establish, prior to the Delivery Date, and shall
maintain, in the name of the Trustee on behalf of the Holders of interests
in the Trust Fund, the Certificate Account, which shall be an Eligible
Account, into which the Trustee upon receipt from the Servicers shall
deposit all payments remitted by the Servicers on a Servicer Remittance
Date under the related Warranty and Servicing Agreement all amounts
received pursuant, to the presentation of claims under the Special Hazard
Insurance Policy, Pool Insurance Policy and Mortgagor Bankruptcy Bond, and
any amounts required to be remitted by the Depositor pursuant to the terms
hereof. All distributions to be made from time to time to holders of
interests in the Trust Fund out of funds in the Certificate Account shall
be made by or on behalf of the Trustee or Paying Agent. The Trustee will
give notice to each Servicer, the Rating Agencies and the Depositor of the
location of the Certificate Account and of any change thereof, prior to the
use thereof. Funds held in the Certificate Account and delivered to the
Trustee earlier than one Business Day prior to the next Distribution Date
shall, if invested, be invested in Eligible Investments and shall mature
not later than the Business Day immediately preceding such Distribution
Date. All income and gain net of any losses realized from any such
investment shall be for the benefit of the Trustee and shall be subject to
withdrawal at its direction from time to time. The amount of any losses net
of any gains not paid to the Trustee incurred in respect of any such
investments shall be deposited in the Certificate Account out of the
Trustee's own funds immediately as realized.
The Trustee shall make, to the extent required or authorized
hereunder, withdrawals from the Certificate Account for the following
purposes:
(i) to pay to any Servicer any amounts to which such Servicer is
entitled pursuant to the related Warranty and Servicing Agreement;
(ii) to make required deposits into the Expense Reserve Account;
(iii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited therein;
(iv) to make required distributions to the Certificateholders
pursuant to Section 4.02; and
(v) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Article IX hereof.
The Trustee shall, prior to the Delivery Date, establish and
maintain, in the name of the Trustee on behalf of the Holders of interests
in the Trust Fund, the Expense Reserve Account, which shall be an Eligible
Account, into which the Trustee shall deposit on the Distribution Date an
amount equal to the Administrative Fee with respect to the Mortgage Loans,
less the applicable Trustee's Fee, upon receipt from the Servicers under
the related Warranty and Servicing Agreement or otherwise. So long as it
does not adversely affect the rating on the Certificates, the Expense
Reserve Account may be maintained with the Trustee. The Trustee will give
notice to the Rating Agencies and the Depositor of the location of the
Expense Reserve Account and any change thereof, prior to the use thereof.
Funds held in the Expense Reserve Account shall be invested in Eligible
Investments and retained in the Expense Reserve Account and all income and
other gains from investment of moneys deposited in the Expense Reserve
Account shall be deposited in the Expense Reserve Account immediately upon
receipt.
Any amounts on deposit in the Expense Reserve Account shall be
withdrawn from the Expense Reserve Account in the amounts required for
application as follows:
first, to the payment of the Trustee Fee to the Trustee, to the
extent such Trustee Fee has not been paid, and
second, to the payment of the premiums on the Special Hazard
Insurance Policy, Pool Insurance Policy and Mortgagor Bankruptcy Bond
as and when due.
Upon the termination of the Trust Fund pursuant to the terms
hereof, any amounts remaining on deposit in the Expense Reserve Account
shall be paid to the Holder of the Class 1-R Certificate upon surrender for
the payment of the final distribution thereon.
Section 4.02 Distributions.
(a) on each Distribution Date, following withdrawal by the Trustee
of the Administrative Fee in accordance with Section 4.01 and any payments
required pursuant to Sections 2.09(c) and 4.01, and subject to Section
4.02(b), the Trustee or Paying Agent, if any, shall apply amounts in the
Certificate Account in the following order of priority:
(i) first, to the Holders of the Priority Certificates, in an
amount up to the Available Distribution Amount, in the following order
of priority:
(A) first, to distribute to the Holders of each Class of
Priority Certificates their respective Interest Distribution
Amounts for such Distribution Date; provided that if the
Available Distribution Amount is less than the amount described
in this clause (A), the Available Distribution Amount shall be
distributed to each Class of Priority Certificates on a pro rata
basis in accordance with their respective interest Distribution
Amounts;
(B) second, to distribute to the Holders of Priority
Certificates an amount equal to the Priority Certificate
Principal Distribution Amount, in reduction of their respective
Certificate Principal Balances as follows:
(I) an amount equal to the aggregate of the applicable
Class 1-H Fraction of the amount distributed with respect to
each Mortgage Loan and included in the Priority Certificate
Principal Distribution Amount for such Distribution Date,
will be distributed to the Holders of the Class 1-H
Certificates; and
(II) the remainder of the Priority Certificates
Principal Distribution Amount will be distributed first to
the Holders of the Class 1-R Certificates until the
Certificates Principal Balance of the Class 1-R Certificates
has been reduced to zero, second to the Holders of the Class
1-A Certificates until the Certificate Principal Balance of
the Class 1-A Certificates has been reduced to zero, third
to the Holders of the Class 1-B Certificates until the
Certificate Principal Balance of the Class 1-B Certificates
has been reduced to zero, fourth to the Holders of the Class
1-C Certificates until the Certificate Principal Balance of
the Class 1-C Certificates has been reduced to zero, and
fifth to the Holders of the Class 1-E Certificates until the
Certificate Principal Balance of the Class 1-E Certificates
has been reduced to zero; provided, however, that if the
coverage under the Pool Insurance Policy has been exhausted
and the Certificate Principal Balance of the Class 1-M
Certificates has been reduced to zero, such remainder of the
Priority Certificate Principal Distribution Amount will be
distributed pro rata to each Class of Priority Certificates
(other than the Class 1-H Certificates) in proportion to the
Certificate Principal Balance of each such Class, and
provided further that any amount representing a portion of a
Principal Prepayment with respect to a Mortgage Loan that
was subject of a Debt Service Reduction in excess of the
Principal Balance of such Mortgage Loan, after distribution
of the Class 1-H Fraction of such amount to the Holders of
the Class 1-H Certificates, will be distributed to the
Holders of the remaining Priority Certificates pro rata in
proportion to the Certificate Principal Balance of each such
Class.
(ii) second, to the Holders of the Class 1-M Certificates, in an
amount up to the Interest Distribution Amount for such Class for such
Distribution Date;
(iii) third, to the Holders of the Class 1-M Certificates, in an
amount equal to the Class 1-M Certificate Principal Distribution
Amount; and
(iv) fourth, to the Holders of the Class 1-R Certificates, any
balance remaining.
(b) If, on any Distribution Date, the Available Distribution
Amount is less than the sum of the Interest Distribution Amount, the
Priority Certificate Principal Distribution Amount and the Class 1-M
Certificate Principal Distribution Amount for such Distribution Date, the
amount of any shortfall that is not due to a Depletion Loss will be
allocated to each Class of Certificates then outstanding on a pro rata
basis in accordance with the Interest Distribution Amount for each such
Class in the case of an interest shortfall and in accordance with amounts
due in respect of principal in the case of a shortfall allocable to
principal, and shall be distributed to such Classes of Certificates on
subsequent Distribution Dates if and when subsequent recoveries are
received with respect to such amounts.
(c) The Trustee shall be responsible for the calculations with
respect to distributions from the Trust Fund so long as the Trust Fund has
not been terminated in accordance with this Agreement. The Trustee may
conclusively rely on information provided by the Servicers pursuant to the
Warranty and Servicing Agreement and shall have no duty to recompute,
recalculate or verify the accuracy of such information. All distributions
made to Certificateholders of any Class on such Distribution Date will be
made to the Certificateholders of the respective Class of record on the
immediately preceding Record Date, except for the final distribution, which
shall be made as provided in the form of Certificate. All distributions
made to the Certificateholders shall be based upon the Percentage Interest
represented by their respective Certificates. If on any Determination Date,
the Trustee determines that there are no Mortgage Loans outstanding and no
other funds or assets in the Trust Fund other than the funds in the
Certificate Account, the Trustee shall promptly send the final distribution
notice to each certificateholder specifying the manner in which the final
distribution will be made.
(d) Any Certificateholder shall be entitled to receive
distributions hereunder on a Distribution Date (other than as provided in
Section 9.02 respecting the final distribution) by wire transfer to the
account specified in writing by the Certificateholder to the Trustee (and
Paying Agent, if any) if the Initial Certificate Principal Balance or
Notional Amount evidenced by such Holder's Certificate is at least equal to
$5,000,000. In each case, the account must be specified in writing at least
five Business Days prior to the Record Date for the Distribution Date on
which wire transfers will commence. All other distributions shall be made
by check payable to the Certificateholder mailed by first class mail to the
address of such Certificateholder reflected in the Certificate Register.
Section 4.03 Subordination; Priority of Distributions.
(a) The rights of the Class 1-M Certificateholders to receive
distributions in respect of the Certificates on any Distribution Date shall
be subordinated to the rights of the Priority Certificates to the extent
set forth herein.
(b) The right of each Servicer to retain or to receive funds from
the related Custodial Account in accordance with the related Warranty and
Servicing Agreement for its Servicing Fee on each Mortgage Loan, assumption
or substitution fees, late payment charges and other Mortgagor charges,
reimbursement of Monthly Advances and expenses or otherwise, shall not be
subordinated to the rights of Certificateholders.
(c) Prior to each Distribution Date, the Trustee shall determine
the total amount of Realized Losses, if any, recognized by the Trust Fund
on Mortgage Loans during the previous Collection Period. An amount equal to
any Realized Losses incurred with respect to a Depletion Loss shall be
allocated on such Distribution Date: (i) to the Class 1-M Certificates, pro
rata among the Certificates of such Class in proportion to their
outstanding Certificate Principal Balances immediately prior to such
Distribution Date, unless and until the outstanding Certificate Principal
Balance thereof has been reduced to zero, and (ii) thereafter to the
Priority Certificates, pro rata among the Certificates of each Class of
such Certificates in proportion to their outstanding Certificate Principal
Balances immediately prior to such Distribution Date, provided that
Depletion Losses allocated to the Priority Certificates shall be allocated
first to the Class 1-H Certificates in an amount equal to the applicable
Class 1-H Fraction multiplied by the Realized Loss for each respective
Mortgage Loan. The amount of any Realized Loss other than a Depletion Loss,
including with respect to a Special Hazard Loss Loan, a Fraud Loss Loan or
a Bankruptcy Loss Loan, will be allocated first to the Class 1-H
Certificates in an amount equal to the applicable Class 1-H Fraction
multiplied by the Realized Loss for the respective Mortgage Loan, and then
to each remaining Class of Certificates on a pro rata basis in accordance
with the Certificate Principal Balances thereof immediately prior to such
Distribution Date shall be made by reducing the Certificate Principal
Balance thereof by the amount so allocated, which allocation shall be
deemed to have occurred on such Distribution Date.
Section 4.04 Distribution on the Uncertificated REMIC I Regular
Interests.
(a) On each Distribution Date the Trustee shall be deemed to
distribute to itself, as a holder of the Uncertificated REMIC I Regular
Interests, the Uncertificated REMIC I Regular Interest Distribution Amounts
in the following order of priority, in each case to the extent of the
Available Distribution Amount:
(i) Uncertificated Accrued Interest on the Uncertificated REMIC I
Regular Interests for such Distribution Date, plus any Uncertificated
Accrued Interest thereon remaining unpaid from any previous
Distribution Date; and
(ii) In accordance with the priority set forth in Section
4.04(d), the sum of the amounts distributable on the Class 0-X, 0-X,
0-X, 0-X, 0-X, 1-M and 1-R Certificates under Section 4.02(a)(i)(B),
(iii) and (iv), as allocated thereto pursuant to Section
4.02(a)(i)(B), which sum shall be applied to reduce the Uncertificated
Principal Balance of such Uncertificated REMIC I Regular Interests.
(b) The amount described in Section 4.04(a)(ii) shall be deem
distributed to Uncertificated REMIC I Regular Interests U, Uncertificated
REMIC I Regular Interest V, Uncertificated REMIC I Regular Interest W and
Uncertificated REMIC I Regular Interest Z, respectively, with the amount to
be distributed allocated among such interests in accordance with the
priority assigned to the: (a) Class 1-R Certificates, (b) Class 1-A, 1-B,
1-E and 1-M Certificates, (c) Class 1-C Certificates and (d) Class-1-H
Certificates, respectively, under Section 4.02(a)(i)(B) until the
Uncertificated Principal Balance of each sum interest is reduced to zero.
(c) In determining from time to time the Uncertificated REMIC I
Regular Interest U Distribution Amount, Uncertificated REMIC I Regular
Interest V Distribution Amount, Uncertificated REMIC I Regular Interest W
Distribution Amount, Uncertificated REMIC I Regular Interest X Distribution
Amount, Uncertificated REMIC I Regular Interest Y Distribution Amount and
Uncertificated REMIC I Regular Interest Z Distribution Amount, Realized
Losses allocated to the Class 1-R Certificates under Section 4.03(c) shall
be deemed allocated to Uncertificated REMIC I Regular Interest U, Realized
Losses allocated to the Class 1-A, 1-B, 1-E and 1-M Certificates under
Section 4.03(c) shall be deemed allocated to Uncertificated REMIC I Regular
Interest V, Realized Losses allocated to the Class 1-C and Class 1-D
Certificates under Section 4.03(c) shall be deemed allocated to
Uncertificated REMIC I Regular Interest W, Realized Losses allocated to the
Class 1-F Certificates under Section 4.03(c) shall be deemed allocated to
Uncertificated REMIC I Regular Interest X, Realized Losses allocated to the
Class 1-G Certificates under Section 4.03(c) shall be deemed allocated to
Uncertificated REMIC I Regular Interest Y and Realized Losses allocated to
the Class 1-H Certificates under Section 4.03(c) shall be deemed allocated
to Uncertificated REMIC I Regular Interest Z.
(d) On each Distribution Date the Trustee shall be deemed to
distribute from REMIC II, in the priority set forth in Section 4.02(a), to
the Class 1-A, 1-B, 1-C, 1-D, 1-E, 1-F, 1-G, 1-H and 1-M Certificates the
amounts distributable thereon, from the Uncertificated REMIC I Regular
Interest Distribution Amounts deemed to have been received by REMIC II from
REMIC I under this Section 4.04.
(e) Notwithstanding the deemed distributions on the Uncertificated
REMIC I Regular Interests described in this Section 4.04, distributions of
funds from the Certificate Account shall be made only in accordance with
Section 4.02.
Section 4.05 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date the Trustee shall cause
to be forwarded by mail to each Certificateholder and the Rating Agencies a
statement setting forth:
(i) the amount of such distribution representing principal on the
Mortgage Loans, separately identifying the aggregate amount of any
principal prepayments included therein, and the portion of such
distribution, if any, representing a Monthly Advance of principal and
the respective Certificate Principal Balances of all Classes after
giving effect to such distributions;
(ii) the amount of such distribution representing interest on the
Mortgage Loans and the portion of such distribution, if any,
representing a Monthly Advance of interest;
(iii) the aggregate Principal Balances of the Mortgage Loans as
of the Close of business on such Distribution Date and the amount of
Principal Prepayments received during the immediately preceding
Collection Period;
(iv) the related amount of the Servicing Fees retained or
withdrawn from a Custodial Account or the Certificate Account;
(v) the amount of Monthly Advances paid by each Servicer;
(vi) the number of aggregate amounts of Mortgage Loans: (A)
delinquent: (1) one month, (2) two months, (3) three months or more
and (B) in foreclosure;
(vii) the book value (within the meaning of 12 C.F.R.ss.571.13 or
comparable provision) of any real estate acquired through foreclosure
or grant of a deed in lieu of foreclosure;
(viii) the respective amounts, if any, of Realized Losses
allocated to the respective Classes of Certificates with respect to
such Distribution Date;
(ix) all Monthly advances recovered during the related Collection
Period;
(x) the amount of any tax imposed on a "prohibited transaction"
of the Trust Fund as defined in Section 860F of the Code during the
related Collection Period; and
(xi) the amount of any reduction in Certificate Principal Balance
of any Class attributable to the application of Realized Losses
thereto on the related Distribution 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 derived from each Servicer. The
Trustee will send a copy of each statement provided pursuant to this
Section 4.04 to each Rating Agency.
(c) Upon reasonable advance notice in writing if required by
federal regulation, the Trustee will provide to each Certificateholder
which is a savings and loan association, bank or insurance company certain
reports and access to information and documentation regarding the Mortgage
Loans sufficient to permit such Certificateholder to comply with applicable
regulations of the Office of Thrift Supervision or other regulatory
authorities with respect to investment in the Certificates; provided, that
the Trustee shall be entitled to be reimbursed by each such
Certificateholder for the Trustee's actual expenses incurred in providing
such reports and access. The Trustee will provide to any Certificateholder
upon request the outstanding Certificate Principal Balance as of such dates
and, if then known by the Trustee, the outstanding Certificate Principal
Balances after giving effect to any distribution to be made on the next
following Distribution Date.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates and the Trustee's
certificate of authentication shall be in substantially the forms set forth
in Exhibits A and B hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the judgment of the Trustee or the Depositor be
necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any
of the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by
their execution thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any
securities exchange on which any of the Certificates may be listed, all as
determined by the officers executing such Certificates, as evidenced by
their execution thereof.
The Class 1-A, Class 1-B, Class 1-C, Class 1-D, Class 1-E, Class
1-F, Class 1-G, Class 1-H, Class 1-M and Class 1-R Certificates will be
issued in fully registered form only in minimum Initial Principal Balances
of $25,000 and integral multiples of $1,000 in excess thereof, provided
that one Certificate of each Class shall be issued in such Initial
Certificate Principal Balance as may be necessary such that the aggregate
Certificate Principal Balances of each such Class of Certificates equals
the Initial Certificate Principal Balance for each Class and provided that
one Class 1-R Certificate will be issued to _______________ as "tax matters
person" pursuant to Section 2.09(b), in a minimum denomination representing
a Percentage Interest of not less than ______%. The Class 1-RS Certificate
will be issued as a single certificate.
The Certificate shall be executed by manual or facsimile on behalf
of the Depositor by its President or one of its Executive Vice Presidents,
Senior Vice Presidents, First Vice Presidents or Vice Presidents and
attested by the manual or facsimile signature of its Secretary or one of
its Assistant Secretaries. 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 Depositor shall bind the
Depositor, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate.
No Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form set forth in
Section 8.10 executed by the Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
Section 5.02 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 8.13 hereof, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. Upon surrender for registration of transfer of any Certificate,
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates in like aggregate
interest and of the same Class.
(b) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of authorized denominations and the same
aggregate interest in the Trust Fund and of the same Class, upon surrender
of the Certificates to be exchanged at the office or agency of the
Certificate Registrar set forth in Section 8.13. Whenever any Certificates
are so surrendered for exchange, the Depositor shall execute and the
Trustee shall 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.
(c) 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.
(d) All Certificates surrendered for registration of transfer and
exchange shall be cancelled and subsequently destroyed by the Trustee or,
at its direction, by the Certificate Registrar in accordance with the
Trustee's customary procedures.
(e) Upon request, the Certificate Registrar will provide the
Paying Agent the names and addresses of the Certificateholders as of the
Record Date and the interest of each of them in the Trust Fund as of the
Record Date.
(f) No transfer of any Class 1-RS Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under
the 1933 Act and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require
such registration or qualification. In the event that a transfer is to be
made without registration or qualification: (a) the Trustee shall require,
in order to assure compliance with such laws, that the Certificateholder
desiring to effect the transfer and such Certificateholder's prospective
transferee each certify to the Trustee in writing in the forms set forth in
Exhibit L and Exhibit M the facts surrounding the transfer and (b) the
Depositor or the Trustee shall require an opinion of counsel satisfactory
to the requesting party that such transfer may be made without such
registration or qualification, which Opinion of Counsel shall not be
required to be an expense of the Depositor or the Trustee. Neither the
Depositor nor the Trustee is obligated to register or qualify the Class
1-RS Certificate under the 1933 Act or any other securities law or to take
any action not otherwise required under this Agreement to permit the
transfer of such Certificate or interest without registration or
qualification. Any such holder desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee and the Depositor against any
liability that may result if the transfer is not so exempt, or is not made
in accordance with such federal and state laws.
(g) No transfer of a Class 1-M or 1-RS Certificate shall be made
to any employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or the Code, or a
trustee of any such plan, unless the prospective transferee of a
Certificateholder desiring to transfer its Certificate provides the Trustee
with a certification as set forth in paragraph 6 of Exhibit L or Opinion of
Counsel, or both at the request of the Trustee, which establishes to the
satisfaction of the Depositor and the Trustee that the purchase and holding
of a Certificate by or on behalf of such employee benefit plan would not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of the Code (or comparable provisions of
any subsequent enactments), would not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and
would not subject the Depositor or the Trustee to any obligation or
liability (including liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Agreement or any other liability.
The Trustee shall require that such prospective transferee certify to the
Trustee in writing the facts establishing that such transferee is not such
an employee benefit plan. (h) The Class 1-RS Certificate shall not be
transferred, sold, pledged or otherwise disposed of to any Person having a
net worth of less than $10,000,000. In the event that such Class 1-RS
Certificate is proposed to be transferred, the proposed transferee shall,
prior thereto, certify to the Trustee in writing that it satisfies the net
worth requirement set forth in the preceding sentence.
(i) (A) Prior to the registration of any transfer, sale, pledge or
other disposition of the Class 1-RS Certificate or Class 1-R Certificate,
the proposed transferee shall provide to the Trustee a "transfer affidavit"
in substantially the form set forth in Exhibit J, to the effect that such
transferee: (a) agrees to be bound by the terms of this Agreement and any
restrictions set forth on the face of the Class 1-RS Certificate or the
Class 1-R Certificate, as the case may be, (b) is not a Disqualified
Organization (as hereinafter defined) and (c) such other matters as may be
set forth therein and a "transferor certificate" of the transferor in the
form of Exhibit K.
(B) Notwithstanding the registration in the Certificate
Register of any transfer, sale, pledge or other disposition of
any such Certificate to a Disqualified Organization, or if a
transfer of a Class 1-R or Class 1-RS Certificate is disregarded
pursuant to the provisions of proposed Treasury regulations
Section 1.860E-1 or Section 1.860G-3 as such provisions may be
adopted as final regulations or applied without such adoption,
such registration shall be of no legal force or effect whatsoever
and such Disqualified Organization shall not be deemed to be a
Certificateholder for any purpose hereunder, including (but not
limited to) the receipt of distributions on such Class 1-RS or
Class 1-R Certificate. In addition, any transfer, sale, pledge or
other disposition of any such Certificate to a Pass-Through
Entity (as hereinafter defined) shall not be effective unless the
proposed transferee shall have agreed in writing, in such form as
the Trustee may require, to provide to the Trustee such
information as the Trustee may reasonably require concerning any
record interest holder or principal of such Pass-Through Entity
who is or was a Disqualified Organization. Each holder of a Class
1-R or Class 1-RS Certificate shall endeavor to remain permitted
holder thereof and shall promptly notify the Trustee of any
change or impending change in such status. Any holder of any such
Class 1-RS Certificate or Class 1-R Certificate, by its
acceptance thereof, shall be deemed for all purposes to have
consented to the provisions of this Section 5.02(i).
(C) The restrictions described in this Section 5.02(i) shall
not apply to a transfer of any such Certificate if the Trustee
has received an Opinion of Counsel to the effect that the
restrictions described in this Section 5.02(i) are not necessary
to avoid the imposition of tax on the Trust Fund or the
disqualification of the Trust Fund as a REMIC under the Code. For
purposes of this Section 5.02(i): (a) "Disqualified Organization"
means: (I) the United States, any state or political subdivision
thereof, any foreign government, any international organization
(other than a cooperative described in Section 521 of the Code,
that is exempt from tax imposed by Chapter 1 of the Code unless
such organization is subject to the tax imposed by Section 511 of
the Code, or (II) any organization described in Section 851 of
the Code, a real estate investment company described in Section
856 of the Code, a common trust fund or an organization described
in Section 1381(a) of the Code, (y) any partnership, trust, or
estate, or (z) any person holding the Class 1-R or Class 1-RS
Certificate as nominee for another person. No Class 1-R or Class
1-RS Certificate shall be transferred to a non-"U.S. Person ." A
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in,
or under the laws of, the United States or any political
subdivision thereof, or an estate or trust whose income from
sources without the United States is includable 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.
(j) The Trustee shall have no liability to the Trust Fund arising
from a transfer of any such Certificate in reliance upon a certification,
ruling or Opinion of Counsel described in this Section 5.02; provided that
the Trustee shall not register the transfer of any Class 1-R or Class 1-RS
Certificate if it has actual knowledge that the proposed transferee does
not meet the qualifications of a permitted Holder of a Class 1-R or Class
1-RS Certificate as set forth in this Section 5.02.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If: (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to the Certificate Registrar 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 Certificate Registrar or
the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and interest in the Trust Fund. In connection
with the issuance of any new Certificate under this Section 5.03, the
Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete
and indefeasible evidence of ownership in the Trust Fund, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be
found at any time.
Section 5.04 Persons Deemed Owners. Prior to due presentation of a
certificate for registration of transfer, the Trustee, the Certificate
Registrar and any agent of the Trustee or the Certificate Registrar 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
Trustee, the Certificate Registrar nor any agent of the Trustee or the
Certificate Registrar shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If the Trustee is not the Certificate Registrar and at any time
requests the Certificate Registrar in writing to provide a list of the
names and addresses of Certificateholders of the Trust Fund, the
Certificate Registrar will furnish to the Trustee, within 15 days after
receipt of a request, such list as of the most recent Record Date, if such
form as the Trustee may reasonably require. If three or more
Certificateholders: (a) request such information in writing from the
Trustee, (b) state that such Certificateholders desire to communicate with
other Certificateholders with respect to their rights under this Agreement
or under the Certificates and (c) provide a copy of the communication which
such Certificateholders propose to transmit, then the Trustee shall, within
ten Business Days after the receipt of such request, afford such
Certificateholders access during normal business hours to the most recent
Record Date list of the Certificateholders held by the Trustee, if any. If
such Record Date list is as of a date more than 90 days prior to the date
of receipt of such Certificateholders' request, the Trustee shall promptly
request for the Certificateholders access to such list promptly upon its
receipt by the Trustee. The expense of providing any such information
requested by a Certificate shall be borne by the Certificateholders
requesting such information and shall not be borne by the Trustee or the
Certificate Registrar. Every Certificateholder, by receiving and holding a
Certificate, agrees that neither the Certificate Registrar nor the Trustee
shall 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 wad derived.
Section 5.06 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 where Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustee in respect of the Certificates and this
Agreement may be served. The Trustee initially appoints the Certificate
Registrar designated in Section 8.13 for transfer and exchange of
Certificates and designates the office described in Section 8.13 as its
office for purposes of receipt of such notices and demands. The Trustee
will give prompt written notice to the Certificateholders of any change in
the location of the Certificate Register or any such office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liabilities of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor. The
Depositor will keep in full effect its existence, rights and franchises as
a corporation under the laws of the State of Delaware and will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the
Depositor shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor hereunder, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of the directors, officers, employees or
agents of the Depositor shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor or any such person against any breach of representations or
warranties made by it herein or protect the Depositor or any such person
from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The
Depositor and any director, officer, employee or agent of the Depositor 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 and any director, officer, employee or agent of
the Depositor shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any
legal action relating to this Agreement or the Certificates, other than any
loss, liability or expense 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
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Depositor shall not be
under any obligation to appear in, prosecute or defend any legal action
that is not incidental to their respective duties hereunder and which in
its opinion may involve it in any expense or liability; provided, however,
that the Depositor 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 the 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 shall be
entitled to be reimbursed therefor out of the Certificate Account as set
forth in Section 4.01. Such withdrawal shall be accompanied by an Officer's
Certificate given to the Trustee stating the reason for such withdrawal.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(i) any failure to remit to the Certificateholders, the Paying
Agent or to the Trustee any payment required to be made under the
terms of this Agreement or the related Warranty and Servicing
Agreement, which failure shall continue unremedied for a period of
five Business Days after the date upon which written notice of such
failure shall have been given to the Trustee by the Depositor or to
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 Trustee, the Paying Agent or the
Servicer, respectively, to observe or perform in any material respect
any other of the covenants or agreements on the part of the Trustee or
the Paying Agent contained in this Agreement (except as set forth in
below) or in failure shall continue unremedied for a period of 60 days
(except that such number of days shall be 15 in the case of a failure
to pay the premium for any Required Insurance Policy) after the date
on which written notice of such failure shall have been given to the
Trustee by the Depositor, or to the Trustee by the Holders of
Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates; or
(iii) if a representation or warranty set forth in any Warranty
and Servicing Agreement shall prove to be materially incorrect as of
the time made in any respect that materially and adversely affects
interests of the Certificateholders, and the circumstances or
condition in respect of which such representation or warranty was
incorrect shall not have been eliminated or cured within ____ days
after the date on which written notice thereof shall have been given
to the related Servicer by the Trustee for the benefit of the
Certificateholders or by the Depositor; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against any Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(v) any Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to such Servicer or all or substantially all of the
property of such Servicer; or
(vi) any 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
(vii) either Rating Agency shall lower or withdraw the
outstanding rating of the Certificates because the existing or
prospective financial condition or mortgage loan servicing capability
of any Servicer is insufficient to maintain such outstanding rating;
or
(viii) any failure of any Servicer to make any Monthly Advance in
the manner and at the time required to be made from its own funds
pursuant to the related Warranty and Servicing Agreement which
continues unremedied after 12 noon, __________ time, on the Business
Day prior to the Distribution Date.
If an Event of Default due to the actions or inaction of a
Servicer described in clauses (i) - (viii) 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, either the Trustee, the Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates, or the Depositor, with the prior written approval of the
Trustee, by notice in writing to the affected Servicer (with a copy to the
Rating Agencies), may direct the Trustee to terminate all of the rights and
obligation of such Servicer under the Warranty and Servicing Agreement and
in and to the Mortgage Loans and the proceeds thereof in accordance with
the related Warranty and Servicing Agreement.
If an Event of Default due to the actions or inaction of the
Trustee or the Paying Agent described in clauses (i) or (ii) shall occur,
the Certificateholders shall have the right to terminate the rights and
obligations of the Trustee hereunder as set forth in Section 8.07.
Section 7.02 Trustee to Act; Appointment of Successor. On and
after the time a Servicer receives a notice of termination pursuant to
Section 7.01 hereof, subject to the provisions of the related Warranty and
Servicing Agreement, the Trustee shall be the successor in all respects to
the Servicer in its capacity as servicer under the related Warranty and
Servicing 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 Servicer by the terms and provisions hereof,
provided that the Trustee shall not be deemed to have made any
representation or warranty as to any Mortgage Loan made by the Servicer in
the related Warranty and Servicing Agreement and shall not effect any
repurchases or substitutions of any Mortgage Loan under the related
Warranty and Servicing Agreement. As compensation therefore, the Trustee
shall be entitled to all funds relating to the Mortgage Loans that the
Servicer would have been entitled to charge to the related Custodial
Account if the Servicer had continued to act thereunder. Notwithstanding
the foregoing, if the Trustee has become the successor to the Servicer in
accordance with this Section 7.02 hereof, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act (exclusive of the
obligations with respect to Monthly Advances), appoint, or petition a court
to competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which does not adversely affect
the then current rating to the Certificates as the successor to the
Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer. Such Servicer
shall be required to provide such periodic information as to the Mortgage
Loans as the Trustee shall determine. Pending appointment of a successor to
the Servicer hereunder, the Trustee, unless the Trustee is prohibited by
law from so acting, shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however,
that no such compensation shall be in excess of that permitted the 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 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 hereof
caused by the failure of the Servicer to deliver, or any delay in
delivering, cash, documents or records to it.
Any successor to the Servicer as servicer shall during the term of
its service as servicer maintain in force the policy or policies that the
Servicer is required to maintain pursuant to the related Warranty and
Servicing Agreement.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to a
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the
Certificate Register and to the Rating Agencies.
(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 8.01 Duties of Trustee. The Trustee, prior to the
occurrence of an Event of Default and after the curing of all Events of
Default that may have occurred, undertakes with respect to the Trust Fund
to perform such duties and only such duties as are specifically set forth
in this Agreement. In case and Event of Default 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. Any permissive right of the
Trustee set forth in this Agreement shall not be construed as a duty.
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 conform to the requirements of this Agreement. The Trustee
shall have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or
other instrument so furnished to the Trustee.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own misconduct, its negligent failure to
perform its obligations in compliance with this Agreement, or any liability
which would be imposed by reason of its willful misfeasance or bad faith;
provided, however, that:
(i) prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default that may have occurred, the
duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be
personally 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
reasonably believed in good faith to be genuine and to have been duly
executed by the proper authorities respecting any matters arising
hereunder;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless the Trustee was negligent or acted in
bad faith or with willful misfeasance; and
(iii) the Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of Holders of Certificates evidencing
not less than 25% of the Voting Rights allocated to each Class 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) No provision of this Agreement or the Warranty and Servicing
Agreement shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Except with respect to an Event of Default of the Trustee or
Paying Agent described in clauses (i) or (ii) of Section 7.01, the Trustee
shall not be deemed to have knowledge of any Event of Default or event
which, with notice or lapse of time, or both, would become an Event of
Default, unless a Responsible Officer of the Trustee shall have received
written notice thereof from a Servicer, the Depositor or a
Certificateholder, or a Responsible Officer of the Trustee has actual
notice thereof, and in the absence of such notice no provision hereof
requiring the taking of any action or the assumption of any duties or
responsibility by the Trustee following the occurrence of any Event of
Default or event which, with notice or lapse of time or both, would become
an Event of Default, shall be effective as to the Trustee.
Section 8.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(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 paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) the trustee may consult with counsel and any 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 be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute,
conduct or defend and litigation hereunder or in relation hereto at
the request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured or
waived), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under circumstances
in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally 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;
(v) the Trustee shall not be personally 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;
(vi) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default that may be occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certification, 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
reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable
indemnity against such expense or liability as a condition to taking
any such action. The reasonable expense of every such investigation
shall be paid by the Trust Fund in the event that such investigation
relates to an Event of Default, if an Event of Default shall have
occurred and is continuing, and otherwise by the Certificateholders
requesting the investigation;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys;
(viii) the Trustee shall not be required to expend its own funds
or otherwise incur any financial liability in the performance of any
of its duties hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such liability is not assured to it; and
(ix) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the
trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions
of this Agreement.
Section 8.03 Trustee not Liable for Certificates or Mortgage
Loans. The recitals contained herein 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, the Certificates or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor or any Servicer of any funds paid to the
Depositor or any Servicer in respect of the Mortgage Loans or deposited in
or withdrawn from the Certificate Account by the Depositor or any Servicer.
Section 8.04 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 8.05 Trustee's Expenses. The Depositor covenants and
agrees to pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Agreement and the Warranty
and Servicing Agreements (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly
in its employ, whether or not such expenses are incurred in connection with
any Opinion of Counsel required or permitted to be obtained by the
Trustee), except any such expense, disbursement or advance that constitutes
a specific liability of the Trustee pursuant to Section 2.09(c) or any
expense, disbursement or advance as may arise from the Trustee's
negligence, willful misfeasance or bad faith or as a result of a breach of
the Trustee's obligations hereunder. The Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified by the Depositor and
held harmless against any loss, liability or expense incurred in connection
with any legal action relating to this Agreement or the Certificates, or
the performance of any of the Trustee's duties hereunder, other than any
loss, liability or expense that constitutes a specific liability of the
Trustee pursuant to Section 2.09(c) or any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder or as a result of a breach of the
Trustee's obligations hereunder; provided that: (i) with respect to any
such legal action the Trustee shall have given the Depositor notice thereof
promptly after the Trustee shall have knowledge thereof and (ii) while
maintaining control over its own defense in any such legal action, the
Trustee shall cooperate and consult fully with the Depositor in preparing
such defense. Such indemnity shall survive the termination or discharge of
this Agreement and the resignation or removal of the Trustee. Any payment
hereunder made by the Depositor to the Trustee shall be from the
Depositor's own funds, without reimbursement from the Trust Fund therefor.
The Trustee shall be required to pay all expenses, except as
expressly provided herein, incurred by it or its agents in connection with
its activities hereunder and shall be entitled to reimbursement therefor as
provided in this Section 8.05. The Trustee shall in no event acquire any
lien upon the Trust Fund, or any claim against the Holders by reason of
nonreceipt of any fees and expenses and the Trustee shall, unless and until
the effective date of any resignation of the Trustee under Section 8.07,
continue to perform its obligations hereunder notwithstanding such nonreceipt.
Section 8.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation or association having its
principal office in a state and city acceptable to the Depositor and
organized and doing business under the laws of such state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by federal or state authority. 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
8.06 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 8.06, the Trustee shall resign immediately in the manner and
with the effect specified in Section 8.07 hereof.
Section 8.07 Resignation and Removal of Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by: (i)
giving written notice of resignation to the Depositor and by mailing notice
of resignation by first class mail, postage prepaid, to the
Certificateholders at their addresses appearing on the Certificate
Register, the Certificate Registrar (if other than the Trustee) and any
co-registrar, and the Rating Agencies, not less than 60 days before the
date specified in such notice when, subject to Section 8.08, such
resignation is to take effect, and (ii) acceptance by a successor trustee
in accordance with Section 8.08 meeting the qualifications set forth in
Section 8.06. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 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 a
bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor may remove
the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee
and one copy to the successor trustee. The Trustee may also be removed at
any time by the Holders of Certificates evidencing not less than 50% of the
Voting Rights evidenced by the Certificates. Notice of any removal of the
Trustee and acceptance of appointment by the successor trustee shall be
given to the Rating Agencies.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 8.08 hereof.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 hereof shall execute, acknowledge and deliver to
the Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein.
The Depositor and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all
such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 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 8.08, the Trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register. If the Trustee 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 8.09 Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or converted or with which it may be
consolidated or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person
succeeding to the business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 8.06 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 Authentication Agent. At any time when
any of the Certificates remain outstanding, the Trustee may appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf
of the Trustee to authenticate Certificates, and Certificates so
authenticated shall be entitled to the benefits of this Agreement and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Agreement to the
authentication and delivery of certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each authenticating Agent shall be acceptable
to the Depositor and shall at all times be a corporation or association
organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $15,000,000, authorized under such laws to do
trust business and subject to supervision or examination by federal or
state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section
8.10, the combined capital and surplus of such Authenticating Agent shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 8.10, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section 8.10.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section 8.10, without the execution
or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agency may resign at any time by giving written
notice thereof to the Trustee and to the Depositor. The Trustee may at any
time terminate the agency of an Authenticating Agency by giving written
notice thereof to such Authenticating Agent and to the Depositor. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.10, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Depositor and shall mail written notice of such appointment by first-class
mail, postage prepaid to all Certificateholders as their names and
addresses appear in the Certificate Registers. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 8.10.
Any reasonable compensation paid to an Authenticating Agent for
its services under this Section 8.10 shall be a reimbursable expense
pursuant to Section 8.05 if paid by the Trustee.
If an appointment is made pursuant to this Section 8.10, the
Certificates may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of authentication
in the following form:
"This is one of the Certificates referred to in the
within-mentioned Agreement.
______________________________
As Trustee
By: __________________________
As Authenticating Agent
By: _________________________"
Authorized Officer
Section 8.11 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, Depositor and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Trustee 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 applicable Certificateholders,
such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.11, such powers, duties, obligations,
rights and trusts as the Depositor and the Trustee may consider necessary
or desirable. If the Depositor 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 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
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) All rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for any obligation of the Trustee
under this Agreement to advance funds on behalf of any Servicer, 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 agree to be performed by the Trustee (whether as Trustee
hereunder or as successor to a Servicer), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed 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
(iii) The Trustee acting jointly may at any time accept the
resignation of or remove any 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 then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article 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
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 8.12 Paying Agent. The Trustee may appoint a Paying Agent
hereunder. In the event of any such appointment, no less than one Business
Day prior to each Distribution Date, the Trustee shall to the extent
required by this Agreement deposit or cause to be deposited with the Paying
Agent a sum sufficient to make the payments to Certificateholders in the
amounts and in the manner provided for in Section 4.02, such sum to be held
in trust for the benefit of the Certificateholders. The Trustee shall cause
the Paying Agent to perform each of the obligations of the Paying Agent set
forth herein, including making such calculations required of the Paying
Agent herein as are required in connection with distributions on the
Certificates and shall be liable to the Certificateholders for failure of
the Paying Agent to perform such obligations.
The Trustee shall cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders.
Section 8.13 Certificate Register. The Certificate Registrar is
_______________________. The office of the Certificate Registrar for
purposes of receipt of notices and demands is _____________________.
Section 8.14 Monthly Advances. In the event that any Servicer
fails to make a Monthly Advance required to be made pursuant to the related
Warranty and Servicing Agreement on or before 8 a.m., __________ time, on
the Servicer Advance Date, the Trustee shall provide to such Servicer by
telecopy notice of such failure and the amount of any such shortfall on or
before 12 noon, __________ time on such date. If such Servicer fails to
make the Monthly Advance on or prior to 12 noon, __________ time, on the
next Business Day: (i) the Trustee shall provide to such Servicer by
telecopy notice of such an Event of Default and shall present a claim under
the Pool Insurance Policy in order to receive an amount equal to such
Monthly Advance from the Pool Insurer at least one Business Day prior to
the Distribution Date and (ii) to the extent the coverage of the Pool
Insurance Policy has been exhausted, deposit in the Certificate Account an
amount equal to the excess of: (a) Monthly Advances required to be made by
such Servicer pursuant to the related Warranty and Servicing Agreement over
(b) the amount of Monthly Advances made by such Servicer with respect to
such Distribution Date; provided that the Trustee shall not be required to
make such Monthly Advances if prohibited by law or if it determines that
such Monthly Advance would be a Nonrecoverable Advance. The Trustee shall
be entitled to be reimbursed from the Certificate Account for Monthly
Advances and Nonrecoverable Advances made by it pursuant to this section
8.14 in like manner as if it were the Servicer.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Repurchase of All
Mortgage Loans.
Subject to Section 9.04, the obligations and responsibilities of
the Depositor and the Trustee created hereby with respect to the Trust Fund
created hereby shall terminate upon the earlier of:
(a) the repurchase by the Depositor of all Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust
Fund on any Distribution Date on or after the date on which the aggregate
Principal Balances of such Mortgage Loans at the time of purchase is less
than 10% of the aggregate Principal Balances of the Mortgage Loans on the
Cut-off Date (an "Optional Termination Date"), 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 property acquired upon foreclosure or by deed in lieu of foreclosure of
any Mortgage Loan and (ii) the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to this Agreement. In
no event shall the trust created hereby continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xx.
Xxxxxx X. Xxxxxxx, former Senator from the State of New York, living on the
date of execution of this Agreement.
The Mortgage Loan Repurchase Price for any such Optional
Termination of the Trust Fund shall be equal to the sum of: (1) the greater
of: (a) the aggregate Principal Balance of the Mortgage Loans as of the
date of repurchase, together with accrued and unpaid interest thereon at
the applicable Net Mortgage Rate with respect to each Mortgage Loan through
the last day of the month of such repurchase or (b) the fair market value
thereof as determined by the applicable Servicer and (2) the appraised
value of any property acquired in respect of the Mortgage Loans. The
Trustee shall give notice to the Rating Agencies of Depositor's election to
purchase the Mortgage Loans pursuant to this Section 9.01 and of the
Optional Termination Date. The right of the Depositor to repurchase the
Mortgage Loans is conditioned on the Depositor's having previously given
notice of termination as required by Section 9.02.
Section 9.02 Procedure Upon Optional Termination. In case of any
Optional Termination pursuant to Section 9.01, the Depositor shall, at
least 20 days prior to the date notice is to be mailed to the affected
Certificateholders (unless a shorter period shall be satisfactory to the
Trustee) notify the Trustee of such Optional Termination Date, and of the
applicable repurchase price of the Mortgage Loans to be repurchased.
(a) Any repurchase of the Mortgage Loans by the Depositor shall be
made on an Optional Termination Date by deposit of the applicable
repurchase price into the Certificate Account, as applicable, on or before
the Distribution Date on which such repurchase is effected. Upon receipt by
the Trustee of an Officers' Certificate of the Depositor certifying as to
the deposit of such repurchase price into the Certificate Account, the
Trustee and each co-trustee and separate trustee, if any, then acting as
such under this Agreement, shall, upon request and at the expense of the
Depositor, execute and deliver all such instruments of transfer or
assignment, in each case without recourse, as shall be reasonably requested
by the Depositor, to vest title in the Mortgage Loans so purchased and
shall transfer or deliver to the Depositor the repurchased Mortgage Loans.
Any distributions on the Mortgage Loans received by the Trustee subsequent
to the Optional Termination Date shall be promptly remitted by it to the
Depositor.
(b) Notice of the Distribution Date on which the Depositor
anticipates that the final distribution shall be made (whether upon
Optional Termination or otherwise), shall be given promptly by the
Depositor to the Trustee and by the Trustee by first class mail to Holders
of the affected Certificates mailed no earlier than the [15th] day and not
later than the [10th] day preceding the Optional Termination Date. Such
notice shall specify: (i) the Distribution Date upon which final
distribution on the affected Certificates will be made upon presentation
and surrender of such Certificates at the office or agency therein
designated, (ii) the amount of such final distribution and (iii) that the
Record Date otherwise applicable to such Distribution Date is not
applicable, such distribution being made only upon presentation and
surrender of such Certificates at the office or agency maintained for such
purposes (the address of which shall be set forth in such notice). The
Trustee shall give such notice to the Certificate Registrar at the time
such notice is given to Holders of the affected Certificates.
(c) In the event that any 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 such 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
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 subject to the Trust Fund. If the remaining
Certificateholders do not surrender their Certificates for cancellation and
receipt of the final distribution with respect thereto within two years,
the Trustee shall pay the amount of such unclaimed final distribution to
the Class 1-R Certificateholders and no other Certificateholders shall have
any further claim to such amounts.
Section 9.03 Termination of REMIC II. REMIC II shall be terminated
on the earlier of the Final Scheduled Distribution Date and the date on
which it is deemed to receive the last deemed distributions on the
Uncertificated REMIC Regular Interests and the last distribution due on the
Class 1-M Certificates, Priority Certificates and Class 1-RS Certificates
is made.
Section 9.04 Additional Termination Requirements. In the event the
Depositor exercises its purchase option pursuant to Section 9.01, REMIC I
and REMIC II shall be terminated in accordance with the following
additional requirements, unless the Trustee has received an Opinion of
Counsel to the effect that the failure of REMIC I and REMIC II, as the case
may be, to comply with the requirements of this Section 9.04 will not: (i)
result in the imposition of taxes on a "prohibited transaction" of REMIC I
or REMIC II, as the case may be, as described in Section 860F of the Code,
or (ii) cause either REMIC I or REMIC II to fail to qualify as a REMIC at
any time that any Priority Certificates or Class 1-M Certificates are
outstanding:
(i) Within 90 days prior to the final Distribution Date set forth
in the notice given by the Depositor under Section 9.02, the Class
1-RS Certificateholder shall adopt a plan of complete liquidation of
the REMIC I or REMIC II, as the case may be, and
(ii) At or after the time of adoption of any such plan of
complete liquidation for the REMIC I or REMIC II and at or prior to
the final Distribution Date, the Trustee shall sell all of the assets
of the Trust Fund to the Depositor for cash; provided, however, that
in the event that a calendar quarter ends after the time of adoption
of such a plan of complete liquidation but prior to the final
Distribution Date, the Trustee shall not sell any of the assets of the
Trust Fund prior to the close of that calendar quarter.
(b) By its acceptance of the Class 1-RS Certificate, the Holder
thereof hereby agrees to adopt such a plan of complete liquidation and to
take such other action in connection therewith as may be reasonably
required to liquidate and otherwise terminate the Trust Fund.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor and the Trustee, without the consent of any of the
Certificateholders: (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein which may be inconsistent with any other
provisions herein, (iii) to maintain the qualification of the Trust Fund as
a REMIC, or (iv) to make any other provisions with respect to matters or
questions arising under this Agreement, provided that such action shall not
adversely affect in any material respect the interests of any
Certificateholder.
(b) This agreement may be amended from time to time by the
Depositor and the Trustee with the consent of the Holders of Certificates
evidencing, in the aggregate, not less than 66-2/3% of the Voting Rights of
all the Certificates 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 the
Certificates; provided, however, that no such amendment may: (i) reduce in
any manner the amount of, delay the timing of or change the manner in which
payments received on or with respect to Mortgage Loans are required to be
distributed with respect to any Certificate without the consent of the
Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of a Class of Certificates in a manner other
than as set forth in (i) above without the consent of the Holders of
Certificates evidencing not less than 66-2/3% of the Voting Rights of such
Class, or (iii) reduce the aforesaid percentages of Voting Rights, the
holders of which are required to consent to any such amendment without the
consent of 100% of the Holders of Certificates of the Class affected
thereby.
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 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.
Notwithstanding any contrary provisions of this Agreement, the
Trustee shall not consent to any amendment to this Agreement pursuant to
this Section 10.01(b) unless it shall have first received an Opinion of
Counsel to the effect that such amendment will not cause the Trust Fund to
fail to qualify as a REMIC at any time that any Certificates are
outstanding.
(c) Promptly after the execution of any amendment to this
Agreement, the Trustee shall furnish written notification of the substance
of such amendment to each Certificateholder and the Rating Agencies.
Section 10.02 Recordation of Agreement; Counterparts.
(a) 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 only upon direction of
the Depositor at the expense of the Certificateholders accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust
Fund.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 10.03 Governing Law.
This Agreement 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 10.04 Intention of Parties.
(a) The execution and delivery of this Agreement shall constitute
an acknowledgement by the Trustee on behalf of the Certificateholders that
the Depositor intends hereby to establish (for federal income tax purposes)
two separate trusts each of which will qualify as a REMIC. The powers
granted and obligations undertaken in this Agreement shall be construed so
as to further such intent.
(b) It is the express intent of the Depositor that the conveyance
by the Depositor to the Trustee of: (i) the Mortgage Loans as provided for
in Section 2.01; and (ii) the Uncertificated REMIC I Regular Interests as
provided for in Section 2.07 be, and be construed as, a sale by the
Depositor to the Trustee of: (i) the Mortgage Loans, and (ii) the
Uncertificated REMIC I Regular Interests for the benefit of the
Certificateholders. Further, it is not intended that any such conveyance be
deemed to be a pledge of: (i) the Mortgage Loans or (ii) the Uncertificated
REMIC I Regular Interests by the Depositor to the Trustee to secure a debt
or other obligation of the Depositor. However, in the event that: (i) the
Mortgage Loans or (ii) the Uncertificated REMIC I Regular Interests are
held to be property of the Depositor, or if for any reason this Agreement
is held or deemed to create a security interest in: (i) the Mortgage Loans
or (ii) the Uncertificated REMIC I Regular Interests, then it s intended
that: (a) this Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction;
(b) each of the conveyances provided for in Sections 2.01 and 2.07 shall be
deemed to be: (1) a grant by the Depositor to the Trustee of a security
interest in all of the Depositor's right, title and interest, whether now
owned or hereafter acquired, in and to: (A) the Mortgage Loans, including
the Mortgage Notes, the Mortgages and all other documents in the related
Mortgage Files, (B) all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof, (C) the Uncertificated REMIC I
Regular Interests, and (D) all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held
or invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property; (c) the possession by the
Trustee or any other agent of the Trustee of Mortgage Notes or such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be a "possession by the secured party", or
possession by a purchaser or a person designated by such secured party, for
purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-306, 9-313,
8-313 or 8-321 thereof); and (d) notifications to persons holding such
property, and acknowledgements, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or
acknowledgements, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of
perfecting such security interest under applicable law.
Section 10.05 Notices.
In addition to other notices provided under this Agreement, the
Trustee shall notify the Rating Agencies in writing: (a) of any
substitution or repurchase of any Mortgage Loan; (b) of any payment or draw
on any insurance policy applicable to the Mortgage Loans; (c) of the final
payment of any amounts owing to a Class of Certificates; (d) any Event of
Default under this Agreement; and (e) in the event any Mortgage Loan is
purchased at a Purchase Price in accordance with this Agreement less than
the sum of 100% of the Principal Balance of the Mortgage Loan on the date
of such purchase and accrued and unpaid interest thereon at the Net
Mortgage Rate to the first day of the month following such purchase.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or
mailed by registered mail, postage prepaid, to (a) in the case of the
Depositor, Xxxxxxx Xxxxx Asset Backed Securities Corp., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Secretary and (b) in the case of the
Trustee, ________________, Attention: ______________, or such other address
as may hereafter be furnished to the Depositor in writing by the Trustee;
and (c) in the case of the Rating Agencies, Standard & Poor's, a division
of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: __________________. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of
this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of the Certificates or the rights
of the Holders thereof.
Section 10.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, 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 Fund, 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 before 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 upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses, and liabilities to be incurred therein or thereby, and
the Trustee, for 60 days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding; 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 herein provided and for the common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 10.08, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 10.08 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.
IN WITNESS WHEREOF, the Depositor and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized and their respective seals, duly attested, to be hereunto
affixed, all as of the day and year first above written.
Xxxxxxx Xxxxx Asset Backed Securities Corp.,
as Depositor
By:_________________________________
Name:
Title:
[ ]
as Trustee
By:_________________________________
Name:
Title:
State of New York )
) ss.:
County of New York )
On this ____ day of ________, 200_ before me personally appeared
______________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the within instrument
as ____________________ of _______________, and one of the corporations
that executed the within instrument and also known to me to be the person
who executed it on behalf of said corporation, and acknowledged to me that
such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my
official seal the day and year in this certificate first above written.
____________________________
Notary Public
[Notarial Seal]
State of New York )
) ss.:
County of New York )
On this ____ day of ________, 200_ before me, a Notary Public in
and for said State, personally appeared ______________, personally known to
me to be ____________________ of [ ], one of the corporations that executed
the within instrument and also know to me to be the person who executed it
on behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my
official seal the day and year in this certificate first above written.
____________________________
Notary Public
[Notarial Seal]
EXHIBIT A
[Form of Priority and Class 1-M Certificates]
[ANY SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS 1-R CERTIFICATE MAY
BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDED A TRANSFER AFFIDAVIT TO
THE TRUSTEE TO THE EFFECT THAT: (1) SUCH TRANSFEREE AGREES TO BE BOUND BY
THE TERMS OF THE AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT EITHER: (A) THE UNITED STATES, ANY STATE
OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B)
ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE
CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE,
(C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (D) AN AGENT
OF A DISQUALIFIED ORGANIZATION, (3) NO PURPOSE OF SUCH TRANSFER IS TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (4) SUCH TRANSFEREE
SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION
OF SUCH TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS 1- R
CERTIFICATE TO A DISQUALIFIED ORGANIZATION, OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS
1-R CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.]
[THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.]
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF [ ] OR
THE TRUSTEE REFERRED TO BELOW, OR OF ANY THEIR AFFILIATES EXCEPT AS SET
FORTH HEREIN AND IN THE AGREEMENT. THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES OF APPLYING
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS INSTRUMENT/*/:
a. OID..............................
b. Issue Date.......................
c. Rate At Which Interest is Payable
As Of the Issue Date.............
d. Yield to Maturity................
e. OID Allocable to Short Period
f. Short Period Yield Computation
Method...........................
________________________
/*/ The numbers set forth here have been calculated using a prepayment
assumption under Code Section 1272(a)(6)(B)(iii) equal to a
Standard Prepayment Assumption ("SPA") of ___%, which represents
an assumed rate of prepayment each month relative to the
then-outstanding principal balance of the mortgage loans. The ___%
SPA assumes prepayment rates of .__% per annum of the then
outstanding principal balance of such mortgage loans in the first
month increased by .___% per annum each month thereafter until the
30th such month. For the 30th month and for each month thereafter
during the lives of the mortgage loans, ___% of SPA assumes a
constant prepayment rate of ___% per annum.]
CONDUIT MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______, CLASS ___
______% CERTIFICATE RATE
Evidencing an undivided interest in a Trust Fund whose assets consists of a
pool of conventional, level-payment, fixed-rate, fully amortizing mortgage
loans transferred by
[ ]
CUSIP $______________ INITIAL CERTIFICATE
PRINCIPAL BALANCE
Certificate No. _________ $______________ INITIAL CLASS ___
PRINCIPAL BALANCE
First Distribution Final Scheduled
Date: Distribution Date:
THIS CERTIFIES THAT __________________________is the registered
owner of a beneficial interest in the Trust Fund referred to below
consisting of a pool of conventional, level-payment, fixed-rate,
fully-amortizing mortgage loans (the "Mortgage Loans") transferred to the
Trust Fund by [ ] (the "Depositor"), and certain related property
transferred to the Trust Fund by the Depositor. The Trust Fund was created
pursuant to the Standard Terms and Provisions of Pooling and Servicing and
Reference Agreement, dated as of _________1, 200_ (the "Agreement"),
between the Depositor and __________________________, as trustee (the
"Trustee", which term includes any successor entity under the Agreement),
summary of certain of the pertinent provisions of which is set forth
herein. The aggregate principal balance of the Mortgage Loans included in
the Trust Fund as of _________, 200_ (the "Cut-off Date"), after
application of payments due on or before such date, was approximately
$_________________. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and
by which such Holder is bound.
This Certificate is one of a duly authorized issue of certificates
of [ ] designated as its Conduit Mortgage Pass-Through Certificates, Series
____, which is comprised of eleven classes of Certificates: (i) the Class
1-R, 1-A, 1-B, 1-C, 1-D, 1-E and 1-M Certificates (the "Fixed Rate
Certificates"), (ii) the Class 1-F and 1-G Certificates (the "Variable Rate
Certificates"), (iii) the Class 1-H Certificates (the "Principal Only
Certificates") and (iv) the Class 1-RS Certificates (the "REMIC I Residual
Interest Certificates"). The Certificates (other than the Class 1-M
Certificates) are sometimes referred to as the "Priority Certificates."
Reference is hereby made to the Agreement for a statement of the respective
rights thereunder of the Depositor, the Trustee and the Holders of the
Certificates and the terms upon which the Certificates are authenticated
and delivered. This Certificate represents an interest in the Trust Fund,
which Trust Fund consists of: (i) the Mortgage Loans and all distributions
thereon payable after the Cut-off Date, net of any amounts payable to the
Trustee and any premiums for the Pool Insurance Policy, the Special Hazard
Insurance Policy and the Mortgagor Bankruptcy Bond in accordance with the
provisions of the Agreement, (ii) the Certificate Account and all amounts
deposited therein pursuant to the applicable provisions of the Agreement,
net of amounts payable to the Trustee or any Servicer and any premiums for
the Pool Insurance Policy, the Special Hazard Insurance Policy and the
Mortgagor Bankruptcy Bond, as provided in the Agreement, (iii) property
acquired by foreclosure, deed in lieu of foreclosure or otherwise with
respect to the Mortgage Loans, (iv) the interest of the Trust Fund in any
insurance policies with respect to the Mortgage Loans, and (v) all proceeds
of the conversion, voluntary or involuntary, of any of the foregoing into
cash or other liquid property.
The Priority Certificates initially evidence in the aggregate an
approximate ___% beneficial interest in the Trust Fund. The Class 1-M
Certificates initially evidence in the aggregate the remaining approximate
___% beneficial interest in the Trust Fund. The interests of the Priority
Certificateholders in the Trust Fund will vary as described herein and in
the Agreement.
The Trustee or Paying Agent shall distribute from the Certificate
Account, to the extent of available funds, on the [25th] day of each
calendar month, or, if such [25th] day is not a Business Day, the Business
Day immediately following such [25th] day (the "Distribution Date"),
commencing ______________, 200_, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (each a
"Record Date"), a principal amount equal to the product of the Percentage
Interest evidenced by this Certificate and that portion of the Available
Distribution Amount allocated to such Class of Certificates on such
Distribution Date. Distributions of interest will be made on each
Distribution Date, to the extent of available funds, in an amount equal to
thirty days' interest accrued at a rate of _____% per annum (the
"Certificate Rate") on a balance equal to the outstanding Certificate
Principal Balance of this Certificate as of the day immediately preceding
the related Distribution Date reduce by its pro rata portion of the
aggregate shortfalls of interest allocated to such class of Certificates.
Not later than each Distribution Date, the Trustee will send to
each Certificateholder a statement containing information relating to the
Mortgage Loans and payments made to Certificateholders.
The rights of the Class 1-M Certificateholders to receive
distributions in respect of the Class 1-M Certificates on any Distribution
Date are subordinated to the rights of the Priority Certificateholders to
receive distributions in respect of the Priority Certificates to the extent
set forth in the Agreement. On each Distribution Date, the Priority
Certificateholders will be paid prior to the payments to the Class 1-M
Certificateholders. The Priority Percentage is equal to the aggregate
Certificate Principal Balance of the Priority Certificates divided by the
aggregate Certificate Principal Balance of all the Certificates. The class
1-M Percentage is equal to 100% minus the Priority Percentage. In the event
that coverage under the Mortgage Pool Insurance Policy is exhausted or the
Pool Insurer fails to pay valid claims for any reason, the Class 1-M
Percentage and the Priority Percentage will vary due to the allocation of
Depletion Losses first to the Class 1-M Certificates by reducing the
Certificate Principal Balance of such Certificates. After the Certificate
Principal Balance of the Class 1-M Certificates has been reduced to zero,
Depletion Losses will be allocated pro rata (by Certificate Principal
Balance) to all of the Classes of Certificates then outstanding.
If at any time the Priority Percentage increases to 100%, all
future losses or delinquencies on the Mortgage Loans will be borne by the
Priority Certificateholders.
There shall be a Pool Insurance Policy, a Special Hazard Insurance
Policy and a Mortgagor Bankruptcy Bond with respect to the Mortgage Loans.
The Pool Insurance Policy will be initially issued by ______ and will cover
losses by reason of default on the Mortgage Loans in an amount of
approximately ___% of the aggregate principal balance of those Mortgage
Loans on the Cut-off Date which are not covered as to their entire
principal balances by Primary Mortgage Insurance Policies. The Special
Hazard Insurance Policy will be initially issued by ____ in an amount equal
to ____________________________________. A Mortgagor Bankruptcy Bond will
be issued by ___ and will cover, up to the amount of coverage thereunder
from time to time: (i) certain losses resulting form a reduction by a
bankruptcy court of the principal balance of a Mortgage Loan or the
scheduled payments of principal and interest on a Mortgage Loan and (ii)
the unpaid interest on the amount of any principal reduction during the
pendency of a proceeding under the Bankruptcy Code.
Distributions on this Certificate will be made by the Trustee or
Paying Agent by check mailed to the address of the Holder hereof entitled
thereto at the address appearing in the Certificate Register or, if such
Holder holds one or more of the Certificates with an aggregate initial
Certificate Principal Balance or Notional Amount of at least $5,000,000 by
wire transfer in immediately available funds to the account of such
Certificateholder designated in writing to the Trustee at least five
Business Days prior to the applicable Record Date. Notwithstanding the
above, the final distribution on this Certificate will be made after due
notice of the pendency of such final distribution and only upon
presentation and surrender of this Certificate at the office or agency
designated in such notice.
The Agreement permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor and the
Trustee with the consent of the Holders of Certificates evidencing Voting
Rights aggregating not less than 66-2/3% of the Voting Rights of all the
Certificates; provided, however, that no such amendment may: (i) reduce in
any manner the amount of, delay the timing of or change the manner in which
payments received on Mortgage Loans are required to be distributed in
respect of any Certificates without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of a Class of Certificates in a manner other than in (i) above
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the Voting Rights of such Class, or (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent
to any such amendment, without the consent of 100% of the Holders of
Certificates of the Class affected thereby. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon
all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the Depositor and the Trustee to amend certain terms and conditions
set forth in the Agreement without the consent of Holders of the
Certificates. At any time that any of the Priority Certificates or that
Class 1-M Certificates are outstanding, ___% of all Voting Rights will be
allocated among the holders of the Class 1-A, Class 1-B, Class 1-C, Class
1-E, Class 1-H, Class 1-M and Class 1-R Certificates, in proportion to
their then outstanding Certificate Principal Balances, and __%, __%, __%
and __% of all Voting Rights will be allocated among holders of the Class
1-D, Class 1-F, Class 1-G and Class 1-RS Certificates, respectively, in
proportion to the percentage interests evidenced by their respective
Certificate Principal Balances or interests.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this Certificate for registration of
transfer at, ________________________________________, and at any agency of
the trustee located at ____________________________________________, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class and of authorized denominations, and for the
same aggregate interest in the Trust Fund will be issued to the designated
transferee or transferees.
The Certificates will be issued in fully registered form in
minimum denominations of $25,000 principal or notional amount, and in
integral multiples of $1,000 in excess of such amount; provided, however,
that one Certificate of each Class may be issued in such lesser amount as
is required so that the aggregate of each Class of Certificates equals its
respective Certificate Principal Balance. As provided in the Agreement and
subject to certain limitations therein set forth, this Certificate is
exchangeable for one or more new Certificates of the same Class and of
authorized denominations evidencing a like aggregate Certificate Principal
Balance or Notional Amount and a like interest in the Trust Fund, as
requested by the Holder surrendering the same.
No service charge will be made for such registrations of transfers
or exchanges, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Certificate Registrar, the Trustee and any agent of the Certificate
Registrar or the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Certificate Registrar, the Trustee nor any such agent thereof shall be
effected by notice to the contrary.
An election will be made to treat certain assets of the Trust Fund
("REMIC I") as a real estate mortgage investment conduit ("REMIC") for
federal income tax purposes. The regular interests in REMIC I in the
aggregate will encompass the rights to all amounts distributable with
respect to the Mortgage Loans and certain related property (the "REMIC I
Regular Interests"). An election will be made to treat the REMIC I Regular
Interests as a REMIC ("REMIC II"). The Certificates (other than the REMIC I
Residual Interest Certificates) will be regular interests in REMIC II. As
such, the Certificates will be treated for federal income tax purposes as
debt instruments issued by REMIC II. The Class 1-RS Certificate will be the
residual interest in REMIC I. The Class 1-R Certificate will be the
residual interest in REMIC II.
The obligations and responsibilities of the Depositor and the
Trustee created hereby with respect to the Trust Fund created hereby shall
terminate upon the earlier of: (a) the repurchase by the Depositor of all
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, 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
property acquired upon foreclosure or by deed in lieu of foreclosure of any
Mortgage Loan and (ii) the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to this Agreement. As
provided in the Agreement, the right to repurchase all Mortgage Loans
pursuant to clause (a) above shall be conditioned upon the unpaid Principal
Balances of such Mortgage Loans, at the time of any such repurchase,
aggregating less than 10% of the aggregate Principal Balances as of the
Cut-off Date.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning. If the terms hereof are inconsistent with
the Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Depositor has caused this Certificate to
be duly executed under its corporate seal.
Date: Xxxxxxx Xxxxx Asset Backed Securities Corp.,
as Depositor
By:________________________________
Name:
Title:
[SEAL]
ATTEST
________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Class ____ Certificates referred to in the
within-mentioned Agreement
______________________________,
as Trustee
By:___________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Please print or typewrite name and address, including postal zip code, or
assignee) the undivided interest in the Master Trust Fund evidenced by the
within Certificate and hereby authorize(s) the transfer of registration of
such interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of
the same Class and of a like Initial Certificate Principal Balance and
undivided interest in the Master Trust Fund to the above-named assignee and
to deliver such Certificate to the following address _________________
__________________________________________________________________________
__________________________________________________________________________
Dated: ______________, ______
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee: (signature must be signed as registered)
__________________________ ____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of
the Master Servicer:
Distribution shall be made by check mailed to ________________________
________________________________________________________________________________
_________________________, or if the principal balance of this Certificate
is at least $5,000,000 and the Trustee shall have received appropriate
wiring instructions in accordance with the Agreement, by wire transfer in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
the account of _______________________, account number __________. This
information is provided by the assignee named above, or its agent.
EXHIBIT B
[Form of Class 1-RS Certificate]
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE MONTHLY AS SET
FORTH HEREIN; ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL BALANCE SET FORTH
ON THIS CERTIFICATE. THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR
OBLIGATION OF [ ] OR THE TRUSTEE REFERRED TO BELOW, OR OF ANY OF THEIR
AFFILIATES EXCEPT AS SET FORTH HEREIN AND IN THE AGREEMENT. THIS
CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENT AGENCY OR
INSTRUMENTALITY.
THIS CLASS 1-RS CERTIFICATE IS SUBORDINATE TO THE OTHER CERTIFICATES OF
THIS SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE AGREEMENT. THIS CLASS
1-RS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR
OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OF
QUALIFICATION MAY ONLY BE MADE IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 11.20 OF THE AGREEMENT.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G and 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), UNLESS THE
TRANSFEREE PROVIDES A CERTIFICATION OR AN OPINION OF COUNSEL, OR BOTH,
SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE BY OR ON BEHALF OF SUCH PLAN IS PERMISSIBLE UNDER APPLICABLE
LAW AND WILL NOT VIOLATE THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 OF ERISA AND SECTION 4975 OF THE CODE.
ANY SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS 1-R CERTIFICATE MAY
BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDED A TRANSFER AFFIDAVIT TO
THE TRUSTEE TO THE EFFECT THAT: (1) SUCH TRANSFEREE AGREES TO BE BOUND BY
THE TERMS OF THE AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT EITHER: (A) THE UNITED STATES, ANY STATE
OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B)
ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE
CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE,
(C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (D) AN AGENT
OF A DISQUALIFIED ORGANIZATION, (3) NO PURPOSE OF SUCH TRANSFER IS TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (4) SUCH TRANSFEREE
SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION
OF SUCH TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS 1-R
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS
1-R CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
CONDUIT MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _____, CLASS 1-RS
Evidencing an undivided interest in REMIC I whose assets consist of a pool
of conventional, level-payment, fixed-rate, fully-amortizing mortgage loans
transferred by
[ ]
THIS CERTIFICATE HAS NO CERTIFICATE PRINCIPAL BALANCE
Certificate No.______________
First Distribution: _________________
Final Scheduled Date: _________________
Distribution Date: _________________
THIS CERTIFIES THAT ____________________ is the registered owner
of a beneficial interest in REMIC I. REMIC I is part of the Trust Fund
referred to below consisting of a pool of conventional, level-payment,
fixed-rate, fully-amortizing mortgage loans (the "Mortgage Loans")
transferred to the Trust Fund by [ ] (the "Depositor"), and certain related
property transferred to the Trust Fund by the Depositor. The Trust Fund and
REMIC I were created pursuant to the Standard Terms and Provisions of
Pooling and Servicing and Reference Agreement, dated as of _______________,
200_ (the "Agreement"), between the Depositor and
_______________________________ (the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth herein. The aggregate principal
balance of the Mortgage Loans included in REMIC I as of _________________,
200_ (the "Cut-off Date"), after application of payments due on or before
such date, was approximately $_______________. This Certificate is issued
under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of
the acceptance hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of certificates
of [ ] designated as its Conduit Mortgage Pass- Through Certificates,
Series _________, which is comprised of eleven classes of Certificates: (i)
the Class 1-R, 1-A, 1-B, 1-C, 1-D, 1-E and 1-M Certificates (the "Fixed
Rate Certificates"), (ii) the Class 1-F and 1-G Certificates (the "Variable
Rate Certificates"), (iii) the Class 1-H Certificates (the "Principal Only
Certificates") and (iv) the Class 1-RS Certificates (the "REMIC I Residual
Interest Certificates"). The Certificates (other than the Class 1-M
Certificates) are sometimes referred to as the "Priority Certificates".
Reference is hereby made to the Agreement for a statement of the respective
rights thereunder of the Depositor, the Trustee and the Holders of the
Certificates and the terms upon which the Certificates are authenticated
and delivered.
The Priority Certificates initially evidence in the aggregate an
approximate __% beneficial interest in the Trust Fund. The Class 1-M
Certificates initially evidence in the aggregate the remaining approximate
__% beneficial interest in the Trust Fund. The interests of the Priority
Certificateholders in the Trust Fund will vary as described herein and in
the Agreement.
The Holder of this Certificate shall be entitled to receive only
the distributions set forth in the Agreement, which generally provide for a
distribution upon termination of the obligations created by the Agreement
and REMIC I created thereby and the amounts which remain on deposit in the
Certificate Account, after payment to the holders of all other Certificates
of all amounts as set forth in Section 13.02 of the Agreement.
Distributions on this Certificate will be made by the Trustee or
Paying Agent by check mailed to the address of the Holder hereof entitled
thereto at the address appearing in the Certificate Register or, if such
Holder holds one or more of the Certificates with an aggregate initial
Certificate Principal Balance or Notional Amount of at least $5,000,000 by
wire transfer in immediately available funds to the account of such
Certificateholder designated in writing to the Trustee at least five
Business Days prior to the applicable Record Date. Notwithstanding the
above, the final distribution on this Certificate will be made after due
notice of the pendency of such final distribution and only upon
presentation and surrender of this Certificate at the office or agency
designated in such notice.
The Agreement permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor and the
Trustee with the consent of the Holders of Certificates evidencing Voting
Rights aggregating not less than 66-2/3% of the Voting Rights of all the
Certificates; provided, however, that no such amendment may: (i) reduce in
any manner the amount of, delay the timing of or change the manner in which
payments received on Mortgage Loans are required to be distributed in
respect of any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of a Class of Certificates in a manner other than in (i) above
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the Voting Rights of such Class, or (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent
to any such amendment, without the consent of 100% of the Holders of
Certificates of the Class affected thereby. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon
all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the Depositor and the Trustee to amend certain terms and conditions
set forth in the Agreement without the consent of Holders of the
Certificates. At any time that any of the Priority Certificates or the
Class 1-M Certificates are outstanding, __% of all Voting Rights will be
allocated among the holders of the Class 1-A, Class 1-B, Class 1-C, Class
l-E, Class 1-H, Class 1-M and Class 1-R Certificates, in proportion to
their then outstanding Certificate Principal Balances, and __%, __%, __%
and __% of all Voting Rights will be allocated among holders of the Class
1-D, Class 1-F, Class 1-G and Class 1-RS Certificates, respectively, in
proportion to the percentage interests evidenced by their respective
Certificate Principal Balances or interests.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this Certificate for registration of
transfer at, ___________________________________________, and at any agency
of the trustee located at _________________________________________, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class and of authorized denominations, and for the
same aggregate interest in the Trust Fund will be issued to the designated
transferee or transferees.
This Certificate is issuable only as a registered Certificate
without coupons or any Denomination. As provided in the Agreement and
subject to certain limitations therein set forth, this Certificate is
exchangeable for a new Class 1-RS Certificate evidencing the same rights
and obligations, as requested by the Holder surrendering the same.
No service charge will be made for such registrations of transfers
or exchanges, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Certificate Registrar, the Trustee and any agent of the Certificate
Registrar or the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Certificate Registrar, the Trustee nor any such agent thereof shall be
affected by notice to the contrary.
An election will be made to treat certain assets of the Trust Fund
("REMIC I") as a real estate mortgage investment conduit ("REMIC") for
federal income tax purposes. The regular interests in REMIC I in the
aggregate will encompass the rights to all amounts distributable with
respect to the Mortgage Loans and certain related property (the "REMIC I
Regular Interests"). An election will be made to treat the REMIC I Regular
Interests as a REMIC ("REMIC II"). The Certificates (other than the REMIC I
Residual Interest Certificates) will be regular interests in REMIC II. As
such, the Certificates will be treated for federal income tax purposes as
debt instruments issued by REMIC II. The Class 1-RS Certificate will be the
residual interest in REMIC I. The Class 1-R Certificate will be the
residual interest in REMIC II.
The obligations and responsibilities of the Depositor and the
Trustee created hereby with respect to the Trust Fund created hereby shall
terminate upon the earlier of: (a) the repurchase by the Depositor of all
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, 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
property acquired upon foreclosure or by deed in lieu of foreclosure of any
Mortgage Loan and (ii) the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to this Agreement. As
provided in the Agreement, the right to repurchase all Mortgage Loans
pursuant to clause (a) above shall be conditioned upon the unpaid Principal
Balances of such Mortgage Loans, at the time of any such repurchase,
aggregating less than 10% of the aggregate Principal Balances as of the
Cut-off Date.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning. If the terms hereof are inconsistent with
the Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Depositor has caused this Certificate to
be duly executed under its corporate seal.
Date: Xxxxxxx Sachs Asset Backed Securities Corp.,
as Depositor
By:________________________________
Name:
Title:
[SEAL]
ATTEST
________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Class ____ Certificates referred to in the
within-mentioned Agreement
______________________________,
as Trustee
By:___________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Please print or typewrite name and address, including postal zip code, or
assignee) the undivided interest in the Master Trust Fund evidenced by the
within Certificate and hereby authorize(s) the transfer of registration of
such interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of
the same Class and of a like Initial Certificate Principal Balance and
undivided interest in the Master Trust Fund to the above-named assignee and
to deliver such Certificate to the following address _____________________
__________________________________________________________________________
__________________________________________________________________________
Dated: ______________, ______
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee: (signature must be signed as registered)
__________________________ ____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of
the Master Servicer:
Distribution shall be made by check mailed to _________________________
________________________________________________________________________________
_________________________, or if the principal balance of this Certificate
is at least $5,000,000 and the Trustee shall have received appropriate
wiring instructions in accordance with the Agreement, by wire transfer in
immediately available funds to
________________________________________________________________________________
________________________________________________________________________________
the account of _______________________, account number __________. This
information is provided by the assignee named above, or its agent.
EXHIBIT D-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[Date]
[To be addressed to the
Depositor]
Re: Standard Terms and Provisions of Pooling and Servicing and
Reference Agreement (together, the "Pooling and Servicing
Agreement") relating to [ ] Conduit Mortgage Pass-Through
Certificates, Series [ ]
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement the undersigned, as
Trustee, hereby certifies that, with respect to each Mortgage Loan listed
in the Mortgage Loan Schedule and subject to the exceptions noted hereto it
has: (a) received the original Mortgage Note, endorsed as provided in
Section 2.01(i) of the Pooling and Servicing Agreement and (b) received but
has not reviewed (except as set forth in (a) above) a Mortgage File.
Attached hereto is the Loan Exception Report, which indicates the document
exceptions. The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Pooling and Servicing Agreement. The
Trustee makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any of the documents
contained in each Mortgage File or any of the Mortgage Loans identified in
the Mortgage Loan Schedule, or (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositors' right, title and interest in and to the
Mortgage Loans.
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
_______________________________, as Trustee
By: __________________________
Authorized Representative
EXHIBIT D-2
FORM OF INTERIM CERTIFICATION OF TRUSTEE
[Date]
[To be addressed to the
Depositor]
Re: Standard Terms and Provisions of Pooling and Servicing and
Reference Agreement (together, the "Pooling and Servicing
Agreement") relating to [ ] Conduit Mortgage Pass-Through
Certificates, Series [ ]
-----------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement the undersigned, as
Trustee, hereby certifies that, with respect to each Mortgage Loan listed
in the Mortgage Loan Schedule and subject to the exceptions noted hereto it
has received the original Mortgage (or a certified copy of such Mortgage,
as provided in Section 2.01(ii). Attached hereto is the Loan Exception
Report, which indicates the document exceptions. The Trustee has made no
independent examination of and documents contained in each Mortgage File
beyond the review specifically required in the above-referenced Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
_______________________________,
as Trustee
By:__________________________
Authorized Representative
EXHIBIT E
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
[To be addressed to the
Certificateholders of record]
Re: Standard Terms and Provisions of Pooling and Servicing and
Reference Agreement (together, the "Pooling and Servicing
Agreement") relating to [ ] Conduit Mortgage Pass-Through
Certificates, Series [ ]
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-
referenced Pooling and Servicing Agreement the undersigned, as Trustee,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule it has reviewed the Mortgage File and has determined that: (i) all
documents required to be delivered to it pursuant to the Pooling and
Servicing Agreement are in its possession, (ii) such documents have been
reviewed by it and have not been mutilated, damaged, defaced, torn or
otherwise physically altered and such documents relate to such Mortgage
Loan, (iii) based on an examination and only as to the foregoing documents,
the information set forth in the Mortgage Loan Schedule respecting such
Mortgage Loans accurately reflects the information contained in the
documents in the Mortgage File, and (iv) each Mortgage Note has been
endorsed and each Assignment of Mortgage has been prepared as provided in
Section 2.01 of the Pooling and Servicing Agreement. The Trustee has made
no independent examination of any documents contained in each Mortgage File
beyond the review specifically required in the above-referenced Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File or any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
____________________________________,
as Trustee
By: __________________________
Authorized Representative
EXHIBIT F
FORM OF REQUEST FOR RELEASE
[Date]
To:
In connection with the administration of the Mortgages held by you
as Trustee under the Standard Terms and Provisions of Pooling and Servicing
and Reference Agreement dated as of _______________, 200_, between [ ], as
Depositor and you, as Trustee (the "Pooling and Servicing Agreement"), the
undersigned, as Servicer under the Warranty and Servicing Agreement, dated
as of ____________ __, 200_, between ____________________ and the
undersigned, hereby requests a release of the Mortgage File held by you as
Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be
credited to the Certificate Account pursuant to the Pooling
and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price
has been credited to the Certificate Account pursuant to
the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan substituted.
(The Servicer hereby certifies that a Replacement
Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the
Pooling and Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling
and Servicing Agreement and will be returned within 21 days of our receipt
of the Mortgage File, except if the Mortgage Loan has been paid in full, or
repurchased or substituted for a Replacement Mortgage Loan (in which case
the Mortgage File will be retained by us permanently) and except if the
Mortgage Loan is being foreclosed (in which case the Mortgage File will be
returned when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
[SERVICER]
_____________________________
By:
Name:
Title:
EXHIBIT J
TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or
beneficial owner of the Class [1-RS][1-R] Certificates (the "Owner")), a
[savings institution] [corporation] duly organized and existing under the
laws of (the State of ___________________] [the United States], on behalf
of which he makes this affidavit and agreement.
2. That the Owner: (i) is and will be a "Permitted Transferee" as
of [date of transfer] within the meaning of Section 860(e)(5) of the
Internal Revenue Code of 1986, as amended (the "Code"), and (ii) is
acquiring the Class [1-RS][1-R] Certificates for its own account or for the
account of another Owner from which it has received an affidavit and
agreement in substantially the same form as this affidavit and agreement. A
"Permitted Transferee" is any person other than a "disqualified
organization" within the meaning of Section 860(e)(5) of the Internal
Revenue Code of 1986, as amended (the "Code"), or a possession of the
United States. (Section 860E(e)(5) of the Code defines a "disqualified
organization", as: (A) the United States, any State or political
subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (B)
any organization (other than a cooperative described in section 521) which
is exempt from federal income tax unless such organization is subject to
the tax imposed by Section 511, and (C) any organization described in
Section 1381(a)(2)(C) of the Code.
3. That the Owner is aware: (i) of the tax that would be imposed
on transfers of Class [1-RS][1-R] Certificates to disqualified
organizations under the Code, that applies to all transfers of Class
[1-RS][1-R] Certificates after March 31, 1988; (ii) that such tax would be
on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a non-Permitted Transferee, on
the agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such
person an affidavit that the transferee is a Permitted Transferee and, at
the time of transfer, such person does not have actual knowledge that the
affidavit is false; and (iv) that the Class [1-RS] [1-R] may be
"noneconomic residual interests" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class [1-RS][1-R] Certificates if at any time during the
taxable year of the pass-through entity a non-Permitted Transferee is the
record holder of an interest in such entity. (For this purpose, a "pass
through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the
Transfer of any Class [1-RS][1-R] Certificates unless the transferee, or
the transferee's agent, delivers to it an affidavit and agreement, among
other things, in substantially the same form as this affidavit and
agreement. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained
in such affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the
face of the Class [1-RS][1-R] Certificates and the provisions of Section
11.20 of the Standard Terms and Provisions of the Pooling and Servicing and
Reference Agreement under which the Class [1-RS][l-R] Certificates were
issued. The Owner expressly agrees to be bound by and to comply with such
restrictions and provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [l-RS][1-R]
Certificates will only be owned, directly or indirectly, by an Owner that
is a Permitted Transferee.
8. That the Owner's Taxpayer Identification Number is _______________.
9. That no purpose of the Owner relating to the purchase of any of
the Class [l-RS][1-R] Certificates by the Owner is or will be to impede the
assessment or collection of any tax.
10. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of
the Class [1-RS][1-R] Certificates remain outstanding.
11. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as
any of the Class [1-RS][1-R] Certificates remain outstanding.
12. That no purpose of the Owner relating to any sale of any of
the Class [1-RS][1-R] Certificates by the Owner will be to impede the
assessment or collection of tax.
13. That the Owner is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof,
or an estate or trust whose income from sources without the United States
is includable 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.
[14. This affidavit and agreement relates only to the Class [1-RS]
[1-R] Certificates held by the Owner and not to any other holder or the
Class [1-RS][1-R] Certificates. The Owner understands that the liabilities
described herein relate only to the Class [1-RS][1-R] Certificates].
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of
Directors, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this __ day of
___________, 200_.
[NAME OF OWNER)
By:__________________________
[Name of Officer]
[Title of Officer] [Corporate Seal]
ATTEST:
________________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged
to me that he executed the same as his free act and deed and the free act
and deed of the Owner.
Subscribed and sworn before me this __ day of ___________________, __.
_____________________________
NOTARY PUBLIC
COUNTY OF____________________
STATE OF_____________________
My Commission expires the ___
day of ____________, 200_
EXHIBIT K
Form of Transferor Certificate
__________________, 200_
[ ]
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee]
Attention: Corporate Trust Administration
Re: Conduit Mortgage Pass-Through Certificates, Series [ ],
Class [1-R][1-RS]
Dear Sirs:
This letter is delivered to you in connection with the sale by
_______________________ (the "Seller") to
___________________________________ (the "Purchaser") of $___________
Initial Certificate Principal Balance of Conduit Mortgage Pass-Through
Certificates, Series [ ], Class [1-R][1-RS] (the "Certificates"), pursuant
to Section 11.20 of the Standard Terms and Provisions of Pooling and
Servicing and Reference Agreement (the "Pooling and Servicing Agreement"),
dated as of ___________, 200_ among [ ] as depositor (the "Depositor") and
__________________________, as trustee (the "Trustee"). All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Seller hereby certifies, represents
and warrants to, and covenants with, the Depositor and the Trustee that:
1. No purpose of the Seller relating to sale of the Certificate by
the Seller to the Purchaser is or will be to impede the assessment or
collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit S.
3. The Seller does not know or believe that any representation
contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee
is not a Permitted Transferee.
Very truly yours,
(Seller)
By:__________________________
Name:
Title:
EXHIBIT L
Form of Investor Representation Letter
________________, 200_
[ ]
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee]
Attention: Corporate Trust Administration
RE: Conduit Mortgage Pass-Through Certificates, Series [ ],
Class 1-RS
-------------------------------------------------------
Dear Sirs:
_______________________ (the "Purchaser") intends to purchase from
____________ (the "Seller") $____________ Initial Certificate Principal
Balance of Conduit Mortgage Pass-Through Certificates, Series _________,
Class 1-RS (the "Certificates"), issued pursuant to the Standard Terms and
Provisions of Pooling and Servicing and Reference Agreement (the "Pooling
and Servicing Agreement"), dated as of ___________1, 200_ among [ ] as
depositor (the "Depositor") and ______________________, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Purchaser
hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Trustee that:
1. The Purchaser understands that: (a) the Certificates
have not been and will not be registered or qualified under the
Securities Act of 1933, as amended (the "Act") or any state
securities law, (b) the Company is not required to so register or
qualify the Certificates, (c) the Certificates may be resold only
if registered and qualified pursuant to the provisions of the Act
or any state securities law, or if an exemption from such
registration and qualification is available, (d) the Pooling and
Servicing Agreement contains restrictions regarding the transfer
of the Certificates and (e) the Certificates will bear a legend to
the foregoing effect.
2. The Purchaser is acquiring the Certificates for its
own account for investment only and not with a view to or for sale
in connection with any distribution thereof in any manner that
would violate the Act or any applicable state securities laws.
3. The Purchaser is: (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such
matters related to securities similar to the Certificates, such
that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the economic
risks of such an investment and (c) an "accredited investor"
within the meaning of Rule 501(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an
opportunity to review a copy of the Pooling and Servicing
Agreement and such other information concerning the Certificates,
the Mortgage Loans and the Depositor as has been requested by the
Purchaser from the Depositor or the Seller and is relevant to the
Purchaser's decision to purchase the Certificates. The Purchaser
has had any questions arising from such review answered by the
Depositor or the Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it
authorized or will it authorize any person to: (a) offer, pledge,
sell, dispose of or otherwise transfer any Certificate, any
interest in any Certificate any other similar security to any
person in any manner, (b) solicit any offer to buy or to accept a
pledge, disposition to other transfer of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approach or negotiate with
respect to any Certificate or any interest in any Certificate any
other similar security with any person in any manner, (d) make any
general solicitation by means of general advertising or in any
other manner or (e) take any other action, that (as to any of (a)
through (e) above) would constitute a distribution of any
Certificate under the Act, that would render the disposition of
any Certificate a violation of Section 5 of the Act or any state
securities law, or that would require registration or
qualification pursuant thereto. The Purchaser will not sell or
otherwise transfer any of the Certificates, except in compliance
with the provisions of the Pooling and Servicing Agreement.
6. The Purchaser is not any employee benefit plan subject
to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986, as amended (the
"Code"), nor a Person acting, directly or indirectly, on behalf of
any such plan, and understands that registration of transfer of
any Certificate to any such employee benefit plan, or to any
person acting on behalf of such plan, will not be made unless such
employee benefit plan delivers an opinion of its counsel,
addressed and satisfactory to the Trustee and the Depositor, to
the effect that the purchase and holding of a Certificate by or on
behalf of such employee benefit plan would not result in the
assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of the Code (or comparable
provisions of any subsequent enactments), would not constitute or
result in a prohibited transaction under Section 405 of ERISA or
Section 4975 of the Code, and would not subject the Depositor or
the Trustee to any obligation or liability (including liabilities
under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Pooling and Servicing Agreement or any other
liability. The Purchaser understands that under current law such
an opinion cannot be rendered.
Very truly yours,
_____________________________
By:__________________________
Name:________________________
Title:_______________________
EXHIBIT M
Form of Transferor Representation Letter
_______________, 200_
[ ]
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee]
Attention: Corporate Trust Administration
Re: Conduit Mortgage Pass-Through Certificates, Series [ ],
Class 1-RS
-------------------------------------------------------
Dear Sirs:
In connection with the sale by ________________ (the "Seller") to
_________________ (the "Purchaser") of $___________ Initial Certificate
Principal Balance of Mortgage Pass-Through Certificates, Series [ ], Class
1-RS (the "Certificates"), issued pursuant to the Standard Terms and
Provisions of Pooling and Servicing and Reference Agreement (the "Pooling
and Servicing Agreement"), dated as of ____________, 200_ among [ ], as
depositor (the "Depositor") and _______________________, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Seller
hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Trustee that:
Neither the Seller nor anyone acting on its behalf has: (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) has solicited any offer to buy or to
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any person
in any manner, (c) has otherwise approached or negotiated with respect to
any Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) has made any general
solicitation by means of general advertising or in any other manner, or (e)
has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of
1933 (the "Act"), that would render the disposition of any Certificate a
violation of Section 5 of the Act or any state securities law, or that
would require registration or qualification pursuant thereto. The Seller
will not act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Seller has not and will not sell or
otherwise transfer any of the Certificates, except in compliance with the
provisions of the Pooling and Servicing Agreement.
Very truly yours,
_____________________________
(Seller)
By:__________________________
Name:________________________
Title:_______________________
