EXHIBIT 99.1
------------
6
EXECUTION COPY
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
Depositor
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
Master Servicer and Securities Administrator
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
Servicer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
---------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2004
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE LOAN TRUST 2004-6AR
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-6AR
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................3
Section 1.01 Definitions...................................................3
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES...................51
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans...............................................51
Section 2.02 Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund.................................54
Section 2.03 Representations and Warranties of the Depositor..............55
Section 2.04 Representations and Warranties of the Depositor and the
Seller as to the Mortgage Loans..............................57
Section 2.05 Representations and Warranties of the Seller; Discovery
of Breach; Repurchase or Substitution of Mortgage Loans......57
Section 2.06 Grant Clause.................................................61
ARTICLE III THE CERTIFICATES................................................62
Section 3.01 The Certificates.............................................62
Section 3.02 Registration.................................................63
Section 3.03 Transfer and Exchange of Certificates........................63
Section 3.04 Cancellation of Certificates.................................67
Section 3.05 Replacement of Certificates..................................67
Section 3.06 Persons Deemed Owners........................................67
Section 3.07 Temporary Certificates.......................................67
Section 3.08 Appointment of Paying Agent..................................68
Section 3.09 Book-Entry Certificates......................................68
ARTICLE IV ADMINISTRATION OF THE TRUST FUND.................................70
Section 4.01 Custodial Accounts; Distribution Account; Reserve Fund.......70
Section 4.02 Permitted Withdrawals from the Custodial Accounts and
the Distribution Account.....................................72
Section 4.03 [Reserved]...................................................73
Section 4.04 [Reserved]...................................................73
Section 4.05 Reports to Trustee and Certificateholders....................73
ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES..........................76
Section 5.01 Distributions Generally......................................76
Section 5.02 Priorities of Distribution...................................76
Section 5.03 [Reserved]...................................................85
Section 5.04 Allocation of Losses.........................................85
i
Section 5.05 Advances by the Master Servicer and by WMMSC.................87
Section 5.06 Compensating Interest Payments...............................88
Section 5.07 [Reserved]...................................................89
Section 5.08 Cross-Collateralization of the Combined Loan Groups;
Adjustments to Available Funds...............................89
Section 5.09 Determination of Pass-Through Rates for LIBOR
Certificates.................................................90
Section 5.10 The Corridor Contracts.......................................91
ARTICLE VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR;
EVENTS OF DEFAULT...........................................................94
Section 6.01 Duties of Trustee and the Securities Administrator...........94
Section 6.02 Certain Matters Affecting the Trustee and the Securities
Administrator................................................97
Section 6.03 Trustee and Securities Administrator Not Liable for
Certificates.................................................98
Section 6.04 Trustee and the Securities Administrator May Own
Certificates.................................................99
Section 6.05 Eligibility Requirements for Trustee.........................99
Section 6.06 Resignation and Removal of Trustee and the Securities
Administrator................................................99
Section 6.07 Successor Trustee and Successor Securities Administrator....100
Section 6.08 Merger or Consolidation of Trustee or the Securities
Administrator...............................................101
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian....101
Section 6.10 Authenticating Agents.......................................103
Section 6.11 Indemnification of the Trustee and the Securities
Administrator...............................................104
Section 6.12 Fees and Expenses of Securities Administrator and the
Trustee.....................................................104
Section 6.13 Collection of Monies........................................105
Section 6.14 Events of Default; Trustee To Act; Appointment of
Successor...................................................105
Section 6.15 Additional Remedies of Trustee Upon Event of Default........111
Section 6.16 Waiver of Defaults..........................................111
Section 6.17 Notification to Holders.....................................111
Section 6.18 Directions by Certificateholders and Duties of Trustee
During Event of Default.....................................111
Section 6.19 Action Upon Certain Failures of the Master Servicer or
WMMSC and Upon Event of Default.............................112
Section 6.20 Preparation of Tax Returns and Other Reports................112
ARTICLE VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND...114
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage Loans..........114
Section 7.02 Procedure Upon Redemption Termination of Trust Fund.........115
Section 7.03 Additional Trust Fund Termination Requirements..............116
ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS..................................117
Section 8.01 Limitation on Rights of Holders.............................117
Section 8.02 Access to List of Holders...................................118
Section 8.03 Acts of Holders of Certificates.............................119
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ARTICLE IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER AND WMMSC.........................................................120
Section 9.01 Duties of the Master Servicer and WMMSC; Enforcement of
Servicers' and Master Servicer's Obligations................120
Section 9.02 Assumption of Master Servicing by Master Servicer or
Servicing by WMMSC by Trustee...............................122
Section 9.03 Representations and Warranties of the Master Servicer
and WMMSC...................................................124
Section 9.04 Compensation to the Master Servicer and to WMMSC............126
Section 9.05 Merger or Consolidation.....................................127
Section 9.06 Resignation of Master Servicer or WMMSC.....................128
Section 9.07 Assignment or Delegation of Duties by the Master
Servicer....................................................128
Section 9.08 Limitation on Liability of the Master Servicer and
Others......................................................129
Section 9.09 Indemnification; Third-Party Claims.........................130
ARTICLE X REMIC ADMINISTRATION.............................................131
Section 10.01 REMIC Administration........................................131
Section 10.02 Prohibited Transactions and Activities......................133
Section 10.03 Indemnification with Respect to Prohibited Transactions
or Loss of REMIC Status.....................................133
Section 10.04 REO Property................................................134
Section 10.05 Fidelity....................................................135
ARTICLE XI MISCELLANEOUS PROVISIONS........................................135
Section 11.01 Binding Nature of Agreement; Assignment.....................135
Section 11.02 Entire Agreement............................................135
Section 11.03 Amendment...................................................135
Section 11.04 Voting Rights...............................................136
Section 11.05 Provision of Information....................................136
Section 11.06 Governing Law...............................................137
Section 11.07 Notices.....................................................137
Section 11.08 Severability of Provisions..................................138
Section 11.09 Indulgences; No Waivers.....................................138
Section 11.10 Headings Not To Affect Interpretation.......................138
Section 11.11 Benefits of Agreement.......................................138
Section 11.12 Special Notices to the Rating Agencies......................138
Section 11.13 Conflicts...................................................139
Section 11.14 Counterparts................................................139
Section 11.15 No Petitions................................................139
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ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit C Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit D Form of Certification of ▇▇▇▇▇ Fargo as Master Servicer and
Securities Administrator
Exhibit E List of Purchase and Servicing Agreements
Exhibit F List of Custodial Agreements
Exhibit G Assignment and Notice of Transfer with respect to each
Additional Collateral Mortgage Loan
Exhibit H Form of Rule 144A Transfer Certificate
Exhibit I Form of Purchaser's Letter for Institutional Accredited
Investors
Exhibit J Form of ERISA Transfer Affidavit
Exhibit K Form of Letter of Representations with the Depository Trust
Company
Exhibit L Form of Custodian Certification
Exhibit M [Reserved]
Schedule A Mortgage Loan Schedule
Schedule B Principal Balances Schedule
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This POOLING AND SERVICING AGREEMENT, dated as of July 1, 2004 (the
"Agreement"), by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), DEUTSCHE BANK NATIONAL TRUST
COMPANY, a national banking association, as trustee (the "Trustee"), ▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, in its dual capacities as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and WASHINGTON MUTUAL MORTGAGE SECURITIES CORP., as servicer
(a "Servicer") and acknowledged by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC., a New
York corporation, as seller (the "Seller"), for purposes of Section 2.05.
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby
conveyed to the Trustee in return for the Certificates. As provided herein,
the Trustee will make multiple elections to treat segregated pools of assets
subject to this Agreement for federal income tax purposes as the following
four separate real estate mortgage investment conduits (each, a "REMIC"):
Subsidiary REMIC 1, Subsidiary REMIC 2, the Middle REMIC and the Master REMIC.
Subsidiary REMIC 1 will consist of the Mortgage Loans comprising Loan Group 1
excluding any rights of the Trust Fund in respect of the Additional
Collateral. Subsidiary REMIC 2 will consist of the Mortgage Loans comprising
Loan Group 2, Loan Group 3, Loan Group 4, Loan Group 5 and Loan Group 6,
excluding any rights of the Trust Fund in respect of the Additional
Collateral. Each Subsidiary REMIC will issue uncertificated REMIC regular
interests (the "Subsidiary REMIC 1 Regular Interests" and the "Subsidiary
REMIC 2 Regular Interests", respectively, and collectively, the "Subsidiary
REMIC Regular Interests"). The Subsidiary REMIC Regular Interests will
represent the "regular interests" in the Subsidiary REMIC and the Class SR1
Interest and Class SR2 Interest will represent the single Class of "residual
interest" in each of Subsidiary REMIC 1 and Subsidiary REMIC 2.
The Trustee will hold the Subsidiary REMIC Regular Interests for
the benefit of the Middle REMIC. The Middle REMIC will consist of the
Subsidiary REMIC Interests and will issue uncertificated REMIC regular
interests (the "Middle REMIC Regular Interests"). The Middle REMIC Regular
Interests will represent the "regular interests" in the Middle REMIC and the
MR Interest will represent the single Class of "residual interest" in the
Middle REMIC.
The Trustee will hold the Subsidiary REMIC Regular Interests for
the benefit of the Master REMIC. The Master REMIC will consist of the Middle
REMIC Interests and will be evidenced by the Certificates (other than the
Class A-R Certificates), which will constitute the regular interests in the
Master REMIC (the "Regular Certificates") and the Class MMR Interest, which
will represent the single Class of "residual interest" in the Master REMIC.
The Class A-R Certificates will represent the beneficial ownership of each of
the Class SR1, Class SR2, Class MR and Class MMR Interests. The "latest
possible maturity date" for federal income tax purposes of all REMICs, and
regular and residual interests created hereunder will be the Latest Possible
Maturity Date.
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Subsidiary REMIC 1
------------------
Subsidiary REMIC 1 will issue a single uncertificated regular
interest, each of which (except for the Class SR1 Interests) is hereby
designated as a REMIC regular interest for federal income tax purposes, for
each Mortgage Loan included in Loan Group1 (each such Mortgage Loan will be a
"Corresponding Mortgage Loan" with respect to the uncertificated regular
interest issued from Subsidiary REMIC 1). On each Distribution Date, following
the allocation of scheduled and unscheduled principal and Realized Losses,
each uncertificated class of regular interests will have a balance, bear
interest at a pass through rate and receive prepayment premiums equal to the
principal balance, pass through rate and entitlement to prepayment premiums in
respect of its Corresponding Mortgage Loan. The Class SR1 Interest will
represent the sole class of residual interest in Subsidiary REMIC 1.
Subsidiary REMIC 2
------------------
The Subsidiary REMIC 2 Interests, each of which (except for the
Class SR 2 Interests) is hereby designated as a REMIC regular interest for
federal income tax purposes, will have the principal balances, pass-through
rates and Corresponding Loan Groups as set forth in the following table:
Initial Pass-Through Corresponding
Subsidiary REMIC Interests Balance Rate Loan Group
----------------------------------- --------- -------------- ---------------
A-2 (0.9% of Subordinated Portion
Group 2).... ................... (1) (2) 2
B-2 (0.1% of Subordinated
Portion Group 2).............. (1) (2) 2
C-2 (Excess of Group 2)...... (1) (2) 2
A-3 (0.9% of Subordinated Portion
Group 3).... ................... (1) (2) 3
B-3 (0.1% of Subordinated
Portion Group 3).............. (1) (2) 3
C-3 (Excess of Group 3)...... (1) (2) 3
A-4 (0.9% of Subordinated Portion
Group 4).... ................... (1) (2) 4
B-4 (0.1% of Subordinated
Portion Group 4).............. (1) (2) 4
C-4 (Excess of Group 4)...... (1) (2) 4
A-5 (0.9% of Subordinated Portion
Group 5).... ................... (1) (2) 5
B-5 (0.1% of Subordinated
Portion Group 5).............. (1) (2) 5
C-5 (Excess of Group 5)...... (1) (2) 5
A-6 (0.9% of Subordinated Portion
Group 6).... ................... (1) (2) 6
B-6 (0.1% of Subordinated
Portion Group 6).............. (1) (2) 6
C-6 (Excess of Group 6)...... (1) (2) 6
vi
Class SP $100 (3) N/A
Class SR-$100................. $100 (4) N/A
SR2........................... $0 N/A N/A
---------------
(1) Each Class A Interest will have a principal balance initially equal to
0.9% of the Subordinated Portion of its Corresponding Loan Group. Each
Class B Interest will have a principal balance initially equal to 0.1%
of the Subordinated Portion of its Corresponding Loan Group. The initial
principal balance of each Class C Interest will equal the excess of the
principal balance of its Corresponding Loan Group over the initial
aggregate principal balances of the Class A and Class B Interests
corresponding to such Loan Group.
(2) The Weighted Average Net Mortgage Rate in respect of the Corresponding
Loan Group.
(3) The Class SP Interest will not be entitled to any interest, but will be
entitled to 100% of any prepayment premiums paid on the Combined
Mortgage Loans.
(4) For each Distribution Date, the Pass Through Rate in respect of the
Class A-R Certificates.
On any Distribution Date:
(1) payments of principal and Realized Losses will be allocated to each
of the Class SP Interest and Class SR-$100 Interest in the same manner as
payments of principal and Realized Losses are allocated to each of the Class P
Certificates and Class A-R Certificates.
(2) If no Cross-Over Situation exists with respect to any Class of
Interests, then Principal Reductions arising with respect to each Loan Group
will be allocated first to cause the Loan Group's corresponding Class A and
Class B Interests to equal, respectively, 0.9% and 0.1% of the Subordinated
Portion as of such Distribution Date, and second to the Loan Group's
corresponding Class C Interest;
(3) If a Cross-Over Situation exists then:
(a) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is less than the Combined Subordinate Pass Through Rate,
Principal Relocation Payments will be made proportionately to the outstanding
Class A Interests prior to any other Principal Distributions from each such
Loan Group; and
(b) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is greater than the Combined Subordinate Pass Through Rate,
Principal Relocation Payments will be made proportionately to the outstanding
Class B Interests prior to any other Principal Distributions from each such
Loan Group.
In each case, Principal Relocation Payments will be made so as to cause
the Calculation Rate in respect of the outstanding Class A and Class B
Interests to equal the Combined Subordinate Pass Through Rate. With respect to
each Loan Group, if (and to the extent that) the sum of (a) the principal
payments comprising the Principal Remittance Amount received during
vii
the Due Period and (b) the Realized Losses, are insufficient to make the
necessary reductions of principal on the Class A and Class B Interests, then
interest will be added to the Loan Group's other Interests that are not
receiving Principal Relocation Payments, in proportion to their principal
balances.
(c) The outstanding aggregate Class A and Class B Interests will not be
reduced below 1 percent of the excess of (i) the aggregate outstanding
Principal Balances of the Mortgage Loans as of the end of any Due Period over
(ii) the Certificate Balance of the Senior Certificates as of the related
Distribution Date (after taking into account distributions of principal on
such Distribution Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to any of the Class A and Class B Interests, and if
the Loan Group's Class C Interest has already been reduced to zero, then the
excess principal from that Loan Group will be paid to the Class C Interests of
any other Loan Groups whose aggregate corresponding Class A and Class B
Interests are less than one percent of their corresponding Subordinated
Portion. If any Loan Group or Groups corresponding to a Class C Interest that
receives such payment has (or have in the aggregate, in the case of more than
one Class C Interest receiving such a payment) a Weighted Average Net Mortgage
Rate below the Weighted Average Net Mortgage Rate of the Loan Group or Groups
making such payment, then the payment will be treated by Subsidiary REMIC 2 as
a Realized Loss. Conversely, if the Mortgage Pool of the Class C Interest or
Interests that receive such payment has a Weighted Average Net Mortgage Rate
(or have in the aggregate, in the case of more than one Class C Interest
receiving such a payment) above the Weighted Average Net Mortgage Rate of the
Loan Group making the payment, then the payment will be treated by Subsidiary
REMIC 2 as a reimbursement for prior Realized Losses.
Middle Subsidiary REMIC
-----------------------
The Middle REMIC Interests, each of which (except for the Class MR
Interests) is hereby designated as a REMIC regular interest for federal income
tax purposes, will have the principal balances, pass-through rates and
Corresponding Loan Groups as set forth in the following table:
-------------------------------------------------------------------------------
Middle Tier REMIC Initial Principal Interest Rate Corresponding Master
Interest Balance REMIC Certificate
-------------------------------------------------------------------------------
MT-1-A (1) (3) Class 1-A
-------------------------------------------------------------------------------
MT-1-M-1 (1) (3) Class 1-M-1
-------------------------------------------------------------------------------
MT-1-M-2 (1) (3) Class 1-M-2
-------------------------------------------------------------------------------
MT-1-M-3 (1) (3) Class 1-M-3
-------------------------------------------------------------------------------
MT-1-B-1 (1) (3) Class 1-B-1
-------------------------------------------------------------------------------
MT-1-B-2 (1) (3) Class 1-B-2
-------------------------------------------------------------------------------
MT-$100 (2) (4) Class A-R
-------------------------------------------------------------------------------
MT-P (2) (5) Class P
-------------------------------------------------------------------------------
MT-2-A-1 (2) (6) Class 2-A-1
-------------------------------------------------------------------------------
viii
-------------------------------------------------------------------------------
MT-2-A-2 (2) (6) Class 2-A-2
-------------------------------------------------------------------------------
MT-2-A-3 (2) (6) Class 2-A-3
-------------------------------------------------------------------------------
MT-3-A (2) (7) Class 3-A
-------------------------------------------------------------------------------
MT-4-A (2) (8) Class 4-A
-------------------------------------------------------------------------------
MT-5-A (2) (9) Class 5-A
-------------------------------------------------------------------------------
MT-6-A (2) (10) Class 6-A
-------------------------------------------------------------------------------
MT-C-B-1 (2) (11) Class C-B-1
-------------------------------------------------------------------------------
MT-C-B-2 (2) (11) Class C-B-2
-------------------------------------------------------------------------------
MT-C-B-3 (2) (11) Class C-B-3
-------------------------------------------------------------------------------
MT-C-B-4 (2) (11) Class C-B-4
-------------------------------------------------------------------------------
MT-C-B-5 (2) (11) Class C-B-5
-------------------------------------------------------------------------------
MT-C-B-6 (2) (11) Class C-B-6
-------------------------------------------------------------------------------
MT-Accrual (1) (3) N/A
-------------------------------------------------------------------------------
MT-A-R (12) (12) N/A
-------------------------------------------------------------------------------
---------------
(1) For each Distribution Date, following the allocation of scheduled
principal, prepayments and Realized Losses: (i) each such Class of
Interests (other than the Class MT-Accrual Interest) will have a principal
balance equal to 50% of the principal balance in respect of the
Corresponding Class of Certificates, (ii) the Class MT-Accrual Interests
will have a principal balance equal to 50% of the principal balance of
Mortgage Loans plus 50% of the Overcollateralized Amount.
(2) For each Distribution Date, following the allocation of scheduled
principal, prepayments and Realized Losses: each such Class of Interests
will have a principal balance equal to 100% of the principal balance in
respect of the Corresponding Class of Certificates.
(3) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per annum
rate equal to the Weighted Average Net Mortgage Rate of the Mortgage Loans
in Loan Group 1.
(4) The interest rate with respect to any Distribution Date, the pass through
rate in respect of the Class A-R Certificates.
(5) The Class M-P Interest will not be entitled to any interest, but will be
entitled to 100% of any prepayment premiums paid on the Mortgage Loans.
(6) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per annum
rate equal to the Weighted Average Net Mortgage Rate of the Mortgage Loans
in Loan Group 2.
(7) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per annum
rate equal to the Weighted Average Net Mortgage Rate of the Mortgage Loans
in Loan Group 3.
(8) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per annum
rate equal to the Weighted Average Net Mortgage Rate of the Mortgage Loans
in Loan Group 4.
(9) The interest rate with respect to any Distribution Date (and the related
Interest Accrual
ix
Period) for this Middle Tier REMIC Interest is a per annum rate equal to
the Weighted Average Net Mortgage Rate of the Mortgage Loans in Loan Group
5.
(10) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per annum
rate equal to the Weighted Average Net Mortgage Rate of the Mortgage Loans
in Loan Group 6.
(11) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per annum
rate equal to the Combined Subordinate Pass-Through Rate.
(12) The MT-A-R is the sole Class of residual interest in the Middle Tier
REMIC. It pays no interest or principal.
The Master REMIC
----------------
The following table sets forth characteristics of the Master REMIC
Certificates, together with the minimum denominations and integral multiples
in excess thereof in which such Classes shall be issuable (except that one
Certificate of each Class of Certificates may be issued in a different amount
and, in addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
====================================================================================
Integral
Pass-Through Multiples in
Class Initial Class Rate Minimum Excess of
Designation Principal Balance (per annum) Denomination Minimum
------------------------------------------------------------------------------------
Class 1-A $318,369,000.00 (1) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 2-A-1 $209,646,000.00 (2) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 2-A-2 $200,000,000.00 (2) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 2-A-3 $10,200,000.00 (2) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 3-A $318,268,000.00 (3) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 4-A $100,052,000.00 (4) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 5-A $105,417,000.00 (5) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 6-A $25,819,000.00 (6) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class A-R(7) $100.00 (2) (8) (8)
------------------------------------------------------------------------------------
Class 1-M-1 $7,392,000.00 (1) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 1-M-2 $6,048,000.00 (1) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 1-M-3 $1,680,000.00 (1) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 1-B-1 $1,344,000.00 (1) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class 1-B-2 $1,176,000.00 (1) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class C-B-1 $26,489,000.00 (9) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class C-B-2 $8,660,000.00 (9) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class C-B-3 $4,584,000.00 (9) $25,000.00 $1,000.00
------------------------------------------------------------------------------------
Class C-B-4 $4,076,000.00 (9) $100,000.00 $1,000.00
------------------------------------------------------------------------------------
Class C-B-5 $3,565,000.00 (9) $100,000.00 $1,000.00
------------------------------------------------------------------------------------
Class C-B-6 $2,038,620.71 (9) $100,000.00 $1,000.00
------------------------------------------------------------------------------------
Class P $100.00 (10) $100.00 N/A
------------------------------------------------------------------------------------
Class OC (11) (11) (12) (12)
====================================================================================
------------------------------------------
x
(1) Interest will accrue on each Class of Group 1 Certificates during each
Interest Accrual Period at a rate equal to the lesser of LIBOR plus the
Pass-Through Margin for such Class for such Distribution Date and the
applicable Weighted Average Net Mortgage Rate for such Distribution Date.
(2) The Pass-Through Rate for the Class 2-A-1, Class 2-A-2, Class 2-A-3 and
Class A-R Certificates for the Interest Accrual Period related to any
Distribution Date will be a per annum rate equal to the Weighted Average
Net Mortgage Rate on the Group 2 Mortgage Loans. The Pass-Through Rate for
the Class 2-A-1, Class 2-A-2, Class 2-A-3 and Class A-R Certificates for
the Interest Accrual Period related to the first Distribution Date will be
a per annum rate of 4.215%.
(3) The Pass-Through Rate for the Class 3-A Certificates for any Distribution
Date will be a per annum rate equal to the Weighted Average Net Mortgage
Rate on the Group 1 Mortgage Loans minus 0.40%. The Pass-Through Rate for
the Class 3-A Certificates for the Interest Accrual Period related to the
first Distribution Date will be a per annum rate of 4.679%.
(4) The Pass-Through Rate for the Class 4-A Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to the Weighted Average Net Mortgage Rate on the Group 4 Mortgage
Loans. The Pass-Through Rate for the Class 4-A Certificates for the
Interest Accrual Period related to the first Distribution Date will be a
per annum rate of 4.348%.
(5) The Pass-Through Rate for the Class 5-A Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to the Weighted Average Net Mortgage Rate on the Group 5 Mortgage
Loans. The Pass-Through Rate for the Class 5-A Certificates for the
Interest Accrual Period related to the first Distribution Date will be a
per annum rate of 4.740%.
(6) The Pass-Through Rate for the Class 6-A Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to the Weighted Average Net Mortgage Rate on the Group 6 Mortgage
Loans. The Pass-Through Rate for the Class 6-A Certificates for the
Interest Accrual Period related to the first Distribution Date will be a
per annum rate of 5.083%.
(7) The Class A-R Certificates represent the sole Class of residual interest
in each REMIC.
(8) The Class A-R Certificate shall be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of $0.01.
(9) The Pass-Through Rate for each Class of Combined Subordinated Certificates
for any Distribution Date will be a per annum rate equal to the sum of: (1)
the Weighted Average Net Mortgage Rate on the Group 2 Mortgage Loans
multiplied by the excess of the aggregate Stated Principal Balance of the
Group 2 Mortgage Loans as of the Due Date in the month preceding the month
of that Distribution Date (after giving effect to prepayments received in
the Prepayment Period related to such prior Due Date) over the aggregate of
the Class Principal Balances of the Group 2 Certificates immediately prior
to that Distribution Date, (2) the Weighted Average Net Mortgage Rate on
the Group 3 Mortgage Loans minus 0.0400% multiplied by the excess of the
aggregate Stated Principal Balance of the Group 3 Mortgage Loans as of the
Due Date in the month preceding the month of that Distribution Date (after
giving effect to prepayments received in the Prepayment Period related to
such prior Due Date) over the aggregate of the Class Principal Balances of
the Group 3 Certificates immediately prior to that Distribution Date, (3)
the Weighted Average Net Mortgage Rate on the Group 4 Mortgage Loans
multiplied by the excess of the aggregate Stated Principal Balance of the
Group 4 Mortgage Loans as of the Due Date in the month preceding the month
of that Distribution Date (after giving effect to prepayments received in
the Prepayment Period related to such prior Due Date) over the aggregate of
the Class Principal Balances of the Group 4 Certificates immediately
ix
prior to that Distribution Date, (4) the Weighted Average Net Mortgage Rate
on the Group 5 Mortgage Loans multiplied by the excess of the aggregate
Stated Principal Balance of the Group 5 Mortgage Loans as of the Due Date
in the month preceding the month of that Distribution Date (after giving
effect to prepayments received in the Prepayment Period related to such
prior Due Date) over the aggregate of the Class Principal Balances of the
Group 5 Certificates immediately prior to that Distribution Date, and (5)
the Weighted Average Net Mortgage Rate on the Group 6 Mortgage Loans
multiplied by the excess of the aggregate Stated Principal Balance of the
Group 6 Mortgage Loans as of the Due Date in the month preceding the month
of that Distribution Date (after giving effect to prepayments received in
the Prepayment Period related to such prior Due Date) over the aggregate of
the Class Principal Balances of the Group 6 Certificates immediately prior
to that Distribution Date; divided by the aggregate of the Class Principal
Balances of the Combined Subordinated Certificates immediately prior to
that Distribution Date. The Pass-Through Rate for each Class of Combined
Subordinated Certificates for the first Distribution Date will be a per
annum rate of 4.461%.
(10) The Class P Certificate will not be entitled to any interest, but will be
entitled to 100% of any prepayment premiums paid on the Mortgage Loans. For
the federal income tax purposes, the Class P Certificate will be entitled
to 100% of the Class SP Regular Interest cash flow.
(11) For each Interest Accrual Period the Class OC Certificates will accrue a
specified portion of the interest on the Group 1 Mortgage Loans equal to
the excess of the Weighted Average Net Mortgage Rate of the Group 1
Mortgage Loans over the product of two and the weighted average interest
rate of the Middle REMIC Regular Interests having "(1)" designated in the
column entitled "Initial Principal Balance" with each such Class other than
the Class MT-Accrual Interest subject to a cap equal to the Pass-Through
Rate of the corresponding Master REMIC class and the MT-Accrual Interest
subject to a cap of 0.00%. The Pass-Through Rate of the Class OC
Certificates shall be a rate sufficient to entitle it to all interest
accrued on the Group 1 Mortgage Loans less the interest accrued on the
other interests issued by the Master REMIC. The Class OC Distributable
Amount for any Distribution Date is payable from current interest on the
Group 1 Mortgage Loans and any OC Release Amount for that Distribution
Date.
(12) The Class OC Certificates will be issued as a single Class of
Certificates.
The Master REMIC will also issue an uncertificated regular interest
class (the "Uncertificated Group 3 IO Class") that will be entitled to receive
distributions of interest on its Notional Amount (which for any Distribution
Date, will be equal to the aggregate Stated Principal Balance of the Group 3
Mortgage Loans as of the related Due Date, after giving effect to prepayments
in the Prepayment Period related to that Due Date) at a per annum rate equal
to 0.040%.
The foregoing provisions in the Preliminary Statement are intended to
cause net interest and principal collections in respect of the Mortgage Loans
to be distributed from the Subsidiary REMICs to the Master REMIC and from the
Master REMIC to each Class of Certificates. The Preliminary Statement will be
interpreted and applied consistently with such intent.
For any purpose for which the pass-through rates is calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted to account
for the difference between the monthly day count convention of the Mortgage
Loans and the monthly day count convention of the regular interests issued by
each of the REMICs. For purposes of calculating the pass-through rates for
each of the interests issued by the Subsidiary REMICs and the Master REMIC
such rates shall be adjusted to equal a monthly day count convention based on
a 30 day month for
xii
each Due Period and a 360-day year so that the Mortgage Loans and all regular
interests will be using the same monthly day count convention.
xiii
Set forth below are designations of Classes or Components of Certificates and
other defined terms to the categories used herein:
Accretion Directed Certificates........ None.
Accretion Directed Components.......... None.
Accrual Certificates................... None.
Accrual Components..................... None.
Book-Entry Certificates................ All Classes of Certificates other
than the Definitive Certificates.
Combined Certificates.................. The Group 2 Certificates, the Group
3 Certificates, the Group 4
Certificates, the Group 5
Certificates and the Group 6
Certificates.
Component Certificates................. None.
Combined Senior Certificate Group...... The Group 2 Senior Certificates,
Group 3 Senior Certificates, Group 4
Senior Certificates, Group 5 Senior
Certificates, or Group 6 Senior
Certificates, as applicable.
Combined Subordinated Certificates..... Class C-B-1, Class C-B-2, Class
C-B-3, Class C-B-4, Class C-B-5 and
Class C-B-6 Certificates.
Components............................. For purposes of calculating
distributions of principal and/or
interest, the Component
Certificates, if any, will be
comprised of multiple payment
components having the designations,
Initial Component Balances or
Notional Amounts, as applicable, and
Pass-Through Rates set forth below:
Initial
Component
Principal Pass-Through
Designation Balance Rate
----------- ------- ----
N/A N/A N/A
Delay Certificates..................... All interest-bearing Classes of
Certificates other than the
Non-Delay Certificates, if any.
ERISA-Restricted Certificates.......... The Residual Certificates and
Private Certificates; and any
Certificate of a Class that ceases
to satisfy the applicable rating
requirement under the Underwriter's
Exemption.
Floating Rate Certificates............. None.
Group 1 Certificates................... Group 1 Senior Certificates and the
Group 1 Subordinated Certificates.
Group 1 Senior Certificates............ Class 1-A Certificates.
1
Group 1 Subordinated Certificates...... Class 1-M-1, Class 1-M-2, Class
1-M-3, Class C-B-1 and Class C-B-2
Certificates.
Group 2 Certificates................... Group 2 Senior Certificates and the
portions of the Combined
Subordinated Certificates related to
Loan Group 2.
Group 2 Senior Certificates............ Class 2-A-1, Class 2-A-2, Class
2-A-3 and Class A-R Certificates.
Group 3 Certificates................... Group 3 Senior Certificates and the
portions of the Combined
Subordinated Certificates related to
Loan Group 3.
Group 3 Senior Certificates............ Class 3-A Certificates.
Group 4 Certificates................... Group 4 Senior Certificates and the
portions of the Combined
Subordinated Certificates related to
Loan Group 4.
Group 4 Senior Certificates............ Class 4-A Certificates.
Group 5 Certificates................... Group 5 Senior Certificates and the
portions of the Combined
Subordinated Certificates related to
Loan Group 5.
Group 5 Senior Certificates............ Class 5-A Certificates.
Group 6 Certificates................... Group 6 Senior Certificates and the
portions of the Combined
Subordinated Certificates related to
Loan Group 6.
Group 6 Senior Certificates............ Class 6-A Certificates.
Inverse Floating Rate Certificates..... None.
LIBOR Certificates..................... Group 1 Certificates.
Non-Delay Certificates................. Group 1 Certificates.
Notional Amount Certificates........... None.
Notional Amount Components............. None.
Offered Certificates................... All Classes of Certificates other
than the Private Certificates.
Definitive Certificates................ Private Certificates and the
Residual Certificates.
Planned Principal Classes.............. None.
Principal Only Certificates............ None.
Private Certificates................... Class P, Class OC, Class C-B-4,
Class C-B-5 and Class C-B-6
Certificates.
Rating Agencies........................ S&P and ▇▇▇▇▇'▇.
2
Regular Certificates................... All Classes of Certificates, other
than the Residual Certificates.
Residual Certificates.................. Class A-R Certificates.
Scheduled Principal Classes............ None.
Senior Certificate Group............... Group 1 Senior Certificates or any
of the Combined Senior Certificate
Groups, as applicable.
Senior Certificates.................... Group 1 Senior Certificates, Group 2
Senior Certificates, Group 3 Senior
Certificates, Group 4 Senior
Certificates, Group 5 Senior
Certificates and Group 6 Senior
Certificates.
Subordinated Certificates.............. Group 1 Subordinated Certificates
and the Combined Subordinated
Certificates.
Targeted Principal Classes............. None.
Underwriter............................ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
The following words and phrases, unless the context otherwise requires,
shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices of prudent mortgage lending institutions which
service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Accountant: A Person engaged in the practice of accounting who (except
when this Agreement provides that an Accountant must be Independent) may be
employed by or affiliated with the Depositor or an Affiliate of the Depositor.
Acknowledgements: The Assignment, Assumption and Recognition Agreements,
each dated as of July 1, 2004, assigning rights under the Purchase and
Servicing Agreements from the Seller to the Depositor and from the Depositor
to the Trustee, for the benefit of the Certificateholders.
3
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: With respect to any Class of Accrual Certificates or any
Accrual Component and any Distribution Date, the amount allocable to interest
on such Class of Accrual Certificates or Accrual Component with respect to
such Distribution Date pursuant to Section 5.02(a)(2)(iii), 5.02(a)(3)(iii),
5.02(a)(4)(iii), 5.02(a)(5)(iii) or 5.02(a)(6)(iii), as applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Act: The Securities Act of 1933, as amended.
Additional Collateral: With respect to any Additional Collateral
Mortgage Loan, the marketable securities and other acceptable collateral
pledged as collateral pursuant to the related pledge agreements.
Additional Collateral Mortgage Loan: Each Mortgage Loan identified as
such in the Mortgage Loan Schedule.
Adjustment Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: With respect to a Master Serviced Mortgage Loan, the payments
required to be made by the Master Servicer or the applicable Servicer with
respect to any Distribution Date pursuant to this Agreement or the applicable
Purchase and Servicing Agreement, as applicable, the amount of any such
payment being equal to the aggregate of the payments of principal and interest
(net of the applicable Servicing Fee and net of any net income in the case of
any REO Property) on the Mortgage Loans that were due on the related Due Date
and not received as of the close of business on the related Determination
Date, less the aggregate amount of any such delinquent payments that the
Master Servicer or the applicable Servicer has determined would constitute
Nonrecoverable Advances if advanced. With respect to any WMMSC Serviced
Mortgage Loan, the payment required to be made by WMMSC with respect to any
Distribution Date pursuant to Section 5.05(b).
Adverse REMIC Event: Either (i) loss of status as a REMIC, within the
meaning of Section 860D of the Code, for any group of assets identified as a
REMIC in the Preliminary Statement to this Agreement, or (ii) imposition of
any tax, including the tax imposed under Section 860F(a)(1) on prohibited
transactions, and the tax imposed under Section 860G(d) on certain
contributions to a REMIC, on any REMIC created hereunder to the extent such
tax would be payable from assets held as part of the Trust Fund.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this
4
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Aggregate Expense Rate: With respect to any Mortgage Loan, the
applicable Servicing Fee Rate and, with respect to any LPMI Mortgage Loan, the
interest premium charged by the mortgagee to obtain or maintain any Primary
Insurance Policy.
Aggregate Planned Balance: With respect to any group of Planned
Principal Classes or Components and any Distribution Date, the amount set
forth for such group for such Distribution Date in Schedule B hereto.
Aggregate Subordinated Percentage: As to any Distribution Date and the
Combined Certificates, the fraction, expressed as a percentage, the numerator
of which is equal to the aggregate Class Principal Balance of the Combined
Subordinated Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate Stated Principal Balance of all the
Combined Mortgage Loans as of the Due Date in the month preceding the month of
such Distribution Date.
Aggregate Targeted Balance: With respect to any group of Targeted
Principal Classes or Components and any Distribution Date, the amount set
forth for such group for such Distribution Date in Schedule B hereto.
Aggregate Voting Interests: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Allocable Share: As to any Distribution Date, any Combined Mortgage Loan
in a Combined Loan Group and any Class or Component of Certificates related to
that Loan Group, the ratio that the amount calculated with respect to such
Distribution Date (A) with respect to the Combined Senior Certificates of the
related Combined Senior Certificate Group, pursuant to clause (i) of the
definition of Class Optimal Interest Distribution Amount (without giving
effect to any reduction of such amount pursuant to Section 5.02(d)) and (B)
with respect to the Combined Subordinated Certificates, pursuant to the
definition of Assumed Interest Amount or after the fourth Senior Termination
Date, pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount (without giving effect to any reduction of such amount
pursuant to Section 5.02(d)) bears to the amount calculated with respect to
such Distribution Date for each Class of Combined Certificates pursuant to
clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
5.02(d)) or the definition of Assumed Interest Amount for such Combined Loan
Group and Class, as applicable).
Amount Held for Future Distribution: As to any Distribution Date and
Mortgage Loans in a Loan Group, the aggregate amount held in the Custodial
Accounts at the close of business on the related Determination Date on account
of (i) Principal Prepayments received after the related
5
Prepayment Period and Liquidation Proceeds and Subsequent Recoveries received
in the month of such Distribution Date relating to such Loan Group and (ii)
all Scheduled Payments due after the related Due Date relating to such Loan
Group.
Applicable Credit Support Percentage: As defined in Section 5.02(e).
Applied Loss Amount: As to any Distribution Date, with respect to the
Group 1 Certificates and the Class OC Certificates, the excess, if any, of (i)
the aggregate Class Principal Balances of the Group 1 Certificates and the
Class OC Certificates, after giving effect to all Realized Losses with respect
to the Mortgage Loans in Loan Group 1 during the Due Period for such
Distribution Date and payments of principal on such Distribution Date over
(ii) the aggregate Stated Principal Balance of the Group 1 Mortgage Loans for
such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of
the Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; and (ii) with
respect to a Refinancing Mortgage Loan, the value of the Mortgaged Property
based upon the appraisal made at the time of the origination of such
Refinancing Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
the Trustee shall not be responsible for determining whether any such
assignment is in recordable form or sufficient under the laws of the
applicable jurisdiction to reflect the sale of the Mortgage to the Trustee.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, an
assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Unit is located to reflect the
assignment of such Proprietary Lease; provided, however, that the Trustee
shall not be responsible for determining whether such assignment is sufficient
to reflect the assignment of the Proprietary Lease.
Assignment of Recognition Agreement: With respect to a Cooperative Loan,
an assignment of the Recognition Agreement sufficient under the laws of the
jurisdiction wherein the related Cooperative Unit is located to reflect the
assignment of such Recognition Agreement; provided, however, that the Trustee
shall not be responsible for determining whether such assignment is sufficient
to reflect the assignment of the Recognition Agreement.
Assumed Interest Amount: With respect to any Distribution Date and Class
of Combined Subordinated Certificates, one month's interest accrued during the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
applicable Subordinated Portion immediately prior to that Distribution Date.
6
Authenticating Agent: Any authenticating agent appointed pursuant to
Section 6.10 until any successor authenticating agent for the Certificates is
named, and thereafter "Authenticating Agent" shall mean any such successor.
The initial Authenticating Agent shall be the Securities Administrator under
this Agreement.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
Available Distribution Amount: For any Distribution Date and the Group
1 Certificates, the sum of the following amounts:
(1) the total amount of all cash received by or on behalf of each
Servicer with respect to the Group 1 Mortgage Loans serviced by it or received
by the Master Servicer by such Distribution Date and not previously
distributed (including Liquidation Proceeds, condemnation proceeds and
Insurance Proceeds), except:
o all scheduled payments of principal and related interest collected on
the Group 1 Mortgage Loans but due on a date after the related Due
Date;
o all partial Principal Prepayments received with respect to the Group
1 Mortgage Loans after the related Prepayment Period, together with
all related interest accrued on such Mortgage Loans;
o all Prepayment Penalties received in connection with the Group 1
Mortgage Loans;
o all Principal Prepayments in Full received with respect to the Group
1 Mortgage Loans after the related Prepayment Period, together with
all related interest accrued on such Mortgage Loans;
o Liquidation Proceeds, condemnation proceeds and Insurance Proceeds
received on such Group 1 Mortgage Loans after the previous calendar
month;
o all amounts reimbursable to a Servicer pursuant to the terms of the
related Purchase and Servicing Agreement or this Agreement, as
applicable, or to the Master Servicer, the Securities Administrator,
the Trustee or the Custodian pursuant to the terms of this Agreement,
in each case with respect to the Group 1 Mortgage Loans or the Group
1 Certificates, or, if any amounts are not specifically related to
the Group 1 Mortgage Loans or the Group 1 Certificates, then the
applicable Pool Percentage for Loan Group 1 for such Distribution
Date of such amounts;
o reinvestment income on the balance of funds, if any, in the Custodial
Accounts or Distribution Account;
o any fees payable to the Servicers and the Master Servicer, in each
case with respect to the Group 1 Mortgage Loans; and
o all amounts withdrawn from the Reserve Fund;
7
(2) all Advances on the Group 1 Mortgage Loans made by each Servicer
and/or the Master Servicer for that Distribution Date;
(3) any amounts paid as Compensating Interest with respect to the Group
1 Mortgage Loans by each Servicer and/or the Master Servicer for that
Distribution Date;
(4) the total amount of any cash deposited in the Distribution Account
in connection with the repurchase of any Group 1 Mortgage Loans by the Seller
or the related Originator;
(5) all Subsequent Recoveries received with respect to the Group 1
Mortgage Loans during the related Prepayment Period; and
(6) the Group 3 Interest Transfer Amount.
Available Funds: As to any Distribution Date and the Mortgage Loans in a
Combined Loan Group, the sum, for that Loan Group, of (a) the aggregate amount
held in the Custodial Accounts at the close of business on the related
Determination Date, including any Subsequent Recoveries, in respect of such
Mortgage Loans net of the Amount Held for Future Distribution and net of
amounts permitted to be withdrawn from the Custodial Accounts pursuant to
Section 4.02(a) in respect of such Mortgage Loans and amounts permitted to be
withdrawn from the Distribution Account pursuant to clauses (i)-(v) inclusive
of Section 4.02(b) in respect of such Mortgage Loans, (b) the amount of all
related Advances made by the Servicers and the Master Servicer and all
Compensating Interest Payments or payments made in respect of Prepayment
Interest Shortfalls paid by the Servicers and the Master Servicer, (c) in
connection with Defective Mortgage Loans in such Loan Group, as applicable,
the aggregate of the Purchase Prices and Substitution Adjustment Amounts
deposited on the related Distribution Account Deposit Date and (d) the
Transfer Payment Received plus interest thereon as provided in Section 5.08
for such Loan Group less the Transfer Payment Made plus interest thereon as
provided in Section 5.08 for such Loan Group; provided, however, that after
the fourth Senior Termination Date, Available Funds with respect to the Loan
Group relating to the remaining Combined Senior Certificate Group shall
include the Available Funds from the other Combined Loan Groups and on any
Distribution Date thereafter, Available Funds shall be calculated based upon
all the Combined Mortgage Loans in the Mortgage Pool, as opposed to the
Combined Mortgage Loans in the related Loan Group, minus (e) all related fees,
charges and other amounts payable or reimbursable to the Master Servicer, the
Securities Administrator, the Custodian or the Trustee under this Agreement or
the Custodial Agreement or to the Servicers under the Purchase and Servicing
Agreements in each case with respect to the Combined Mortgage Loans or the
Combined Certificates, or, if any amounts are not specifically related to the
Combined Mortgage Loans or the Combined Certificates, then the applicable Pool
Percentage for the Combined Loan Group for such Distribution Date of such
amounts. The Holders of the Class P Certificates will be entitled to all
Prepayment Penalties received on the Combined Mortgage Loans and such amounts
will not be available for distribution to the Holders of any other Class of
Certificates.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking,
8
consenting to or acquiescing in the appointment of a trustee, receiver or
liquidator, dissolution, or termination, as the case may be, of such Person
pursuant to the provisions of either the Bankruptcy Code or any other similar
state laws.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Combined Mortgage Loan that is a
Master Serviced Mortgage Loan, a Deficient Valuation or Debt Service Reduction
reported to the Master Servicer by the related Servicer; provided, however,
that a Bankruptcy Loss shall not be deemed a Bankruptcy Loss hereunder so long
as the related Servicer has notified the Master Servicer in writing that the
related Servicer is diligently pursuing any remedies that may exist in
connection with the related Mortgage Loan and either (A) the related Mortgage
Loan is not in default with regard to payments due thereunder or (B)
delinquent payments of principal and interest under the related Mortgage Loan
and any related escrow payments in respect of such Mortgage Loan are being
advanced on a current basis by the Master Servicer or the related Servicer, in
either case without giving effect to any Debt Service Reduction or Deficient
Valuation, as reported by the related Servicer to the Master Servicer. With
respect to any Combined Mortgage Loan that is a WMMSC Serviced Mortgage Loan,
a Deficient Valuation or Debt Service Reduction reported to the Securities
Administrator by WMMSC.
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated
to the Combined Certificates since the Cut-off Date and (ii) any permissible
reductions in the Bankruptcy Loss Coverage Amount as evidenced by a letter of
each Rating Agency to the Trustee and the Securities Administrator to the
effect that any such reduction will not result in a downgrading of the then
current ratings assigned to the Classes of Combined Certificates rated by it.
Basis Risk Carry Forward Amount: With respect to any Class of Group 1
Certificates and any Distribution Date on which the Pass-Through Rate for that
Class of Certificates is limited to the Net WAC Pass-Through Rate, an amount
equal to the sum of (i) the excess of (x) the amount of interest such Class of
Certificates would have been entitled to receive on such Distribution Date if
the Net WAC Pass-Through Rate had not been applicable to such Class on such
Distribution Date over (y) the amount of interest accrued on such Distribution
Date at the Net WAC Pass-Through Rate plus (ii) the related Basis Risk Carry
Forward Amount for the previous Distribution Date not previously distributed
together with interest thereon at a rate equal to the related Pass-Through
Rate for such Class of Certificates for the most recently ended Interest
Accrual Period.
Book-Entry Certificates: Beneficial interests in Certificates designated
as "Book-Entry Certificates" in this Agreement, ownership and transfers of
which shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the occurrence of a Book-Entry
Termination whereupon book-entry registration and transfer are no longer
permitted and Definitive Certificates are to be issued to Certificate Owners,
such Book-
9
Entry Certificates shall no longer be "Book-Entry Certificates." The Classes
of Certificates that constitute "Book-Entry Certificates" as of the Closing
Date are set forth in the Preliminary Statement.
Book-Entry Termination: The occurrence of any of the following events:
(i) the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book Entry Certificates, and the
Depositor is unable to locate a qualified successor; or (ii) the Depositor at
its option advises the Trustee and the Certificate Registrar in writing that
it elects to terminate the book-entry system through the Clearing Agency.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in New York, New York or, if other than New
York, the city in which the Corporate Trust Office of the Trustee is located,
or the States of Washington, Illinois, Maryland or Minnesota, are authorized
or obligated by law or executive order to be closed.
Calculation Rate: For the Combined Certificates and each Distribution
Date, in the case of the Class A and Class B Interests, the product of (i) 10
and (ii) the weighted average rate of the outstanding Class A and Class B
Interests, treating each Class A Interest as capped at zero or reduced by a
fixed percentage of 100% of the interest accruing on such Class.
Cendant Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by Cendant Mortgage Corporation or ▇▇▇▇▇▇'▇ Gate Residential
Mortgage Trust and listed on the Mortgage Loan Schedule.
Cendant Purchase and Servicing Agreement: The Mortgage Loan Sale
Servicing Agreement listed in Exhibit E hereto among the Seller, Cendant
Mortgage Corporation and ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust.
Certificate: Any one of the certificates signed by the Trustee, or the
Securities Administrator on the Trustee's behalf, and authenticated by the
Securities Administrator as Authenticating Agent in substantially the forms
attached hereto as Exhibit A.
Certificate Balance: With respect to any Certificate other than a Class
OC Certificate at any date, the maximum dollar amount of principal to which
the Holder thereof is then entitled hereunder, such amount being equal to the
principal balance or notional amount, as applicable, as of the Closing Date
(A) plus any Subsequent Recoveries added to the Certificate Balance of such
Certificate pursuant to Section 5.02, (B) minus the sum of (i) all
distributions of principal previously made with respect thereto, (ii) with
respect to the Group 1 Subordinated Certificates only, all Applied Realized
Losses allocated thereto and all other reductions in Certificate Balance
previously allocated thereto pursuant to Section 5.04 and (iii) with respect
to the Combined Certificates only, all Realized Losses allocated thereto
(including Excess Losses) and all other reductions in Certificate Balance
previously allocated thereto pursuant to Section 5.04 (C) in the case of any
Class of Accrual Certificates, increased by the Accrual Amount added to the
Class Principal Balance of such Class prior to such date.
Certificate Group: As specified in the Preliminary Statement.
10
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.02. The initial Certificate
Registrar is the Securities Administrator under this Agreement.
Certificateholder: The meaning provided in the definition of "Holder."
Class: All Certificates bearing the same Class designation as set
forth in the Preliminary Statement.
Class 1-A Credit Enhancement Percentage: For any Distribution Date and
the Class 1-A Certificates, the percentage obtained by dividing (x) the sum of
(i) the aggregate Class Principal Balance of the Group 1 Subordinated
Certificates and (ii) the Overcollateralized Amount by (y) the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans as of the end of the
related Due Period, calculated after taking into account distributions of
principal on the Group 1 Mortgage Loans and distribution of the Group 1
Principal Distribution Amount to the holders of the Certificates then entitled
to distributions of principal on such Distribution Date.
Class 1-A Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-A
Certificates.
Class 1-A Corridor Contract Payment: On each Distribution Date prior to
the related Corridor Contract Termination Date, the amount required to be paid
by the Corridor Contract Counterparty under the Class 1-A Corridor Contract on
that Distribution Date.
Class 1-A Interest Distribution Amount: For the Class 1-A Certificates
and any Distribution Date, the Interest Distribution Amount for such
Distribution Date for the Class 1-A Certificates and the Interest Carry
Forward Amount, if any, for such Distribution Date for the Class 1-A
Certificates.
Class 1-A Principal Distribution Amount: With respect to any
Distribution Date (i) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect, the Group 1 Principal Distribution
Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in
effect for that Distribution Date, the lesser of:
o the Group 1 Principal Distribution Amount for that Distribution
Date; and
o the excess (if any) of (A) the Class Principal Balance of the Class
1-A Certificates immediately prior to that Distribution Date over (B)
the lesser of (i) the aggregate Stated Principal Balance of the Group
1 Mortgage Loans as of the last day of the related Due Period
multiplied by 88.50% and (ii) the amount, if any, by which (x) the
11
aggregate Stated Principal Balance of the Group 1 Mortgage Loans as
of the last day of the related Due Period exceeds (y) the
Overcollateralization Target Amount.
Class 1-B-1 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-B-1
Certificates.
Class 1-B-1 Corridor Contract Payment: On each Distribution Date prior
to the related Corridor Contract Termination Date, the amount required to be
paid by the Corridor Contract Counterparty under the Class 1-B-1 Corridor
Contract on that Distribution Date.
Class 1-B-1 Principal Distribution Amount: With respect to the Class
1-B-1 Certificates and any Distribution Date (i) prior to the Stepdown Date or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Group 1 Principal Distribution Amount for that
Distribution Date remaining after distribution of the Class 1-A Principal
Distribution Amount, the Class 1-M-1 Principal Distribution Amount, the Class
1-M-2 Principal Distribution Amount and the Class 1-M-3 Principal Distribution
Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in
effect for that Distribution Date, the lesser of:
o the Group 1 Principal Distribution Amount for that Distribution Date
remaining after distribution of the Class 1-A Principal Distribution
Amount, the Class 1-M-1 Principal Distribution Amount, the Class
1-M-2 Principal Distribution Amount and the Class 1-M-3 Principal
Distribution Amount; and
o the excess (if any) of (A) the sum of (1) Class Principal Balance of
the Class 1-B-1 Certificates immediately prior to that Distribution
Date and (2) the Class Principal Balance of the Class 1-A, Class
1-M-1, Class 1-M-2 and Class 1-M-3 Certificates (after taking into
account the payment of the Class 1-A, Class 1-M-1, Class 1-M-2 and
Class 1-M-3 Principal Distribution Amounts for such Distribution
Date) over (B) the lesser of (i) the aggregate Stated Principal
Balance of the Group 1 Mortgage Loans as of the last day of the
related Due Period multiplied by 98.30% and (ii) the amount, if any,
by which (x) the aggregate Stated Principal Balance of the Group 1
Mortgage Loans as of the last day of the related Due Period exceeds
(y) the Overcollateralization Target Amount.
Class 1-B-2 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-B-2 and Class
1-A Certificates.
Class 1-B-2 Corridor Contract Payment: On each Distribution Date prior
to the related Corridor Contract Termination Date, the amount required to be
paid by the Corridor Contract Counterparty under the Class 1-B-2 Corridor
Contract on that Distribution Date.
Class 1-B-2 Principal Distribution Amount: With respect to the Class
1-B-2 Certificates and any Distribution Date (i) prior to the Stepdown Date or
on or after the Stepdown Date if a
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Trigger Event is in effect for that Distribution Date, the Group 1 Principal
Distribution Amount for that Distribution Date remaining after distribution of
the Class 1-A Principal Distribution Amount, the Class 1-M-1 Principal
Distribution Amount, the Class 1-M-2 Principal Distribution Amount, the Class
1-M-3 Principal Distribution Amount and the Class 1-B-1 Principal Distribution
Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in
effect for that Distribution Date, the lesser of:
o the Group 1 Principal Distribution Amount for that Distribution Date
remaining after distribution of the Class 1-A Principal Distribution
Amount, the Class 1-M-1 Principal Distribution Amount, the Class
1-M-2 Principal Distribution Amount, the Class 1-M-3 Principal
Distribution Amount and the Class 1-B-1 Principal Distribution
Amount; and
o the excess (if any) of (A) the sum of (1) Class Principal Balance of
the Class 1-B-2 Certificates immediately prior to that Distribution
Date and (2) the Class Principal Balance of the Class 1-A, Class
1-M-1, Class 1-M-2, Class 1-M-3 and Class 1-B-1 Certificates (after
taking into account the payment of the Class 1-A, Class 1-M-1, Class
1-M-2, Class 1-M-3 and Class 1-B-1 Principal Distribution Amounts for
such Distribution Date) over (B) the lesser of (i) the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans as of the last
day of the related Due Period multiplied by 99.00% and (ii) the
amount, if any, by which (x) the aggregate Stated Principal Balance
of the Group 1 Mortgage Loans as of the last day of the related Due
Period exceeds (y) the Overcollateralization Target Amount.
Class 1-M-1 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-M-1
Certificates.
Class 1-M-1 Corridor Contract Payment: On each Distribution Date prior
to the related Corridor Contract Termination Date, the amount required to be
paid by the Corridor Contract Counterparty under the Class 1-M-1 Corridor
Contract on that Distribution Date.
Class 1-M-1 Principal Distribution Amount: With respect to the Class
1-M-1 Certificates and any Distribution Date (i) prior to the Stepdown Date or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Group 1 Principal Distribution Amount for that
Distribution Date remaining after distribution of the Class 1-A Principal
Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event
is not in effect for that Distribution Date, the lesser of:
o the Group 1 Principal Distribution Amount for that Distribution Date
remaining after distribution of the Class 1-A Principal Distribution
Amount; and
o the excess (if any) of (A) the sum of (1) Class Principal Balance of
the Class 1-M-1 Certificates immediately prior to that Distribution
Date and (2) the Class Principal Balance of the Class 1-A
Certificates (after taking into account the payment of the Class 1-A
Principal Distribution Amount for such Distribution Date) over (B)
the
13
lesser of (i) the aggregate Stated Principal Balance of the Group 1
Mortgage Loans as of the last day of the related Due Period
multiplied by 92.90% and (ii) the amount, if any, by which (x) the
aggregate Stated Principal Balance of the Group 1 Mortgage Loans as
of the last day of the related Due Period exceeds (y) the
Overcollateralization Target Amount.
Class 1-M-2 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-M-2
Certificates.
Class 1-M-2 Corridor Contract Payment: On each Distribution Date prior
to the related Corridor Contract Termination Date, the amount required to be
paid by the Corridor Contract Counterparty under the Class 1-M-2 Corridor
Contract on that Distribution Date.
Class 1-M-2 Principal Distribution Amount: With respect to the Class
1-M-2 Certificates and any Distribution Date (i) prior to the Stepdown Date or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Group 1 Principal Distribution Amount for that
Distribution Date remaining after distribution of the Class 1-A Principal
Distribution Amount and the Class 1-M-1 Principal Distribution Amount or (ii)
on or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
o the Group 1 Principal Distribution Amount for that Distribution Date
remaining after distribution of the Class 1-A Principal Distribution
Amount and the Class 1-M-1 Principal Distribution Amount; and
o the excess (if any) of (A) the sum of (1) Class Principal Balance of
the Class 1-M-2 Certificates immediately prior to that Distribution
Date and (2) the Class Principal Balance of the Class 1-A and Class
1-M-1 Certificates (after taking into account the payment of the
Class 1-A and Class 1-M-1 Principal Distribution Amounts for such
Distribution Date) over (B) the lesser of (i) the aggregate Stated
Principal Balance of the Group 1 Mortgage Loans as of the last day of
the related Due Period multiplied by 96.50% and (ii) the amount, if
any, by which (x) the aggregate Stated Principal Balance of the Group
1 Mortgage Loans as of the last day of the related Due Period exceeds
(y) the Overcollateralization Target Amount.
Class 1-M-3 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-M-3
Certificates.
Class 1-M-3 Corridor Contract Payment: On each Distribution Date prior
to the related Corridor Contract Termination Date, the amount required to be
paid by the Corridor Contract Counterparty under the Class 1-M-3 Corridor
Contract on that Distribution Date.
Class 1-M-3 Principal Distribution Amount: With respect to the Class
1-M-3 Certificates and any Distribution Date (i) prior to the Stepdown Date or
on or after the Stepdown Date if a
14
Trigger Event is in effect for that Distribution Date, the Group 1 Principal
Distribution Amount for that Distribution Date remaining after distribution of
the Class 1-A Principal Distribution Amount, the Class 1-M-1 Principal
Distribution Amount and the Class 1-M-2 Principal Distribution Amount or (ii)
on or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
o the Group 1 Principal Distribution Amount for that Distribution Date
remaining after distribution of the Class 1-A Principal Distribution
Amount, the Class 1-M-1 Principal Distribution Amount and the Class
1-M-2 Principal Distribution Amount; and
o the excess (if any) of (A) the sum of (1) Class Principal Balance of
the Class 1-M-3 Certificates immediately prior to that Distribution
Date and (2) the Class Principal Balance of the Class 1-A, Class
1-M-1 and Class 1-M-2 Certificates (after taking into account the
payment of the Class 1-A, Class 1-M-1 and Class 1-M-2 Principal
Distribution Amounts for such Distribution Date) over (B) the lesser
of (i) the aggregate Stated Principal Balance of the Group 1 Mortgage
Loans as of the last day of the related Due Period multiplied by
97.50% and (ii) the amount, if any, by which (x) the aggregate Stated
Principal Balance of the Group 1 Mortgage Loans as of the last day of
the related Due Period exceeds (y) the Overcollateralization Target
Amount.
Class Interest Shortfall: As to any Distribution Date and Class of
Combined Certificates, the amount by which the amount described in clause (i)
of the definition of Class Optimal Interest Distribution Amount for such Class
exceeds the amount of interest actually distributed on such Class on such
Distribution Date pursuant to such clause (i).
Class OC Distributable Amount: With respect to any Distribution Date and
the Class OC Certificates, the excess, if any, of (x) the sum of (i) the
amount of interest accrued during the related Accrual Period at the related
Pass-Through Rate on the Class Principal Balance for such Distribution Date
and (ii) the Overcollateralization Release Amount, if any, for such
Distribution Date, over (y) the sum of (i) the Overcollateralization Increase
Amount, if any, for such Distribution Date, and (ii) the amount distributable
to the Uncertificated Group 3 IO Class on such Distribution Date pursuant to
Section 5.02 hereof.
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class of Combined Certificates or, with
respect to any interest bearing Component, the sum of (i) one month's interest
accrued during the related Interest Accrual Period at the Pass-Through Rate
for such Class on the related Class Principal Balance, Component Balance,
Notional Amount or Component Notional Amount, as applicable, immediately prior
to such Distribution Date, subject to reduction as provided in Section 5.02(d)
and (ii) any Class Unpaid Interest Amounts for such Class or Component.
Class P-1 Distribution Amount: For each Distribution Date and the
Group 1 Mortgage Loans, an amount equal to the total of all Prepayment
Penalties received by the Securities Administrator from the Servicers on the
Group 1 Mortgage Loans in the prior Due Period. The
15
Class P-1 Distribution Amount is not part of the Available Distribution Amount
and is therefore not available for distributions to the Classes of Group 1
Certificates.
Class P-2 Distribution Amount: For each Distribution Date and the
Combined Mortgage Loans, an amount equal to the total of all Prepayment
Penalties received by the Securities Administrator from the Servicers on the
Combined Mortgage Loans since the Due Date related to the prior Distribution
Date. The Class P-2 Distribution Amount is not part of the Available Funds and
is therefore not available for distributions to the Classes of Combined
Certificates.
Class Principal Balance: With respect to any Class of Certificates other
than the Class OC Certificates and as to any date of determination, the
aggregate of the Certificate Balances of all Certificates of such Class as of
such date. With respect to the Class OC Certificates and any Distribution
Date, the Overcollateralized Amount as of that Distribution Date.
Class Subordination Percentage: With respect to any Distribution Date
and each Class of Combined Subordinated Certificates, the quotient (expressed
as a percentage) of (a) the Class Principal Balance of such Class of Combined
Subordinated Certificates immediately prior to such Distribution Date divided
by (b) the aggregate of the Class Principal Balances of all Classes of
Combined Certificates immediately prior to such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
Combined Certificates that is a Class of interest bearing Certificates, the
amount by which the aggregate Class Interest Shortfalls for such Class on
prior Distribution Dates exceeds the amount distributed on such Class on prior
Distribution Dates pursuant to clause (ii) of the definition of Class Optimal
Interest Distribution Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: July 30, 2004.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Combined Certificates: As specified in the Preliminary Statement.
Combined Loan Group: Any of Loan Group 2, Loan Group 3, Loan Group 4,
Loan Group 5 and Loan Group 6.
Combined Mortgage Loans: Collectively, all of the Mortgage Loans in
Loan Group 2, Loan Group 3, Loan Group 4, Loan Group 5 and Loan Group 6.
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Combined Senior Certificates: As specified in the Preliminary
Statement.
Combined Subordinated Certificates: As specified in the Preliminary
Statement.
Combined Subordinated Principal Distribution Amount: With respect to any
Distribution Date and Combined Loan Group, an amount equal to the sum, not
less than zero, of the sum of (i) the Subordinated Percentage for such Loan
Group of all amounts described in clauses (a) through (d) of the definition of
Principal Amount for such Distribution Date, (ii) with respect to each
Mortgage Loan that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the amount of the Liquidation
Proceeds allocated to principal received with respect thereto remaining after
application thereof pursuant to clause (ii) of the definition of Senior
Principal Distribution Amount, up to the Subordinated Percentage for such Loan
Group of the Stated Principal Balance of such Mortgage Loan, and (iii) the
Subordinated Prepayment Percentage of all amounts described in clause (f) of
the definition of Principal Amount for such Loan Group and Distribution Date,
and (iv) the Subordinated Prepayment Percentage of any Subsequent Recoveries
described in clause (g) of the definition of Principal Amount for such
Distribution Date; provided, however, that on any Distribution Date after the
fourth Senior Termination Date, the Combined Subordinated Principal
Distribution Amount will not be calculated by Combined Loan Group but will
equal the amount calculated pursuant to the formula set forth above based on
the applicable Subordinated Percentage for the Combined Subordinated
Certificates for such Distribution Date with respect to all of the Combined
Mortgage Loans as opposed to the Combined Mortgage Loans in the related Loan
Group.
Combined Subordinate Pass-Through Rate: For the Combined Subordinated
Certificates and the Interest Accrual Period related to each Distribution
Date, a per annum rate equal to (1) the sum of the following for each Combined
Loan Group: the product of (x) the Weighted Average Net Mortgage Rate of the
related Mortgage Loans and (y) the related Subordinated Portion immediately
prior to that Distribution Date, divided by (2) the aggregate Class Principal
Balance of the Combined Subordinated Certificates immediately prior to that
Distribution Date.
Compensating Interest Payment: As to any Distribution Date and any
Servicer other than WMMSC, an amount equal to the lesser of (i) the Prepayment
Interest Shortfall on the Mortgage Loans serviced by such Servicer with
respect to such Distribution Date and (ii) the portion of the applicable
Servicing Fee that the related Servicer is required to remit to the Trust as
compensation therefor in accordance with the terms of the related Purchase and
Servicing Agreement. For any Distribution Date and the WMMSC Serviced Mortgage
Loans, the lesser of (i) the sum of (a) one twelfth (1/12) of 0.05% of the
aggregate Stated Principal Balance of the WMMSC Serviced Mortgage Loans, as of
the Due Date in the month of such Distribution Date, (b) Payoff Earnings in
respect of the WMMSC Serviced Mortgage Loans for such Distribution Date and
(c) aggregate Payoff Interest in respect of the WMMSC Serviced Mortgage Loans
for such Distribution Date and (ii) the aggregate Prepayment Interest
Shortfall allocable to any Principal Prepayment in Full for the WMMSC Serviced
Mortgage Loans.
Component: As specified in the Preliminary Statement.
17
Component Balance: With respect to any Component and any Distribution
Date, the Initial Component Balance thereof on the Closing Date, (A) plus any
Subsequent Recoveries added to the Component Balance of such Component
pursuant to Section 5.02, (B) minus the sum of all amounts applied in
reduction of the principal balance of such Component and Realized Losses
allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Confirmation: With respect to each Corridor Contract, the related
Confirmation dated July 30, 2004, evidencing the transaction between the
Counterparty and the Trustee.
Consent: A document executed by the Cooperative Corporation (i)
consenting to the sale of the Cooperative Unit to the Mortgagor and (ii)
certifying that all maintenance charges relating to the Cooperative Unit have
been paid.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and
a Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: With respect to any Cooperative Loan, a specific
unit in a Cooperative Property.
Corporate Trust Office: With respect to the Trustee, the designated
office of the Trustee in the State of California at which at any particular
time its corporate trust business with respect to this Agreement is
administered, which office at the date of the execution of this Agreement is
located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
Trust Administration-MS0406, and which is the address to which notices to and
correspondence with the Trustee should be directed, or at such other address
as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer and the Securities
Administrator or the principal corporate trust office of any successor
Trustee. With respect to the Certificate Registrar and presentment of
Certificates for registration of transfer, exchange or final payment, ▇▇▇▇▇
Fargo Bank, National Association, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Loan Trust 2004-6AR, and for all other purposes, ▇.▇. ▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or for overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇), Attention: Corporate Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Loan Trust 2004-6AR.
18
Corridor Contract Counterparty: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
Corridor Contract Termination Date: With respect to each Corridor
Contract the related Distribution Date set forth on the Notional Balance
Schedule, after any required payment is made.
Corridor Contracts: Collectively, Class 1-A Corridor Contract, the Class
1-M-1 Corridor Contract, the Class 1-M-2 Corridor Contract, the Class 1-M-3
Corridor Contract, the Class 1-B-1 Corridor Contract and the Class 1-B-2
Corridor Contract.
Countrywide Purchase and Servicing Agreement: The Mortgage Loan Sale
and Servicing Agreement listed in Exhibit E hereto among the Seller,
Countrywide Home Loans, Inc. and Countrywide Home Loans Servicing, LP.
Countrywide Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by Countrywide Home Loans, Inc. and listed on the Mortgage Loan
Schedule.
Cross-Over Situation: For the Combined Certificates and any Distribution
Date and for each Combined Loan Group (after taking into account principal
distributions on such Distribution Date) with respect to the Class A and Class
B Interests, the Class A and Class B Interests corresponding to any Combined
Loan Group are in the aggregate less than 1% of the Subordinated Portion of
the Combined Loan Group to which they correspond.
Custodial Account: Each custodial account (other than an Escrow Account)
established and maintained by a Servicer pursuant to a Purchase and Servicing
Agreement.
Custodial Agreement: The Custodial Agreements, listed in Exhibit F
hereof, as each such agreement may be amended or supplemented from time to
time as permitted hereunder.
Custodial Certification: As defined in Section 2.01.
Custodian: A Person who is at anytime appointed by the Trustee and the
Depositor as a custodian of the Mortgage Documents and the Trustee Mortgage
Files. The initial Custodians are JPMorgan Chase Bank and Deutsche Bank
National Trust Company. "Custodian" shall refer to each Custodian or both
Custodians, as the context requires.
Cut-off Date: July 1, 2004.
Cut-off Date Pool Principal Balance: $1,354,824,456.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Data Remittance Date: With respect to any Distribution Date and WMMSC,
no later than 12:00 p.m., five Business Days before the related Distribution
Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy
Code in the Scheduled Payment for
19
such Mortgage Loan which became final and non-appealable, except such a
reduction resulting from a Deficient Valuation or any reduction that results
in a permanent forgiveness of principal.
Deceased Holder: Not applicable.
Defective Mortgage Loan: The meaning specified in Section 2.05(a).
Deficient Valuation: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding indebtedness under the Mortgage Loan, or
any reduction in the amount of principal to be paid in connection with any
Scheduled Payment that results in a permanent forgiveness of principal, which
valuation or reduction results from an order of such court which is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form. As of the Closing Date the Classes of
Certificates being issued as "Definitive Certificates" are set forth in the
Preliminary Statement.
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased, or
replaced or to be replaced with a Replacement Mortgage Loan.
Delinquent: Any Mortgage Loan with respect to which the Scheduled
Payment due on a Due Date is not received.
Depositor: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., a Delaware corporation
having its principal place of business in New York, or its successors in
interest.
Determination Date: With respect to each Servicer, the "Determination
Date" set forth in the related Purchase and Servicing Agreement.
Disqualified Organization: A "disqualified organization" as defined in
Section 860E(e)(5) of the Code.
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator, on behalf of the Trustee, pursuant
to Section 4.01. Funds in the Distribution Account (exclusive of any earnings
on investments made with funds deposited in the Distribution Account) shall be
held in trust for the Trustee and the Certificateholders for the uses and
purposes set forth in this Agreement.
Distribution Account Deposit Date: With respect to each Servicer (other
than WMMSC), not later than 1:00 p.m., New York time, on 18th day of each
calendar month after the initial issuance of the Certificates or, if such 18th
day is not a Business Day, the immediately following Business Day, commencing
in July 2004. With respect to WMMSC, not later than 12:00 noon New York time
on the Business Day immediately preceding such Distribution Date.
20
Distribution Date: The 25th day of each month or, if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in August
2004.
Due Date: With respect to any Distribution Date, the first day of the
month in which such Distribution Date occurs. With respect to any Mortgage
Loan, the date on which a Scheduled Payment is due under the related Mortgage
Note as indicated in the applicable Purchase and Servicing Agreement.
Due Period: As to any Distribution Date, the period beginning on the
second day of the month preceding the month of such Distribution Date, and
ending on the first day of the month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of each Rating Agency at the time any amounts are
held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC or
the SAIF (to the limits established by the FDIC or the SAIF) and the uninsured
deposits in which accounts are otherwise secured such that, as evidenced by an
Opinion of Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with the trust department of a federal or state chartered
depository institution or trust company, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee, the Paying Agent, the Securities
Administrator or the Master Servicer.
Eligible Institution: An institution having the highest short-term debt
rating, and one of the two highest long-term debt ratings of the Rating
Agencies or the approval of the Rating Agencies.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: With respect to each Master Serviced Mortgage Loan, as
defined in Article I of the related Purchase and Servicing Agreement.
Estoppel Letter: A document executed by the Cooperative Corporation
certifying, with respect to a Cooperative Unit, (i) the appurtenant
Proprietary Lease will be in full force and
21
effect as of the date of issuance thereof, (ii) the related stock certificate
was registered in the Mortgagor's name and the Cooperative Corporation has not
been notified of any lien upon, pledge of, levy of execution on or disposition
of such stock certificate, and (iii) the Mortgagor is not in default under the
appurtenant Proprietary Lease and all charges due the Cooperative Corporation
have been paid.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14.
Excess Interest Rate: For any Distribution Date, a per annum rate
equal to 0.04%.
Excess Loss: With respect to the Combined Mortgage Loans, the amount of
any (i) Fraud Loss realized after the Fraud Loss Coverage Termination Date,
(ii) Special Hazard Loss realized after the Special Hazard Coverage
Termination Date or (iii) Bankruptcy Loss realized after the Bankruptcy
Coverage Termination Date.
Extra Principal Distribution Amount: For the Group 1 Certificates and
any Distribution Date, the lesser of (i) the Net Monthly Excess Cashflow for
such Distribution Date and (ii) the Overcollateralization Increase Amount.
▇▇▇▇▇▇ ▇▇▇: The entity formerly known as 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.
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.
Fiscal Agent: Not applicable.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
11.07 the address for notices to Fitch shall be Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage
Surveillance Group, or such other address as Fitch may hereafter furnish to
the Depositor, the Trustee and the Master Servicer.
Fraud Loan: With respect to the Combined Mortgage Loans, a Liquidated
Mortgage Loan as to which a Fraud Loss has occurred, as reported by the
related Servicer to the Master Servicer.
Fraud Loss Coverage Amount: As of the Closing Date, $30,564,442, subject
to reduction from time to time, by the amount of Fraud Losses allocated to the
Combined Certificates. In addition, on each anniversary of the Cut-off Date,
the Fraud Loss Coverage Amount will be reduced as follows: (a) on the first,
second, third and fourth anniversaries of the Cut-off Date, to an amount equal
to the lesser of (i) 2%, for the first anniversary, and 1%, for the second,
third and fourth anniversaries, of the then current aggregate Stated Principal
Balance of the Combined
22
Mortgage Loans on such anniversary, and (ii) the excess of the Fraud Loss
Coverage Amount as of the preceding anniversary of the Cut-off Date over the
cumulative amount of Fraud Losses allocated to the Combined Certificates since
such preceding anniversary; and (b) on the fifth anniversary of the Cut-off
Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Combined Mortgage Loans as to which a
loss is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Mortgage
Insurance Policy because of such fraud, dishonesty or misrepresentation.
Global Securities: The global certificates representing the Book-Entry
Certificates.
GreenPoint Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by GreenPoint Mortgage Funding, Inc. and listed on the Mortgage Loan
Schedule.
GreenPoint Purchase and Servicing Agreement: The Mortgage Loan Sale
Servicing Agreement listed in Exhibit E hereto between the Seller and
GreenPoint Mortgage Funding, Inc.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Mortgage Loans: The Mortgage Loans in Loan Group 1.
Group 1 Principal Distribution Amount: For the Group 1 Certificates
and any Distribution Date, the sum of
(i) the principal portion of all Scheduled Payments on the Group 1
Mortgage Loans due during the related Due Period, whether or not received on
or prior to the related Determination Date;
(ii) the principal portion of all proceeds received in respect of the
repurchase of a Mortgage Loan (or, in the case of a substitution, certain
amounts representing a principal adjustment as required by this Agreement
during the related Prepayment Period; and
(iii) the principal portion of all other unscheduled collections,
including Insurance Proceeds, condemnation proceeds, Liquidation Proceeds and
all partial Principal Prepayments and Principal Prepayments in full, received
during the related Prepayment Period, to the extent applied as recoveries of
principal on the Group 1 Mortgage Loans, provided, that in no event will the
Group 1 Principal Distribution Amount with respect to any Distribution Date be
(x) less than zero or (y) greater than the then outstanding aggregate Class
Principal Balance of the Group 1 Certificates.
Group 1 Senior Certificates: As specified in the Preliminary Statement.
Group 1 Subordinated Certificates: As specified in the Preliminary
Statement.
23
Group 1 Subordinated Interest Distribution Amount: With respect to any
Class of Group 1 Subordinated Certificates and any Distribution Date, interest
accrued during the related Interest Accrual Period on the related Class
Principal Balance of that Class immediately prior to the Distribution Date at
the Pass-Through Rate for that Class reduced (to an amount not less than
zero), in the case of such Class, by the allocable share, if any, for that
Class of Prepayment Interest Shortfalls on the Group 1 Mortgage Loans to the
extent not covered by (x) Compensating Interest paid by the Master Servicer or
the Servicers for the Group 1 Mortgage Loans and (y) Relief Act Interest
Shortfalls on the Group 1 Mortgage Loans.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Mortgage Loans: The Mortgage Loans in Loan Group 2.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
Group 3 Certificates: As specified in the Preliminary Statement.
Group 3 Interest Transfer Amount: With respect to the Group 3 Mortgage
Loans and any Distribution Date, an amount equal to (i) to the product of the
Excess Interest Rate and the aggregate Stated Principal Balance of the Group 3
Mortgage Loans as of the second preceding Due Date (subject to adjustment for
Principal Prepayments in Full received and distributed in the month prior to
that Distribution Date) after giving effect to Scheduled Payments for that Due
Date, whether or not received, or for the initial Distribution Date, the
Cut-off Date, (ii) divided by 12.
Group 3 Mortgage Loans: The Mortgage Loans in Loan Group 3.
Group 3 Senior Certificates: As specified in the Preliminary Statement.
Group 4 Certificates: As specified in the Preliminary Statement.
Group 4 Mortgage Loans: The Mortgage Loans in Loan Group 4.
Group 4 Senior Certificates: As specified in the Preliminary Statement.
Group 5 Certificates: As specified in the Preliminary Statement.
Group 5 Mortgage Loans: The Mortgage Loans in Loan Group 5.
Group 5 Senior Certificates: As specified in the Preliminary Statement.
Group 6 Certificates: As specified in the Preliminary Statement.
Group 6 Mortgage Loans: The Mortgage Loans in Loan Group 6.
Group 6 Senior Certificates: As specified in the Preliminary Statement.
Holder: The registered owner of any Certificate as recorded on the
books of the Certificate Registrar except that, solely for the purposes of
taking any action or giving any
24
consent pursuant to this Agreement, any Certificate registered in the name of
the Depositor, the Trustee, the Master Servicer, the Securities Administrator
and any Servicer, or any Affiliate thereof shall be deemed not to be
outstanding in determining whether the requisite percentage necessary to
effect any such consent has been obtained, except that, in determining whether
the Trustee or the Securities Administrator shall be protected in relying upon
any such consent, only Certificates that a Responsible Officer of the Trustee
or the Securities Administrator, respectively, knows to be so owned shall be
disregarded. The Trustee or the Securities Administrator may request and
conclusively rely on certifications by the Depositor, the Master Servicer, the
Securities Administrator or any Servicer in determining whether any
Certificates are registered to an Affiliate of the Depositor, the Master
Servicer, the Securities Administrator or any Servicer.
HUD: The United States Department of Housing and Urban Development, or
any successor thereto.
HomEq Purchase and Servicing Agreement: The Purchase and Servicing
Agreement dated as of July 1, 2004, listed in Exhibit E between the Seller and
HomEq Servicing Corporation.
HomEq Serviced Mortgage Loan: Each Mortgage Loan originated and serviced
by HomEq Servicing Corporation and listed on the Mortgage Loan Schedule.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Index: As to each Mortgage Loan, the index from time to time in effect
for adjustment of the Mortgage Rate as set forth as such on the related
Mortgage Note.
Initial Bankruptcy Coverage Amount: $328,576.
Initial Component Balance: As specified in the Preliminary Statement.
Initial Optional Purchase Date: With respect to the Group 1 Mortgage
Loans, the first Distribution Date following the date on which the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans is equal to or less
than 10% of the aggregate Stated Principal Balance thereof as of the Cut-off
Date. With respect to the Combined Mortgage Loans, the first Distribution Date
following the date on which the aggregate Stated Principal Balance of the
Combined Mortgage Loans is equal to or less than 1% of the aggregate Stated
Principal Balance thereof as of the Cut-off Date.
25
Insurance Policy: With respect to any Mortgage Loan, any insurance
policy, including all names and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any Insurance Policy (excluding
proceeds required to be applied to the restoration and repair of the related
Mortgaged Property or released to the Mortgagor), in each case other than any
amount included in such Insurance Proceeds in respect of Insured Expenses and
the proceeds from any Limited Purpose Surety Bond.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates, its corresponding Subsidiary REMIC Regular Interest and any
Distribution Date, the calendar month prior to the month of such Distribution
Date. With respect to the Delay Certificates interest will be calculated and
payable on the basis of a 360-day year divided into twelve 30-day months. With
respect to any Class of Non-Delay Certificates, its corresponding Subsidiary
REMIC Regular Interest and any Distribution Date, the one month period
commencing on the preceding Distribution Date (other than the first Interest
Accrual Period, for which it is the Closing Date) and ending on the day prior
to the current Distribution Date. With respect to the Non Delay Certificates,
interest will be calculated and payable on the basis of a 360-day year and the
actual number of days that elapsed during that Interest Accrual Period.
Interest Carry Forward Amount: With respect to any Class of Group 1
Certificates and any Distribution Date, the amount, if any, by which the
Interest Distribution Amount for that Class of Certificates for the
immediately preceding Distribution Date exceeds the actual amount distributed
on such Class in respect of interest on the immediately preceding Distribution
Date, together with any Interest Carry Forward Amount with respect to such
Class remaining unpaid from the previous Distribution Date, plus interest
accrued thereon at the related Pass-Through Rate for the most recently ended
Interest Accrual Period.
Interest Determination Date: With respect to any Interest Accrual Period
for any Class of LIBOR Certificates, the second Business Day prior to the
first day of such Interest Accrual Period.
Interest Distribution Amount: With respect to the Group 1 Senior
Certificates, the Class 1-A Interest Distribution Amount. With respect to
the Group 1 Subordinated Certificates, the Group 1 Subordinated Interest
Distribution Amount.
Interest Remittance Amount: For the Group 1 Certificates and any
Distribution Date, the sum of (i) that portion of the Available Distribution
Amount for such Distribution Date that represents interest received or
advanced on the Group 1 Mortgage Loans, and (ii) the Group 3 Interest Transfer
Amount for that Distribution Date.
Interest Transfer Amount: For any Distribution Date and for any
Undercollateralized Group, an amount equal to one month's interest on the
applicable Principal Transfer Amount at the weighted average Pass-Through Rate
of the applicable Undercollateralized Group, plus any
26
interest accrued on such Undercollateralized Group remaining unpaid from prior
Distribution Dates.
Investment Account: The commingled account (which shall be commingled
only with investment accounts related to series of pass-through certificates
with a class of certificates that has a rating equal to the highest of the
ratings of the Certificates) maintained by WMMSC in the trust department of
the Investment Depository pursuant to Section 4.01(a). The Investment Account
shall be an Eligible Account.
Investment Depository: Such bank or trust company as is designated from
time to time by WMMSC. The Investment Depository shall at all times be an
Eligible Institution.
Last Scheduled Distribution Date: With respect to the Group 1
Certificates, the Distribution Date in July 2034. With respect to the Combined
Certificates, the Distribution Date in August 2034.
Latest Possible Maturity Date: The Distribution Date in August 2034.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 5.09.
LIBOR Ceiling Rate: For any Distribution Date and Corridor Contract, the
LIBOR Ceiling Rate set forth in the related Confirmation for such Distribution
Date.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Strike Rate: For any Distribution Date and Corridor Contract, the
applicable LIBOR Strike Rate set forth in the related Confirmation for such
Distribution Date.
LIBOR Business Day: Any day on which banks in London, England and The
City of New York are open and conducting transactions in foreign currency and
exchange.
Limited Purpose Surety Bond: Collectively, Ambac Assurance Corporation
Surety Bond No. AB0039BE and any other Limited Purpose Surety Bond securing
an Additional Collateral Mortgage Loan.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which the related Servicer has certified (in accordance with its Purchase and
Servicing Agreement) that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property.
27
Living Holders: Not applicable.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3, Loan
Group 4, Loan Group 5 or Loan Group 6, as applicable.
Loan Group 1: All Mortgage Loans identified as Group 1 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Group 2 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 3: All Mortgage Loans identified as Group 3 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 4: All Mortgage Loans identified as Group 4 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 5: All Mortgage Loans identified as Group 5 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 6: All Mortgage Loans identified as Group 6 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal Balance of the Mortgage Loans in that
Loan Group outstanding on the Due Date in the month preceding the month of the
Distribution Date (after giving effect to prepayments received in the
Prepayment Period related to such prior Due Date).
Loan-To-Value Ratio: With respect to any Mortgage Loan and as to any
date of determination, the fraction (expressed as a percentage) the numerator
of which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
LPMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the borrower) acquires the Primary Mortgage Insurance Policy and
charges the related borrower an interest premium.
Master REMIC: As described in the Preliminary Statement.
Master Serviced Mortgage Loans: All of the Mortgage Loans other than the
WMMSC Serviced Mortgage Loans.
Master Servicer: ▇▇▇▇▇ Fargo Bank, National Association, a national
banking association organized under the laws of the United States in its
capacity as Master Servicer and any Person succeeding as Master Servicer
hereunder or any successor in interest, or if any successor master servicer
shall be appointed as herein provided, then such successor master servicer.
28
Memorandum: The private placement memorandum dated July 30, 2004,
relating to the Private Certificates.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor to Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS(R) System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Middle REMIC: As defined in the Preliminary Statement.
Middle REMIC Interest: As defined in the Preliminary Statement.
Middle REMIC Regular Interest: As defined in the Preliminary Statement.
MIN: The mortgage identification number for any MERS Mortgage Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto. If
▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.07 the address for notices to Moody's shall be ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Residential Pass-Through Monitoring, or such other address as
Moody's may hereafter furnish to the Depositor or the Master Servicer.
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage Documents: With respect to each Mortgage Loan, the mortgage
documents required to be delivered to the Custodian pursuant to each Custodial
Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 (including
any REO Property), including without limitation, each Mortgage Loan listed on
the Mortgage Loan Schedule, as amended from time to time.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended by
the Depositor or a Servicer from time to time to reflect the addition of
Replacement Mortgage Loans to, or the deletion of Deleted Mortgage Loans from,
the Trust Fund. Such schedule shall, among other things (i) designate the
Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate;
(ii) identify the designated Loan Group in which such Mortgage Loan is
included, (iii) identify
29
any LPMI Mortgage Loan and designate the rate at which the premium for such
insurance is calculated and (iv) separately identify the Additional Collateral
Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgaged Property: The underlying property, including any Additional
Collateral, securing a Mortgage Loan which, with respect to a Cooperative
Loan, is the related Cooperative Shares and Proprietary Lease.
Mortgage Rate: As to any Mortgage Loan, the annual rate of interest
borne by the related Mortgage Notes.
Mortgagor: The obligor on a Mortgage Note.
MSDWCC Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Credit Corporation and listed on the
Mortgage Loan Schedule.
MSDWCC Purchase Agreement: The Second Amended and Restated Master
Mortgage Loan Purchase Agreement listed in Exhibit E hereto between the Seller
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Credit Corporation.
MSDWCC Purchase and Servicing Agreement: Collectively, the MSDWCC
Purchase Agreement and the MSDWCC Servicing Agreement.
MSDWCC Servicing Agreement: The Amended and Restated Master Servicing
Agreement listed in Exhibit E hereto between the Seller and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Credit Corporation.
MSMCI Mortgage Loan: A Mortgage Loan sold by the Seller to the
Depositor pursuant to the MSMCI Purchase Agreement.
MSMCI Purchase Agreement: The Mortgage Loan Purchase Agreement listed in
Exhibit E hereto between the Seller and the Depositor.
National City Purchase and Servicing Agreement: The Amended and Restated
Master Seller's Warranties and Servicing Agreement listed in Exhibit E hereto
between the Seller and National City Mortgage Co.
National City Serviced Mortgage Loan: Each Mortgage Loan originated
and serviced by National City Mortgage Co. and listed on the Mortgage Loan
Schedule.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan
or any other disposition of related Mortgaged Property, the related
Liquidation Proceeds net of Advances, Servicer Advances, Servicing Fees and
any other accrued and unpaid servicing fees received and retained in
connection with the liquidation of such Mortgage Loan or Mortgaged Property.
30
Net Monthly Excess Cashflow: For the Group 1 Certificates and any
Distribution Date, the excess, if any, of (x) the Available Distribution
Amount for the Distribution Date over (y) the sum for the Distribution Date of
the aggregate of the Interest Distribution Amounts payable to the holders of
the Group 1 Certificates and the Group 1 Principal Distribution Amount.
Net Mortgage Rate: With respect to any Mortgage Loan and any
Distribution Date, the related Mortgage Rate as of the Due Date in the month
preceding the month of such Distribution Date reduced by the Aggregate Expense
Rate for such Mortgage Loan.
Net Prepayment Interest Shortfalls: As to any Distribution Date and Loan
Group, the amount by which the aggregate of Prepayment Interest Shortfalls for
such Loan Group exceeds the Compensating Interest Payments for such Loan Group
and that Distribution Date.
Net WAC Pass-Through Rate: For the Group 1 Certificates and any
Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage
Rate of the Group 1 Mortgage Loans as of the first day of the month preceding
the month in which such Distribution Date occurs.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than a "United States person" within
the meaning of Section 7701(a)(30) of the Code.
Nonrecoverable Advance: Any portion of an Advance or Servicer Advance
previously made or proposed to be made by the Master Servicer and/or a
Servicer (as certified in an Officer's Certificate of such Servicer), which in
the good faith judgment of such party, shall not be ultimately recoverable by
such party from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Notional Amount: Not applicable.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Offering Document: The Prospectus or the Memorandum, as applicable.
Officer's Certificate: A certificate signed by two Authorized Officers
of the Depositor or the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of the Master
Servicer or the Securities Administrator, and in each case delivered to the
Trustee or the Securities Administrator, as applicable.
Officer's Certificate of a Servicer: A certificate (i) signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a
Managing Director, a Vice President (however
31
denominated), an Assistant Vice President, the Treasurer, the Secretary, or
one of the Assistant Treasurers or Assistant Secretaries of a Servicer, or
(ii) if provided for herein, signed by a Servicing Officer, as the case may
be, and delivered to the Trustee, the Securities Administrator or the Master
Servicer, as required hereby.
Opinion of Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Trustee, the Securities Administrator or the
Master Servicer, as required hereby, and who may be in-house or outside
counsel to the Depositor, the Master Servicer, the Securities Administrator or
the Trustee but which must be Independent outside counsel with respect to any
such opinion of counsel concerning the transfer of any Residual Certificate or
concerning certain matters with respect to ERISA or the taxation, or the
federal income tax status, of each REMIC.
Option One Servicing Agreement: The Servicing Agreement listed in
Exhibit E hereto between the Seller and Option One Mortgage Corporation
Option One Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by Option One Mortgage Corporation and listed on the Mortgage Loan
Schedule.
Original Applicable Credit Support Percentage: With respect to each of
the following Classes of Combined Subordinated Certificates, the corresponding
percentage described below, as of the Closing Date:
Class C-B-1...............4.85%
Class C-B-2...............2.25%
Class C-B-3...............1.40%
Class C-B-4...............0.95%
Class C-B-5...............0.55%
Class C-B-6...............0.20%
Original Subordinate Principal Balance: On or prior to the fourth Senior
Termination Date, the Subordinated Percentage for a Combined Loan Group of the
aggregate of the Stated Principal Balances of the Combined Mortgage Loans in
such Loan Group, in each case as of the Cut-off Date; or if such date is after
the fourth Senior Termination Date, the aggregate of the Class Principal
Balances of the Combined Subordinated Certificates as of the Closing Date.
Originator: Any one of American Home Mortgage Holding Corp., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Credit Corporation, Cendant Mortgage Corporation,
GreenPoint Mortgage Funding Inc., ▇▇▇▇▇ Fargo Bank, N.A., as originator,
(successor by merger to ▇▇▇▇▇ Fargo Home Mortgage, Inc.), National City
Mortgage Co., Quicken Loans, Inc., RBMG, Inc., U.S. Bank, N.A., Countrywide
Home Loans, Inc. and ▇▇▇▇▇ Fargo Bank, N.A. Corporation, as applicable.
Overcollateralization Increase Amount: With respect to the Group 1
Certificates and any Distribution Date, the amount, if any, by which the
Overcollateralization Target Amount exceeds the Overcollateralized Amount for
such Distribution Date (calculated for this purpose only after assuming that
100% of the Principal Remittance Amount on such Distribution Date has been
distributed).
32
Overcollateralization Release Amount: For any Distribution Date, the
lesser of (1) the Principal Remittance Amount and (2) the excess of (a) the
Overcollateralized Amount over (b) the Overcollateralization Target Amount. In
addition, in connection with the final distribution on the Group 1
Certificates pursuant to Section 7.02 hereof, the Overcollateralization
Release Amount for the related Distribution Date shall also include the
excess, if any of, (a) the purchase price paid for the Group 1 Mortgage Loans
and any REO Properties related to the Group 1 Mortgage Loans pursuant to
Section 7.01 hereof, less any costs incurred by the Trust Fund in connection
with the liquidation thereof pursuant to Section 7.02 hereof, over (b) the
amount distributed on the Group 1 Certificates on that Distribution Date.
Overcollateralization Target Amount: With respect to the Group 1
Certificates and any Distribution Date to but excluding the Distribution Date
on which the aggregate Class Principal Balance of the Group 1 Certificates is
reduced to zero will equal the product of (x) the Required
Overcollateralization Percentage and (y) the aggregate Stated Principal
Balance of the Group 1 Mortgage Loans as of the Cut-off Date. With respect to
each Distribution Date thereafter, zero.
Overcollateralized Amount: With respect to the Group 1 Certificates as
of the Closing Date will be an amount equal to approximately $734. With
respect to any Distribution Date following the Closing Date, an amount by
which the aggregate Stated Principal Balance of the Group 1 Mortgage Loans
immediately following the Distribution Date exceeds the aggregate Class
Principal Balances of the Combined Group 1 Certificates after taking into
account all payments of principal on such Distribution Date.
Overcollateralized Group: With respect to any Distribution Date and
Combined Senior Certificate Group, as defined in Section 5.08 hereof.
Pass-Through Margin: The for each Class of Group 1 Certificates for the
Interest Accrual Period related to each Distribution Date is as follows:
(1) (2)
--------- ------------
Class 1-A................... 0.45% 0.90%
Class 1-M-1................. 0.65% 0.975%
Class 1-M-2................. 1.35% 2.025%
Class 1-M-3................. 1.65% 2.475%
Class C-B-1................. 2.25% 3.375%
Class C-B-2................. 2.45% 3.675%
----------
(1) For the Interest Accrual Period for each Distribution Date
occurring on or prior to the Initial Optional Purchase Date.
(2) For each Interest Accrual Period following the Initial Optional
Purchase Date.
Pass-Through Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
Paying Agent: Any paying agent appointed pursuant to Section 3.08. The
initial Paying Agent shall be the Securities Administrator under this
Agreement.
33
Payoff Earnings: For any Distribution Date, with respect to a WMMSC
Serviced Mortgage Loan, on which a Principal Prepayment in Full was received
by WMMSC during the related Prepayment Period, the aggregate of the interest
earned by WMMSC from investment of each such Principal Prepayment in Full from
the date of receipt of such Principal Prepayment in Full until the Business
Day immediately preceding the related Distribution Date (net of investment
losses).
Payoff Interest: For any Distribution Date with respect to each WMMSC
Serviced Mortgage Loan for which a Principal Prepayment in Full was received
on or after the first calendar day of the month of such Distribution Date and
before the 15th calendar day of such month, an amount of interest thereon at
the applicable Net Mortgage Rate from the first day of such month through the
day of receipt thereof; to the extent (together with Payoff Earnings and the
portion of the aggregate Servicing Fee described in clause (i) of the
definition of Compensating Interest Payment payable by WMMSC) not required to
be distributed as a Compensating Interest Payment on such Distribution Date,
Payoff Interest shall be payable to WMMSC as additional servicing
compensation.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the initial principal balance or notional
amount, as applicable, of such Certificate by the aggregate of the Class
Principal Balance or Notional Amount, as applicable, of all Certificates of
the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided that such obligations are backed by the full faith and credit
of the United States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency, or such lower rating as
shall not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each Rating
Agency rating such paper, or such lower rating as shall not result in
the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or long-term
unsecured debt obligations of such depository institution or trust
company (or in the case of the principal depository institution in a
holding company system, the commercial
34
paper or long-term unsecured debt obligations of such holding company,
but only if ▇▇▇▇▇'▇ is not the applicable Rating Agency) are then rated
one of the two highest long-term and the highest short-term ratings of
each Rating Agency for such securities, or such lower ratings as shall
not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by
any bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation acceptable to the Rating Agencies
at the time of the issuance of such agreements, as evidenced by a signed
writing delivered by each Rating Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (iv) above;
(viii) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face
amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any
state thereof which, at the time of such investment, have one of the two
highest ratings of each Rating Agency (except if the Rating Agency is
Moody's, such rating shall be the highest commercial paper rating of
Moody's for any such series), or such lower rating as shall not result
in the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(ix) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the time such
interests are held in such fund has the highest applicable rating by
each Rating Agency rating such fund or such lower rating as shall not
result in a change in the rating then assigned to the Certificates by
each Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency, including funds for which the Trustee, the Master
Servicer, the Securities Administrator or any of its Affiliates is
investment manager or adviser;
(x) short-term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the United
States or any state thereof which on the date of acquisition has been
rated by each applicable Rating Agency in their respective highest
applicable rating category or such lower rating as shall not result in a
change in the rating then specified stated maturity and bearing interest
or sold at a discount acceptable to each Rating Agency as shall not
result in the downgrading or withdrawal of the ratings then assigned to
the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency; and
35
(xi) such other investments having a specified stated maturity and
bearing interest or sold at a discount acceptable to the Rating Agencies
as shall not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted Investment if (i) such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument or (ii) such instrument would
require the Depositor to register as an investment company under the
Investment Company Act of 1940, as amended.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. ss.2510.3-101.
Planned Balance: With respect to any group of Planned Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule
B hereto, the Aggregate Planned Balance for such group and Distribution Date.
With respect to any other Planned Principal Class or Component and any
Distribution Date appearing in Schedule B hereto, the applicable amount
appearing opposite such Distribution Date for such Class or Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Pool Percentage: With respect to any Loan Group and Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans in that Loan
Group as of the related Due Date, and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans in the
Mortgage Pool as of that Due Date.
Prepayment Interest Shortfall: With respect to any Master Serviced
Mortgage Loan, the amount of the shortfall in interest payable on such
Mortgage Loan that occurs as a result of the prepayment by the related
Mortgagor of such Mortgage Loan calculated in accordance with formula set
forth in the related Purchase and Servicing Agreement. With respect to any
partial Principal Prepayment of a WMMSC Serviced Mortgage Loan and any
Principal Prepayment in Full of a WMMSC Serviced Mortgage Loan (other than a
Principal Prepayment in Full on a WMMSC Serviced Mortgage Loan received during
the period from and including the first day to and including the 14th day of
the month of such Distribution Date), the excess, if any, of (i) one full
month's interest at the applicable Mortgage Rate on the Stated Principal
Balance of such Mortgage Loan immediately prior to such Principal Prepayment
over (ii) the amount of interest actually received with respect to such
Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty: As to a Mortgage Loan, any penalty payable by a
Mortgagor in connection with certain partial prepayments and all prepayments
in full made within the related Prepayment Penalty Period, the Prepayment
Penalties with respect to each applicable Mortgage Loan so held by the Trust
Fund being identified in the Prepayment Penalty Schedule.
36
Prepayment Penalty Period: As to any Mortgage Loan, the period of time
during which a Prepayment Penalty may be imposed.
Prepayment Penalty Schedule: As of any date, the list of Prepayment
Penalties included in the Trust Fund on that date (including the prepayment
Penalty summary attached thereto). The Prepayment Penalty Schedule shall set
forth the following information with respect to each Prepayment Penalty:
o the Mortgage Loan account number;
o a code indicating the type of Prepayment Penalty;
o the state of origination in which the related Mortgage Property is
located;
o the first date on which a monthly payment is or was due under the
related Mortgage Note;
o the term of the Prepayment Penalty;
o the original principal amount of the related Mortgage Loan; and
o the Cut-off Date Principal Balance of the related Mortgage Loan.
The Prepayment Penalty Schedule shall be amended from time to time by
the Seller in accordance with this Agreement.
Prepayment Period: With respect to any Mortgage Loan other than a
Cendant Mortgage Loan, a Countrywide Serviced Mortgage Loan, a WMMSC Serviced
Mortgage Loan or an Option One Serviced Mortgage Loan and any Distribution
Date, the calendar month preceding that Distribution Date, and (ii) for any
Cendant Serviced Mortgage Loan or Countrywide Serviced Mortgage Loan, the
second day of the calendar month immediately preceding the month in which that
Distribution Date occurs to and including the first day of the calendar month
in which that Distribution Date occurs, (iii) for any WMMSC Serviced Mortgage
Loan and (x) any prepayment in full, the period from the fifteenth day of the
calendar month immediately preceding the month in which the Distribution Date
occurs (or in the case of the first Distribution Date, from July 1, 2004)
through the fourteenth day of the calendar month in which the Distribution
Date occurs and (y) any partial prepayment, the calendar month preceding that
Distribution Date, (iv) for any Option One Serviced Mortgage Loan, the period
from the fifteenth day of the calendar month immediately preceding the month
in which the Distribution Date occurs (or in the case of the first
Distribution Date, from July 1, 2004) through the fourteenth day of the
calendar month in which the Distribution Date occurs and (v) with respect to
any HomEq Serviced Mortgage Loan, and (x) any prepayment in full, the period
from the sixteenth day of the calendar month immediately preceding the month
in which the Distribution Date occurs (or in the case of the first
Distribution Date, from July 1, 2004) through the fifteenth day of the
calendar month in which the Distribution Date occurs and (y) any partial
prepayment, the calendar month preceding that Distribution Date.
37
Prepayment Shift Percentage: Not applicable.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal Amount: As to any Distribution Date and Combined Loan Group,
the sum of (a) the principal portion of each Scheduled Payment (without giving
effect, prior to the Bankruptcy Coverage Termination Date, to any reductions
thereof caused by any Debt Service Reductions or Deficient Valuations) due on
each Mortgage Loan in the related Loan Group on the related Due Date, (b) the
Stated Principal Balance of each Mortgage Loan in the related Loan Group that
was repurchased by the Seller or an Originator or purchased by the Master
Servicer pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan in
such Loan Group received with respect to such Distribution Date, (d) any
Insurance Proceeds or Liquidation Proceeds allocable to recoveries of
principal of Mortgage Loans in the related Loan Group that are not yet
Liquidated Mortgage Loans received during the calendar month preceding the
month of such Distribution Date, (e) with respect to each Mortgage Loan in a
Loan Group that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the amount of the Liquidation
Proceeds allocable to principal and, if such Liquidated Mortgage Loan is an
Additional Collateral Mortgage Loan, the proceeds of any Additional Collateral
from the related Additional Collateral Mortgage Loan, in each case received
during the calendar month preceding the month of such Distribution Date with
respect to such Mortgage Loan, (f) all Principal Prepayments for such Loan
Group received during the related Prepayment Period and (g) any Subsequent
Recoveries for such Loan Group received during the calendar month preceding
the month of such Distribution Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Reductions: For each Loan Group, the sum of the Principal
Amount and any Realized Losses.
Principal Relocation Payment: A payment from any Loan Group to a
Subsidiary REMIC Regular Interest other than a Regular Interest corresponding
to that Loan Group as provided in the Preliminary Statement. Principal
Relocation Payments shall be made of principal allocations comprising the
Principal Amount from a Loan Group and shall include a proportionate
allocation of Realized Losses from the Mortgage Loans of such Loan Group.
Priority Amount: Not applicable.
Priority Percentage: Not applicable.
Private Certificate: As specified in the Preliminary Statement.
38
Pro Rata Share: As to any Distribution Date, the Combined Subordinated
Principal Distribution Amount and any Class of Combined Subordinated
Certificates, the portion of the Combined Subordinated Principal Distribution
Amount allocable to such Class, equal to the product of the Combined
Subordinated Principal Distribution Amount on such Distribution Date and a
fraction, the numerator of which is the related Class Principal Balance
thereof and the denominator of which is the aggregate of the Class Principal
Balances of the Combined Subordinated Certificates.
Pro Rata Subordinated Percentage: As to any Distribution Date and
Combined Loan Group, 100% minus the related Senior Percentage for such
Distribution Date.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Property, a lease
or occupancy agreement between a Cooperative Corporation and a holder of
related Cooperative Shares.
Prospectus: The prospectus supplement dated July 28, 2004, together with
the accompanying prospectus dated January 28, 2004, relating to the
Certificates.
Purchase and Servicing Agreements: Collectively, the mortgage loan
purchase and servicing agreements, each as amended by the related
Acknowledgement, listed in Exhibit E hereto, as each such agreement may be
amended or supplemented from time to time as permitted hereunder.
Purchase Date: As defined in Section 7.01(c).
Purchase Price: With respect to any Mortgage Loan required or permitted
to be purchased by the Seller or Depositor pursuant to this Agreement, or by
the related Originator or Servicer pursuant to the related Purchase and
Servicing Agreement, an amount equal to the sum of (i) 100% of the unpaid
principal balance of the Mortgage Loan on the date of such purchase and (ii)
accrued interest thereon at the applicable Net Mortgage Rate from the date
through which interest was last paid by the Mortgagor to the Due Date in the
month in which the Purchase Price is to be distributed to Certificateholders,
or such other amount as may be specified in the related Purchase and Servicing
Agreement and (iii) costs and damages incurred by the Trust Fund in connection
with a repurchase pursuant to Section 2.05 hereof that arises out of a
violation of any predatory or abusive lending law with respect to the related
Mortgage Loan.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein
to a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the related
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of
39
the date of such liquidation, plus (ii) interest at the Net Mortgage Rate from
the Due Date as to which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date in the month in which
Liquidation Proceeds are required to be distributed on the Stated Principal
Balance of such Liquidated Mortgage Loan from time to time, minus (iii) the
Liquidation Proceeds, if any, received during the month in which such
liquidation occurred, to the extent applied as recoveries of interest at the
Net Mortgage Rate and to principal of the Liquidated Mortgage Loan. With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, if the principal amount due under the related Mortgage Note has
been reduced, the difference between the principal balance of the Mortgage
Loan outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient Valuation.
With respect to each Mortgage Loan which has become the subject of a Debt
Service Reduction and any Distribution Date, the amount, if any, by which the
principal portion of the related Scheduled Payment has been reduced.
To the extent the Master Servicer or a Servicer receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the Realized Loss
with respect to that Mortgage Loan will be reduced by such Subsequent
Recoveries.
Recognition Agreement: An agreement among a Cooperative Corporation, a
lender and a Mortgagor with respect to a Cooperative Loan whereby such parties
(i) acknowledge that such lender may make, or intends to make, such
Cooperative Loan, and (ii) make certain agreements with respect to such
Cooperative Loan.
Record Date: As to any Distribution Date (i) with respect to the
Non-Delay Certificates, the last Business Day preceding such Distribution Date
(or the Closing Date, in the case of the first Distribution Date) unless such
Certificates shall no longer be Book-Entry Certificates, in which case the
Record Date shall be the last Business Day of the month preceding the month of
such Distribution Date and (ii) in the case of the Delay Certificates
(including the Non-Delay Certificates that are subsequently reissued as
Definitive Certificates), the last Business Day of the month preceding the
month of each Distribution Date.
Redemption Price: With respect to any Class of Certificates to be
redeemed, an amount equal to 100% of the related Class Principal Balance of
the Certificates to be so redeemed, together with interest on such amount at
the applicable Pass-Through Rate through the related Accrual Period (as
increased by any Class Unpaid Interest Amounts), and including, in the case of
the Redemption Price payable in connection with the redemption and retirement
of all of the Certificates, the payment of all amounts (including, without
limitation, all previously unreimbursed Advances and Servicer Advances and
accrued and unpaid Servicing Fees) payable or reimbursable to the Trustee, the
Securities Administrator, the Master Servicer and the Servicers pursuant to
this Agreement and the Purchase and Servicing Agreements, or to the Custodian
under the Custodial Agreements (to the extent such amounts are not paid to the
Custodian by the Seller).
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
40
Relief Act: The Servicemembers Civil Relief Act (formerly known as the
Soldiers' and Sailors' Civil Relief Act of 1940), as amended, and any similar
state laws.
Relief Act Shortfalls: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements
promulgated thereunder, as the foregoing may be in effect from time to time.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Replacement Mortgage Loan: A mortgage loan substituted by an Originator
or the Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a request for release, substantially in the form
attached to the related Custodial Agreement, (i) have a Stated Principal
Balance, after deduction of all Scheduled Payments due in the month of
substitution, not in excess of the Stated Principal Balance of the Deleted
Mortgage Loan, (ii) have a Mortgage Rate not less than (and not more than two
percentage points greater than) the mortgage rate of the Deleted Mortgage
Loan, (iii) have a Loan-to-Value Ratio equal to or less than that of the
Deleted Mortgage Loan, (iv) have a remaining term to maturity not greater than
(and not more than one year less than) that of the Deleted Mortgage Loan, (v)
is otherwise acceptable to the Seller, (vi) have the same adjustment date as
that of the Deleted Mortgage Loan, (vii) have a minimum Mortgage Rate not less
than that of the Deleted Mortgage Loan, (viii) have the same Index as that of
the Deleted Mortgage Loan, (ix) comply with all of the representations and
warranties set forth in the related underlying servicing agreement, as
modified by any related assignment thereof, and (x) shall be accompanied by an
Opinion of Counsel that such Replacement Mortgage Loan would not adversely
affect the REMIC status of any REMIC created hereunder or would not otherwise
be prohibited by this Pooling and Servicing Agreement.
Required Overcollaterization Percentage: For the Group 1 Certificates
and any Distribution Date, a percentage equal to 0.50%.
Reserve Fund: A reserve fund established by the Securities
Administrator on behalf of the Trustee for the benefit of the Holders of the
Group 1 Certificates. The Reserve Fund is an "outside reserve fund" within
the meaning of Treasury regulation Section 1.860G-2(h), which is
41
not an asset of any REMIC, ownership of which is evidenced by the Class OC
Certificates, and which is established and maintained pursuant to Section
4.01(e).
Residual Certificate: The Class A-R Certificates.
Responsible Officer: With respect to the Trustee, any officer in the
corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the
particular subject. With respect to the Master Servicer, any officer in its
master servicing operations with direct responsibility for the Administration
of this Agreement. With respect to the Securities Administrator, any officer
in the corporate trust department or similar group of the Securities
Administrator with direct responsibility for the administration of this
Agreement and also, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her knowledge
of and familiarity with the particular subject.
Restricted Classes: As defined in Section 5.02(e).
Restricted Global Security: As defined in Section 3.01(c).
SAIF: The Saving's Association Insurance Fund, or any successor
thereto.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.07 the address for notices to S&P shall be Standard &
Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish to
the Depositor and the Master Servicer.
Scheduled Balances: Not applicable.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified in the related Purchase and Servicing
Agreement, shall give effect to any related Debt Service Reduction and any
Deficient Valuation that affects the amount of the monthly payment due on such
Mortgage Loan.
Scheduled Principal Classes: As specified in the Preliminary Statement.
Scheduled Principal Distribution Amount: Not applicable.
Securities Administrator: ▇▇▇▇▇ Fargo Bank, National Association, not in
its individual capacity but solely as Securities Administrator, or any
successor in interest, or if any successor Securities Administrator shall be
appointed as herein provided, then such successor Securities Administrator.
Seller: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., a New York corporation.
Senior Certificate Group: As specified in the Preliminary Statement.
42
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the Class
Principal Balance of each Class of Combined Subordinated Certificates has been
reduced to zero.
Senior Percentage: As to any Combined Senior Certificate Group and
Distribution Date, the percentage equivalent of a fraction the numerator of
which is the aggregate of the Class Principal Balances of each Class of
Combined Senior Certificates (other than the related Notional Amount
Certificates) immediately prior to such Distribution Date and the denominator
of which is the aggregate Stated Principal Balance of each Mortgage Loan in
the related Combined Loan Group as of the Due Date occurring in the month
prior to the month of such Distribution Date (after giving effect to
prepayments received in the Prepayment Period related to such prior Due Date);
provided, however, that on any Distribution Date after the fourth Senior
Termination Date, the Senior Percentage for the Senior Certificates of the
remaining Combined Senior Certificate Group is the percentage equivalent of a
fraction, the numerator of which is the aggregate of the Class Principal
Balances of each such Class of Combined Senior Certificates (other than the
related Notional Amount Certificates) of such remaining Combined Senior
Certificate Group immediately prior to such Distribution Date and the
denominator is the aggregate of the Class Principal Balances of all Classes of
Combined Certificates (other than the Class of Notional Amount Certificates),
immediately prior to such Distribution Date.
Senior Prepayment Percentage: As to a Combined Senior Certificate Group
and any Distribution Date during the seven years beginning on the first
Distribution Date, 100%. The Senior Prepayment Percentage for any Distribution
Date occurring on or after the seventh anniversary of the first Distribution
Date will, except as provided herein, be as follows: for any Distribution Date
in the first year thereafter, the related Senior Percentage plus 70% of the
related Subordinated Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the related Senior Percentage
plus 60% of the related Subordinated Percentage for such Distribution Date;
for any Distribution Date in the third year thereafter, the related Senior
Percentage plus 40% of the related Subordinated Percentage for such
Distribution Date; for any Distribution Date in the fourth year thereafter,
the related Senior Percentage plus 20% of the related Subordinated Percentage
for such Distribution Date; and for any Distribution Date thereafter, the
related Senior Percentage for such Distribution Date (unless on any
Distribution Date the Senior Percentage exceeds the initial Senior Percentage
of such Senior Certificate Group, in which case the Senior Prepayment
Percentage for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in any Senior Prepayment Percentage
will occur unless (i) both of the Senior Step Down Conditions are satisfied
with respect to all Combined Loan Groups and (ii) if the Two Times Test is
satisfied on a Distribution Date, (a) on or before the Distribution Date in
July 2007, the Senior Prepayment Percentage for each Combined Senior
Certificate Group will equal the related Senior Percentage plus 50% of the Pro
Rata Subordinated Percentage and (b) after the Distribution Date in July 2007,
the Senior Prepayment Percentage for each Combined Senior Certificate Group
will equal the related Senior Percentage.
Senior Principal Distribution Amount: As to any Distribution Date and
Combined Senior Certificate Group, the sum of (i) the sum, not less than zero,
of the related Senior Percentage of all amounts described in clauses (a)
through (d) of the definition of Principal Amount with
43
respect to the related Loan Group for such Distribution Date, (ii) with
respect to any Mortgage Loan in the related Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the lesser of (x) the related Senior Percentage of the
Stated Principal Balance of such Mortgage Loan and (y) either (A) the related
Senior Prepayment Percentage of the amount of the Liquidation Proceeds
allocable to principal received on the Mortgage Loan, or (B) if an Excess Loss
was sustained with respect to such Liquidated Mortgage Loan during such prior
calendar month, the related Senior Percentage, of the amount of the
Liquidation Proceeds allocable to principal received with respect to such
Mortgage Loan, and (iii) the sum of (x) the related Senior Prepayment
Percentage of the amounts described in clause (f) of the definition of
Principal Amount with respect to the related Loan Group for such Distribution
Date plus (y) the related Senior Prepayment Percentage of any Subsequent
Recoveries described in clause (g) of the definition of Principal Amount for
such Distribution Date; provided, however, that if a Bankruptcy Loss that is
an Excess Loss is sustained on a Mortgage Loan in the related Loan Group that
is not a Liquidated Mortgage Loan, the Senior Principal Distribution Amount
will be reduced on the related Distribution Date by the related Senior
Percentage of the principal portion of such Bankruptcy Loss; provided further,
however, on any Distribution Date after the fourth Senior Termination Date,
the Senior Principal Distribution Amount for the remaining Combined Senior
Certificate Group will be calculated pursuant to the above formula based on
all the Combined Mortgage Loans, as opposed to Combined the Mortgage Loans in
the related Loan Group and, if such Distribution Date is after the fourth
Senior Termination Date, shall be reduced by the amount of the principal
distribution made pursuant to (a) if the Group 2 Senior Certificates are
reduced to zero on such date, Section 5.02(a)(2)(iv)(y), (b) if the Group 3
Senior Certificates are reduced to zero on such date, Section
5.02(a)(3)(iv)(y), (c) if the Group 4 Senior Certificates are reduced to zero
on such date, Section 5.02(a)(4)(iv)(y), (d) if the Group 5 Senior
Certificates are reduced to zero on such date, Section 5.02(a)(5)(iv)(y) or
(e) if the Group 6 Senior Certificates are reduced to zero on such date,
Section 5.02(a)(6)(iv)(y).
Senior Step Down Conditions: With respect to all Combined Mortgage
Loans: (i) the outstanding principal balance of all Mortgage Loans delinquent
60 days or more (including Mortgage Loans in foreclosure, REO Property and
Mortgage Loans the mortgagors of which are in bankruptcy) (averaged over the
preceding six month period), as a percentage of (a) if such date is on or
prior to the fourth Senior Termination Date, the Subordinated Percentage for
such Loan Group of the aggregate Stated Principal Balance of the Combined
Mortgage Loans in that Loan Group, or (b) if such date is after the fourth
Senior Termination Date, the aggregate Class Principal Balance of the Combined
Subordinated Certificates, does not equal or exceed 50%, and (ii) cumulative
Realized Losses on the Mortgage Loans in each Combined Loan Group do not
exceed: (a) for the Distribution Date on the seventh anniversary of the first
Distribution Date, 30% of the Original Subordinate Principal Balance, (b) for
the Distribution Date on the eighth anniversary of the first Distribution
Date, 35% of the Original Subordinate Principal Balance, (c) for the
Distribution Date on the ninth anniversary of the first Distribution Date, 40%
of the Original Subordinate Principal Balance, (d) for the Distribution Date
on the tenth anniversary of the first Distribution Date, 45% of the Original
Subordinate Principal Balance, and (e) for the Distribution Date on the
eleventh anniversary of the first Distribution Date, 50% of the Original
Subordinate Principal Balance.
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Senior Termination Date: For each Combined Senior Certificate Group, the
Distribution Date on which the aggregate Class Principal Balance of the
Combined Senior Certificates in that Combined Senior Certificate Group has
been reduced to zero.
Servicer: WMMSC and each other Servicer under a Purchase and Servicing
Agreement.
Servicer Advance: A "Servicer Advance" or "Servicing Advance" as
defined in the applicable Purchase and Servicing Agreement.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the related Servicing Fee
Rate and (b) the Stated Principal Balance of such Mortgage Loan as of the
first day of the related Due Period.
Servicing Fee Rate: With respect to each Master Serviced Mortgage Loan
and any Distribution Date, the per annum rate specified in the related
Purchase and Servicing Agreement. With respect to each WMMSC Serviced Mortgage
Loan the per annum rate listed on the Mortgage Loan Schedule, which may be
disclosed in two parts identified as the "Lender Fee" and the "Mgmt Fee".
Servicing Officer: Any officer of the related Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage
Loans whose name and facsimile signature appear on a list of servicing
officers furnished to the Master Servicer by the related Servicer on the
Closing Date pursuant to the related Purchase and Servicing Agreement, as such
list may from time to time be amended.
Shift Percentage: Not applicable.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: With respect to the Combined Mortgage Loans ,any
Realized Loss suffered by a Mortgaged Property on account of direct physical
loss, as reported by the related Servicer to the Master Servicer, but not
including (i) any loss of a type covered by a hazard insurance policy or a
flood insurance policy required to be maintained with respect to such
Mortgaged Property to the extent of the amount of such loss covered thereby,
or (ii) any loss caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, the Master Servicer or any of their agents or employees
(without regard to any portion of the loss not covered by any errors and
omissions policy);
(c) 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;
(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
45
indirect, proximate or remote or be in whole or in part caused by,
contributed to or aggravated by a peril covered by the definition of the
term "Special Hazard Loss;"
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending
or expected attack:
1. by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using military, naval or
air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power
or action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any
government or public authority or risks of contraband or illegal
transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $10,188,147. With respect to any Distribution Date after
the first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Combined Mortgage Loans, (ii) twice
the principal balance of the largest Combined Mortgage Loan and (iii) the
aggregate of the principal balances of all Combined Mortgage Loans secured by
Mortgaged Properties located in the single California postal zip code area
having the highest aggregate principal balance of any such zip code area and
(b) the Special Hazard Loss Coverage Amount as of the Closing Date less the
amount, if any, of Special Hazard Losses allocated to the Certificates since
the Closing Date. All principal balances for the purpose of this definition
will be calculated as of the first day of the calendar month preceding the
month of such Distribution Date after giving effect to Scheduled Payments on
the Combined Mortgage Loans then due, whether or not paid.
Special Hazard Mortgage Loan: With respect to the Combined Mortgage
Loans, a Liquidated Mortgage Loan as to which a Special Hazard Loss has
occurred.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to any previous partial
Principal Prepayments and Liquidation Proceeds allocable to principal (other
than with respect to any Liquidated Mortgage Loan) and to the payment of
principal due on such Due Date and irrespective of any delinquency in payment
by the related Mortgagor.
46
Stepdown Date: With respect to the Group 1 Certificates will be the
earlier to occur of (1) the Distribution Date on which the Class Principal
Balance of the Class 1-A Certificates is reduced to zero and (2) the later to
occur of (x) the Distribution Date in August 2007 and (y) the first
Distribution Date on which the Class 1-A Credit Enhancement Percentage is
greater than or equal to approximately 11.50%.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date on or prior to the
fourth Senior Termination Date and any Combined Loan Group, 100% minus the
Senior Percentage for the Combined Senior Certificate Group relating to such
Loan Group for such Distribution Date. As to any Distribution Date after the
fourth Senior Termination Date, 100% minus the Senior Percentage for such
Distribution Date.
Subordinated Portion: For any Distribution Date and Combined Loan Group,
an amount equal to the aggregate Stated Principal Balance of the Combined
Mortgage Loans in the related Loan Group as of the end of the Prepayment
Period related to the immediately preceding Distribution Date, minus the
aggregate Class Principal Balance of the related Combined Senior Certificates
immediately prior to such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date and
Combined Loan Group, 100% minus the related Senior Prepayment Percentage for
such Distribution Date.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, amounts received by the Securities Administrator from the related
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 4.02) specifically related to such Liquidated Mortgage Loan.
Subsidiary REMIC 1: As specified in the Preliminary Statement.
Subsidiary REMIC 1 Interest: As specified in the Preliminary Statement.
Subsidiary REMIC 1 Regular Interest: As specified in the Preliminary
Statement.
Subsidiary REMIC 2: As specified in the Preliminary Statement.
Subsidiary REMIC 2 Interest: As specified in the Preliminary Statement.
Subsidiary REMIC 2 Regular Interest: As specified in the Preliminary
Statement.
Substitution Adjustment Amount: As defined in the second paragraph of
Section 2.05(b).
Targeted Balance: With respect to any group of Targeted Principal
Classes or Components in the aggregate and any Distribution Date appearing in
Schedule B hereto, the Aggregate Targeted Balance for such group and
Distribution Date. With respect to any other Targeted Principal Class or
Component and any Distribution Date appearing in Schedule B hereto, the
applicable amount appearing opposite such Distribution Date for such Class or
Component.
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Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss.301.6231(a)(7)1T. Initially, the Tax Matters Person
shall be the Securities Administrator.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Three Month Rolling Average: With respect to the Group 1 Mortgage Loans
and the end of the Due Period related to any Distribution Date, will equal the
rolling 3 month average percentage of the aggregate Stated Principal Balance
of the Group 1 Mortgage Loans that are 60 or more days Delinquent (including
Mortgage Loans in foreclosure, REO Property or discharged in bankruptcy).
Transfer Payment: Either or both of a Transfer Payment Made or a
Transfer Payment Received.
Transfer Payment Made: As defined in Section 5.08.
Transfer Payment Received: As defined in Section 5.08.
Trigger Event: With respect to any Distribution Date, a Trigger Event is
in effect if (x) the Three Month Rolling Average with respect to the Group 1
Mortgage Loans exceeds 42.50% of the Class 1-A Credit Enhancement Percentage
for the prior Distribution Date, or (y) the aggregate amount of Realized
Losses on the Group 1 Mortgage Loans incurred since the Cut-off Date through
the last day of the related Due Period divided by the aggregate outstanding
principal balance of the Group 1 Mortgage Loans as of the Cut-off exceeds the
applicable percentages set forth below with respect to such Distribution Date:
Distribution Date Percentage
----------------- ----------
August 2007 -- July 2008.......... 0.75% with respect to August 2007,
plus an additional 1/12th of 0.25% for
each month thereafter
August 2008 -- July 2009.......... 1.00% with respect to August 2008,
plus an additional 1/12th of 0.25% for
each month thereafter
August 2009 -- July 2010.......... 1.25% with respect to August 2009,
plus an additional 1/12th of 0.15% for
each month thereafter
August 2010 and thereafter....... 1.50%
Trust Fund: The corpus of the trust created pursuant to this Agreement
consisting of (i) the Mortgage Loans and all interest and principal received
on or with respect thereto after the Cut-off Date (other than Scheduled
Payments due on or prior to the Cut-off Date) to the extent not applied in
computing the Cut-off Date Principal Balance thereof; (ii) all cash,
instruments or property held or required to be held in the Custodial Accounts
and the Distribution Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii)
48
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise; (iv) the Depositor's rights assigned
to the Trustee under the Purchase and Servicing Agreements, as modified by the
Acknowledgements and under the Custodial Agreements; (v) the pledge, control
and guaranty agreements and the Limited Purpose Surety Bond relating to the
Additional Collateral Mortgage Loans; (vi) the Corridor Contracts and the
amounts on deposit in the Reserve Fund; and (vii) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing.
Trustee: Deutsche Bank National Trust Company, a national banking
association, organized under the laws of the United States and any Person
succeeding the Trustee hereunder, or if any successor trustee or any
co-trustee shall be appointed as herein provided, then such successor trustee
and such co-trustee, as the case may be.
Trustee Mortgage Files: With respect to each Mortgage Loan, the Mortgage
Documents to be retained in the custody and possession of the Trustee or
Custodian on behalf of the Trustee.
Two Times Test: As to any Distribution Date, if (i) the Aggregate
Subordinated Percentage is at least 200% of the Aggregate Subordinated
Percentage as of the Closing Date, (ii) the outstanding aggregate Stated
Principal Balance of all Combined Mortgage Loans delinquent 60 days or more
(averaged over the preceding six month period), as a percentage of the
aggregate Class Principal Balance of the Combined Subordinated Certificates,
does not equal or exceed 50% and (ii) the cumulative Realized Losses on all
the Combined Mortgage Loans do not exceed (x) with respect to any Distribution
Date on or before to July 2007, 20% of the Original Subordinate Principal
Balance or (y) with respect to any Distribution Date on or after July 2007,
30% of the Original Subordinate Principal Balance.
UCC: The Uniform Commercial Code as enacted in the relevant
jurisdiction.
Undercollateralized Group: With respect to any Distribution Date and
Combined Senior Certificate Group, as defined in Section 5.08 hereof.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Underwriter: As specified in the Preliminary Statement.
Unpaid Realized Loss Amount: For any Class of Group 1 Certificates, the
portion of any Realized Losses previously allocated to that Class remaining
unpaid from prior Distribution Dates.
Unscheduled Principal Distribution Amount: Not applicable.
Uniform Commercial Code: The Uniform Commercial Code as in effect in
any applicable jurisdiction from time to time.
US Bank Purchase Agreement: The First Amended & Restated Mortgage Loan
Purchase and Warranties Agreement listed in Exhibit E hereto between the
Seller and U.S. Bank, N.A.
49
US Bank Purchase and Servicing Agreement: Collectively, the US Bank
Purchase Agreement and the US Bank Servicing Agreement.
US Bank Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by U.S. Bank, N.A. and listed on the Mortgage Loan Schedule.
US Bank Servicing Agreement: The Servicing Agreement listed in Exhibit
E hereto between the Seller and U.S. Bank, N.A.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
1.00% of all Voting Interests shall be allocated to the Class OC Certificates,
each Class of Notional Amount Certificates and the Class A-R Certificates.
Voting Interests shall be allocated among all other Classes of Certificates
pro rata based on Class Principal Balances for each Class then outstanding.
Voting Interests shall be allocated among the Certificates within each such
Class in proportion to their Certificate Balances or Percentage Interests.
Weighted Average Net Mortgage Rate: As to any Distribution Date and Loan
Group, the average of the Net Mortgage Rate of each Mortgage Loan in that Loan
Group, weighted on the basis of its Stated Principal Balance as of the Due
Date in the month preceding the month of that Distribution Date.
WFHM Purchase and Servicing Agreement: The Seller's Warranties and
Servicing Agreement listed in Exhibit E hereto between the Seller and ▇▇▇▇▇
Fargo Bank, N.A., as originator, (successor by merger to ▇▇▇▇▇ Fargo Home
Mortgage, Inc.).
WFHM Serviced Mortgage Loan: Each Mortgage Loan originated and serviced
by ▇▇▇▇▇ Fargo Bank, N.A., as originator, (successor by merger to ▇▇▇▇▇ Fargo
Home Mortgage, Inc.) and listed on the Mortgage Loan Schedule.
WMMSC: Washington Mutual Mortgage Securities Corp., any successor
thereto, or any Person appointed as a successor Servicer to WMMSC in
accordance with the provision of this Agreement.
WMMSC Purchase and Servicing Agreement: The Mortgage Loan Sale Servicing
Agreement listed in Exhibit E hereto between the Seller and Washington Mutual
Mortgage Securities Corp.
WMMSC Serviced Mortgage Loan: Each Mortgage Loan serviced by
Washington Mutual Mortgage Securities Corp. and listed on the Mortgage Loan
Schedule.
50
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, subject to Sections 2.02 and 2.05, in
trust, all the right, title and interest of the Depositor in and to the Trust
Fund. Such conveyance includes, without limitation, (i) the Mortgage Loans,
including the right to all payments of principal and interest received on or
with respect to the Mortgage Loans on and after the Cut-off Date (other than
Scheduled Payments due on or before such date), and all such payments due
after such date but received prior to such date and intended by the related
Mortgagors to be applied after such date; (ii) all of the Depositor's right,
title and interest in and to all amounts from time to time credited to and the
proceeds of the Distribution Account, any Custodial Accounts or any Escrow
Account established with respect to the Mortgage Loans; (iii) all of the
rights of the Depositor as assignee of the Seller with respect to the Seller's
rights under the Purchase and Servicing Agreements pursuant to the
Acknowledgements; (iv) all of the Depositor's right, title or interest in REO
Property and the proceeds thereof; (v) all of the Depositor's rights under any
Insurance Policies related to the Mortgage Loans; (vi) $100 (which amount has
been delivered by the Depositor to the Securities Administrator to be held in
the Distribution Account until distributed to the Holders of the Class P
Certificates pursuant to Section 5.02(a)); and (vii) if applicable, the
Depositor's security interest in any collateral pledged to secure the Mortgage
Loans, including the Mortgaged Properties and any Additional Collateral
relating to the Additional Collateral Mortgage Loans, including, but not
limited to, the pledge, control and guaranty agreements and the Limited
Purpose Surety Bond, to have and to hold, in trust; and the Trustee declares
that, subject to the review provided for in Section 2.02, it has received and
shall hold the Trust Fund, as trustee, in trust, for the benefit and use of
the Holders of the Certificates and for the purposes and subject to the terms
and conditions set forth in this Agreement, and, concurrently with such
receipt, has caused to be executed, authenticated and delivered to or upon the
order of the Depositor, in exchange for the Trust Fund, Certificates in the
authorized denominations evidencing the entire ownership of the Trust Fund.
The foregoing sale, transfer, assignment, set-over, deposit and
conveyance does not and is not intended to result in the creation or
assumption by the Trustee of any obligation of the Depositor, the Seller or
any other Person in connection with the Mortgage Loans or any other agreement
or instrument relating thereto except as specifically set forth therein.
In connection with such transfer and assignment of the Mortgage Loans,
the Custodian acting on the Trustee's behalf, will continue to hold the
documents or instruments listed below with respect to each Mortgage Loan
(each, a "Trustee Mortgage File") so transferred and assigned.
51
On the Closing Date, each Custodian shall deliver to the Trustee and the
Depositor certification (each, a "Custodian Certification") in the form
attached hereto as Exhibit L certifying that, pursuant to each related
Custodial Agreement, the applicable Originator delivered and released to such
Custodian, subject to and in accordance with the relevant section of each
related Purchase and Servicing Agreement, the documents identified in the
relevant section of such Purchase and Servicing Agreement as being required to
be delivered to the Seller as Purchaser, pertaining to the Mortgage Loans as
identified in the related Mortgage Loan Schedule (provided, however, that the
Custodian shall not be required nor does it intend to re-examine the contents
of the Trustee Mortgage File for any of the Mortgage Loans in connection with
entering into this Agreement or providing the Custodian Certification required
pursuant to this Section 2.01):
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee, or in
blank (in each case, with all necessary intervening endorsements, as
applicable);
(ii) with respect to each Mortgage Loan (other than a Cooperative Loan)
that is not a MERS Mortgage Loan, the original Mortgage with evidence of
recording thereon, or if the original Mortgage has not yet been returned from
the recording office, a copy of such Mortgage certified by the applicable
Originator, title company, escrow agent or closing attorney to be a true copy
of the original of the Mortgage which has been sent for recording in the
appropriate jurisdiction in which the Mortgaged Property is located, and in
the case of the each MERS Mortgage Loan, the original Mortgage, noting the
presence of the MIN of the Mortgage Loans and either language indicating that
the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the
Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated thereon;
(iii) with respect to each Mortgage Loan (other than a Cooperative Loan)
that is not a MERS Mortgage Loan, the Assignment of Mortgage in form and
substance acceptable for recording in the relevant jurisdiction, such
assignment being either (A) in blank, without recourse, or (B) endorsed to
"Deutsche Bank National Trust Company, as Trustee of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Loan Trust 2004-6AR, Mortgage Pass-Through Certificates, without recourse";
(iv) with respect to each Mortgage Loan (other than a Cooperative Loan)
that is not a MERS Mortgage Loan, the originals of all intervening assignments
of the Mortgage, if any, with evidence of recording thereon, or if the
original intervening assignment has not yet been returned from the recording
office, a copy of such assignment certified by the applicable Originator,
title company, escrow agent or closing attorney to be a true copy of the
original of the assignment which has been sent for recording in the
appropriate jurisdiction in which the Mortgaged Property is located;
(v) with respect to each Mortgage Loan (other than a Cooperative Loan),
the originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
52
(vi) if any, with respect to each Mortgage Loan (other than a
Cooperative Loan), the original policy of title insurance (or a true copy
thereof) with respect to any such Mortgage Loan, or, if such policy has not
yet been delivered by the insurer, the title commitment or title binder to
issue same;
(vii) if any, with respect to each Mortgage Loan (other than a
Cooperative Loan), the original power of attorney and guaranty agreement with
respect to such Mortgage Loan;
(viii) [reserved];
(ix) with respect to each Mortgage Loan which constitutes a Cooperative
Loan:
(a) the original of any security agreement or similar document executed
in connection with the Cooperative Loan;
(b) the original Recognition Agreement and the original Assignment of
Recognition Agreement;
(c) UCC-1 financing statements with recording information thereon from
the appropriate governmental recording offices if necessary to perfect the
security interest of the Cooperative Loan under the Uniform Commercial Code in
the jurisdiction in which the Cooperative Property is located, accompanied by
UCC-3 financing statements executed in blank for recordation of the change in
the secured party thereunder;
(d) an Estoppel Letter and/or Consent;
(e) a search for (i) federal tax liens, mechanics' liens, lis pendens,
judgments of record or otherwise against (x) the Cooperative Corporation and
(y) the seller of the Cooperative Unit, (ii) filings of financing statements
and (iii) the deed of the cooperative project into the Cooperative
Corporation;
(f) the guaranty of the Mortgage Note and Cooperative Loan, if any;
(g) the original Proprietary Lease and the Assignment of Proprietary
Lease executed by the Mortgagor in blank or if the Proprietary Lease has been
assigned by the Mortgagor to the Seller, then the Seller must execute an
assignment of the Assignment of Proprietary Lease in blank; and
(h) if any, the original or certified copy of the certificates
evidencing ownership of the Cooperative Shares issued by the Cooperative
Corporation and related assignment of such certificates or an assignment of
such Cooperative Shares, in blank, executed by the Mortgagor with such
signature guaranteed;
(x) [reserved]; and
(xi) any other document or instruments required to be delivered under
the related Custodial Agreement.
53
In addition, in connection with the assignment of any MERS Mortgage
Loan, it is understood that the related Originator will cause the MERS(R)
System to indicate that such Mortgage Loans have been assigned by the related
Originator to the Trustee in accordance with this Agreement for the benefit of
the Certificateholders by including (or deleting, in the case of Mortgage
Loans which are repurchased in accordance with this Agreement) in such
computer files the information required by the MERS(R) System to identify the
series of Certificates issued in connection with such Mortgage Loans. It is
further understood that, with respect to (i) the Master Serviced Mortgage
Loans, the related Originator will not, and the Master Servicer hereby agrees
that it will not, and (ii) with respect to the WMMSC Serviced Mortgage Loans,
the related Originator will not and WMMSC hereby agrees that it will not,
alter the information referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and until such Mortgage
Loan is repurchased in accordance with the terms of this Agreement.
(b) As soon as is practicable after the Closing Date, the Depositor
shall cause the Servicer of any Additional Collateral Mortgage Loan to deliver
to the Trustee or its Custodian the Assignment and Notice of Transfer with
respect to each Additional Collateral Mortgage Loan as well as the assignments
of any rights with respect to each Additional Collateral Mortgage Loan under
any Limited Purpose Surety Bond.
(c) In instances where a title insurance policy is required to be
delivered to the Trustee or the Custodian on behalf of the Trustee and is not
so delivered, the Depositor will provide a copy of such title insurance policy
to the Trustee, or to the Custodian on behalf of the Trustee, as promptly as
practicable after the execution and delivery hereof, but in any case within
180 days of the Closing Date.
(d) For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers such amount to the
Securities Administrator, the Trustee, or to the Custodian on behalf of the
Trustee, an Officer's Certificate which shall include a statement to the
effect that all amounts received in connection with such prepayment that are
required to be deposited in the Distribution Account pursuant to Section 4.01
have been so deposited. All original documents that are not delivered to the
Trustee or the Custodian on behalf of the Trustee shall be held by the Master
Servicer or the related Servicer in trust for the benefit of the Trustee and
the Certificateholders.
Section 2.02 Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund.
(a) The Trustee, by execution and delivery hereof, acknowledges receipt
by it of notice from the Custodians that each holds on behalf of the Trustee
Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage Loan
Schedule.
(b) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Custodian or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
54
(c) Each of the parties hereto acknowledges that (i) the Custodian has
delivered the Custodian Certification stating that it has performed the
applicable review of the Mortgage Loans as required herein and in the
Custodial Agreements on the Closing Date and (ii) thereafter, if applicable,
the Custodian shall perform the applicable review of the Mortgage Loans and
deliver the further certifications as provided herein and in the applicable
Custodial Agreements.
(d) Upon execution of this Agreement, the Depositor hereby delivers to
the Trustee (with a copy to the Securities Administrator) and the Trustee
acknowledges receipt of the Acknowledgements, together with the related
Purchase and Servicing Agreements.
Section 2.03 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for the
benefit of the Certificateholders, and to the Master Servicer, WMMSC and the
Securities Administrator as of the Closing Date or such other date as is
specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter into
and perform its obligations under this Agreement, and to create the
trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part
of the Depositor; neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Depositor or its properties or the certificate of incorporation or
bylaws of the Depositor;
(iii) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, the Master Servicer, WMMSC and the Securities Administrator,
constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms except as such enforceability
may be subject to (A) applicable bankruptcy and insolvency laws and
other similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against
or affecting the Depositor,
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before or by any court, administrative agency, arbitrator or
governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter
which in the judgment of the Depositor will be determined adversely to
the Depositor and will if determined adversely to the Depositor
materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to
perform its obligations under this Agreement;
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good and
marketable title thereto, and had full right to transfer and sell each
Mortgage Loan to the Trustee free and clear, subject only to (1) liens
of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien
for common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage acceptable to
mortgage lending institutions in the area in which the related Mortgaged
Property is located and specifically referred to in the lender's title
insurance policy or attorney's opinion of title and abstract of title
delivered to the originator of such Mortgage Loan, and (3) such other
matters to which like properties are commonly subject which do not,
individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest, and had full right and authority, subject to no
interest or participation of, or agreement with, any other party, to
sell and assign each Mortgage Loan pursuant to this Agreement;
(vii) This Agreement creates a valid and continuing security
interest (as defined in the applicable Uniform Commercial Code (the
"UCC"), in the Mortgage Loans in favor of the Trustee, which security
interest is prior to all other liens, and is enforceable as such against
creditors of and purchasers from the Depositor;
(viii) The Mortgage Loans constitute "instruments" within the
meaning of the applicable UCC;
(ix) Other than the security interest granted to the Trustee
pursuant to this Agreement, the Depositor has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Mortgage Loans. The Depositor has not authorized the filing of and is
not aware of any financing statement against the Depositor that includes
a description of the collateral covering the Mortgage Loans other than a
financing statement relating to the security interest granted to the
Trustee hereunder or that has been terminated. The Depositor is not
aware of any judgment or tax lien filings against the Depositor;
(x) None of the Mortgage Loans have any marks or notations
indicating that such Mortgage Loans have been pledged, assigned or
otherwise conveyed to any Person other than the Trustee; and
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(xi) The Depositor has received all consents and approvals
required by the terms of the Mortgage Loans to convey the Mortgage Loans
hereunder to the Trustee.
The foregoing representations made in this Section 2.03 shall survive
the termination of this Agreement and shall not be waived by any party hereto.
Section 2.04 Representations and Warranties of the Depositor and
the Seller as to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect
to the Mortgage Loans or each Mortgage Loan, as the case may be, as of the
date hereof or such other date set forth herein that as of the Closing Date:
(a) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans. The
Mortgage Loans were not assigned or pledged by the Depositor and the Depositor
had good and marketable title thereto, and the Depositor had full right to
transfer and sell the Mortgage Loans to the Trustee free and clear of any
encumbrance, participation interest, lien, equity, pledge, claim or security
interest and had full right and authority subject to no interest or
participation in, or agreement with any other party to sell or otherwise
transfer the Mortgage Loans.
(b) As of the Closing Date, the Depositor has transferred all right,
title and interest in the Mortgage Loans to the Trustee on behalf of the
Trust.
(c) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud an of its creditors.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or
assignment.
Section 2.05 Representations and Warranties of the Seller;
Discovery of Breach; Repurchase or Substitution of
Mortgage Loans.
(a) With respect to the MSMCI Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 3.01 of the MSMCI Purchase
Agreement to and for the benefit of the Depositor, the Trustee and the Trust
Fund.
The Seller hereby represents and warrants that no Mortgage Loan contains
a provision whereby the related mortgagor is permitted to convert the Mortgage
Rate from an adjustable rate to a fixed rate.
With respect to the Countrywide Serviced Mortgage Loans, the Seller
hereby makes the representations and warranties contained in Section 7.01 of
the Countrywide Purchase and Servicing Agreement with respect to each of the
Countrywide Serviced Mortgage Loans to and for the benefit of the Depositor,
the Trustee and the Trust Fund. The Seller agrees to comply with the
provisions of Section 7.03 of the Countrywide Purchase and Servicing Agreement
in
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respect of a breach of any of such representations and warranties. In
addition, with respect to the Countrywide Serviced Mortgage Loans, the Seller
hereby represents and warrants that each such Countrywide Serviced Mortgage
Loan is a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code.
With respect to the Quicken Serviced Mortgage Loans, the Seller hereby
makes the representations and warranties contained in Section 9.02 of the
Quicken Purchase and Servicing Agreement with respect to each of the Quicken
Serviced Mortgage Loans to and for the benefit of the Depositor, the Trustee
and the Trust Fund. The Seller agrees to comply with the provisions of Section
9.03 of the Quicken Purchase and Servicing Agreement in respect of a breach of
any of such representations and warranties. In addition, with respect to the
Quicken Serviced Mortgage Loans, the Seller hereby represents and warrants
that each such Quicken Serviced Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
The Seller agrees to comply with the provisions of this Section 2.05 in
respect of a breach of any of such representations and warranties.
The Seller hereby represents and warrants to the Trustee with respect to
the Mortgage Loans as of the date hereof or such other date set forth herein
that as of the Closing Date:
(i) Each Mortgage Loan at origination complied in all material
respects with applicable predatory and abusive lending laws and
consummation of the transactions contemplated by this Agreement will not
involve the violation of any such laws.
(i) All of the Mortgage Loans were originated in compliance with
all applicable laws, including, but not limited to, all applicable
anti-predatory and abusive lending laws.
(ii) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and with respect to the foregoing, the terms "High Cost
Loan" and "Covered Loan" have the meaning assigned to them in the
Standard & Poor's LEVELS(R) Version 5.6 Glossary Revised, Appendix E
which is attached hereto as Exhibit Q (the "Glossary") where (x) a "High
Cost Loan" is each loan identified in the column "Category under
applicable anti-predatory lending law" of the table entitled "Standard &
Poor's High Cost Loan Categorization" in the Glossary as each such loan
is defined in the applicable anti-predatory lending law of the State or
jurisdiction specified in such table and (y) a "Covered Loan" is each
loan identified in the column "Category under applicable anti-predatory
lending law" of the table entitled "Standard & Poor's High Covered Loan
Categorization" in the Glossary as each such loan is defined in the
applicable anti-predatory lending law of the State or jurisdiction
specified in such table.
(iii) No Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
Upon discovery by the Depositor, the Seller or the related Originator or
receipt of written notice of any materially defective document in, or,
following the date of delivery to the Trustee of the Custodian's
certifications as required under the related Custodial Agreements, that a
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document is missing from, a Trustee Mortgage File, or discovery by the
Trustee, the Depositor, the Seller or the related Originator of the breach by
such Originator or Seller of any representation or warranty under the related
Purchase and Servicing Agreement, as modified by the Acknowledgement, in the
case of the Originator, or under this Agreement, in the case of the Seller, in
respect of any Mortgage Loan which materially adversely affects the value of
that Mortgage Loan or the interest therein of the Certificateholders (a
"Defective Mortgage Loan") (each of the Depositor, the Seller and the related
Originator hereby agreeing to give written notice thereof to the Trustee and
the other of such parties), the Trustee, or its designee, shall promptly
notify the Depositor and the Seller or the related Originator, as applicable,
in writing of such nonconforming or missing document or breach and request
that the Seller or related Originator deliver such missing document or cure or
cause the cure of such defect or breach within a period of time specified in
the related Purchase and Servicing Agreement, and if the Seller or related
Originator, as applicable, does not deliver such missing document or cure such
defect or breach in all material respects during such period, the Trustee,
shall enforce the obligations of the related Originator under the related
Purchase and Servicing Agreement, as modified by the Acknowledgement, or the
Seller under this Agreement, as applicable, and cause the related Originator
or the Seller, as the case may be, to repurchase that Mortgage Loan from the
Trust Fund at the Purchase Price on or prior to the Determination Date
following the expiration of such specified period (subject to Section 2.05(c)
below); provided, however, that, in connection with any such breach that could
not reasonably have been cured within such specified period (unless permitted
a greater period of time to cure under the related Purchase and Servicing
Agreement), subject to Section 2.05(c) below, if the related Originator or the
Seller, as applicable, shall have commenced to cure such breach within such
specified period, the related Originator or the Seller shall be permitted to
proceed thereafter diligently and expeditiously to cure the same within such
additional time as is reasonably necessary to cure such breach. To the extent
that any costs and damages are incurred by the Trust Fund as a result of any
violation of any applicable federal, state, or local predatory or abusive
lending law arising from or in connection with the origination of any Mortgage
Loan repurchased by the related Originator or the Seller, such costs and
damages shall be included in the Purchase Price of such repurchased Mortgage
Loan and shall be borne by the Seller. The Purchase Price for the repurchased
Mortgage Loan shall be deposited in the related Distribution Account, and the
Trustee, or its designee, upon receipt of written certification from the
Securities Administrator of such deposit, shall release or cause the Custodian
to release to the related Originator or the Seller, as applicable, the related
Trustee Mortgage File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation or
warranties, as either party shall furnish to it and as shall be necessary to
vest in such party any Mortgage Loan released pursuant hereto and the Trustee,
or its designee, shall have no further responsibility with regard to such
Trustee Mortgage File (it being understood that the Trustee shall have no
responsibility for determining the sufficiency of such assignment for its
intended purpose). If pursuant to the foregoing provisions the related
Originator or the Seller repurchases a Mortgage Loan that is a MERS Mortgage
Loan, the related Servicer shall cause MERS to designate on the MERS(R) System
the related Originator or the Seller, as applicable, as the beneficial holder
of such Mortgage Loan.
In lieu of repurchasing any such Mortgage Loan as provided above, either
party may cause such Mortgage Loan to be removed from the Trust Fund (in which
case it shall become a Deleted Mortgage Loan) and substitute one or more
Replacement Mortgage Loans in the manner
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and subject to the limitations set forth in Section 2.05(b) below. It is
understood and agreed that the obligations of the Originators and the Seller
to cure or to repurchase (or to substitute for) any related Mortgage Loan as
to which a document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing shall
constitute the sole remedy against the such party respecting such omission,
defect or breach available to the Trustee on behalf of the Certificateholders.
Notwithstanding the foregoing, the substitution for a Deleted Mortgage
Loan that is a WMMSC Serviced Mortgage Loan or the repurchase of a Mortgage
Loan that is a WMMSC Serviced Mortgage Loan by the Seller or an Originator
shall be subject to, and shall in no way adversely affect, the right of WMMSC
to continue servicing and collecting its Servicing Fee for such Deleted
Mortgage Loan or Mortgage Loan, as applicable, pursuant to the related
Purchase and Servicing Agreement.
(b) Any substitution of Replacement Mortgage Loans for Deleted Mortgage
Loans made pursuant to Section 2.05(b) above must be effected prior to the
last Business Day that is within two years after the Closing Date. As to any
Deleted Mortgage Loan for which the related Originator or the Seller
substitutes a Replacement Mortgage Loan or Loans, such substitution shall be
effected by delivering to the Custodian, on behalf of the Trustee, for such
Replacement Mortgage Loan or Loans, the Mortgage Note, the Mortgage, any
related assignment thereof and the Acknowledgement to the Trustee, and such
other documents and agreements, with all necessary endorsements thereon,
together with an Officers' Certificate stating that each such Replacement
Mortgage Loan satisfies the definition thereof and specifying the Substitution
Adjustment Amount (as described below), if any, in connection with such
substitution. Monthly Payments due with respect to Replacement Mortgage Loans
in the month of substitution shall not be included as part of the Trust Fund
and shall be retained by the related Originator or the Seller, as applicable.
For the month of substitution, distributions to the Certificateholders shall
reflect the collections and recoveries in respect of such Deleted Mortgage in
the Due Period preceding the month of substitution and the related Originator
or the Seller, as applicable, shall thereafter be entitled to retain all
amounts subsequently received in respect of such Deleted Mortgage Loan. Upon
such substitution, such Replacement Mortgage Loan shall constitute part of the
Trust Fund and shall be subject in all respects to the terms of this Agreement
and the related Purchase and Servicing Agreement, as modified by the related
Acknowledgement, including all representations and warranties thereof included
in such Purchase and Servicing Agreement, as modified by the Acknowledgement,
in each case as of the date of substitution.
For any month in which an Originator or the Seller substitutes one or
more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the
related Servicer shall determine the excess (each, a "Substitution Adjustment
Amount"), if any, by which the aggregate Purchase Price of all such Deleted
Mortgage Loans exceeds the aggregate Stated Principal Balance of the
Replacement Mortgage Loans replacing such Deleted Mortgage Loans, together
with one month's interest on such excess amount at the applicable Net Mortgage
Rate. On the date of such substitution, the related Originator or Seller, as
applicable, shall deliver or cause to be delivered to the related Servicer for
deposit in the related Custodial Account an amount equal to the related
Substitution Adjustment Amount, if any, and the Custodian, on behalf of the
Trustee, upon receipt of the related Replacement Mortgage Loan or Loans and
certification by such Servicer of such deposit, shall release to the related
Originator or the Seller, as applicable, the
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related Trustee Mortgage File or Files and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
related Originator or Seller shall deliver to it and as shall be necessary to
vest therein any Deleted Mortgage Loan released pursuant hereto.
In addition, the related Originator or the Seller, as applicable, shall
obtain at its own expense and deliver to the Trustee and the Securities
Administrator an Opinion of Counsel to the effect that such substitution
(either specifically or as a Class of transactions) shall not cause an Adverse
REMIC Event. If such Opinion of Counsel cannot be delivered, then such
substitution may only be effected at such time as the required Opinion of
Counsel can be given.
(c) Upon discovery by the related Originator, the Seller, the Depositor
or the Trustee that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, the party
discovering such fact shall within two Business Days give written notice
thereof to the other parties. In connection therewith, the applicable party
shall repurchase or, subject to the limitations set forth in Section 2.05(b),
substitute one or more Replacement Mortgage Loans for the affected Mortgage
Loan within 90 days of the earlier of discovery or receipt of such notice with
respect to such affected Mortgage Loan. Any such repurchase or substitution
shall be made in the same manner as set forth in Section 2.05(a) above and/or
in accordance with this Section 2.05(c). The Trustee shall re-convey to the
related Originator or the Seller, as applicable, the Mortgage Loan to be
released pursuant hereto in the same manner, and on the same terms and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty.
Section 2.06 Grant Clause.
(a) It is intended that the conveyance of the Depositor's right, title
and interest in and to property constituting the Trust Fund pursuant to this
Agreement shall constitute, and shall be construed as, a sale of such property
and not a grant of a security interest to secure a loan. However, if such
conveyance is deemed to be in respect of a loan, it is intended that: (1) the
rights and obligations of the parties shall be established pursuant to the
terms of this Agreement; (2) the Depositor hereby grants to the Trustee for
the benefit of the Holders of the Certificates a first priority security
interest in all of the Depositor's right, title and interest in, to and under,
whether now owned or hereafter acquired, the Trust Fund and all proceeds of
any and all property constituting the Trust Fund to secure payment of the
Certificates; and (3) this Agreement shall constitute a security agreement
under applicable law. If such conveyance is deemed to be in respect of a loan
and the trust created by this Agreement terminates prior to the satisfaction
of the claims of any Person holding any Certificate, the security interest
created hereby shall continue in full force and effect and the Trustee shall
be deemed to be the collateral agent for the benefit of such Person, and all
proceeds shall be distributed as herein provided.
(b) The Depositor shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the other property described above, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. The
Depositor will, at its own expense, make all initial filings on or about the
Closing Date and shall forward a copy of such filing or filings to the
Trustee. Without limiting the generality of the foregoing, the
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Depositor shall prepare and forward for filing, or shall cause to be forwarded
for filing, at the expense of the Depositor, all filings necessary to maintain
the effectiveness of any original filings necessary under the relevant UCC to
perfect the Trustee's security interest in or lien on the Mortgage Loans,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of an Originator,
the Depositor or the Trustee, (2) any change of location of the place of
business or the chief executive office of the Seller or the Depositor, (3) any
transfer of any interest of an Originator or the Depositor in any Mortgage
Loan or (4) any change under the relevant UCC or other applicable laws.
Neither the Originators nor the Depositor shall organize under the law of any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of such action to its immediate and intermediate transferee, including the
Trustee. Before effecting such change, any Originator or the Depositor
proposing to change its jurisdiction of organization shall prepare and file in
the appropriate filing office any financing statements or other statements
necessary to continue the perfection of the interests of its immediate and
intermediate transferees, including the Trustee, in the Mortgage Loans. In
connection with the transactions contemplated by this Agreement, each of the
Originators and the Depositor authorizes its immediate or intermediate
transferee (but not the Trustee) to file in any filing office any initial
financing statements, any amendments to financing statements, any continuation
statements, or any other statements or filings described in this paragraph
(b).
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates.
(a) The Certificates shall be issuable in registered form only and shall
be securities governed by Article 8 of the New York Uniform Commercial Code.
The Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the dollar denominations in
Certificate Balance, or Notional Amount, as applicable, or in the Percentage
Interests, specified herein. Each Class of Certificates will be issued in the
minimum denominations and integral multiples thereof of the initial
Certificate Balance (or Notional Amount) specified in the Preliminary
Statement hereto.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer of the Trustee or of the
Securities Administrator on the Trustee's behalf. Each Certificate shall, on
original issue, be authenticated by the Authenticating Agent upon the order of
the Depositor upon receipt by the Trustee of the Trustee Mortgage Files
described in Section 2.01. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein, executed by an authorized officer of the Authenticating
Agent, by manual signature, and such certification upon any Certificate shall
be conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication. At any time and from time to time after the
execution and delivery of this Agreement, the Depositor may deliver
Certificates executed by or on behalf of the Trustee to the Authenticating
Agent for
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authentication and the Authenticating Agent shall authenticate and deliver
such Certificates as in this Agreement provided and not otherwise.
(c) The Class OC, Class C-B-4, Class C-B-5, Class C-B-6 and Class A-R
Certificates offered and sold in reliance on the exemption from registration
under Rule 144A under the Act shall be issued initially in definitive, fully
registered form without interest coupons with the applicable legends set forth
in Exhibit A added to the forms of such Certificates (each, a "Restricted
Global Security").
Section 3.02 Registration.
The Securities Administrator is hereby appointed, and the Securities
Administrator hereby accepts its appointment as, initial Certificate Registrar
in respect of the Certificates and shall maintain books for the registration
and for the transfer of Certificates (the "Certificate Register"). The Trustee
may appoint a bank or trust company to act as successor Certificate Registrar.
A registration book shall be maintained for the Certificates collectively. The
Certificate Registrar may resign or be discharged or removed and a new
successor may be appointed in accordance with the procedures and requirements
set forth in Sections 6.06 and 6.07 hereof with respect to the resignation,
discharge or removal of the Securities Administrator and the appointment of a
successor Securities Administrator. The Certificate Registrar may appoint, by
a written instrument delivered to the Holders and the Master Servicer, any
bank or trust company to act as co-registrar under such conditions as the
Certificate Registrar may prescribe; provided, however, that the Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment.
Section 3.03 Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Securities
Administrator on behalf of the Trustee shall execute, and the Authenticating
Agent shall authenticate and deliver to the transferee, one or more new
Certificates of the same Class and evidencing, in the aggregate, the same
aggregate Certificate Balance (or Notional Amount) as the Certificate being
transferred. No service charge shall be made to a Certificateholder for any
registration of transfer of Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any registration of transfer of
Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number
of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Balance (or Notional
Amount) as the Certificate surrendered, upon surrender of the Certificate to
be exchanged at the office of the Certificate Registrar duly endorsed or
accompanied by a written instrument of transfer duly executed by such Holder
or his duly authorized attorney in such form as is satisfactory to the
Certificate Registrar. Certificates
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delivered upon any such exchange will evidence the same obligations, and will
be entitled to the same rights and privileges, as the Certificates
surrendered. No service charge shall be made to a Certificateholder for any
exchange of Certificates, but the Certificate Registrar may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any exchange of Certificates. Whenever any Certificates are
so surrendered for exchange, the Securities Administrator on behalf of the
Trustee shall execute, and the Authenticating Agent shall authenticate, date
and deliver the Certificates which the Certificateholder making the exchange
is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor
or an affiliate (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) of the
Depositor or (y) being made to a "qualified institutional buyer" (a
"QIB") as defined in Rule 144A under the Securities Act of 1933, as
amended (the "Act") by a transferor that has provided the Certificate
Registrar with a certificate in the form of Exhibit H hereto; and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the
Act, or to any Person all of the equity owners in which are such
accredited investors, by a transferor who furnishes to the Certificate
Registrar a letter of the transferee substantially in the form of
Exhibit I hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person or shall be effective
unless the Certificate Registrar, on behalf of the Trustee, has received (A) a
certificate substantially in the form of Exhibit J hereto (or Exhibit B, in
the case of a Residual Certificate) from such transferee or (B) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that the
purchase and holding of such a Certificate will not constitute or result in
any nonexempt prohibited transactions under Title I of ERISA or Section 4975
of the Code and will not subject the Certificate Registrar, the Trustee, the
Master Servicer, the Depositor or the Securities Administrator to any
obligation in addition to those undertaken in the Agreement; provided,
however, that the Certificate Registrar will not require such certificate or
opinion in the event that, as a result of a change of law or otherwise,
counsel satisfactory to the Certificate Registrar has rendered an opinion to
the effect that the purchase and holding of an ERISA-Restricted Certificate by
a Plan or a Person that is purchasing or holding such a Certificate with the
assets of a Plan will not constitute or result in a prohibited transaction
under Title I of ERISA or Section 4975 of the Code and will not subject the
Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the
Securities Administrator to any obligation in addition to those undertaken in
this Agreement. Each
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Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the appropriate representation set forth in
paragraph 2 and the representation set forth in paragraph 3 of Exhibit J. The
preparation and delivery of the certificate and opinions referred to above
shall not be an expense of the Trust Fund, the Certificate Registrar, the
Trustee, the Master Servicer, the Depositor or the Securities Administrator.
Notwithstanding the foregoing, no opinion or certificate shall be
required for the initial issuance of the ERISA-Restricted Certificates to the
Underwriter. The Certificate Registrar shall have no obligation to monitor
transfers of Book-Entry Certificates that are ERISA-Restricted Certificates
and shall have no liability for transfers of such Certificates in violation of
the transfer restrictions. The Certificate Registrar shall be under no
liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) and neither the Securities Administrator nor the Paying Agent shall
have any liability for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the transfer was registered by the
Certificate Registrar in accordance with the foregoing requirements. The
Securities Administrator, on behalf of the Trustee, shall be entitled, but not
obligated, to recover from any Holder of any ERISA-Restricted Certificate that
was in fact a Plan or a Person acting on behalf of a Plan any payments made on
such ERISA-Restricted Certificate at and after such time. Any such payments so
recovered by the Securities Administrator, on behalf of the Trustee, shall be
paid and delivered by the Securities Administrator, on behalf of the Trustee,
to the last preceding Holder of such Certificate that is not such a Plan or
Person acting on behalf of a Plan.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of a Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person (A) is not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Certificate Registrar with an
effective Internal Revenue Service Form W-8ECI or successor form at the time
and in the manner required by the Code (any such person who is not covered by
clause (A) or (B) above is referred to herein as a "Non-permitted Foreign
Holder").
Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Certificate Registrar an affidavit in substantially the form
attached hereto as Exhibit B representing and warranting, among other things,
that such transferee is neither a Disqualified Organization, an agent or
nominee acting on behalf of a Disqualified Organization, nor a Non-permitted
Foreign Holder (any such transferee,
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a "Permitted Transferee"), and the proposed transferor shall deliver to the
Trustee and the Certificate Registrar an affidavit in substantially the form
attached hereto as Exhibit C. In addition, the Trustee or the Certificate
Registrar may (but shall have no obligation to) require, prior to and as a
condition of any such transfer, the delivery by the proposed transferee of an
Opinion of Counsel, addressed to the Trustee and the Certificate Registrar,
that such proposed transferee or, if the proposed transferee is an agent or
nominee, the proposed beneficial owner, is not a Disqualified Organization,
agent or nominee thereof, or a Non-permitted Foreign Holder. Notwithstanding
the registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-permitted Foreign Holder, such registration shall
be deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Depositor and the Certificate Registrar shall be under no liability to any
Person for any registration or transfer of a Residual Certificate to a
Disqualified Organization, agent or nominee thereof or Non-permitted Foreign
Holder or for the Paying Agent making any payments due on such Residual
Certificate to the Holder thereof or for taking any other action with respect
to such Holder under the provisions of the Agreement, so long as the transfer
was effected in accordance with this Section 3.03(f), unless the Certificate
Registrar shall have actual knowledge at the time of such transfer or the time
of such payment or other action that the transferee is a Disqualified
Organization, or an agent or nominee thereof, or Non-permitted Foreign Holder.
The Certificate Registrar shall be entitled to recover from any Holder of a
Residual Certificate that was a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder at the time it became a Holder or any
subsequent time it became a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder, all payments made on such Residual
Certificate at and after either such times (and all costs and expenses,
including but not limited to attorneys' fees, incurred in connection
therewith). Any payment (not including any such costs and expenses) so
recovered by the Certificate Registrar shall be paid and delivered to the last
preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee or the Certificate
Registrar that the registration of transfer of such Residual Certificate was
not in fact permitted by this Section 3.03(f), the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof retroactive to
the date of such registration of transfer of such Residual Certificate. The
Depositor, the Certificate Registrar and the Trustee shall be under no
liability to any Person for any registration of transfer of a Residual
Certificate that is in fact not permitted by this Section 3.03(f), or for the
Paying Agent making any payment due on such Certificate to the registered
Holder thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
upon receipt of the affidavit described in the preceding paragraph of this
Section 3.03(f).
(g) Each Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate or Residual Certificate, or an interest therein,
by such Holder's or Owner's acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of this section.
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Section 3.04 Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange
shall be cancelled and retained in accordance with normal retention policies
with respect to cancelled certificates maintained by the Certificate
Registrar.
Section 3.05 Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the Trustee or
the Certificate Registrar or (ii) the Certificate Registrar receives evidence
to its satisfaction of the destruction, loss or theft of any Certificate, and
there is delivered to the Trustee and the Certificate Registrar such security
or indemnity as may be required by them to save each of them harmless, then,
in the absence of notice to the Depositor, the Trustee or the Certificate
Registrar that such destroyed, lost or stolen Certificate has been acquired by
a protected purchaser, the Securities Administrator on behalf of the Trustee
shall execute and the Authenticating Agent shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Certificate Balance. Upon the
issuance of any new Certificate under this Section 3.05, the Trustee, the
Depositor or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee, the Depositor or the Certificate Registrar) connected therewith.
Any replacement Certificate issued pursuant to this Section 3.05 shall
constitute complete and indefeasible evidence of ownership in the applicable
Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
If after the delivery of such new Certificate, a protected purchaser of
the original Certificate in lieu of which such new Certificate was issued
presents for payment such original Certificate, the Depositor, the Certificate
Registrar and the Trustee or any agent shall be entitled to recover such new
Certificate from the Person to whom it was delivered or any Person taking
therefrom, except a protected purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expenses incurred by the Depositor, the Certificate Registrar, the
Trustee or any agent in connection therewith.
Section 3.06 Persons Deemed Owners.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, the Paying Agent and any agent of any of them shall treat the
Person in whose name any Certificate is registered upon the books of the
Certificate Registrar as the owner of such Certificate for the purpose of
receiving distributions pursuant to Sections 5.01 and 5.02 and for all other
purposes whatsoever, and neither the Depositor, the Master Servicer, the
Trustee, the Certificate Registrar, the Paying Agent nor any agent of any of
them shall be affected by notice to the contrary.
Section 3.07 Temporary Certificates.
(a) Pending the preparation of definitive Certificates, upon the order
of the Depositor, the Securities Administrator on behalf of the Trustee shall
execute and the Authenticating Agent shall authenticate and deliver temporary
Certificates that are printed, lithographed, typewritten,
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mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Certificates in lieu of which
they are issued and with such variations as the authorized officers executing
such Certificates may determine, as evidenced by their execution of such
Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Certificate Registrar without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Securities Administrator on behalf of the Trustee
shall execute and the Authenticating Agent shall authenticate and deliver in
exchange therefor a like aggregate Certificate Balance of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent (which may be the Trustee) for
the purpose of making distributions to the Certificateholders hereunder. The
Securities Administrator is hereby appointed as the initial Paying Agent. The
Trustee shall cause any Paying Agent, other than the Securities Administrator,
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 an Eligible Account (which
shall be the Distribution Account) in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to the
Certificateholders. All funds remitted by the Securities Administrator to any
such Paying Agent for the purpose of making distributions shall be paid to the
Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Securities Administrator. If the
Paying Agent is not the Trustee or the Securities Administrator, the
Securities Administrator shall cause to be remitted to the Paying Agent on or
before the Business Day prior to each Distribution Date, by wire transfer in
immediately available funds, the funds to be distributed on such Distribution
Date. Any Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers.
Section 3.09 Book-Entry Certificates.
(a) Each Class of Book-Entry Certificates, upon original issuance, shall
be issued in the form of one or more typewritten Certificates representing the
Book-Entry Certificates. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full force and
effect;
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(ii) the Certificate Registrar, the Paying Agent and the Trustee
shall deal with the Clearing Agency for all purposes (including the
making of distributions on the Book-Entry Certificates) as the
authorized representatives of the Certificate Owners and the Clearing
Agency and shall be responsible for crediting the amount of such
distributions to the accounts of such Persons entitled thereto, in
accordance with the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions of
this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Certificates are issued
pursuant to Section 3.09(c), the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the
Securities Administrator shall give all such notices and communications
specified herein to be given to Holders of the Book-Entry Certificates to the
Clearing Agency.
(c) If (i) (A) the Clearing Agency or the Depositor advises the
Certificate Registrar in writing that the Clearing Agency is no longer willing
or able to discharge properly its responsibilities with respect to the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor satisfactory to the Depositor and the Certificate Registrar or (ii)
after the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Class Principal
Balance of a Class of Book-Entry Certificates advise the Paying Agent and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Certificate Registrar shall notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing Agency, of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall issue the Definitive
Certificates. Neither the Depositor, the Certificate Registrar nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Certificate Registrar, to the
extent applicable, with respect to such Definitive Certificates and the
Certificate Registrar shall recognize the holders of the Definitive
Certificates as Certificateholders hereunder. Notwithstanding the foregoing,
the Certificate Registrar, upon the instruction of the Depositor,
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shall have the right to issue Definitive Certificates on the Closing Date in
connection with credit enhancement programs.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01 Custodial Accounts; Distribution Account; Reserve
Fund.
(a) On or prior to the Closing Date, the Master Servicer shall have
caused each Servicer other than WMMSC to establish and maintain one or more
Custodial Accounts, as provided in the related Purchase and Servicing
Agreement, into which all Scheduled Payments and unscheduled payments with
respect to the related Mortgage Loans, net of any deductions or reimbursements
permitted under the related Purchase and Servicing Agreement, shall be
deposited. On or prior to the Closing Date, WMMSC shall establish and maintain
one or more Custodial Accounts, as provided in the related Purchase and
Servicing Agreement, into which all Scheduled Payments and unscheduled
payments with respect to the WMMSC Serviced Mortgage Loans, net of any
deductions or reimbursements permitted under the related Purchase and
Servicing Agreements, shall be deposited. One of the Custodial Accounts
established by WMMSC shall be an Investment Account. On each Distribution
Account Deposit Date, the Servicers shall remit to the Securities
Administrator for deposit into the Distribution Account, all amounts so
required to be deposited into such account in accordance with the terms of the
related Purchase and Servicing Agreements.
(b) The Securities Administrator, as Paying Agent for the Trustee, shall
establish and maintain an Eligible Account entitled "Distribution Account of
Deutsche Bank National Trust Company, as Trustee for the benefit of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2004-6AR, Holders of Mortgage Pass-Through
Certificates." The Securities Administrator shall, promptly upon receipt from
the Servicers on each related Distribution Account Deposit Date, deposit into
the Distribution Account and retain on deposit until the related Distribution
Date the following amounts:
(i) the aggregate of collections with respect to the Mortgage
Loans remitted by the Servicers from the related Custodial Accounts in
accordance with the Purchase and Servicing Agreements;
(ii) any amounts required to be deposited by the Master Servicer
with respect to the Master Serviced Mortgage Loans for the related Due
Period pursuant to this Agreement, including the amount of any Advances
or Compensating Interest Payments with respect to the Master Serviced
Mortgage Loans not paid by the Servicers; and
(iii) any other amounts so required to be deposited in the
Distribution Account in the related Due Period pursuant to this
Agreement.
(c) In the event the Master Servicer or a Servicer has remitted in error
to the Distribution Account any amount not required to be remitted in
accordance with the definition of Available Funds, it may at any time direct
the Securities Administrator to withdraw such amount from the Distribution
Account for repayment to the Master Servicer or Servicer, as applicable, by
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delivery of an Officer's Certificate to the Securities Administrator and the
Trustee which describes the amount deposited in error.
(d) On each Distribution Date and Initial Optional Purchase Date, the
Securities Administrator, as Paying Agent, shall withdraw from funds available
in the Distribution Account and distribute the Available Funds to the
Certificateholders and any other parties entitled thereto in the amounts and
priorities set forth in Section 5.02. The Securities Administrator may from
time to time withdraw from the Distribution Account and pay the Master
Servicer, the Trustee, the Custodian, the Securities Administrator or any
Servicer any amounts permitted to be paid or reimbursed to such Person from
funds in the Distribution Account pursuant to this Agreement or any Purchase
and Servicing Agreement.
(e) On the Closing Date, the Securities Administrator shall establish
and maintain in its name, in trust for the benefit of the Group 1
Certificates, the Reserve Fund and shall deposit $5,000 therein upon receipt
of such amount from or on behalf of the Underwriter. On each Distribution
Date, the Securities Administrator shall transfer from the Distribution
Account to the Reserve Fund the amounts specified pursuant to Section
5.02(a)(1)(C)(xii). Any such amounts transferred shall be treated for federal
tax purposes as amounts distributed to the Holders of the Class OC
Certificates. On each Distribution Date, to the extent required, the
Securities Administrator shall withdraw amounts in the Reserve Fund to make
distributions to the Classes of Group 1 Certificates in accordance with the
priorities set forth in Section 5.10. Any such amounts shall be distributed on
each Class of Certificates to the extent of funds received by the Securities
Administrator from the Corridor Contract Counterparty pursuant to the related
Corridor Contract for that Distribution Date. On the Distribution Date on
which the termination of the Group 1 Certificates occurs pursuant to Section
7.02, after making all distributions required in connection with the Group 1
Certificates, the Securities Administrator shall withdraw from the Reserve
Fund (to the extent of funds available on deposit therein) any remaining
amounts and distribute them to the Holders of the Class OC Certificates.
(f) The Reserve Fund shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with, any other moneys, including without limitation, other moneys held by the
Securities Administrator on behalf of the Trustee pursuant to this Agreement.
Amounts held in the Reserve Fund from time to time shall continue to
constitute assets of the Trust Fund, but not of any REMIC created under this
Agreement, until released from the Reserve Fund pursuant to this Section 4.01.
The Reserve Fund constitutes an "outside reserve fund" within the meaning of
Treasury Regulation ss. 1.860G-2(h) and is not an asset of any REMIC. The
Holders of the Class OC Certificates shall be the owner of the Reserve Fund.
The Securities Administrator shall keep records that accurately reflect the
funds on deposit in the Reserve Fund. Funds in the Reserve Fund may be
invested in Permitted Investments at the written direction of the Majority of
the Holders of the Class OC Certificates, which Permitted Investments shall
mature not later than the Business Day immediately preceding the first
Distribution Date that follows the date of such investment (except that if
such Permitted Investment is an obligation of the institution that maintains
the Reserve Fund, then such Permitted Investment shall mature not later than
such Distribution Date) and shall not be sold or disposed of prior to
maturity; provided, however, that if the Securities Administrator does not
receive written investment directions, the funds in the Reserve Account shall
be invested in the ▇▇▇▇▇ Fargo Prime Investment Money Market Fund. All such
Permitted Investments shall be
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made in the name of the Trustee, for the benefit of the Holders of the Class
OC Certificates. All losses incurred in the Reserve Fund in respect of any
such investments shall be charged against amounts on deposit in the Reserve
Fund (or such investments immediately as realized). The Securities
Administrator shall not be liable for the amount of any loss incurred in
respect of any investment or lack of investment of funds in the Reserve Fund
and made in accordance with this Section 4.01. The Class OC Certificates shall
evidence ownership of the Reserve Fund for federal tax purposes.
(g) Funds in the Distribution Account may be invested in Permitted
Investments selected by and at the written direction of the Securities
Administrator, which shall mature not later than one Business Day prior to the
Distribution Date (except that if such Permitted Investment is an obligation
of the Securities Administrator or any of its Affiliates, or is managed or
advised by the Securities Administrator or any Affiliate, then such Permitted
Investment shall mature not later than such applicable Distribution Date) and
any such Permitted Investment shall not be sold or disposed of prior to its
maturity. All such Permitted Investments shall be made in the name of the
Trustee (in its capacity as such) or its nominee. All income and gain realized
from any Permitted Investment of amounts on deposit in the Distribution
Account shall be for the benefit of the Securities Administrator, as
additional compensation for its duties hereunder, and shall be subject to its
withdrawal or order from time to time, and shall not be part of the Trust
Fund. The amount of any losses incurred in respect of any such investments
shall be deposited in such Distribution Account by the Securities
Administrator out of its own funds, without any right of reimbursement
therefor, immediately as realized.
Section 4.02 Permitted Withdrawals from the Custodial Accounts and
the Distribution Account.
(a) Each Servicer may from time to time make withdrawals from its
Custodial Account for the following purposes:
(i) to reimburse itself for unreimbursed Advances made by it, such
right of reimbursement pursuant to this subclause (i) being limited to
amounts received on the Mortgage Loan(s) in respect of which any such
Advance was made;
(ii) to reimburse itself for any Nonrecoverable Advance previously
made by it;
(iii) to reimburse itself for unreimbursed Servicer Advances, each
Servicer's right to reimbursement pursuant to this clause (a) with
respect to any Mortgage Loan being limited to amounts received on such
Mortgage Loan(s) which represent late recoveries of the payments for
which such advances were made pursuant to the related Purchase and
Servicing Agreement;
(iv) to reimburse itself for expenses incurred by it and
reimbursable pursuant to the related Purchase and Servicing Agreement;
and
(v) to withdraw any amount deposited in the Custodial Account and
not required to be deposited therein.
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To the extent required by the related Purchase and Servicing Agreement each
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from its
Custodial Account pursuant to such subclauses (i), (ii), (iii), (iv) and (v).
Prior to making any withdrawal from the Certificate Account pursuant to
subclause (ii), the related Servicer shall deliver to the Master Servicer an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans(s), and their respective portions of
such Nonrecoverable Advance.
(b) The Securities Administrator shall withdraw funds from the
Distribution Account for distributions to Certificateholders in the manner
specified in this Agreement (and to withhold from the amounts so withdrawn,
the amount of any taxes that it is authorized to withhold pursuant to Section
10.01). In addition, the Securities Administrator may from time to time make
withdrawals from the Distribution Account for the following purposes:
(i) to pay all costs and expenses described in clause (e) of the
definition of "Available Funds" and in the sixth bullet of clause (i) of
the definition of "Available Distribution Amount";
(ii) to pay to the Securities Administrator the investment
earnings on the Distribution Account as its compensation for the related
Distribution Date;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 7.01 hereof.
(v) [Reserved].
Section 4.03 [Reserved].
Section 4.04 [Reserved].
Section 4.05 Reports to Trustee and Certificateholders.
On each Distribution Date, the Securities Administrator shall have
prepared and shall make available to the Trustee, the Depositor and each
Certificateholder a written report setting forth the following information (on
the basis of Mortgage Loan level information obtained from the Master Servicer
and the Servicers, which information with respect to the WMMSC Serviced
Mortgage Loans and each Distribution Date shall be provided by WMMSC to the
Securities Administrator no later than the Data Remittance Date related to
that Distribution Date):
(a) the amount of the distributions, separately identified, with respect
to each Class of Certificates;
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(b) the amount of the distributions set forth in the clause (a)
allocable to principal, separately identifying the aggregate amount of any
Principal Prepayments or other unscheduled recoveries of principal included in
that amount;
(c) the amount of the distributions set forth in the clause (a)
allocable to interest and how it was calculated;
(d) the amount of any unpaid Class Interest Shortfall and the related
accrued interest thereon, with respect to each Class of Certificates;
(e) the Class Principal Balance of each Class of Certificates after
giving effect to the distribution of principal on that Distribution Date;
(f) the Pool Principal Balance, the aggregate Stated Principal Balance
of the Mortgage Loans in each Loan Group at the end of the related Prepayment
Period, and the applicable Weighted Average Net Mortgage Rate of each of each
Loan Group and the Mortgage Pool at the beginning of the related Due Period;
(g) the Senior Percentage and the Subordinated Percentage for each Loan
Group for the following Distribution Date;
(h) the Senior Prepayment Percentage and Subordinate Prepayment
Percentage for each Loan Group for the following Distribution Date;
(i) in the aggregate and with respect to each Loan Group, the amount of
the Servicing Fee paid to or retained by the Master Servicer and by each
Servicer, respectively, and in the aggregate with respect to each Loan Group;
(j) in the aggregate and with respect to each Loan Group, the amount of
Monthly Advances for the related Due Period;
(k) in the aggregate and with respect to each Loan Group, the number and
Stated Principal Balance of the Mortgage Loans that were (A) Delinquent
(exclusive of Mortgage Loans in foreclosure) (1) 30 to 59 days, (2) 60 to 89
days and (3) 90 or more days, (B) in foreclosure and Delinquent (1) 30 to 59
days, (2) 60 to 89 days and (3) 90 or more days and (C) in bankruptcy as of
the close of business on the last day of the calendar month preceding that
Distribution Date;
(l) in the aggregate and with respect to each Loan Group, the total
number and principal balance of any REO properties as of the close of business
on the last day of the preceding Due Period;
(m) in the aggregate and with respect to each Loan Group, the amount of
Realized Losses incurred during the preceding calendar month;
(n) in the aggregate and with respect to each Loan Group, the cumulative
amount of Realized Losses incurred since the Closing Date;
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(o) the Realized Losses, if any, allocated to each Class of Certificates
on that Distribution Date;
(p) the Special Hazard Loss Coverage Amount, the Fraud Loss Coverage
Amount and the Bankruptcy Loss Coverage Amount, in each case as of the related
Determination Date;
(q) the Pass-Through Rate for each Class of Certificates for that
Distribution Date;
(r) the amount of any Transfer Payment Received paid to an
Undercollateralized Group or Transfer Payment Made by an Overcollateralized
Group pursuant to Section 5.08 hereof;
(s) the amount received by the Securities Administrator pursuant to each
Corridor Contract from the Corridor Contract Counterparty with respect to that
Distribution Date; and
(t) the total amount of Prepayment Penalties collected, as reported by
the Servicers.
The Securities Administrator shall make such reports available each
month via its website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇. Assistance in using the
website may be obtained by calling the Securities Administrator's customer
service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Certificateholders and other parties that are
unable to use the website are entitled to have a paper copy mailed to them via
first class mail by contacting the Securities Administrator and indicating
such. In preparing or furnishing the foregoing reports, the Securities
Administrator shall be entitled to rely conclusively on the accuracy of the
information or data regarding the Mortgage Loans and the related REO
Properties that has been provided to the Securities Administrator by the
Master Servicer and the Servicers, and neither the Trustee nor the Securities
Administrator shall be obligated to verify, recompute, reconcile or
recalculate any such information or data.
Upon the reasonable advance written request of any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee or any agent thereof, shall be promptly forwarded to
the Securities Administrator, the Securities Administrator shall provide, or
cause to be provided, (or, to the extent that such information or
documentation is not required to be provided by a Servicer under the
applicable Purchase and Servicing Agreement, shall use reasonable efforts to
obtain such information and documentation from such Servicer, and provide) to
such Certificateholders such reports and access to information and
documentation regarding the Mortgage Loans as such Certificateholders may
reasonably deem necessary to comply with applicable regulations of the Office
of Thrift Supervision or its successor or other regulatory authorities with
respect to an investment in the Certificates; provided, however, that the
Securities Administrator shall be entitled to be reimbursed by such
Certificateholders for the Securities Administrator's actual expenses incurred
in providing such reports and access.
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ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator or the
Paying Agent shall make all distributions in accordance with this Article V.
Such distributions shall be made by check mailed to each Certificateholder's
address as it appears on the Certificate Register of the Certificate Registrar
or, upon written request made to the Securities Administrator at least five
Business Days prior to the related Record Date by any Certificateholder owning
an aggregate initial Certificate Balance of at least $1,000,000, or in the
case of a Class of Notional Amount Certificates or Residual Certificate, a
Percentage Interest of not less than 100%, by wire transfer in immediately
available funds to an account specified in the request and at the expense of
such Certificateholder; provided, however, that the final distribution in
respect of any Certificate shall be made only upon presentation and surrender
of such Certificate at the Certificate Registrar's Corporate Trust Office;
provided, further, that the foregoing provisions shall not apply to any Class
of Certificates as long as such Certificate remains a Book-Entry Certificate
in which case all payments made shall be made through the Clearing Agency and
its Clearing Agency Participants. Notwithstanding the reduction of the Class
Principal Balance of any Class of Certificates to zero, such Class will be
outstanding hereunder (solely for the purpose of receiving distributions and
not for any other purpose) until the termination of the respective obligations
and responsibilities of the Depositor, the Master Servicer, WMMSC, the
Securities Administrator and the Trustee hereunder in accordance with Article
VII. Wire transfers will be made at the expense of the Holder requesting such
wire transfer by deducting a wire transfer fee from the related distribution.
Notwithstanding such final payment of principal of any of the Certificates,
each Residual Certificate will remain outstanding until the termination of
each REMIC and the payment in full of all other amounts due with respect to
the Residual Certificates and at such time such final payment in retirement of
any Residual Certificate will be made only upon presentation and surrender of
such Certificate at the Certificate Registrar's Corporate Trust Office. If any
payment required to be made on the Certificates is to be made on a day that is
not a Business Day, then such payment will be made on the next succeeding
Business Day.
(b) All distributions or allocations made with respect to the
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Class Principal Balances or initial
Class Notional Amounts (or Percentage Interests).
Section 5.02 Priorities of Distribution.
(a) (1) On each Distribution Date, the Securities Administrator shall
withdraw from the Distribution Account the Available Distribution Amount (to
the extent that such amount is then on deposit in the Distribution Account)
and shall distribute such amount in the following order of priority:
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(A) With respect to the portion of Available Distribution Amount
for such Distribution Date consisting of the Interest Remittance Amount
for such Distribution Date, on each Distribution Date, the Securities
Administration shall withdraw the Interest Remittance Amount from the
Available Distribution Amount on deposit in the Distribution Account for
that Distribution Date, and apply such funds to distributions on the
specified Class of Group 1 Certificates that have outstanding Class
Principal Balances, sequentially to Class 1-A, Class 1-M-1, Class 1-M-2,
Class 1-M-3, Class C-B-1 and Class C-B-2 Certificates, in that order,
the related Interest Distribution Amount allocable to such Class for
such Distribution Date, in each case to the extent of the Interest
Remittance Amount remaining for such Class for such Distribution Date;
(B)(i) On each Distribution Date (a) prior to the Stepdown Date or
(b) on which a Trigger Event is in effect, the Holders of each Class of
Group 1 Certificates shall be entitled to receive distributions in
respect of principal from the Group 1 Principal Distribution Amount
sequentially, to the Class 1-A, Class 1-M-1, Class 1-M-2, Class 1-M-3,
Class C-B-1 and Class C-B-2 Certificates, in that order, until their
respective Class Principal Balances are reduced to zero.
(ii) On each Distribution Date (a) on or after the Stepdown Date
and (b) on which a Trigger Event is not in effect, the Holders of each
Class of Group 1 Certificates shall be entitled to receive distributions
in respect of principal from Group 1 Principal Distribution Amount in
the following amounts and order of priority:
(1) to the Class 1-A Certificates, in an amount up to the Class
1-A Principal Distribution Amount, until its Class Principal
Balance is reduced to zero;
(2) to the Class 1-M-1 Certificates, the Class 1-M-1 Principal
Distribution Amount, until its Class Principal Balance is
reduced to zero;
(3) to the Class 1-M-2 Certificates, the Class 1-M-2 Principal
Distribution Amount, until its Class Principal Balance is
reduced to zero;
(4) to the Class 1-M-3 Certificates, the Class 1-M-3 Principal
Distribution Amount, until its Class Principal Balance is
reduced to zero;
(5) to the Class C-B-1 Certificates, the Class C-B-1 Principal
Distribution Amount, until its Class Principal Balance is
reduced to zero; and
(6) to the Class C-B-2 Certificates, the Class C-B-2 Principal
Distribution Amount, until its Class Principal Balance is
reduced to zero;
(C) On each Distribution Date the sum of (i) the Overcollateralization
Release Amount and (ii) Net Monthly Excess Cashflow, each for such
Distribution Date, shall be distributed in the following order of
priority, in each case to the extent of the amounts remaining:
(i) the Extra Principal Distribution Amount will be distributed
sequentially, to the Class 1-A, Class 1-M-1, Class 1-M-2, Class 1-M-3,
Class C-B-1 and Class C-B-2
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Certificates, in that order, the amount calculated pursuant to the
second bullet point of Class 1-A Principal Distribution Amount, Class
1-M-1 Principal Distribution Amount, Class 1-M-2 Principal Distribution
Amount, Class 1-M-3 Principal Distribution Amount, Class C-B-1 Principal
Distribution Amount and Class C-B-2 Principal Distribution Amount,
respectively, until their respective Class Principal Balances are
reduced to zero;
(ii) to the Class 1-M-1 Certificates, the related Interest Carry
Forward Amount;
(iii) to the Class 1-M-1 Certificates, the related Unpaid Realized
Loss Amount;
(iv) to the Class 1-M-2 Certificates, the related Interest Carry
Forward Amount;
(v) to the Class 1-M-2 Certificates, the related Unpaid Realized
Loss Amount;
(vi) to the Class 1-M-3 Certificates, the related Interest Carry
Forward Amount;
(vii) to the Class 1-M-3 Certificates, the related Unpaid Realized
Loss Amount;
(viii) to the Class C-B-1 Certificates, the related Interest Carry
Forward Amount;
(ix) to the Class C-B-1 Certificates, the related Unpaid Realized
Loss Amount;
(x) to the Class C-B-2 Certificates, the related Interest Carry
Forward Amount;
(xi) to the Class C-B-2 Certificates, the related Unpaid Realized
Loss Amount;
(xii) to the Reserve Fund, the amount of any Basis Risk Carry
Forward Amount for such Distribution Date remaining unpaid after the
application of the Corridor Contract Payments pursuant to Section 5.10;
(xiii) to the Class OC Certificates, the Class OC Distributable
Amount;
(xiv) on the Distribution Date on which the termination of the
portion of the Trust Fund related to the Group 1 Mortgage Loans occurs,
to the Uncertificated Group 3 IO Class, an amount equal to the
cumulative total of all Group 3 Interest Transfer Amounts; and
(xv) to the holders of the Class A-R Certificates, any remaining
amounts; provided that if such Distribution Date is the Distribution
Date immediately following the expiration of the latest prepayment
charge term or any Distribution Date thereafter, then any such remaining
amounts, together with the Class P-1 Distribution Amount, will be
distributed first, to the holders of the Class P Certificates, until the
Class Principal
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Balance thereof has been reduced to zero; and second, to the holders of
the Class A-R Certificates.
For the avoidance of doubt, Section 5.02(a)(1)(C) is intended to cause the
Class OC Certificates to receive from amounts remaining after the application
of all other clauses of Section 5.02(a)(1)(C) preceding it, an amount up to
the sum of the Class OC Distributable Amount for that Distribution Date and
any Class OC Distributable Amounts remaining unpaid from prior Distribution
Dates and the Securities Administrator shall construe Section 5.02(a)(1)(C) as
necessary so as to accomplish such result.
(D) On each Distribution Date, the Class P-1 Distribution Amount received
during the related Prepayment Period will be distributed to the holders of the
Class P Certificates.
(2) With respect to Available Funds for Loan Group 2, on each
Distribution Date, the Securities Administrator shall withdraw the Available
Funds, from the funds available therefor in the Distribution Account, and
apply such funds to distributions on the specified Classes of Group 2 Senior
Certificates in the following order and priority and, in each case, to the
extent of Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 2
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the Class
Optimal Interest Distribution Amount that would have been distributed in
the absence of such shortfall; provided that prior to an Accrual
Termination Date, the related Accrual Amount shall be distributed as
provided in Section 5.02(a)(2)(iii);
(iii) [Reserved];
(iv) to each Class of Group 2 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) on each Distribution Date prior to the Senior Credit
Support Depletion Date the related Principal Amount up to the
amount of the Senior Principal Distribution Amount for Loan Group
2 for such Distribution Date will be distributed sequentially, in
the following order of priority:
(1) to the Class A-R Certificates, until its Class
Principal Balance is reduced to zero; and
(2) concurrently, Class 2-A-1, Class 2-A-2 and Class
2-A-3 Certificates, pro rata, until their respective Class
Principal Balances are reduced to zero; and
(v) [Reserved];
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(3) With respect to the Available Funds for Loan Group 3 on each
Distribution Date, the Securities Administrator shall withdraw such Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified Classes of Group 3 Senior
Certificates in the following order and priority and, in each case, to the
extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently, (x) to each interest-bearing Class of Group 3
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the Class
Optimal Interest Distribution Amount and with respect to the Group 3
Certificates that would have been distributed in the absence of such
shortfall; provided that prior to an Accrual Termination Date, the
related Accrual Amount shall be distributed as provided in Section
5.02(a)(3)(iii) and (y) (1) for so long as the Group 1 Certificates are
outstanding, to the Interest Remittance Amount, the Group 3 Interest
Transfer Amount for such Distribution Date and (2) commencing with the
Distribution Date on which the Group 1 Certificates are no longer
outstanding, to Uncertificated Group 3 IO Class, the Group 3 Interest
Transfer Amount for such Distribution Date;
(iii) [Reserved];
(iv) to each Class of Group 3 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 3 for such
Distribution Date, will be distributed to the Class 3-A
Certificates, until its Class Principal Balance is reduced to
zero; and
(v) [Reserved];
(4) With respect to the Available Funds for Loan Group 4 on each
Distribution Date, the Securities Administrator shall withdraw such Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified Classes of Group 4 Senior
Certificates in the following order and priority and, in each case, to the
extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 4
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the Class
Optimal Interest Distribution Amount, with respect to the Group 4
Combined Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date, the
related Accrual Amount shall be distributed as provided in Section
5.02(a)(4)(iii);
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(iii) [Reserved];
(iv) to each Class of Group 4 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 4 for such
Distribution Date, will be distributed to the Class 4-A
Certificates, until its Class Principal Balance is reduced to
zero.
(v) [Reserved];
(5) With respect to the Available Funds for Loan Group 5 on each
Distribution Date, the Securities Administrator shall withdraw such Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified Classes of Group 5 Senior
Certificates in the following order and priority and, in each case, to the
extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 5
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the Class
Optimal Interest Distribution Amount, with respect to the Group 5
Combined Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date, the
related Accrual Amount shall be distributed as provided in Section
5.02(a)(5)(iii);
(iii) [Reserved];
(iv) to each Class of Group 5 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 5 for such
Distribution Date, will be distributed to the Class 5-A
Certificates, until its Class Principal Balance is reduced to
zero.
(v) [Reserved];
(6) With respect to the Available Funds for Loan Group 6 on each
Distribution Date, the Securities Administrator shall withdraw such Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified Classes of Group 6 Senior
Certificates in the following order and priority and, in each case, to the
extent of such Available Funds remaining:
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(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 6
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the Class
Optimal Interest Distribution Amount, with respect to the Group 6
Combined Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date, the
related Accrual Amount shall be distributed as provided in Section
5.02(a)(6)(iii);
(iii) [Reserved];
(iv) to each Class of Group 6 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 6 for such
Distribution Date, will be distributed to the Class 6-A
Certificates, until its Class Principal Balance is reduced to
zero; and
(v) [Reserved];
(7) On each Distribution Date, after making the distributions described
in Section 5.02(a)(2), Section 5.02(a)(3), 5.02(a)(4), Section 5.02(a)(5) and
Section 5.02(a)(6) above, Available Funds from each Combined Loan Group after
making the distributions described in Section 5.02(a)(2), Section 5.02(a)(3),
5.02(a)(4), Section 5.02(a)(5) and Section 5.02(a)(6) will be distributed to
the Combined Senior Certificates to the extent provided in Section 5.08
hereof.
(8) On each Distribution Date, Available Funds from all of the Combined
Loan Groups remaining after making the distributions described in Sections
5.02(a)(2), Section 5.02(a)(3), Section 5.02(a)(4), Section 5.02(a)(5),
Section 5.02(a)(6) and Section 5.02(a)(7) above, will be distributed to the
Combined Subordinated Certificates, the Class P Certificates and the Class A-R
Certificates in the following order and priority and, in each case, to the
extent of such funds remaining:
(A) to the Class C-B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount
for such Class for such Distribution Date;
(B) to the Class C-B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(C) to the Class C-B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount
for such Class for such Distribution Date;
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(D) to the Class C-B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(E) to the Class C-B-3 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(F) to the Class C-B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(G) to the Class C-B-4 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(H) to the Class C-B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(I) to the Class C-B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount
for such Class for such Distribution Date;
(J) to the Class C-B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(K) to the Class C-B-6 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount
for such Class for such Distribution Date; and
(L) to the Class C-B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(M) [Reserved]; and
(N) to the Class A-R Certificates, any remaining funds in
the Trust Fund; provided, that such amounts shall not include the
$100 held in trust for the Class P Certificates.
On each Distribution Date, the Class P-2 Distribution Amount received during
the related Prepayment Period will be distributed to the holders of the Class
P Certificates. On the Distribution Date in July 2009, the $100 held in trust
for the Class P Certificates will be distributed to the holders of the Class P
Certificates.
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(b) On each Distribution Date with respect to each Class or Component of
Accrual Certificates, the Accrual Amount for such Class or Component for such
Distribution Date shall not (except as provided in the second to last sentence
in this paragraph) be distributed as interest with respect to such Class or
Component of Accrual Certificates, but shall instead be added to the related
Class Principal Balance of such Class on the related Distribution Date. With
respect to any Distribution Date on which principal payments on any Class or
Component of Accrual Certificates are distributed pursuant to Section
5.02(a)(2)(iv)(y), Section 5.02(a)(3)(iv)(y), Section 5.02(a)(4)(iv)(y),
Section 5.02(a)(5)(iv)(y), or Section 5.02(a)(6)(iv)(y), as applicable, the
related Accrual Amount shall be deemed to have been added on such Distribution
Date to the related Class Principal Balance or Component Balance (and included
in the amount distributable on the related Class or Classes or Component of
Accretion Directed Certificates pursuant to Section 5.02(a)(2)(iii), Section
5.02(a)(3)(iii), Section 5.02(a)(4)(iii), Section 5.02(a)(5)(iii), or Section
5.02(a)(6)(iii), as applicable, for such Distribution Date) and the related
distribution thereon shall be deemed to have been applied concurrently towards
the reduction of all or a portion of the amount so added and, to the extent of
any excess, towards the reduction of the Class Principal Balance or Component
Balance of such Class or Component of Accrual Certificates immediately prior
to such Distribution Date.
(c) [Reserved].
(d) On each Distribution Date, the amount referred to in clause (i) of
the definition of Class Optimal Interest Distribution Amount for each Class of
Combined Certificates for such Distribution Date shall be reduced for each
Class of Combined Senior Certificates of a Senior Certificate Group and each
Class of Combined Subordinated Certificates by (i) the related Class' pro rata
share of Net Prepayment Interest Shortfalls for such Loan Group based (x) with
respect to a Class of Combined Senior Certificates, on the related Class
Optimal Interest Distribution Amount and (y) with respect to a Class of
Combined Subordinated Certificates on or prior to the fourth Senior
Termination Date on the Assumed Interest Amount and on or after such Senior
Termination Date, the related Class' Class Optimal Interest Distribution
Amount for such Distribution Date, without taking into account such Net
Prepayment Interest Shortfalls and (ii) the related Class' Allocable Share of
(A) after the Special Hazard Coverage Termination Date, with respect to each
Mortgage Loan in the related Loan Group (or, after the Senior Credit Support
Depletion Date, any Mortgage Loan) that became a Special Hazard Mortgage Loan
during the calendar month preceding the month of such Distribution Date, the
excess of one month's interest at the related Net Mortgage Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in such month over
the amount of Liquidation Proceeds applied as interest on such Mortgage Loan
with respect to such month, (B) after the Bankruptcy Coverage Termination
Date, with respect to each Mortgage Loan that became subject to a Bankruptcy
Loss during the calendar month preceding the month of such Distribution Date,
the interest portion of the related Debt Service Reduction or Deficient
Valuation, (C) each Relief Act Reduction for the Combined Mortgage Loans in
the related Loan Group (or, after the Senior Credit Support Depletion Date,
any Mortgage Loan) incurred during the calendar month preceding the month of
such Distribution Date and (D) after the Fraud Loss Coverage Termination Date,
with respect to each Mortgage Loan in the related Loan Group (or, after the
Senior Credit Support Depletion Date, any Combined Mortgage Loan) that became
a Fraud Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the related Net
Mortgage Rate on the Stated Principal Balance of such
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Mortgage Loan as of the Due Date in such month over the amount of Liquidation
Proceeds applied as interest on such Mortgage Loan with respect to such month.
(e) Notwithstanding the priority and allocation contained in Section
5.02(a)(8), if, on any Distribution Date, with respect to any Class of
Combined Subordinated Certificates (other than the Class of Combined
Subordinated Certificates then outstanding with the highest priority of
distribution), the sum of the related Class Subordination Percentages of such
Class and of all Classes of Combined Subordinated Certificates that have a
higher numerical Class designation than such Class (the "Applicable Credit
Support Percentage") is less than the Original Applicable Credit Support
Percentage for such Class, no distribution of Principal Prepayments will be
made to any such Classes (the "Restricted Classes") and the amount of such
Principal Prepayments otherwise distributable to the Restricted Classes shall
be distributed to any Classes of Combined Subordinated Certificates having
lower numerical Class designations than such Class, pro rata, based on their
respective Class Principal Balances immediately prior to such Distribution
Date and shall be distributed in the sequential order provided in Section
5.02(a)(8).
(f) If the amount of a Realized Loss on a Combined Mortgage Loan has
been reduced by application of Subsequent Recoveries with respect to such
Combined Mortgage Loan, the amount of such Subsequent Recoveries will be
applied sequentially, in the order of payment priority, to increase the Class
Principal Balance of each Class of Combined Certificates to which Realized
Losses have been allocated, but in each case by not more than the amount of
Realized Losses previously allocated to that Class of Combined Certificates
pursuant to Section 5.04. Holders of such Certificates will not be entitled to
any payment in respect of the Class Optimal Interest Distribution Amount on
the amount of such increases for any Interest Accrual Period preceding the
Distribution Date on which such increase occurs. Any such increases shall be
applied pro rata to the Certificate Balance of each Certificate of such Class.
Section 5.03 [Reserved].
Section 5.04 Allocation of Losses.
(a) On or prior to each Distribution Date, the Securities Administrator
shall aggregate the information provided by each Servicer with respect to the
total amount of Realized Losses, including Excess Losses experienced on the
Combined Mortgage Loans, for the related Distribution Date, separately
identifying the Realized Losses on the Mortgage Loans in each Loan Group.
(b) Realized Losses with respect to any Distribution Date shall be
allocated as follows:
(i) any Applied Loss Amounts on the Group 1 Mortgage Loans shall
be allocated first to the Class OC Certificates, until its Class
Principal Balance is reduced to zero, and second, to the Group 1
Subordinated Certificates in reverse order of their respective numerical
Class designations (beginning with the Class of Group 1 Subordinated
Certificates then outstanding with the highest numerical Class
designation) until the respective Class Principal Balance of each such
Class is reduced to zero; and
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(ii) (A) any Realized Loss (other than an Excess Loss) on the
Combined Mortgage Loans shall be allocated first to the Combined
Subordinated Certificates in reverse order of their respective numerical
Class designations (beginning with the Class of Combined Subordinated
Certificates then outstanding with the highest numerical Class
designation) until the respective Class Principal Balance of each such
Class is reduced to zero, and second to the Combined Senior Certificates
in the related Loan Group (other than any Notional Amount Certificates,
if applicable), pro rata on the basis of their respective Class
Principal Balances or, in the case of any Class of Accrual Certificates
or Accrual Component, on the basis of the lesser of their Class
Principal Balance or Component Balance, as applicable, and their initial
Class Principal Balance or Component Balance, as applicable, in each
case immediately prior to the related Distribution Date until the
respective Class Principal Balance of each such Class is reduced to
zero; provided, that any Realized Losses on the Group 2 Mortgage Loans
that would otherwise be allocated to the Class 3-A-2 Certificates will
instead be allocated to the Class 3-A-3 Certificates, until its Class
Principal Balance is reduced to zero; and
(B) any Excess Losses on the Mortgage Loans in a Combined Loan
Group shall be allocated to the Classes of Certificates of the related
Senior Certificate Group (other than any Notional Amount Certificates)
and the Combined Subordinated Certificates then outstanding, pro rata,
on the basis of, with respect to such Senior Certificates, their
respective Class Principal Balances, or in the case of any Class of
Accrual Certificates or Accrual Component, on the basis of the lesser of
their respective Class Principal Balance and their respective initial
Class Principal Balance or their respective Component Balance or their
respective initial Component Balance, as the case may be, in each case
immediately prior to the related Distribution Date and, with respect to
each Class of Combined Subordinated Certificates, the applicable Assumed
Balance for each such Class relating to the Loan Group in which such
Realized Loss occurs; provided, however, on any Distribution Date after
the fourth Senior Termination Date for a Combined Senior Certificate
Group, such Excess Losses on the Mortgage Loans in the related Loan
Group will be allocated to the Combined Subordinated Certificates on the
basis of their respective Class Principal Balances; and provided further
that after the Senior Credit Support Depletion Date, such Excess Losses
shall be allocated pro rata to all Classes and Components of Combined
Senior Certificates (other than any Notional Amount Certificates, if
applicable) regardless of Senior Certificate Group on the basis of their
respective initial Class Principal Balances or Component Balances, as
applicable, or in the case of any or in the case of any Class of Accrual
Certificates or Accrual Component, on the basis of the lesser of their
respective Class Principal Balance and their respective initial Class
Principal Balance or their respective Component Balance or their
respective initial Component Balance, as the case may be, in each case
immediately prior to the related Distribution Date.
(c) (i) The Class Principal Balance of the Class of Combined
Subordinated Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the amount, if any,
by which the aggregate of the Class Principal Balances of all outstanding
Classes of Combined Certificates (after giving effect to the distribution of
principal and the allocation of Realized Losses on the Combined Mortgage Loans
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on such Distribution Date) exceeds the sum of the Pool Stated Principal
Balance of the Combined Mortgage Loans for the following Distribution Date.
(ii) The Class Principal Balance of the Class of Group 1 Subordinated
Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the amount, if
any, by which the aggregate of the Class Principal Balances of all
outstanding Classes of Group 1 Certificates (after giving effect to the
distribution of principal and the allocation of Applied Loss Amounts on
the Group 1 Mortgage Loans on such Distribution Date) exceeds the
aggregate Stated Principal Balance of the Group 1 Mortgage Loans for the
following Distribution Date. For the avoidance of doubt, no reductions
will be made in the Class Principal Balance of the Class 1-A
Certificates in respect of Realized Losses on the Group 1 Mortgage
Loans.
(d) Any Realized Loss allocated to a Class of Combined Certificates or
any Applied Loss Amounts allocated to a Class of Group 1 Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant
to Section 5.04(b) above shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Balances.
(e) Any allocation of Realized Losses to a Certificate or to any
Component or any reduction in the Certificate Balance of a Certificate,
pursuant to Section 5.04(b) above shall be accomplished by reducing the
Certificate Balance or Component Balance thereof, as applicable, immediately
following the distributions made on the related Distribution Date in
accordance with the definition of "Certificate Balance" or "Component
Balance," as the case may be. All Realized Losses, Applied Loss Amounts or
Excess Losses allocated to a Class of Component Certificates will be
allocated, pro rata, to the related Components.
(f) For the avoidance of doubt, no Realized Losses shall be allocated to
the Class P Certificates.
Section 5.05 Advances by the Master Servicer and by WMMSC.
(a) If any Servicer other than WMMSC fails to remit any Advance required
to be made under the applicable Purchase and Servicing Agreement, the Master
Servicer shall itself make, or shall cause the successor Servicer to make,
such Advance. If the Master Servicer determines that an Advance is required,
it shall on the Business Day preceding the related Distribution Date
immediately following such Determination Date remit to the Securities
Administrator from its own funds (or funds advanced by the applicable
Servicer) for deposit in the Distribution Account immediately available funds
in an amount equal to such Advance. The Master Servicer and each Servicer
(including WMMSC) shall be entitled to be reimbursed for all Advances made by
it. Notwithstanding anything to the contrary herein, in the event the Master
Servicer determines in its reasonable judgment that an Advance is
non-recoverable, the Master Servicer shall be under no obligation to make such
Advance. If the Master Servicer determines that an Advance is non-recoverable,
it shall, on or prior to the related Distribution Date, deliver an Officer's
Certificate to the Trustee and the Securities Administrator to such effect.
For the avoidance of doubt the Master Servicer is not required to make any
Advance with respect to the WMMSC Serviced Mortgage Loans.
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(b) With respect to the WMMSC Serviced Mortgage Loans, WMMSC shall
deposit in the related Custodial Account as Advances an amount equal to all
Scheduled Payments (with interest at the Mortgage Rate less the related
Servicing Fee Rate) which were due on such Mortgage Loans serviced by it
during the applicable Due Period and which were delinquent at the close of
business on the immediately preceding Determination Date. WMMSC's obligation
to make such Advances as to any related Mortgage Loan will continue through
the last Scheduled Payment due prior to the payment in full of such Mortgage
Loan, or through the date that the related Mortgaged Property has, in the
judgment of WMMSC, been completely liquidated. WMMSC shall not be required to
advance shortfalls of principal or interest resulting from the application of
the Relief Act.
With respect to any WMMSC Serviced Mortgage Loan, to the extent required
by Accepted Servicing Practices, WMMSC shall be obligated to make Advances in
accordance with the provisions of this Agreement; provided, however, that such
obligation with respect to any such WMMSC Serviced Mortgage Loan shall cease
if WMMSC determines, in its reasonable opinion, that Advances with respect to
such Mortgage Loan are or, if made, would constitute Nonrecoverable Advances.
In the event that WMMSC determines that any such Advances are or, if made,
would constitute Nonrecoverable Advances, WMMSC shall provide the Securities
Administrator with a certificate signed by a Servicing Officer evidencing such
determination.
With respect to any of the WMMSC Serviced Mortgage Loans, if an Advance
is required to be made hereunder by WMMSC, WMMSC shall on the Distribution
Account Deposit Date either (i) deposit in the Custodial Account from its own
funds an amount equal to such Advance, (ii) cause to be made an appropriate
entry in the records of the Custodial Account that funds in such account being
held for future distribution or withdrawal have been, as permitted by this
Section 5.05(b), used by WMMSC to make such Advance or (iii) make Advances in
the form of any combination of clauses (i) and (ii) aggregating the amount of
such Advance. Any such funds being held in a Custodial Account for future
distribution and so used shall be replaced by WMMSC from its own funds by
deposit in such Custodial Account on or before any future Distribution Date in
which such funds would be due.
Section 5.06 Compensating Interest Payments.
The amount of compensation payable to the Securities Administrator in
respect of the Master Serviced Mortgage Loans and any Distribution Date shall
be reduced (but not below zero) by the amount of any aggregate Compensating
Interest Payment from the Servicers (other than WMMSC) for such Distribution
Date, but only to the extent that Prepayment Interest Shortfalls relating to
such Distribution Date are required to be paid by the Servicers (other than
WMMSC) pursuant to the Purchase and Servicing Agreements, as amended by the
Acknowledgements, but are not actually paid by the Servicer. Such amount shall
not be treated as an Advance and shall not be reimbursable.
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Section 5.07 [Reserved].
Section 5.08 Cross-Collateralization of the Combined Loan Groups;
Adjustments to Available Funds.
(a) With respect to the Combined Certificates, on each Distribution Date
after the first Senior Termination Date but prior to the earlier of the Senior
Credit Support Depletion Date and the fourth Senior Termination Date, the
Securities Administrator shall distribute the principal portion of Available
Funds on the Combined Mortgage Loans relating to the Combined Senior
Certificates that will have been paid in full to the Holders of the Combined
Senior Certificates of the other Combined Certificate Groups, pro rata, based
on Class Principal Balances, provided, however, that the Securities
Administrator shall not make such distribution on such Distribution Date if
(a) the Aggregate Subordinated Percentage for such Distribution Date is
greater than or equal to 200% of such Aggregate Subordinated Percentage as of
the Closing Date and (b) the average aggregate Stated Principal Balance of the
Combined Mortgage Loans delinquent 60 days or more over the last six months,
as a percentage of the Class Principal Balance of the Combined Subordinated
Certificates, is less than 50%.
(b) If on any Distribution Date the aggregate Class Principal Balance of
Combined Senior Certificates in a Combined Senior Certificate Group is greater
than the aggregate Stated Principal Balance of the Combined Mortgage Loans in
the related Loan Group (the "Undercollateralized Group(s)") at the end of the
Prepayment Period related to the immediately preceding Distribution Date, then
the Trustee shall apply the Available Funds of the other Loan Group(s) that is
not undercollateralized (the "Overcollateralized Group"), as follows:
(i) to add to the Available Funds of the Undercollateralized Group
an amount equal to the lesser of (a) one month's interest on the
Transfer Payment Received of the Undercollateralized Group at the
Weighted Average Mortgage Rate (minus the weighted average Expense Fee
Rate) applicable to the Undercollateralized Group(s) and (b) Available
Funds of the Overcollateralized Group(s) remaining after making
distributions to the Certificates of the Overcollateralized Group(s) on
such Distribution Date pursuant to Section 5.02; and
(ii) to the Senior Certificates of each Undercollateralized Group,
to the extent of the principal portion of Available Funds of the
Overcollateralized Group(s) remaining after making distributions to the
Senior Certificates of the Overcollateralized Group(s) on such
Distribution Date pursuant to Section 5.02, until the Class Principal
Balance of the Senior Certificates of such Undercollateralized Group(s)
equals the aggregate Stated Principal Balance of the Mortgage Loans in
the related Loan Group(s), any shortfall of such Available Funds to be
allocated among such Undercollateralized Group(s), pro rata, based upon
the respective Transfer Payments.
The payment received by the Undercollateralized Group is referred to as
a "Transfer Payment Received." The payment made by the Overcollateralized
Group is referred to as a "Transfer Payment Made."
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(c) If more than one Overcollateralized Group exists on any Distribution
Date, reductions in the Available Funds of such Loan Groups to make the
payments required to be made pursuant to Section 5.08(b) on such Distribution
Date shall be made pro rata, based on the Class Principal Balance of the
related Senior Certificates.
Section 5.09 Determination of Pass-Through Rates for LIBOR
Certificates.
(a) On each Interest Determination Date after the initial Interest
Determination Date and for so long as any LIBOR Certificates are outstanding,
the Securities Administrator will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m. London time on
each LIBOR Determination Date. "Telerate Page 3750" means the display page
currently so designated on the Moneyline Telerate Service (formerly the Dow
▇▇▇▇▇ Markets) (or such other page as may replace that page on that service
for the purpose of displaying comparable rates or prices).
(b) If on any Interest Determination Date, LIBOR cannot be determined as
provided in paragraph (a) of this Section 5.09, the Securities Administrator
shall either (i) request each Reference Bank to inform the Securities
Administrator of the quotation offered by its principal London office for
making one-month United States dollar deposits in leading banks in the London
interbank market, as of 11:00 a.m. (London time) on such Interest
Determination Date or (ii) in lieu of making any such request, rely on such
Reference Bank quotations that appear at such time on the Reuters Screen LIBO
Page (as defined in the International Swap Dealers Association Inc. Code of
Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition), to the
extent available. LIBOR for the next Interest Accrual Period will be
established by the Securities Administrator on each interest Determination
Date as follows:
(i) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next applicable
Interest Accrual Period shall be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate per
annum which the Securities Administrator determines to be either (i) the
arithmetic mean (rounded upwards if necessary to the nearest whole
multiple of 1/32%) of the one-month United States dollar lending rates
that New York City banks selected by the Securities Administrator are
quoting, on the relevant Interest Determination Date, to the principal
London offices of at least two of the Reference Banks to which such
quotations are, in the opinion of the Securities Administrator, being so
made, or (ii) in the event that the Securities Administrator can
determine no such arithmetic mean, the lowest one-month United States
dollar lending rate which New York City banks selected by the Securities
Administrator are quoting on such Interest Determination Date to leading
European banks.
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(iii) If on any Interest Determination Date the Securities
Administrator is required but is unable to determine the Reserve
Interest Rate in the manner provided in paragraph (b) above, LIBOR for
the related Classes of Certificates shall be LIBOR as determined on the
preceding applicable Interest Determination Date.
(iv) In the case of the first Distribution Date, LIBOR shall be
1.480%.
Until all of the LIBOR Certificates are paid in full, the Securities
Administrator will at all times retain at least four Reference Banks for the
purpose of determining LIBOR with respect to each Interest Determination Date.
The Securities Administrator initially shall designate the Reference Banks.
Each "Reference Bank" shall be a leading bank engaged in transactions in
Eurodollar deposits in the international Eurocurrency market, shall not
control, be controlled by, or be under common control with, the Securities
Administrator and shall have an established place of business in London. If
any such Reference Bank should be unwilling or unable to act as such or if the
Master Servicer should terminate its appointment as Reference Bank, the
Securities Administrator shall promptly appoint or cause to be appointed
another Reference Bank. The Securities Administrator shall have no liability
or responsibility to any Person for (i) the selection of any Reference Bank
for purposes of determining LIBOR or (ii) any inability to retain at least
four Reference Banks which is caused by circumstances beyond its reasonable
control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each Interest Determination Date so long as the LIBOR Certificates are
outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
(d) In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Securities Administrator may conclusively rely and shall be protected in
relying upon the offered quotations (whether written, oral or on the Dow ▇▇▇▇▇
Markets) from the BBA designated banks, the Reference Banks or the New York
City banks as to LIBOR, the Interest Settlement Rate or the Reserve Interest
Rate, as appropriate, in effect from time to time. The Securities
Administrator shall not have any liability or responsibility to any Person for
(i) the selection of New York City banks for purposes of determining any
Reserve Interest Rate or (ii) its inability, following a good-faith reasonable
effort, to obtain such quotations from, the BBA designated banks, the
Reference Banks or the New York City banks or to determine such arithmetic
mean, all as provided for in this Section 5.09.
(e) The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate and
the Securities Administrator.
Section 5.10 The Corridor Contracts.
(a) The Depositor hereby directs the Securities Administrator, solely in
its capacity as Securities Administrator hereunder and not in its individual
capacity, to execute and deliver each
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of the Corridor Contracts concurrently with the execution and delivery of this
Agreement. Except as may be directed in writing by the Depositor or by a
majority in interest of the Holders of a Class of Certificates that have the
benefit of a Corridor Contract, the Securities Administrator shall have no
duty or responsibility to enter into any other interest rate cap contract or
agreement upon the expiration or termination of any of the Corridor Contracts.
The Corridor Contracts will be assets of the Trust Fund but will not be assets
of any REMIC. The Securities Administrator shall deposit any amounts received
from the Corridor Contract Counterparty with respect to the Corridor Contracts
into the Reserve Fund.
(b) The Securities Administrator will prepare and deliver any notices
required to be delivered to the Corridor Contract Counterparty under any
Corridor Contract.
(c) The Securities Administrator, on behalf of the Trustee shall
terminate the Corridor Contract Counterparty upon the occurrence of an event
of default under any Corridor Contract of which a Responsible Officer of the
Securities Administrator has actual knowledge. Upon such a termination, the
Corridor Contract Counterparty may be required to pay an amount to the
Securities Administrator, on behalf of the Trustee, in respect of market
quotations for the replacement cost of the related Corridor Contract.
(d) On each Distribution Date, following the distribution of any amounts
in respect of interest pursuant to Section 5.02(a)(1)(C)(xi), the Securities
Administrator shall distribute amounts on deposit in the Reserve Fund to the
holders of the Group 1 Certificates to the extent of any Basis Risk Shortfall
allocated to such Classes of Certificates and prior to making any
distributions pursuant to Section 5.02(a)(1)(C)(xiii) to Class OC
Certificates. Amounts withdrawn from the Reserve Fund shall be distributed
sequentially as follows:
(i) concurrently, (A) from any Class 1-A Corridor Contract Payment
on deposit in the Reserve Fund with respect to that Distribution Date,
an amount equal to any unpaid remaining Basis Risk Carry Forward Amount
with respect to the Class 1-A Certificates for that Distribution Date,
to the Class 1-A Certificates, (B) from any Class 1-M-1 Corridor
Contract Payment on deposit in the Reserve Fund with respect to that
Distribution Date, an amount equal to any unpaid remaining Basis Risk
Carry Forward Amount with respect to the Class 1-M-1 Certificates for
that Distribution Date, to the Class 1-M-1 Certificates, (C) from any
Class 1-M-2 Corridor Contract Payment on deposit in the Reserve Fund
with respect to that Distribution Date, an amount equal to any unpaid
remaining Basis Risk Carry Forward Amount with respect to the Class
1-M-2 Certificates for that Distribution Date, to the Class 1-M-2
Certificates, (D) from any Class 1-M-3 Corridor Contract Payment on
deposit in the Reserve Fund with respect to that Distribution Date, an
amount equal to any unpaid remaining Basis Risk Carry Forward Amount
with respect to the Class 1-M-3 Certificates for that Distribution Date,
to the Class 1-M-3 Certificates, (E) from any Class 1-B-1 Corridor
Contract Payment on deposit in the Reserve Fund with respect to that
Distribution Date, an amount equal to any unpaid remaining Basis Risk
Carry Forward Amount with respect to the Class 1-B-1 Certificates for
that Distribution Date, to the Class 1-B-1 Certificates and (F) from any
Class 1-B-2 Corridor Contract Payment on deposit in the Excess Reserve
Fund Account with respect to that Distribution Date, an amount equal to
any unpaid remaining Basis
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Risk Carry Forward Amount with respect to the Class 1-B-2 Certificates
for that Distribution Date, to the Class 1-B-2 Certificates;
(ii) from any Class 1-B-2 Corridor Contract Payment remaining on
deposit in the Excess Reserve Fund Account with respect to that
Distribution Date after distributions are made pursuant to clause (i)
above, an amount equal to any Basis Risk Carry Forward Amount remaining
unpaid after distributions are made pursuant to clause (i) above with
respect to the Class 1-A Certificates for that Distribution Date, to the
Class 1-A Certificates;
(iii) sequentially, to the Class 1-A, Class 1-M-1, Class 1-M-2,
Class 1-M-3, Class 1-B-1 and Class 1-B-2, Certificates, in that order,
based upon their respective portions of Basis Risk Carry Forward, to pay
any unpaid Basis Risk Carry Forward; and
(iv) any remaining amounts to the Class OC Certificates.
To the extent that a Class of Group 1 Certificates receives interest in
excess of the Net WAC Pass-Through Rate, such interest shall be deemed to have
been paid to the Reserve Fund and then paid by the Reserve Fund to those
Certificateholders. For purposes of the Code, amounts deemed deposited in the
Reserve Fund shall be deemed to have first been distributed to the Class OC
Certificates.
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ARTICLE VI
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01 Duties of Trustee and the Securities Administrator.
(a) The Trustee, except during the continuance of an Event of Default,
and the Securities Administrator undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. Any permissive
right of the Trustee or the Securities Administrator provided for in this
Agreement shall not be construed as a duty of the Trustee or the Securities
Administrator. If an Event of Default has occurred and has not otherwise been
cured or waived, the Trustee or the Securities Administrator shall exercise
such of the rights and powers vested in it by this Agreement and use the same
degree of care and skill in their exercise as a prudent Person would exercise
or use under the circumstances in the conduct of such Person's own affairs,
unless the Trustee is acting as master servicer, in which case it shall use
the same degree of care and skill (in its capacity as successor Master
Servicer) as a master servicer hereunder.
(b) Each of the Trustee and the Securities Administrator, upon receipt
of all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments furnished to the Trustee or the Securities
Administrator which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are
in the form required by this Agreement; provided, however, that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Master Servicer or any
Servicer to the Trustee or the Securities Administrator pursuant to this
Agreement, and shall not be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant
to this Agreement. Subject to the immediately preceding sentence, if any such
resolution, certificate, statement, opinion, report, document, order or other
instrument is found not to conform to the form required by this Agreement in a
material manner the Securities Administrator shall take such action as it
deems appropriate to cause the instrument to be corrected, and if the
instrument is not corrected to the Securities Administrator 's satisfaction,
the Securities Administrator will provide notice thereof to the
Certificateholders and will, at the expense of the Trust Fund, which expense
shall be reasonable given the scope and nature of the required action, take
such further action as directed by the Certificateholders.
(c) Neither the Trustee nor the Securities Administrator shall have any
liability arising out of or in connection with this Agreement, except for its
negligence or willful misconduct. Notwithstanding anything in this Agreement
to the contrary, neither the Trustee nor the Securities Administrator shall be
liable for special, indirect or consequential losses or damages of any kind
whatsoever (including, but not limited to, lost profits). No provision of this
Agreement shall be construed to relieve the Trustee or the Securities
Administrator from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
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(i) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates as provided in
Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Holders of the Certificates and this Agreement;
(iii) For all purposes under this Agreement, the Securities
Administrator shall not be deemed to have notice of any Event of Default
(other than resulting from a failure by the Master Servicer or WMMSC (i)
to remit funds (or to make Advances) or (ii) to furnish information to
the Securities Administrator when required to do so) or any default or
event of default under the WMMSC Purchase and Servicing Agreement unless
a Responsible Officer of the Securities Administrator has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Securities Administrator at the
address provided in Section 11.07, and such notice references the
Holders of the Certificates and this Agreement;
(iv) No provision of this Agreement shall require the Trustee or
the Securities Administrator 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 indemnity reasonably satisfactory to it against such risk or
liability is not reasonably assured to it; and none of the provisions
contained in this Agreement shall in any event require the Trustee or
the Securities Administrator to perform, or be responsible for the
manner of performance of, any of the respective obligations of the
Master Servicer and WMMSC under this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall be
responsible for any act or omission of the Master Servicer, WMMSC, the
Depositor, the Seller, any Servicer or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall promptly remit to the Master Servicer or
WMMSC, as applicable, upon receipt any such complaint, claim, demand, notice
or other document (i) which is delivered to the Corporate Trust Office of the
Trustee, (ii) of which a Responsible Officer has actual knowledge, and (iii)
which contains information sufficient to permit the Trustee to make a
determination that the real property to which such document relates is a
Mortgaged Property related to a Mortgage Loan.
(e) Neither the Trustee nor the Securities Administrator shall 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 the
Certificateholders of any Class holding Certificates which evidence, as
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to such Class, Percentage Interests aggregating not less than 25% as to the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or the Securities Administrator or exercising any trust or
power conferred upon the Trustee or the Securities Administrator, as
applicable, under this Agreement or the Acknowledgements.
(f) Neither the Trustee nor the Securities Administrator shall be
required to perform services under this Agreement, or to expend or risk its
own funds or otherwise incur financial liability for the performance of any of
its duties hereunder or the exercise of any of its rights or powers if there
is reasonable ground for believing that the timely payment of its fees and
expenses or the repayment of such funds or indemnity reasonably satisfactory
to it against such risk or liability is not reasonably assured to it, and none
of the provisions contained in this Agreement shall in any event require the
Trustee or the Securities Administrator, as applicable, to perform, or be
responsible for the manner of performance of, any of the obligations of the
Master Servicer or any Servicer under this Agreement or any Purchase and
Servicing Agreement except during such time, if any, as the Trustee shall be
the successor to, and be vested with the rights, duties, powers and privileges
of, the Master Servicer in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency
in the Distribution Account resulting from any investment loss on any
Permitted Investment included therein (except to the extent that the Trustee
is the obligor and has defaulted thereon).
(h) Neither the Trustee nor, except as otherwise provided herein, the
Securities Administrator shall have any duty (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any thereof, (B)
to see to any insurance, (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund other than from funds available in the Distribution Account, or (D) to
confirm or verify the contents of any reports or certificates of the Master
Servicer or any Servicer delivered to the Trustee or the Securities
Administrator pursuant to this Agreement believed by the Trustee or the
Securities Administrator, as applicable, to be genuine and to have been signed
or presented by the proper party or parties.
(i) Neither the Securities Administrator nor the Trustee shall be liable
in its individual capacity for an error of judgment made in good faith by a
Responsible Officer or other officers of the Trustee or the Securities
Administrator, as applicable, unless it shall be proved that the Trustee or
the Securities Administrator, as applicable, was negligent in ascertaining the
pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, neither
the Securities Administrator nor the Trustee shall be liable for special,
indirect or consequential losses or damages of any kind whatsoever (including,
but not limited to, lost profits), even if the Trustee or the Securities
Administrator, as applicable, has been advised of the likelihood of such loss
or damage and regardless of the form of action.
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(k) Neither the Securities Administrator nor the Trustee shall be
responsible for the acts or omissions of the other, it being understood that
this Agreement shall not be construed to render them agents of one another, or
of any Servicer.
Section 6.02 Certain Matters Affecting the Trustee and the
Securities Administrator.
Except as otherwise provided in Section 6.01:
(i) Each of the Trustee and the Securities Administrator may
request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) Each of the Trustee and the Securities Administrator may
consult with counsel and any advice of its counsel or Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall
be personally liable for any action taken, suffered or omitted by it in
good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, neither the Trustee nor the Securities Administrator shall
be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by the Holders of at
least a majority in Class Principal Balance (or Percentage Interest) of
each Class of Certificates; provided, however, that, if the payment
within a reasonable time to the Trustee or the Securities Administrator,
as applicable, of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Trustee or the Securities Administrator, as applicable, not
reasonably assured to the Trustee or the Securities Administrator by the
security afforded to it by the terms of this Agreement, the Trustee or
the Securities Administrator, as applicable, may require indemnity
reasonably satisfactory to it against such expense or liability or
payment of such estimated expenses from the Certificateholders as a
condition to proceeding. The reasonable expense thereof shall be paid by
the party requesting such investigation and if not reimbursed by the
requesting party shall be reimbursed to the Trustee or the Securities
Administrator, as applicable, by the Trust Fund;
(v) Each of the Trustee and the Securities Administrator may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians or
attorneys, which agents, custodians or attorneys shall have any and all
of the rights, powers, duties and obligations of the Trustee and the
Securities
97
Administrator conferred on them by such appointment, provided that each
of the Trustee and the Securities Administrator shall continue to be
responsible for its duties and obligations hereunder to the extent
provided herein, and provided further that neither the Trustee nor the
Securities Administrator shall be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by the Trustee or the Securities Administrator, as applicable;
(vi) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in
it by this Agreement or the Acknowledgements or to institute, conduct or
defend any litigation hereunder or in relation hereto, in each case at
the request, order or direction of any of the Certificateholders
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee or the Securities
Administrator, as applicable, security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which may
be incurred therein or thereby;
(vii) The right of the Trustee and the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its negligence or
willful misconduct in the performance of such act;
(viii) Neither the Trustee nor the Securities Administrator shall
be required to give any bond or surety in respect of the execution of
the Trust Fund created hereby or the powers granted hereunder; and
(ix) In order to comply with its duties under the U.S. Patriot
Act, the Trustee shall obtain and verify certain information and
documentation from the other parties established pursuant to this
Agreement, including, but not limited to each such party's name, address
and other identifying information.
Section 6.03 Trustee and Securities Administrator Not Liable for
Certificates.
The Trustee and the Securities Administrator make no representations as
to the validity or sufficiency of this Agreement, any Corridor Contract, any
Purchase and Servicing Agreement or Acknowledgement or of the Certificates
(other than, in the case of the Securities Administrator, the certificate of
authentication on the Certificates) or of any Mortgage Loan, or related
document save that the Trustee and the Securities Administrator represent
that, assuming due execution and delivery by the other parties hereto, this
Agreement has been duly authorized, executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law. The Trustee and the Securities Administrator
shall not be accountable for the use or application by the Depositor of funds
paid to the Depositor in consideration of the assignment of the Mortgage Loans
to the Trust Fund by the Depositor or for the use or application of any funds
deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates. The Trustee and the
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Securities Administrator shall not be responsible for the legality or validity
of this Agreement or any other document or agreement described in this Section
6.03 or the validity, priority, perfection or sufficiency of the security for
the Certificates issued or intended to be issued hereunder. Neither the
Trustee nor, except as otherwise provided herein, the Securities Administrator
shall have any responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
record this Agreement.
Section 6.04 Trustee and the Securities Administrator May Own
Certificates.
The Trustee and the Securities Administrator and any Affiliate or agent
of either of them in its individual or any other capacity may become the owner
or pledgee of Certificates and may transact banking and trust business with
the other parties hereto and their Affiliates with the same rights it would
have if it were not Trustee, Securities Administrator or such agent.
Section 6.05 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) an institution whose
accounts are insured by the FDIC, (ii) a corporation or national banking
association, organized and doing business under the laws of any State or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority and (iii) not an Affiliate of the Master Servicer or any Servicer.
If such corporation or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation or national
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.06.
Section 6.06 Resignation and Removal of Trustee and the Securities
Administrator.
(a) Each of the Trustee and the Securities Administrator may at any time
resign and be discharged from the trust hereby created by giving written
notice thereof to the Trustee or the Securities Administrator, as applicable,
the Depositor and the Master Servicer. Upon receiving such notice of
resignation, the Depositor will promptly appoint a successor trustee or a
successor securities administrator, as applicable, by written instrument, one
copy of which instrument shall be delivered to the resigning Trustee or
resigning Securities Administrator, as applicable, one copy to the successor
trustee or successor securities administrator, as applicable, and one copy to
the Master Servicer. If no successor trustee or successor securities
administrator shall have been so appointed and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or resigning Securities Administrator, as applicable, may petition any
court of competent jurisdiction for the appointment of a successor trustee or
successor securities administrator, as applicable.
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(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee or the Securities
Administrator shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or the Securities
Administrator of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or the Securities Administrator or of
either of their property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii) a tax is imposed or threatened with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund held by
the Trustee is located due to the location of the Trustee, or (iv) the
continued use of the Trustee or Securities Administrator would result in a
downgrading of the rating by any Rating Agency of any Class of Certificates
with a rating, then the Depositor shall remove the Trustee or the Securities
Administrator, as applicable, and the Depositor shall appoint a successor
trustee or successor securities administrator, as applicable, acceptable to
the Master Servicer by written instrument, one copy of which instrument shall
be delivered to the Trustee or Securities Administrator so removed, one copy
each to the successor trustee or successor securities Administrator, as
applicable, and one copy to the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Balance (or
Percentage Interest) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee or the Securities Administrator, as
applicable, and to the Depositor remove the Trustee or the Securities
Administrator, as applicable, by such written instrument, signed by such
Holders or their attorney-in-fact duly authorized, one copy of which
instrument shall be delivered to the Depositor, one copy to the Trustee or
Securities Administrator, as applicable and one copy to the Master Servicer;
the Depositor shall thereupon appoint a successor trustee or successor
securities administrator, as applicable, in accordance with this Section.
(d) Any resignation or removal of the Trustee or the Securities
Administrator, as applicable, and appointment of a successor trustee or
successor securities administrator pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the successor
trustee or the successor securities administrator, as applicable, as provided
in Section 6.07. If no successor trustee or successor securities administrator
shall have been so appointed and shall have accepted appointment within 30
days after such notice of dismissal, the Trustee or Securities Administrator,
as applicable, who received such notice of dismissal may petition any court of
competent jurisdiction for the appointment of a successor trustee or successor
securities administrator, as applicable.
(e) Any removal of the Master Servicer pursuant to an Event of Default
shall also result in the removal of the Securities Administrator and require
the appointment of a successor pursuant to Section 6.07.
Section 6.07 Successor Trustee and Successor Securities
Administrator.
(a) Any successor trustee or successor securities administrator
appointed as provided in Section 6.06 shall execute, acknowledge and deliver
to the Depositor and to its predecessor trustee or predecessor securities
administrator, as applicable, an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
or predecessor securities administrator, as applicable, shall become effective
and such successor
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trustee or successor securities administrator, as applicable, without any
further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee or securities administrator, as
applicable, herein. The predecessor trustee or predecessor securities
administrator, as applicable, shall deliver to the successor trustee (or
assign to the Trustee its interest under the Custodial Agreements, to the
extent permitted thereunder) or successor securities administrator, as
applicable, all Trustee Mortgage Files and documents and statements related to
each Trustee Mortgage File held by it hereunder, and shall duly assign,
transfer, deliver and pay over to the successor trustee the entire Trust Fund,
together with all necessary instruments of transfer and assignment or other
documents properly executed necessary to effect such transfer and such of the
records or copies thereof maintained by the predecessor trustee in the
administration hereof as may be requested by the successor trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor trustee or
predecessor securities administrator, as applicable, shall execute and deliver
such other instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee or
successor securities administrator, as applicable, all such rights, powers,
duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee or successor
securities administrator, as applicable, as provided in this Section, the
Master Servicer shall mail notice of the succession of such trustee or
securities administrator, as applicable, hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register and to
any Rating Agency. The costs of such mailing shall be borne by the Master
Servicer.
Section 6.08 Merger or Consolidation of Trustee or the Securities
Administrator.
Any Person into which the Trustee or Securities Administrator may be
merged or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee or Securities
Administrator shall be a party, or any Persons succeeding to the business of
the Trustee or Securities Administrator, shall be the successor to the Trustee
or Securities Administrator hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided that, in the case of the
Trustee, such Person shall be eligible under the provisions of Section 6.05.
Section 6.09 Appointment of Co-Trustee, Separate Trustee or
Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Balance (or Percentage Interest) of every Class of
Certificates shall have the power from time to time to appoint one or more
Persons, approved by the Trustee, to act either as co-trustees jointly with
the Trustee, or as separate trustees, or as custodians, for the purpose of
holding title to, foreclosing or otherwise taking action with respect to any
Mortgage Loan outside the state where the Trustee
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has its principal place of business where such separate trustee or co-trustee
is necessary or advisable (or the Trustee has been advised by the Master
Servicer that such separate trustee or co-trustee is necessary or advisable)
under the laws of any state in which a property securing a Mortgage Loan is
located or for the purpose of otherwise conforming to any legal requirement,
restriction or condition in any state in which a property securing a Mortgage
Loan is located or in any state in which any portion of the Trust Fund is
located. The separate Trustees, co-trustees, or custodians so appointed shall
be trustees or custodians for the benefit of all the Certificateholders and
shall have such powers, rights and remedies as shall be specified in the
instrument of appointment; provided, however, that no such appointment shall,
or shall be deemed to, constitute the appointee an agent of the Trustee. The
obligation of the Master Servicer to make Advances pursuant to Section 5.05
hereof shall not be affected or assigned by the appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall
be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee,
co-trustee, or custodian jointly, except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations, including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable
by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee may at any time, by an instrument in writing
executed by it, with the concurrence of the Depositor, accept the
resignation of or remove any separate trustee, co-trustee or custodian,
so appointed by it or them, if such resignation or removal does not
violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee and a copy given to the Master Servicer.
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(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to the Certificateholders of the appointment
shall be required under Section 6.07 hereof.
(f) The Securities Administrator on behalf of the Trustee agrees to
instruct the co-trustees, if any, to the extent necessary to fulfill the
Trustee's obligations hereunder.
(g) The Trust shall pay the reasonable compensation of the co-trustees
(which compensation shall not reduce any compensation payable to the Trustee
under such Section).
Section 6.10 Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which
shall be authorized to act on behalf of the Trustee in authenticating
Certificates. The Securities Administrator is hereby appointed as initial
Authenticating Agent, and the Securities Administrator accepts such
appointment. Wherever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be a corporation organized and doing business
under the laws of the United States of America or of any state, having a
combined capital and surplus of at least $15,000,000, authorized under such
laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor authenticating agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor authenticating
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agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. No
successor authenticating agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall have
responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Section 6.11 Indemnification of the Trustee and the Securities
Administrator.
The Trustee and the Securities Administrator and their respective
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense (including the
reasonable compensation and the expenses and disbursements of its agents or
counsel), incurred without negligence or willful misconduct on their part,
arising out of, or in connection with, the acceptance or administration of the
trusts created hereunder or under the Corridor Contracts, the Custodial
Agreements, the Purchase and Servicing Agreements or Acknowledgements or in
connection with the performance of their duties hereunder or thereunder
including the costs and expenses of defending themselves against any claim in
connection with the exercise or performance of any of their powers or duties
hereunder or thereunder, provided that:
(i) with respect to any such claim, the Trustee or the Securities
Administrator, as applicable, shall have given the Depositor written
notice thereof promptly after the Trustee, the Securities Administrator,
as applicable, shall have knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee
or the Securities Administrator, as applicable, shall cooperate and
consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section
6.11, the Trust Fund shall not be liable for settlement of any such
claim by the Trustee or the Securities Administrator, as applicable,
entered into without the prior consent of the Depositor, which consent
shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee or the Securities
Administrator, as applicable, and shall be construed to include, but not be
limited to any loss, liability or expense under any environmental law.
Section 6.12 Fees and Expenses of Securities Administrator and the
Trustee.
(a) Compensation for the services of the Master Servicer for its duties
hereunder with respect to the Master Serviced Mortgage Loans shall be paid by
the Securities Administrator. The Securities Administrator shall be
compensated for its duties hereunder pursuant to Section 4.02(b) hereof. The
Securities Administrator shall be entitled to all disbursements and
advancements incurred or made by the Securities Administrator in accordance
with this Agreement (including fees and expenses of its counsel and all
persons not regularly in its employment), except any such expenses arising
from its negligence, bad faith or willful misconduct.
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(b) As compensation for its services hereunder, the Trustee and the
Custodian shall each be entitled to receive a fee (which, in the case of the
Trustee, shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) which shall be paid by the
Master Servicer pursuant to a separate agreement between the Trustee and the
Master Servicer. Any expenses incurred by the Trustee or the Custodian shall
be reimbursed in accordance with Section 6.11.
Section 6.13 Collection of Monies.
Except as otherwise expressly provided in this Agreement, the Securities
Administrator on behalf of the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or
receivable by the Securities Administrator on behalf of the Trustee pursuant
to this Agreement. The Securities Administrator on behalf of the Trustee shall
hold all such money and property received by it as part of the Trust Fund and
shall distribute it as provided in this Agreement.
Section 6.14 Events of Default; Trustee To Act; Appointment of
Successor.
(a) I. The occurrence of any one or more of the following events shall
constitute an "Event of Default" with respect to the Master Servicer:
(i) Any failure by the Master Servicer to furnish the Securities
Administrator the Mortgage Loan data on the Master Serviced Mortgage
Loans sufficient to prepare the reports described in Section 4.05 which
continues unremedied for a period of one Business Day after the date
upon which written notice of such failure shall have been given to the
Master Servicer by the Trustee or the Securities Administrator or to the
Master Servicer, the Securities Administrator and the Trustee by the
Holders of not less than 25% of the Class Principal Balance of each
Class of Certificates affected thereby; or
(ii) Any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants or
agreements (other than those referred to in (vii) and (ix) below) on the
part of the Master Servicer contained in this Agreement which continues
unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or the Securities
Administrator, or to the Master Servicer, the Securities Administrator
and the Trustee by the Holders of more than 50% of the Aggregate Voting
Interests of the Certificates; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days or
any Rating Agency reduces or withdraws or threatens to reduce or
withdraw the rating of the Certificates because of the financial
condition or loan servicing capability of such Master Servicer; or
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(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, voluntary liquidation or
similar proceedings of or relating to the Master Servicer or of or
relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors or voluntarily suspend
payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of
all or substantially all of its assets, or consolidate with or merge
into another entity or shall permit another entity to consolidate or
merge into it, such that the resulting entity does not meet the criteria
for a successor servicer as specified in Section 9.05 hereof; or
(vii) If a representation or warranty set forth in Section 9.03
hereof shall prove to be incorrect as of the time made in any respect
that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have been
eliminated or cured within 90 days after the date on which written
notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or the Securities
Administrator, or to the Master Servicer, the Securities Administrator
and the Trustee by the Holders of more than 50% of the Aggregate Voting
Interests of the Certificates; or
(viii) A sale or pledge of any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master Servicer
hereunder shall have occurred in any manner not otherwise permitted
hereunder and without the prior written consent of the Trustee and
Certificateholders holding more than 50% of the Aggregate Voting
Interests of the Certificates; or
(ix) After receipt of notice from the Trustee or the Securities
Administrator, any failure of the Master Servicer to make any Advances
required to be made by it hereunder.
If an Event of Default described in clauses I. (i) through I. (ix) of
this Section shall occur with respect to the Master Servicer, then, in each
and every case, subject to applicable law, so long as any such Event of
Default shall not have been remedied within any period of time prescribed by
this Section, the Trustee, by notice in writing to the Master Servicer may,
and shall, if so directed by Certificateholders evidencing more than 50% of
the Class Principal Balance of each Class of Certificates, terminate all of
the respective rights and obligations of the Master Servicer hereunder and in
and to the Master Serviced Mortgage Loans and the proceeds thereof. On or
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer, and with respect to the Master Servicer only
in its capacity as Master Servicer under this Agreement, whether with respect
to the Master Serviced Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee; and the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the defaulting Master Servicer as
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attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the affected Mortgage Loans and
related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee and the Securities Administrator in effecting the
termination of the defaulting Master Servicer's responsibilities and rights
hereunder as Master Servicer which includes, without limitation, notifying the
Servicers of the assignment of the master servicing function and providing the
Trustee or its designee all documents and records in electronic or other form
reasonably requested by it to enable the Trustee or its designee to assume the
defaulting Master Servicer's functions hereunder and the transfer to the
Trustee for administration by it of all amounts which shall at the time be or
should have been deposited by the defaulting Master Servicer in the
Distribution Account, any related Custodial Account and any other account or
fund maintained with respect to the Certificates or thereafter received with
respect to the affected Mortgage Loans. The Master Servicer being terminated
shall bear all costs of the transfer of the master servicing to the successor
master servicer, including but not limited to those of the Trustee or
Securities Administrator reasonably allocable to specific employees and
overhead, legal fees and expenses, accounting and financial consulting fees
and expenses, and costs of amending the Agreement, if necessary. If such costs
are not paid by the terminated Master Servicer, the Trustee shall pay such
costs from the Trust Fund.
Notwithstanding the termination of its activities as Master Servicer,
any terminated Master Servicer shall continue to be entitled to reimbursement
under this Agreement to the extent such reimbursement relates to the period
prior to such Master Servicer's termination.
II. The occurrence of any one or more of the following events shall
constitute an "Event of Default" with respect to WMMSC:
(i) any failure by WMMSC to remit to the Certificateholders or to
the Securities Administrator any payment other than an Advance required
to be made by WMMSC under the terms of this Agreement or the WMMSC
Purchase and Servicing Agreement, which failure shall continue
unremedied at 2:00 p.m., New York time, on the Business Day immediately
following the date upon which written notice of such failure shall have
been given to WMMSC by the Securities Administrator or the Depositor or
to WMMSC and the Securities Administrator by the Holders of Certificates
having not less than 25% of the Voting Interests evidenced by the
Certificates; or
(ii) any failure by WMMSC to observe or perform in any material
respect any other of the covenants or agreements on the part of WMMSC
contained in this Agreement (except as set forth in (iii) and (vii)
below) or the WMMSC Purchase and Servicing Agreement which failure (i)
materially affects the rights of the Certificateholders and (ii) shall
continue unremedied for a period of 60 days after the date on which
written notice of such failure shall have been given to WMMSC by the
Securities Administrator or the Depositor, or to WMMSC and the
Securities Administrator by the Holders of Certificates evidencing not
less than 25% of the Voting Interests evidenced by the Certificates; or
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(iii) if a representation or warranty set forth in Section 9.03
hereof made by WMMSC 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 90 days after the date on which written
notice thereof shall have been given to WMMSC and Seller by the
Securities Administrator 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 WMMSC and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(v) WMMSC 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 WMMSC or all or substantially all of the property of WMMSC;
or
(vi) WMMSC 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) any failure of WMMSC to make any Advance in the manner and
at the time required to be made from its own funds pursuant to this
Agreement or the WMMSC Purchase and Servicing Agreement and after
receipt of written notice from the Securities Administrator of such
failure, which failure continues unremedied after 2 p.m., New York City
time, on the Business Day immediately following WMMSC's receipt of such
notice.
If an Event of Default due to the actions or inaction of WMMSC described
in clauses (i) through (vi) of this Section shall occur, then, and in each and
every such case, so long as such Event of Default shall not have been
remedied, the Securities Administrator may, or at the direction of the Holders
of Certificates evidencing not less than 25% of the Voting Interests evidenced
by the Certificates shall, by notice in writing to WMMSC (with a copy to the
Rating Agencies), terminate all of the rights and obligations of WMMSC under
this Agreement (other than rights to reimbursement for Advances and Servicing
Advances previously made, as provided in Section 3.08) and the WMMSC Purchase
and Servicing Agreement.
If an Event of Default described in clause (vii) shall occur, the
Securities Administrator shall prior to the next Distribution Date,
immediately make such Advance and terminate in accordance with the provisions
of this Agreement the rights and obligations of WMMSC hereunder and under the
WMMSC Purchase and Servicing Agreement and succeed to the rights and
obligations of WMMSC hereunder and under the WMMSC Purchase and Servicing
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Agreement, including the obligation to make Advances on such succeeding
Distribution Date pursuant to the terms hereof.
If any Event of Default under I. or II. shall occur, the Trustee, upon a
Responsible Officer of the Trustee becoming aware of the occurrence thereof,
shall promptly notify the Securities Administrator and each Rating Agency of
the nature and extent of such Event of Default. The Securities Administrator
shall immediately give written notice to the Master Servicer or WMMSC upon the
respective failure of the Master Servicer or WMMSC to make Advances as
required under this Agreement with a copy to the Trustee.
(b) On and after the time the Master Servicer or WMMSC receives a notice
of termination from the Trustee or the Securities Administrator, as
applicable, pursuant to Section 6.14(a) or the Trustee or the Securities
Administrator, as applicable, receives the resignation of the Master Servicer
or WMMSC evidenced by an Opinion of Counsel pursuant to Section 9.06, the
Trustee, unless another master servicer shall have been appointed, shall be
the successor in all respects to the Master Servicer, and the Securities
Administrator shall be the successor (or appoint a successor) to WMMSC, as
applicable, in its capacity as such under this Agreement (and, in the case, of
WMMSC, the related Purchase and Servicing Agreements) and the transactions set
forth or provided for herein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto
and arising thereafter placed on the Master Servicer or WMMSC, as applicable,
hereunder, including the obligation to make any related Advances; provided,
however, that any failure to perform such duties or responsibilities caused by
the failure of the Master Servicer or WMMSC, as applicable, to provide
information required by this Agreement shall not be considered a default by
the Trustee or the Securities Administrator, as applicable, hereunder. In
addition, neither the Trustee nor the Securities Administrator, as applicable,
shall have any responsibility for any act or omission of the Master Servicer
or WMMSC, as applicable, prior to the issuance of any notice of termination.
Neither the Trustee nor the Securities Administrator, as applicable, shall
have any liability relating to the respective representations and warranties
of the Master Servicer and WMMSC set forth in Section 9.03. In the capacity as
such successor, the Trustee or the Securities Administrator, as applicable,
shall have the same respective limitations on liability herein granted to the
Master Servicer and to WMMSC, as applicable. As compensation for being the
successor master servicer, the Trustee shall be entitled to receive all
compensation payable to the Master Servicer under this Agreement. As
compensation for being the successor servicer with respect to the WMMSC
Serviced Mortgage Loans, the Securities Administrator shall be entitled to
receive all compensation payable to WMMSC under this Agreement, including the
applicable Servicing Fee, commencing upon the date on which the Securities
Administrator (or any other successor Servicer) contractually undertakes
WMMSC's duties hereunder (including the date on which the Securities
Administrator (or other successor Servicer) makes any Advance). Any successor
to the Master Servicer hereunder also may assume the obligations of the
Securities Administrator hereunder and as successor in such capacity shall be
entitled to the compensation payable to the Securities Administrator pursuant
to Section 4.02 hereof from and after the date of such assumption.
(c) Notwithstanding the above, the Trustee or the Securities
Administrator, as applicable, may, if it shall be unwilling to continue to so
act, or shall, if it is unable to so act, petition a court of competent
jurisdiction to appoint, or appoint on its own behalf any established
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housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer or servicer,
as applicable, as are set forth in this Agreement, as the successor to such
Master Servicer or to WMMSC, as applicable, in the assumption of all of the
respective responsibilities, duties or liabilities of, (x) with respect to
replacing the Master Servicer, a master servicer, like the Master Servicer and
(y) with respect to replacing WMMSC, a servicer, like WMMSC. Any entity
designated by the Trustee or the Securities Administrator, as applicable, as a
successor master servicer or successor servicer, as applicable, may be an
Affiliate of the Trustee or the Securities Administrator, as applicable;
provided, however, that, unless such Affiliate meets the net worth
requirements and other standards set forth herein for a successor master
servicer, the Trustee, in its individual capacity shall agree, at the time of
such designation, to be and remain liable to the Trust Fund for such
Affiliate's actions and omissions in performing its duties hereunder. In
connection with such appointment and assumption, the Trustee or the Securities
Administrator, as applicable, may make such arrangements for the compensation
of such successor out of payments on the related Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be
in excess of that permitted to the Master Servicer or to WMMSC, as applicable,
hereunder. The Trustee or the Securities Administrator, as applicable, and
such successor shall take such actions, consistent with this Agreement, as
shall be necessary to effectuate any such succession and may make other
arrangements with respect to the servicing to be conducted hereunder which are
not inconsistent herewith. Each of the Master Servicer and WMMSC shall
cooperate with the Trustee or the Securities Administrator, as applicable, and
any successor master servicer or servicer in effecting the termination of
their respective responsibilities and rights hereunder including, without
limitation, notifying the Servicer or the related Mortgagors of the assignment
of the master servicing or servicing functions and providing the Trustee or
the Securities Administrator, as applicable, and successor master servicer or
successor servicer, as applicable, all documents and records in electronic or
other form reasonably requested by it to enable it to assume the Master
Servicer's or WMMSC's respective functions hereunder and the transfer to the
Trustee or the Securities Administrator, as applicable, or such successor all
amounts which shall at the time be or should have been deposited (x) by the
Master Servicer in the Distribution Account or any related Custodial Account,
and (y) by WMMSC in any related Custodial Account, plus, in each case, any
other account or fund maintained with respect to the Certificates or
thereafter be received with respect to the related Mortgage Loans. Neither the
Trustee nor the Securities Administrator, as applicable, nor any other
successor, as applicable, shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Master Servicer or WMMSC,
as applicable, to deliver, or any delay in delivering, cash, documents or
records to it, (ii) the failure of the Master Servicer or WMMSC, as
applicable, to cooperate as required by this Agreement, (iii) the failure of
the Master Servicer or WMMSC, as applicable, to deliver the related Mortgage
Loan data as required by this Agreement or (iv) restrictions imposed by any
regulatory authority having jurisdiction over the Master Servicer or WMMSC, as
applicable. No successor master servicer or successor servicer as applicable,
shall be deemed to be in default hereunder by reason of any failure to make,
or any delay in making, any distribution hereunder or any portion thereof
caused by (i) the failure of the Securities Administrator to deliver, or any
delay in delivering cash, documents or records to it related to such
distribution, or (ii) the failure of Trustee or the Securities Administrator
to cooperate as required by this Agreement.
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Section 6.15 Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of the Trust Fund, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
Section 6.16 Waiver of Defaults.
More than 50% of the Aggregate Voting Interests of the
Certificateholders may waive any default or Event of Default by the Master
Servicer or WMMSC, respectively, in the performance of its obligations
hereunder, except that a default in the making of any required deposit to the
Distribution Account that would result in a failure of the Securities
Administrator or the Paying Agent to make any required payment of principal of
or interest on the Certificates may only be waived with the consent of 100% of
the affected Certificateholders. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
Section 6.17 Notification to Holders.
Upon termination of the Master Servicer or WMMSC or appointment of a
successor to the Master Servicer or WMMSC, in each case as provided herein,
the Trustee shall promptly mail notice thereof by first class mail to the
Securities Administrator and the Certificateholders at their respective
addresses appearing on the Certificate Register. The Trustee shall also,
within 45 days after the occurrence of any Event of Default known to the
Trustee, give written notice thereof to the Securities Administrator and the
Certificateholders, unless such Event of Default shall have been cured or
waived prior to the issuance of such notice and within such 45-day period.
Section 6.18 Directions by Certificateholders and Duties of
Trustee During Event of Default.
Subject to the provisions of Section 8.01 hereof, during the continuance
of any Event of Default, Holders of Certificates evidencing not less than 25%
of the Class Principal Balance (or Percentage Interest) of each Class of
Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; provided, however, that the Trustee shall be under no obligation to
pursue any such remedy, or to exercise any of the trusts
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or powers vested in it by this Agreement (including, without limitation, (i)
the conducting or defending of any administrative action or litigation
hereunder or in relation hereto and (ii) the terminating of (a) the Master
Servicer or any successor master servicer from its rights and duties as master
servicer hereunder) and (b) WMMSC or any successor servicer to WMMSC from its
rights and duties as a servicer hereunder) at the request, order or direction
of any of the Certificateholders, unless such Certificateholders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the cost, expenses and liabilities which may be incurred therein or
thereby; and, provided further, that, subject to the provisions of Section
8.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee, in accordance with an Opinion of Counsel, determines that the
action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith determines that the action or proceeding so directed would
involve it in personal liability for which it is not indemnified to its
satisfaction.
Section 6.19 Action Upon Certain Failures of the Master Servicer or
WMMSC and Upon Event of Default.
In the event that a Responsible Officer of the Trustee shall have actual
knowledge or written notice of any action or inaction of the Master Servicer
or WMMSC, as applicable, that would become an Event of Default for the Master
Servicer or WMMSC, upon the failure of the Master Servicer or WMMSC, as
applicable, to remedy the same after notice, the Trustee shall give notice
thereof to the Master Servicer or to WMMSC, as applicable.
Section 6.20 Preparation of Tax Returns and Other Reports.
(a) The Securities Administrator shall prepare or cause to be prepared
on behalf of the Trust Fund, based upon information calculated in accordance
with this Agreement pursuant to instructions given by the Depositor, and the
Securities Administrator shall file federal tax returns, all in accordance
with Article X hereof. If the Securities Administrator is notified in writing
that a state tax return or other return is required, then, at the sole expense
of the Trust Fund, the Securities Administrator shall prepare and file such
state income tax returns and such other returns as may be required by
applicable law relating to the Trust Fund, and, if required by state law,
shall file any other documents to the extent required by applicable state tax
law (to the extent such documents are in the Securities Administrator's
possession). The Securities Administrator shall forward copies to the
Depositor of all such returns and Form 1099 supplemental tax information and
such other information within the control of the Securities Administrator as
the Depositor may reasonably request in writing, and shall forward to each
Certificateholder such forms and furnish such information within the control
of the Securities Administrator as are required by the Code and the REMIC
Provisions to be furnished to them, and will prepare and forward to
Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the Securities Administrator) to the
extent required by applicable law. The Master Servicer will indemnify the
Securities Administrator and the Trustee for any liability of or assessment
against the Securities Administrator or the Trustee, as applicable, resulting
from any error in any of such tax or information returns directly resulting
from errors in the information provided by such Master Servicer except to the
extent that such information was provided in reasonable reliance upon
information from any Servicer.
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(b) The Securities Administrator shall prepare and file with the
Internal Revenue Service ("IRS"), on behalf of the Trust Fund and each REMIC
created hereunder, an application for an employer identification number on IRS
Form SS-4 or by any other acceptable method. The Securities Administrator
shall also file a Form 8811 as required. The Securities Administrator, upon
receipt from the IRS of the Notice of Taxpayer Identification Number Assigned,
shall upon request promptly forward a copy of such notice to the Trustee and
the Depositor. The Securities Administrator shall furnish any other
information that is required by the Code and regulations thereunder to be made
available to the Certificateholders. WMMSC hereby agrees that it shall, and
the Master Servicer agrees that it shall cause each other Servicer to, provide
the Securities Administrator with such information related to the Mortgage
Loans in the possession of WMMSC or the other Servicer, as applicable, as may
reasonably be required for the Securities Administrator to prepare such
reports. The Master Servicer will indemnify the Securities Administrator and
the Trustee for any liability of or assessment against the Securities
Administrator or the Trustee, as applicable, resulting from any error in any
of such tax or information returns directly resulting from errors in the
information provided by the Master Servicer. WMMSC will indemnify the
Securities Administrator for any liability of or assessment against the
Securities Administrator resulting from any error in any of such tax or
information returns directly resulting from errors in the information provided
by WMMSC.
(c) Within 15 days after each Distribution Date, the Securities
Administrator shall, on behalf of the Trust and in accordance with industry
standards, file with the Securities and Exchange Commission (the "Commission")
via the Electronic Data Gathering and Retrieval System (▇▇▇▇▇), a Form 8-K (or
any comparable form containing the same or comparable information mutually
agreed upon) with a copy of the report to the Certificateholders for such
Distribution Date as an exhibit thereto. Prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇, if
applicable, prior to March 30 of each year), the Securities Administrator
shall, on behalf of the Trust and in accordance with industry standards,
prepare and file with the Commission via ▇▇▇▇▇ a Form 10-K with respect to the
Trust Fund. In addition, the Depositor will cause its senior officer in charge
of securitization to execute the certification (the "Form 10-K Certification")
required pursuant to Rule 13a-14 under the Securities Exchange Act of 1934, as
amended. The Depositor will execute and return the signed Form 10-K
Certification and Form 10-K to the Securities Administrator on no later than
March 20 of each year and the Securities Administrator shall file the same
with the Commission prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇, if applicable, prior to
March 30 of each year). To the extent any information or exhibits required to
be included in the Form 10-K are not timely received by the Securities
Administrator prior to March 30, the Securities Administrator shall, on behalf
of the Trust, prepare, forward to the Depositor for execution and, upon
receipt thereof, the Securities Administrator will file one or more amended
Form 10-Ks to include such missing information or exhibits promptly after
receipt thereof by the Securities Administrator. Promptly following the first
date legally permissible under applicable regulations and interpretations of
the Commission, the Securities Administrator shall, on behalf of the Trust and
in accordance with industry standards, file with the Commission via ▇▇▇▇▇ a
Form 15 Suspension Notification with respect to the Trust Fund, if applicable.
The Master Servicer agrees to furnish to the Securities Administrator
promptly, from time to time upon request, such further information, reports
and financial statements within its control related to this Agreement and the
Master Serviced Mortgage Loans as the Securities Administrator reasonably
deems appropriate to prepare and file all necessary reports with the
Commission. WMMSC agrees to furnish to the Securities Administrator and to the
Depositor promptly, from time to time upon
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request, such further loan-level information, reports and financial statements
within its control related to this Agreement and the WMMSC Serviced Mortgage
Loans as the Securities Administrator or the Depositor, as applicable,
reasonably deems appropriate to prepare and file all necessary reports with
the Commission. The Securities Administrator shall have no responsibility to
file any items with the Commission other than those specified in this section.
(d) If requested by the Depositor, an officer of the Securities
Administrator and the Master Servicer shall sign a certification (in the form
attached hereto as Exhibit D) for the benefit of the Person(s) signing the
Form 10-K Certification regarding certain aspects of such Form 10-K
Certification (provided, however, that the Securities Administrator will not
be required to undertake an analysis of any accountant's report(s) attached as
an exhibit to the Form 10-K). In addition, if requested by the Depositor, an
officer of WMMSC shall sign a certification (in the form attached to the WMMSC
Purchase and Servicing Agreement as Exhibit A) for the benefit of the
Person(s) signing the Form 10-K Certification regarding certain aspects of
such Form 10-K Certification.
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage Loans.
(a) The respective obligations and responsibilities of the Trustee, the
Securities Administrator, the Master Servicer and WMMSC created hereby (other
than the obligation of the Securities Administrator to make payments to the
Certificateholders as set forth in Section 7.02), shall terminate on the
earliest of (i) the final payment or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property, (ii)
the sale of the property held by the Trust Fund in accordance with both
Section 7.01(c)(i) and Section 7.01(c)(ii) and (iii) the Latest Possible
Maturity Date; provided, however, that in no event shall the Trust Fund
created hereby continue beyond the expiration of 21 years from the death of
the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador
of the United States to the Court of St. James's, living on the date hereof.
Any termination of the Trust Fund shall be carried out in such a manner so
that the termination of each REMIC included therein shall qualify as a
"qualified liquidation" under the REMIC Provisions.
(b) [Reserved].
(c) In the event that the Master Servicer chooses to exercise its
optional termination rights it shall do so in accordance with the following:
(i) Optional Termination Related to the Group 1 Mortgage Loans. On
any Distribution Date occurring on or after the Initial Optional
Purchase Date related to the Group 1 Mortgage Loans, the Master Servicer
has the option to cause the Trust Fund to adopt a plan of complete
liquidation of the Group 1 Mortgage Loans pursuant to Sections 7.02 and
7.03 hereof to sell all of the property related thereto. If the Master
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Servicer elects to exercise such option, it shall no later than 30 days
prior to the Distribution Date selected for purchase of the Group 1
Mortgage Loans and all other assets of the Trust Fund related to the
Group 1 Certificates (with respect to the Group 1 Certificates, the
"Purchase Date") deliver written notice to the Trustee and the
Securities Administrator and either (a) deposit in the Distribution
Account the related Redemption Price or (b) state in such notice that
the Redemption Price shall be deposited in the Distribution Account not
later than 10:00 a.m., New York City time, on the applicable Purchase
Date. Upon exercise of such option, the property of the Trust Fund
related to the Group 1 Certificates shall be sold to the Master Servicer
at a price equal to the Redemption Price.
(ii) Optional Termination Related to the Combined Mortgage Loans.
On any Distribution Date occurring on or after the Initial Optional
Purchase Date related to the Combined Mortgage Loans, the Master
Servicer has the option to cause the Trust Fund to adopt a plan of
complete liquidation of the Combined Mortgage Loans pursuant to Sections
7.02 and 7.03 hereof to sell all of the property related thereto. If the
Master Servicer elects to exercise such option, it shall no later than
30 days prior to the Distribution Date selected for purchase of the
Combined Mortgage Loans and all other assets of the Trust Fund related
to the Combined Certificates (with respect to the Combined Certificates,
the "Purchase Date") deliver written notice to the Trustee and the
Securities Administrator and either (a) deposit in the Distribution
Account the related Redemption Price or (b) state in such notice that
the Redemption Price shall be deposited in the Distribution Account not
later than 10:00 a.m., New York City time, on the applicable Purchase
Date. Upon exercise of such option, the property of the Trust Fund
related to the Combined Certificates shall be sold to the Master
Servicer at a price equal to the Redemption Price.
(d) The Depositor, the Master Servicer, each Servicer (including WMMSC),
the Securities Administrator, the Trustee and the Custodian shall be
reimbursed from the related Redemption Price for any Advances, Servicer
Advances, accrued and unpaid Servicing Fees or other amounts with respect to
the Mortgage Loans and any related assets being purchased pursuant to Section
7.01(c) above that are reimbursable to such parties (and such other amounts
which, if not related to the Mortgage Loans and other assets of the Trust Fund
not being purchased, that are then due and owing to any such Person) under
this Agreement, the related Purchase and Servicing Agreement or the related
Custodial Agreement.
Section 7.02 Procedure Upon Redemption Termination of Trust Fund.
(a) Notice of any termination pursuant to the provisions of Section
7.01, specifying the Distribution Date upon which the final distribution shall
be made or the purchase of the Trust's assets related to the Group 1
Certificates or the Combined Certificates, as applicable, will occur, shall be
given promptly by the Securities Administrator by first class mail to the
related Certificateholders mailed in the case of a redemption of the related
Certificates, no later than (i) the first day of the month in which the
Distribution Date selected for redemption of such Certificates shall occur or
(ii) upon (x) the sale of all of the property of the Trust Fund by the
Securities Administrator or in the case of a sale of assets of the Trust Fund,
or (y) upon the final payment or other liquidation of the last Mortgage Loan
or REO Property in the Trust Fund. Such
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notice shall specify (A) the Initial Optional Purchase Date, Distribution Date
upon which final distribution on the related Certificates of all amounts
required to be distributed to Certificateholders pursuant to Section 5.02 will
be made upon presentation and surrender of the Certificates at the Certificate
Registrar's Corporate Trust Office, and (B) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distribution being
made only upon presentation and surrender of the Certificates at the office or
agency of the Securities Administrator therein specified. The Securities
Administrator shall give such notice to the Trustee, the Master Servicer and
the Certificate Registrar at the time such notice is given to Holders of the
Certificates. Upon any such termination, the duties of the Certificate
Registrar with respect to the affected Certificates shall terminate and, in
the event that such termination is the second termination pursuant to Section
7.01, the Securities Administrator shall terminate the Distribution Account
and any other account or fund maintained with respect to the Certificates,
subject to the Securities Administrator's obligation hereunder to hold all
amounts payable to Certificateholders in trust without interest pending such
payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Securities Administrator shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice any Certificates shall not
have been surrendered for cancellation, the Securities Administrator may take
appropriate steps to contact the remaining Certificateholders concerning
surrender of such Certificates, and the cost thereof shall be paid out of the
amounts distributable to such Holders. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Securities Administrator shall deliver any remaining funds being held by it to
the Holder of the Class A-R Certificates and the Holder of the Class A-R
Certificates shall, subject to applicable state law relating to escheatment,
hold all amounts distributable to such Holders for the benefit of such
Holders. No interest shall accrue on any amount held by the Securities
Administrator and not distributed to a Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section.
(c) Any reasonable expenses incurred by the Securities Administrator in
connection with any purchase or termination or liquidation of the portion of
the Trust Fund related to the Group 1 Certificates or the Combined
Certificates, as applicable, shall be reimbursed from proceeds received from
the liquidation of the Trust Fund.
Section 7.03 Additional Trust Fund Termination Requirements.
(a) On the termination of the Trust Fund under Section 7.01 (a), or upon
the exercise of the right to purchase all of the Group 1 Mortgage Loans or the
Combined Mortgage Loans, as applicable, pursuant to Section 7.01(c), the
Securities Administrator, on behalf of the Trustee. shall comply with
requirements of this Section 7.03 with respect to each Lower Tier REMIC
relating to the assets to be sold (the "Affected REMIC") and with respect to
the Certificates corresponding to the Affected REMIC (the "Corresponding
Certificates"), unless the party having the right to purchase the assets of
the Affected REMIC (the "Purchaser") delivers to the Trustee and the
Securities Administrator, an Opinion of Counsel (at the Master Servicer's
expense), addressed to the Trustee and the Securities Administrator to the
effect that the failure
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of the Trustee and the Securities Administrator to comply with the
requirements of this Section 7.03 will not result in an Adverse REMIC Event:
(i) Within 89 days prior to the time of making the final payment
on the Corresponding Certificates, (and upon notification by the Master
Servicer in the case of a purchase under Section 7.01(c)(i) or Section
7.01(c)(ii), as applicable) the Securities Administrator on behalf of
the Trustee shall adopt on behalf of the Affected REMIC, a plan of
complete liquidation, meeting the requirements of a qualified
liquidation under the REMIC Provisions;
(ii) Any sale of the assets of the Affected REMIC shall be for
cash and shall occur at or after the time the plan of complete
liquidation is adopted and prior to the time the final payments on the
Corresponding Certificates are made;
(iii) On the date specified for final payment of the Corresponding
Certificates, the Securities Administrator shall make final
distributions of principal and interest on the Corresponding
Certificates in accordance with Section 5.02 and, after payment of, or
provision for any outstanding expenses, distribute or credit, or cause
to be distributed or credited, to the Holders of the Residual
Certificates all cash on hand after such final payment (other than cash
retained to meet claims), and the portion of the Trust Fund (and the
Affected REMIC) shall terminate at that time; and
(iv) In no event may the final payment on the Corresponding
Certificates or the final distribution or credit to the Holders of the
Residual Certificates be made after the 89th day from the date on which
the plan of complete liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby agrees to accept the plan of complete liquidation adopted by the
Securities Administrator on behalf of the Trustee under this Section and to
take such other action in connection therewith as may be reasonably requested
by the Trustee, the Securities Administrator or any Servicer.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of
this Trust Fund, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them. Except as otherwise expressly provided
herein, no Certificateholder, solely by virtue of its status as a
Certificateholder, shall have any right to vote or in any manner otherwise
control the Master Servicer or WMMSC or the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed
so as to constitute the Certificateholders from time to time as partners or
members of an association, nor shall any Certificateholder be under any
liability to
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any third person by reason of any action taken by the parties to this
Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 25% of the
Class Principal Amount or Class Notional Amount (or Percentage Interest) of
Certificates of each Class affected thereby shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding and no direction
inconsistent with such written request has been given such Trustee during such
sixty-day period by such Certificateholders; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder, the Securities Administrator and the Trustee, that no one
or more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 8.02 Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter referred
to as "Applicants") apply in writing to the Certificate Registrar, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Certificate Registrar shall, within
five Business Days after the receipt of such application, afford such
Applicants reasonable access during the normal business hours of the
Certificate Registrar to the most recent list of Certificateholders held by
the Certificate Registrar or shall, as an alternative, send, at the
Applicants' expense, the written communication proffered by the Applicants to
all Certificateholders at their addresses as they appear in the Certificate
Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Master Servicer, WMMSC,
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the Securities Administrator, the Certificate Registrar and the Trustee that
none of the Depositor, the Master Servicer, WMMSC, the Securities
Administrator, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section 8.03 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders or Certificate Owners, if the Holder is a Clearing Agency, may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and
the Securities Administrator and, where expressly required herein, to the
Master Servicer or to WMMSC, as applicable. Such instrument or instruments (as
the action embodies therein and evidenced thereby) are herein sometimes
referred to as an "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agents shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee, the Securities Administrator, the Master Servicer and
WMMSC, if made in the manner provided in this Section. Each of the Trustee,
the Securities Administrator, the Master Servicer and WMMSC shall promptly
notify the others of receipt of any such instrument by it, and shall promptly
forward a copy of such instrument to the others.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and none of the Trustee, the Securities Administrator,
the Master Servicer, WMMSC or the Depositor shall be affected by any notice to
the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
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ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER AND WMMSC
Section 9.01 Duties of the Master Servicer and WMMSC; Enforcement
of Servicers' and Master Servicer's Obligations.
(a) The Master Servicer, on behalf of the Trustee, the Depositor and the
Certificateholders shall monitor the performance of the Servicers other than
WMMSC under the Purchase and Servicing Agreements, and shall use its
reasonable good faith efforts to cause the Servicers other than WMMSC duly and
punctually to perform all of their respective duties and obligations
thereunder. WMMSC hereby agrees that it shall use its reasonable good faith
efforts to duly and punctually to perform all of its duties and obligations
hereunder and under the WMMSC Purchase and Servicing Agreement (provided,
however, that in the event of a conflict or inconsistency between the
provisions of this Agreement and any provision of the WMMSC Purchase and
Servicing Agreement, the provisions of this Agreement shall control).
Notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall have no duty to monitor the performance of WMMSC under this
Agreement or under its Purchase and Servicing Agreements or to cause WMMSC to
perform its duties and obligations hereunder and thereunder, it being
understood that the Master Servicer's obligation to master service the
Mortgage Loans under this Agreement are limited to the Master Serviced
Mortgage Loans, and the Master Servicer shall have no liability to the
Certificateholders, the Depositor or any other Person for any acts or
omissions of WMMSC hereunder or under its Purchase and Servicing Agreements.
Upon the occurrence of a default of which a Responsible Officer of the Master
Servicer has actual knowledge under a Purchase and Servicing Agreement, the
Master Servicer shall promptly notify the Trustee thereof, and shall specify
in such notice the action, if any, the Master Servicer is taking in respect of
such default. So long as any such default shall be continuing, the Master
Servicer may, and shall if it determines such action to be in the best
interests of Certificateholders, (i) terminate all of the rights and powers of
such Servicer pursuant to the applicable provisions of the related Purchase
and Servicing Agreement; (ii) exercise any rights it may have to enforce the
related Purchase and Servicing Agreement against such Servicer; and/or (iii)
waive any such default under the related Purchase and Servicing Agreement or
take any other action with respect to such default as is permitted thereunder.
Notwithstanding anything to the contrary in this Agreement, with respect to
any Additional Collateral Mortgage Loan, the Master Servicer will have no duty
or obligation to supervise, monitor or oversee the activities of the related
Servicer under any Purchase and Servicing Agreement with respect to any
Additional Collateral or under any agreement relating to the pledge of, or the
perfection of a pledge or security interest in, any Additional Collateral
except upon the occurrence of the following events (i) in the case of a final
liquidation of any Mortgaged Property secured by Additional Collateral, the
Master Servicer shall enforce the obligation of the Servicer under the related
Servicing Agreement to liquidate such Additional Collateral as required by
such Servicing Agreement, and (ii) if the Master Servicer assumes the
obligations of such Servicer as successor Servicer under the related Servicing
Agreement pursuant to this Section 9.01, as successor Servicer, it shall be
bound to service and administer the Additional Collateral in accordance with
the provisions of such Servicing Agreement.
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(b) Upon any termination by the Master Servicer of a Servicer's rights
and powers pursuant to its Purchase and Servicing Agreement, the rights and
powers of such Servicer with respect to the related Mortgage Loans shall vest
in the Master Servicer and the Master Servicer shall be the successor in all
respects to such Servicer in its capacity as Servicer with respect to such
Mortgage Loans under the related Purchase and Servicing Agreement, unless or
until the Master Servicer shall have appointed (and the Trustee shall have
acknowledged), with the consent of the Rating Agencies and in accordance with
the applicable provisions of the related Purchase and Servicing Agreement, a
new ▇▇▇▇▇▇ ▇▇▇- or FHLMC-approved Person to serve as successor to the
Servicer; provided, however, that it is understood and agreed by the parties
hereto that there will be a period of transition (not to exceed 90 days)
before the actual servicing functions can be fully transferred to a successor
servicer (including the Master Servicer). With such letter from the Rating
Agencies, the Master Servicer may elect to continue to serve as successor
servicer under the Purchase and Servicing Agreement. Upon appointment of a
successor servicer, as authorized under this Section 9.01(b), unless the
successor servicer shall have assumed the obligations of the terminated
Servicer under such Purchase and Servicing Agreement, the Master Servicer and
such successor servicer shall enter into a servicing agreement in a form
substantially similar to the affected Purchase and Servicing Agreement, and
the Trustee shall acknowledge such servicing agreement. In connection with any
such appointment, the Master Servicer may make such arrangements for the
compensation of such successor servicer as it and such successor servicer
shall agree, but in no event shall such compensation of any successor servicer
(including the Master Servicer) be in excess of that payable to the Servicer
under the affected Purchase and Servicing Agreement.
The Master Servicer shall pay the costs of such enforcement (including
the termination of a Servicer, the appointment of a successor servicer or the
transfer and assumption of the servicing by the Master Servicer) at its own
expense and shall be reimbursed therefor initially (i) by the terminated
Servicer, (ii) from a general recovery resulting from such enforcement only to
the extent, if any, that such recovery exceeds all amounts due in respect of
the related Mortgage Loans, (iii) from a specific recovery of costs, expenses
or attorney's fees against the party against whom such enforcement is
directed, or (iv) to the extent that such amounts described in (i)-(iii) above
are insufficient to reimburse the Master Servicer for such costs of
enforcement, from the Trust Fund, as provided in Section 9.04.
If the Master Servicer assumes the servicing with respect to any of the
Mortgage Loans, it will not assume liability for the representations and
warranties of any Servicer it replaces or for the errors or omissions of such
Servicer.
If the Seller is the owner of the servicing rights and the Seller
chooses to terminate that Servicer with or without cause and sell those
servicing rights to a successor servicer, then the Depositor shall cause the
Seller to give reasonable prior written notice to the Master Servicer, and
obtain the prior written consent of the Rating Agencies and a New ▇▇▇▇▇▇ Mae-
or FHLMC-approved Person reasonably acceptable to the Master Servicer shall be
chosen by the Seller and appointed as successor servicer with the
acknowledgment of the Master Servicer and the Trustee. The Depositor shall
cause the costs of such transfer (including any costs of the Master Servicer)
to be borne by the Seller.
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(c) Upon any termination of a Servicer's rights and powers pursuant to
its Purchase and Servicing Agreement, the Master Servicer shall promptly
notify the Trustee and the Rating Agencies, specifying in such notice that the
Master Servicer (or the Securities Administrator, in the case of WMMSC) or any
successor servicer, as the case may be, has succeeded such Servicer under the
related Purchase and Servicing Agreement, which notice shall also specify the
name and address of any such successor servicer.
(d) The Depositor shall not consent to the assignment by any Servicer of
such Servicer's rights and obligations under the related Purchase and
Servicing Agreement without the prior written consent of the Master Servicer,
which consent shall not be unreasonably withheld.
(e) Notwithstanding anything to the contrary in this Agreement, with
respect to any action which according to the terms of this Agreement is to be
performed by the Master Servicer and the applicable Servicer, (i) if such
action relates to a Master Serviced Mortgage Loan, only the Master Servicer
shall have an obligation to perform such action and (ii) if such action
relates to a WMMSC Serviced Mortgage Loan, only WMMSC shall have an obligation
to perform such action.
(f) Notwithstanding anything in this Agreement to the contrary, the
purchase of any WMMSC Serviced Mortgage Loan by any Person shall be subject to
the rights of WMMSC to continue servicing such WMMSC Serviced Mortgage Loan
for the same Servicing Fee substantially in accordance with the terms of this
Agreement.
(g) WMMSC may, in connection with its duties as Servicer hereunder,
enter into transactions with any of its Affiliates relating to the WMMSC
Serviced Mortgage Loans; provided that (a) WMMSC acts (i) in accordance with
Accepted Servicing Practices and the terms of this Agreement, and (ii) in the
ordinary course of business of WMMSC; and (b) the terms of such transaction
are no less favorable to WMMSC than it would obtain in a comparable
arm's-length transaction with a Person that is not an Affiliate of WMMSC.
Notwithstanding the preceding sentence, any such transaction between WMMSC and
any of its Affiliates shall not release WMMSC from any of its obligations
hereunder and WMMSC shall remain responsible hereunder for all acts and
omissions of such Affiliate with respect to such Mortgage Loans serviced by it
as fully as if such acts and omissions were those of the WMMSC. Any fees and
expenses relating to such transaction between WMMSC and its Affiliate that are
not otherwise reimbursable to WMMSC pursuant to this Agreement shall be borne
by the parties thereto and shall not be an expense or fee of the Trust, the
Depositor, the Trustee, the Securities Administrator, the Seller or the Master
Servicer.
Section 9.02 Assumption of Master Servicing by Master Servicer or
Servicing by WMMSC by Trustee.
(a) (i) In the event the Master Servicer shall for any reason no
longer be the Master Servicer (including by reason of any Event of Default by
the Master Servicer under this Agreement), the Trustee shall thereupon assume
all of the rights and obligations of such Master Servicer hereunder and under
each Purchase and Servicing Agreement entered into with respect to the Master
Serviced Mortgage Loans or shall appoint or petition a court to appoint a
Fannie-
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Mae or FHLMC-approved servicer as successor servicer that is acceptable to the
Depositor and the Rating Agencies. The Trustee, as successor master servicer,
its designee or any successor master servicer appointed by the Trustee shall
be deemed to have assumed all of the Master Servicer's interest herein and
therein to the same extent as if such Purchase and Servicing Agreements had
been assigned to the assuming party, except that the Master Servicer shall not
thereby be relieved of any liability or obligations of the Master Servicer
under such Purchase and Servicing Agreement accruing prior to its replacement
as Master Servicer, and shall be liable to the Trustee, and hereby agrees to
indemnify and hold harmless the Trustee from and against all costs, damages,
expenses and liabilities (including reasonable attorneys' fees) incurred by
the Trustee as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (but not its
performance, except to the extent that costs or liability of the Trustee are
created or increased as a result of negligent or wrongful acts or omissions of
the Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer's obligations, duties or responsibilities thereunder.
(ii) In the event that WMMSC shall for any reason no longer be a
Servicer (including by reason of any Event of Default by WMMSC under this
Agreement), the Securities Administrator shall thereupon assume all of the
rights and obligations of WMMSC hereunder and under each Purchase and
Servicing Agreement entered into with respect to the WMMSC Serviced Mortgage
Loans, or cause a successor servicer to assume such obligations in accordance
with Section 9.01(b) hereof (it being understood and agreed that the 90-day
transition period and the right of the Master Servicer pursuant to Section
9.01(b) to reimbursement of costs and expenses in connection with a servicing
termination and/or transfer also shall apply to any transfer of the servicing
responsibilities of WMMSC by or to Securities Administrator). The Securities
Administrator, as successor servicer to WMMSC, or its designee shall be deemed
to have assumed all of WMMSC's interest herein and therein to the same extent
as if such Purchase and Servicing Agreements had been assigned to the assuming
party, except that WMMSC shall not thereby be relieved of any of its liability
or obligations under such Purchase and Servicing Agreements accruing prior to
its replacement as Servicer thereunder and hereunder, and shall be liable to
the Master Servicer, and hereby agrees to indemnify and hold harmless the
Securities Administrator from and against all costs, damages, expenses and
liabilities (including reasonable attorneys' fees) incurred by the Securities
Administrator as a result of such liability or obligations of WMMSC and in
connection with the Master Servicer's assumption (but not its performance,
except to the extent that costs or liability of the Securities Administrator
are created or increased as a result of negligent or wrongful acts or
omissions of WMMSC prior to its replacement as Servicer) of WMMSC's
obligations, duties or responsibilities thereunder.
(b) (i) The Master Servicer that has been terminated shall, upon
request of the Trustee but at the expense of such Master Servicer, deliver to
the assuming party all documents and records relating to each Purchase and
Servicing Agreement, this Agreement and the related Mortgage Loans and an
accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of each Purchase and
Servicing Agreement and this Agreement to the assuming party.
(ii) Upon the termination of WMMSC pursuant to Section 9.02(a)
hereunder, WMMSC shall, upon request of the Securities Administrator but
at the expense of WMMSC, deliver to the assuming party all documents and
records relating to each
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Purchase and Servicing Agreement to which WMMSC is party, this Agreement
and the WMMSC Serviced Mortgage Loans and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of each such Purchase and Servicing
Agreement and this Agreement to the assuming party.
Section 9.03 Representations and Warranties of the Master Servicer
and WMMSC.
(a) The Master Servicer hereby represents and warrants to the Depositor,
the Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is validly existing and in good standing under the laws of
the United States of America as a national banking association, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and
comply with its obligations under the terms of this Agreement, the
execution, delivery and performance of which have been duly authorized
by all necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Master Servicer is a party or by which it
is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master
Servicer's ability to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
in general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any
order or decree of any court or any order or regulation of any federal,
state, municipal or governmental agency to the extent that any such
default would materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and adversely
affect its ability as Master Servicer to perform its obligations under
this Agreement or that requires the consent of any third person to the
execution of this
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Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential mortgage
loans, is a ▇▇▇▇▇▇ ▇▇▇- or FHLMC-approved seller/servicer;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Master Servicer of or compliance by the Master
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations and orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) WMMSC hereby represents and warrants to the Depositor, the
Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) Washington Mutual Mortgage Securities Corp. ("WMMSC") is a
corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and is qualified under the laws
of each state where required by applicable law or is otherwise exempt
under applicable law from such qualification.
(ii) WMMSC has all requisite corporate power, authority and
capacity to enter into the Agreement and to perform the obligations
required of it thereunder. The Agreement (assuming the due authorization
and execution of the Agreement by the other parties thereto) constitutes
a valid and legally binding agreement of WMMSC enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization and similar laws, and
by equitable principles affecting the enforceability of the rights of
creditors.
(iii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will
result in the breach of, or constitute a default under, any term or
provision of the organizational documents of WMMSC or conflict with,
result in a material breach, violation or acceleration of or constitute
a material default under, the terms of any indenture or other agreement
or instrument to which WMMSC is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to WMMSC of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over WMMSC.
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(iv) There is no action, suit, proceeding or investigation
pending, or to WMMSC's knowledge threatened, against WMMSC before any
court, administrative agency or other tribunal (a) asserting the
invalidity of the Agreement, (b) seeking to prevent the consummation of
any of the transactions contemplated thereby or (c) which might
materially and adversely affect the performance by WMMSC of its
obligations under, or the validity or enforceability of, the Agreement.
(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the execution, delivery and performance by WMMSC
of the Agreement or the consummation of the transactions contemplated by
the Agreement.
(c) It is understood and agreed that the representations and warranties
set forth in this Section shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the Securities
Administrator and the Trustee and hold them harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a material
breach of the Master Servicer's representations and warranties contained in
Section 9.03(a). It is understood and agreed that the enforcement of the
obligation of the Master Servicer set forth in this Section to indemnify the
Depositor, the Securities Administrator and the Trustee as provided in this
Section constitutes the sole remedy (other than as set forth in Section 6.14)
of the Depositor, the Securities Administrator and the Trustee, respecting a
breach of the foregoing representations and warranties. Such indemnification
shall survive any termination of the Master Servicer as Master Servicer
hereunder, the resignation or removal of the Trustee and any termination of
this Agreement.
Any cause of action against the Master Servicer relating to or arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by either the Depositor, the Master
Servicer or the Trustee or notice thereof by any one of such parties to the
other parties.
Section 9.04 Compensation to the Master Servicer and to WMMSC.
(a) The Master Servicer shall be entitled to be paid by the Securities
Administrator reasonable compensation for the Master Servicer's services
hereunder, and the Master Servicer shall be entitled to be paid by the Trust
Fund, and either retain or withdraw from the Distribution Account (i) amounts
necessary to reimburse itself for any previously unreimbursed Advances,
Servicer Advances and Nonrecoverable Advances with respect to the Master
Serviced Mortgage Loans in accordance with the definition of "Available Funds"
and (ii) amounts representing assumption fees, late payment charges or other
ancillary income not included in the definition of "Available Funds" and which
are not required to be remitted by the Servicers to the Securities
Administrator or deposited by the Securities Administrator into the
Distribution Account. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder and shall
not be entitled to reimbursement therefor except as provided in this
Agreement.
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In addition, the Master Servicer shall be entitled to reimbursement from
the Distribution Account for all reasonable expenses, disbursements and
advances incurred or made by the Master Servicer in connection with the
performance of its duties hereunder and under the Purchase and Servicing
Agreements, as modified by the Acknowledgements (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), to
the extent not otherwise reimbursed pursuant to this Agreement, except any
such expense, disbursement or advance as may be attributable to its willful
misfeasance, bad faith or negligence.
The Master Servicer and any director, officer, employee or agent of the
Master Servicer shall be indemnified by the Trust and held harmless thereby
against any loss, liability or expense (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or related to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement, the Purchase and Servicing Agreements, the Custodial Agreements or
the Certificates, other than any loss, liability or expense resulting from the
Master Servicer's failure to perform its duties hereunder or thereunder or
incurred by reason of the Master Servicer's negligence, willful misfeasance or
bad faith.
(b) WMMSC shall be entitled to be paid by the Trust Fund, and either
retain or withdraw from the related Custodial Accounts, (i) its Servicing Fee
with respect to the WMMSC Serviced Mortgage Loans and each Distribution Date,
(ii) amounts necessary to reimburse itself for any previously unreimbursed
Advances, Servicer Advances and Nonrecoverable Advances the WMMSC Serviced
Mortgage Loans in accordance with the definition of "Available Funds" and
(iii) amounts representing assumption fees, late payment charges or other
ancillary income with respect to the WMMSC Serviced Mortgage Loans not
included in the definition of "Available Funds" and which are not required to
be remitted by the WMMSC to the Securities Administrator. WMMSC shall be
required to pay all expenses incurred by it in connection with its activities
hereunder and under the related Purchase and Servicing Agreements and shall
not be entitled to reimbursement therefor except as provided in this Agreement
or the related Purchase and Servicing Agreements.
WMMSC and any director, officer, employee or agent of WMMSC shall be
indemnified by the Trust and held harmless thereby against any loss, liability
or expense (including reasonable legal fees and disbursements of counsel)
incurred on their part that may be sustained in connection with, arising out
of, or related to, any claim or legal action (including any pending or
threatened claim or legal action) relating to this Agreement, the related
Purchase and Servicing Agreements, the Custodial Agreements or the
Certificates, other than any loss, liability or expense resulting from WMMSC's
failure to perform its duties hereunder or thereunder or incurred by reason of
the WMMSC's negligence, willful misfeasance or bad faith.
Section 9.05 Merger or Consolidation.
Any Person into which the Master Servicer or WMMSC may be merged or
consolidated, or any Person resulting from any merger, conversion, other
change in form or consolidation to which the Master Servicer or WMMSC, as
applicable, shall be a party, or any Person succeeding to the business of the
Master Servicer or WMMSC, as applicable, shall be the successor to the
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Master Servicer or WMMSC, as applicable, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that (i) the successor or resulting Person to the Master Servicer shall be a
Person that shall be qualified and approved to service mortgage loans for
▇▇▇▇▇▇ Mae or FHLMC and shall have a net worth of not less than $15,000,000
and (ii) the successor or surviving person to WMMSC shall have a net worth of
at least $15,000,000, unless each of the Rating Agencies confirm, at the
expense of the successor or surviving Person to WMMSC, that their respective
ratings of the Certificates in effect immediately prior to such assignment
will not be qualified, reduced or withdrawn as a result of such successor or
surviving Person to WMMSC not having a net worth of at least $15,000,000.
Section 9.06 Resignation of Master Servicer or WMMSC.
Except as otherwise provided in Sections 9.05 and 9.07 hereof, neither
the Master Servicer nor WMMSC shall resign from their respective obligations
and duties hereby imposed unless (a) the respective duties of the Master
Servicer and WMMSC hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured or (b) in the case of WMMSC, upon the
appointment of a successor to WMMSC and receipt by the Trustee and the
Securities Administrator of a letter from each Rating Agency to the effect
that such a resignation and appointment will not result in a downgrading or
withdrawal of the then current ratings of the Certificates related to the
WMMSC Serviced Mortgage Loans. Any such determination permitting the
resignation of the Master Servicer or WMMSC, as applicable, shall be evidenced
by an Opinion of Counsel that shall be Independent to such effect delivered to
the Trustee. No resignation of the Master Servicer shall become effective
until the Trustee shall have assumed, or a successor master servicer shall
have been appointed pursuant to Section 9.02 and until such successor shall
have assumed, the Master Servicer's responsibilities and obligations under
this Agreement. No resignation of WMMSC shall become effective until the
Master Servicer or a successor servicer shall have assumed WMMSC's
responsibilities and obligations under this Agreement and under the related
Purchase and Servicing Agreements. Notice of any such resignation shall be
given promptly by the Master Servicer or WMMSC, as applicable, and the
Depositor to the Trustee.
If, at any time, the Master Servicer resigns under this Section 9.06, or
transfers or assigns its rights and obligations under Section 9.07, or is
removed as Master Servicer pursuant to Section 6.14, then at such time ▇▇▇▇▇
Fargo Bank, National Association (or any successor thereto) also shall resign
(and shall be entitled to resign) as Securities Administrator, Paying Agent,
Authenticating Agent and Certificate Registrar under this Agreement. In such
event, the obligations of each such party shall be assumed by the Trustee or
such successor master servicer appointed by the Trustee (subject to the
provisions of Section 9.02(a)).
Section 9.07 Assignment or Delegation of Duties by the Master
Servicer.
Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; provided, however, that the
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Master Servicer shall have the right with the prior written consent of the
Trustee and the Depositor (which consent shall not be unreasonably withheld),
and upon delivery to the Trustee and the Depositor of a letter from each
Rating Agency to the effect that such action shall not result in a downgrading
of the Certificates, to delegate or assign to or subcontract with or authorize
or appoint any qualified Person to perform and carry out any duties, covenants
or obligations to be performed and carried out by the Master Servicer
hereunder. Notice of such permitted assignment shall be given promptly by the
Master Servicer to the Depositor and the Trustee. If, pursuant to any
provision hereof, the duties of the Master Servicer are transferred to a
successor master servicer, the entire amount of the compensation payable to
the Master Servicer pursuant hereto shall thereafter be payable to such
successor master servicer. Such successor Master Servicer shall also pay the
fees of the Trustee, the Custodian and the Securities Administrator, as
provided herein.
Section 9.08 Limitation on Liability of the Master Servicer and
Others.
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect
the Master Servicer or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Master Servicer
shall be under no obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to master service the Master
Serviced Mortgage Loans in accordance with this Agreement and that in its
opinion may involve it in any expenses or liability; provided, however, that
the Master Servicer may in its sole discretion undertake any such action that
it may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Distribution Account.
The Master Servicer shall not be liable for any acts or omissions of the
Servicers except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful misfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the obligations of the Servicers in this Agreement and the Purchase and
Servicing Agreements. For the avoidance of doubt, the Master Servicer is not
responsible for supervising, monitoring and overseeing the obligations of
WMMSC pursuant to this Agreement and the WMMSC Purchase and Servicing
Agreement and shall not liable for any act or omission of WMMSC hereunder or
thereunder.
Neither WMMSC nor any of the directors, officers, employees or agents of
WMMSC shall be under any liability to the Trustee or the Certificateholders
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in
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judgment; provided, however, that this provision shall not protect WMMSC or
any such person against any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in its performance of
its duties or by reason of reckless disregard for its obligations and duties
under this Agreement. WMMSC and any director, officer, employee or agent of
WMMSC 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.
WMMSC shall be under no obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to master service the WMMSC
Serviced Mortgage Loans in accordance with this Agreement and that in its
opinion may involve it in any expenses or liability; provided, however, that
WMMSC may in its sole discretion undertake any such action that it may deem
necessary or desirable in respect to this Agreement and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder.
In such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust Fund
and WMMSC shall be entitled to be reimbursed therefor out of the Distribution
Account.
Section 9.09 Indemnification; Third-Party Claims.
(a) The Master Servicer agrees to indemnify the Depositor, the
Securities Administrator and the Trustee, and hold them harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments, and any other costs, liability, fees and expenses that the
Depositor, the Securities Administrator or the Trustee may sustain as a result
of the Master Servicer's willful misfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its reckless disregard for
its obligations and duties under this Agreement, the Acknowledgements and the
related Purchase and Servicing Agreements. The Depositor, the Securities
Administrator and the Trustee shall immediately notify the Master Servicer if
a claim is made by a third party with respect to this Agreement or the Master
Serviced Mortgage Loans entitling the Depositor, the Securities Administrator
or the Trustee to indemnification under this Section 9.09(a), whereupon the
Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or them in respect of such claim.
(b) WMMSC shall indemnify the Trustee and the Securities Administrator
and hold each of them harmless for any loss, liability, damage, claim or
expense (other than any special, indirect, punitive or consequential loss,
liability, damage, claim or expense) of the Trustee and the Securities
Administrator arising from any failure of WMMSC to provide, or to cause to be
provided, the loan level information or data regarding the WMMSC Mortgage
Loans reasonably requested by the Trustee or Securities Administrator, and
required to be provided by WMMSC pursuant to this Agreement, on a timely
basis.
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ARTICLE X
REMIC ADMINISTRATION
Section 10.01 REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement shall be
made on Forms 1066 or other appropriate federal tax or information return for
the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will
be the Latest Possible Maturity Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The Securities
Administrator shall pay any and all tax related expenses (not including taxes)
of each REMIC, including but not limited to any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect
to such REMIC that involve the Internal Revenue Service or state tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Securities Administrator in fulfilling its duties hereunder
(including its duties as tax return preparer). The Securities Administrator
shall be entitled to reimbursement of expenses to the extent provided in
clause (i) above from the Distribution Account, provided, however, the
Securities Administrator shall not be entitled to reimbursement for expenses
incurred in connection with the preparation of tax returns and other reports
as required by Section 6.20 and this Section.
(d) The Securities Administrator shall prepare, the Trustee shall sign
and the Securities Administrator shall file all of each REMIC's federal and
appropriate state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be
borne by the Securities Administrator. In preparing such returns, the
Securities Administrator shall, with respect to each REMIC other than the
Master REMIC: (i) treat the accrual period for interests in such REMIC as the
calendar month; (ii) account for distributions made from each REMIC other than
the Master REMIC as made on the first day of each succeeding calendar month;
(iii) account for income under the all-OID method at the weighted average of
the Net Mortgage Rates; (iv) use the aggregation method provided in Treasury
Regulation section 1.1275-2(c); and (v) account for income and expenses
related to each REMIC other than the Master REMIC in the manner resulting in
the lowest amount of excess inclusion income possible accruing to the Holder
of the residual interest in each such REMIC.
(e) The Securities Administrator or its designee shall perform on behalf
of each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal
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Revenue Service or any state or local taxing authority. Among its other
duties, if required by the Code, the REMIC Provisions, or other such guidance,
the Securities Administrator shall provide, upon receipt of additional
reasonable compensation, (i) to the Treasury or other governmental authority
such information as is necessary for the application of any tax relating to
the transfer of a Residual Certificate to any disqualified person or
organization pursuant to Treasury Regulation 1.860E-2(a)(5) and any person
designated in Section 860E(e)(3) of the Code and (ii) to the
Certificateholders and the Trustee such information or reports as are required
by the Code or REMIC Provisions.
(f) To the extent within their control, the Trustee, the Securities
Administrator, the Master Servicer, WMMSC and the Holders of Certificates
shall take any action or cause any REMIC to take any action necessary to
maintain the status of any REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status. None
of the Trustee, the Securities Administrator, the Master Servicer, WMMSC nor
the Holder of any Residual Certificate shall knowingly take any action, cause
any REMIC to take any action or fail to take (or fail to cause to be taken)
any action that, under the REMIC Provisions, if taken or not taken, as the
case may be, could result in an Adverse REMIC Event unless the Trustee, the
Securities Administrator and the Master Servicer have received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such status or result in
the imposition of such a tax. In addition, prior to taking any action with
respect to any REMIC or the assets therein, or causing any REMIC to take any
action, which is not expressly permitted under the terms of this Agreement,
any Holder of a Residual Certificate will consult with the Trustee, the
Securities Administrator, the Master Servicer or their respective designees,
in writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC, and no such Person shall take any
such action or cause any REMIC to take any such action as to which the
Trustee, the Securities Administrator or the Master Servicer has advised it in
writing that an Adverse REMIC Event could occur; provided, however, that if no
Adverse REMIC Event would occur but such action could result in the imposition
of additional taxes on the Residual Certificateholders, no such Person shall
take any such action, or cause any REMIC to take any such action without the
written consent of the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such taxes are not paid by a Residual
Certificateholder, the Paying Agent shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in any such REMIC or, if no such amounts are available,
(A) out of other amounts held in the Distribution Account, and shall reduce
amounts otherwise payable to holders of regular interests in any such REMIC or
(B) to the extent that any such taxes are imposed on the REMIC as a result of
the breach of any representation, warranty or covenant of the Master Servicer,
the Securities Administrator or any Servicer (including WMMSC), then the
Master Servicer, the Securities Administrator, or that Servicer (including
WMMSC), as applicable, shall pay when due any and all such taxes.
(h) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and
on an accrual basis.
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(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(j) Neither the Securities Administrator nor the Master Servicer shall
enter into any arrangement by which any REMIC will receive a fee or other
compensation for services.
(k) [Reserved].
(l) The Class A-R Holder shall act as "tax matters person" with respect
to each REMIC created hereunder and the Securities Administrator shall act as
agent for the Class A-R Holder in such roles, unless and until another party
is so designated by the Class A-R Holder.
Section 10.02 Prohibited Transactions and Activities.
Neither the Depositor, the Master Servicer nor the Trustee shall sell,
dispose of, or substitute for any of the Mortgage Loans, except in a
disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of each REMIC pursuant to
Article VII of this Agreement, (iv) a substitution pursuant to Article II of
this Agreement or (v) a repurchase of Mortgage Loans pursuant to Article II of
this Agreement, nor acquire any assets for any REMIC, nor sell or dispose of
any investments in the Distribution Account for gain, nor accept any
contributions to any REMIC after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale,
disposition, substitution or acceptance) that such disposition, acquisition,
substitution, or acceptance will not result in an Adverse REMIC Event, (b)
affect the distribution of interest or principal on the Certificates or (c)
result in the encumbrance of the assets transferred or assigned to the Trust
Fund (except pursuant to the provisions of this Agreement).
The Master Servicer with respect to the Master Serviced Mortgage Loans
and WMMSC with respect to the WMMSC Mortgage Loans shall not consent to any
modification of any such Mortgage Loan for which the consent of the Master
Servicer or WMMSC, as applicable, is required under the applicable Purchase
and Servicing Agreement under which such Mortgage Loan is serviced, that would
(i) increase the interest rate in respect of such Mortgage, defer for a period
in excess of six months or forgive the payment of any principal or interest,
reduce the outstanding principal amount (except for actual payments of
principal), increase the Servicing Fee on such Mortgage Loan or extend the
final maturity date on such Mortgage Loan, or (ii) result in a substitution or
release of collateral or in the provision of additional collateral for the
Mortgage Loan, unless the applicable Mortgage Loan is in default or default is
reasonably foreseeable in respect of such Mortgage Loan, or the Master
Servicer or WMMSC, as applicable, has received an Opinion of Counsel (at the
expense of the party requesting consent for such modification) that such
modification will not result in an Adverse REMIC Event.
Section 10.03 Indemnification with Respect to Prohibited
Transactions or Loss of REMIC Status.
Upon the occurrence of an Adverse REMIC Event due to the negligent
performance by the Securities Administrator of its duties and obligations set
forth herein, the Securities Administrator shall indemnify the
Certificateholders of the related Residual Certificate against any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from
such
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negligence; provided, however, that the Securities Administrator shall not be
liable for any such Losses attributable to the action or inaction of the
Depositor, the Trustee or the Holder of the Residual Certificate, nor for any
such Losses resulting from misinformation provided by any of the foregoing
parties on which the Securities Administrator has relied. Notwithstanding the
foregoing, however, in no event shall the Securities Administrator have any
liability (1) for any action or omission that is taken in accordance with and
in compliance with the express terms of, or which is expressly permitted by
the terms of, this Agreement or under any Purchase and Servicing Agreements or
under any Acknowledgement, (2) for any Losses other than arising out of
malfeasance, willful misconduct or negligent performance by the Service
Administrator of its duties and obligations set forth herein, and (3) for any
special or consequential damages to Certificateholders of the related Residual
Certificate (in addition to payment of principal and interest on the
Certificates).
Section 10.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the Master
Servicer, acting on behalf of the Trustee hereunder, shall not, except to the
extent provided in the applicable Purchase and Servicing Agreement, knowingly
permit any Servicer to, rent, lease, or otherwise earn income on behalf of any
REMIC with respect to any REO Property which might cause an Adverse REMIC
Event unless the applicable Servicer has provided to the Trustee and the
Securities Administrator an Opinion of Counsel concluding that, under the
REMIC Provisions, such action would not adversely affect the status of any
REMIC as a REMIC and any income generated for any REMIC by the REO Property
would not result in an Adverse REMIC Event.
(b) The Depositor shall cause the applicable Servicer (to the extent
provided in its Purchase and Servicing Agreement) to make reasonable efforts
to sell any REO Property for its fair market value. In any event, however, the
Depositor shall, or shall cause the applicable Servicer (to the extent
provided in its Purchase and Servicing Agreement) to, dispose of any REO
Property within three years of its acquisition by the Trust Fund unless the
Depositor or the applicable Servicer (on behalf of the Trust Fund) has
received a grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions and any relevant proposed legislation and
under applicable state law, the REMIC may hold REO Property for a longer
period without causing an Adverse REMIC Event. If such an extension has been
received, then the Depositor, acting on behalf of the Trustee hereunder,
shall, or shall cause the applicable Servicer to, continue to attempt to sell
the REO Property for its fair market value for such period longer than three
years as such extension permits (the "Extended Period"). If such an extension
has not been received and the Depositor or the applicable Servicer, acting on
behalf of the Trust Fund hereunder, is unable to sell the REO Property within
33 months after its acquisition by the Trust Fund or if such an extension, has
been received and the Depositor or the applicable Servicer is unable to sell
the REO Property within the period ending three months before the close of the
Extended Period, the Depositor shall cause the applicable Servicer, before the
end of the three year period or the Extended Period, as applicable, to (i)
purchase such REO Property at a price equal to the REO Property's fair market
value or (ii) auction the REO Property to the highest bidder (which may be the
applicable Servicer) in an auction reasonably designed to produce a fair price
prior to the expiration of the three-year period or the Extended Period, as
the case may be.
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Section 10.05 Fidelity.
The Master Servicer, at its expense, shall maintain in effect a blanket
fidelity bond and an errors and omissions insurance policy, affording coverage
with respect to all directors, officers, employees and other Persons acting on
such Master Servicer's behalf, and covering errors and omissions in the
performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers and
trustees.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02 Entire Agreement.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent
with any of the terms hereof.
Section 11.03 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Securities Administrator, and the Trustee, without
notice to or the consent of any of the Holders, (i) to cure any ambiguity or
mistake, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in any Offering Document, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein or with the provisions of any Purchase and Servicing
Agreement, (iii) to make any other provisions with respect to matters or
questions arising under this Agreement or (iv) to add, delete, or amend any
provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of Counsel, result in an Adverse REMIC Event, nor shall such amendment
effected pursuant to clause (iii) of such sentence adversely affect in any
material respect the interests of any Holder. Prior to entering into any
amendment without the consent of Holders pursuant to this paragraph, the
Trustee shall be provided with an Opinion of Counsel (at the expense of the
party requesting such amendment) to the effect that such amendment is
permitted under this Section. Any such amendment shall be deemed not to
adversely affect in any material respect any Holder, if the Trustee receives
written confirmation from each Rating Agency that such amendment will not
cause such Rating Agency to reduce the then current rating assigned to the
Certificates.
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(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
with the consent of the Holders of not less than 66-2/3% of the Class
Principal Balance (or Percentage Interest) of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders; provided, however, that no
such amendment shall be made unless the Trustee receives an Opinion of
Counsel, at the expense of the party requesting the change, that such change
will not cause an Adverse REMIC Event; and provided further, that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on
any Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Balance or Class Notional
Amount (or Percentage Interest) of Certificates of each Class, the Holders of
which are required to consent to any such amendment without the consent of the
Holders of 100% of the Class Principal Balance or Class Notional Amount (or
Percentage Interest) of each Class of Certificates affected thereby. For
purposes of this paragraph, references to "Holder" or "Holders" shall be
deemed to include, in the case of any Class of Book-Entry Certificates, the
related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish written notification of the substance of such
amendment to each Holder, the Depositor and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
Section 11.04 Voting Rights.
Except to the extent that the consent of all affected Certificateholders
is required pursuant to this Agreement, with respect to any provision of this
Agreement requiring the consent of Certificateholders representing specified
percentages of aggregate outstanding Certificate Balance or Class Notional
Amount (or Percentage Interest), Certificates owned by the Depositor, the
Master Servicer, the Securities Administrator, the Trustee, any Servicer or
any Affiliates thereof are not to be counted so long as such Certificates are
owned by the Depositor, the Master Servicer, the Securities Administrator, the
Trustee, any Servicer or any Affiliate thereof.
Section 11.05 Provision of Information.
(a) For so long as any of the Certificates of any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
(upon instruction from the Depositor) agree to cooperate with each other to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket
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expenses incurred by the Trustee, the Master Servicer or the Securities
Administrator in providing such information shall be reimbursed by the
Depositor.
(b) The Securities Administrator shall provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, a copy (excluding exhibits) of any report on
Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 6.20(b). Any reasonable out-of-pocket expenses incurred by
the Securities Administrator in providing copies of such documents shall be
reimbursed by the Depositor.
Section 11.06 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07 Notices.
All requests, demands, notices, authorizations, directions, consents,
waivers and communications hereunder shall be in writing and shall be deemed
to have been duly given when received by (a) in the case of the Depositor,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
telephone number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust
2004-6AR, (b) in the case of the Seller, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2004-6AR, (c) in the case of the Master Servicer
or the Securities Administrator, ▇▇▇▇▇ Fargo Bank, National Association, ▇.▇.
▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or, for overnight deliveries, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇), telecopy number (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2004-6AR, (d) with respect to
the Trustee or the Certificate Registrar, its respective Corporate Trust
Office, (e) in the case of WMMSC, 1201 Third Avenue, WMT 1706, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Servicing Compliance, with a copy to Washington
Mutual Legal Department, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: WMMSC, or such other address as may be hereafter furnished
in writing to the Depositor and the Trustee by WMMSC, and (f) in the case of
the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency, or as to each party such
other address as may hereafter be furnished by such party to the other parties
in writing. All demands, notices and communications to a party hereunder shall
be in writing and shall be deemed to have been duly given when delivered to
such party at the relevant address, facsimile number or electronic mail
address set forth above or at such other address, facsimile number or
electronic mail address as such party may designate from time to time by
written notice in accordance with this Section 11.07.
137
Section 11.08 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.09 Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of
any other right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be construed
as a waiver of such right, remedy, power or privilege with respect to any
other occurrence. No waiver shall be effective unless it is in writing and is
signed by the party asserted to have granted such waiver.
Section 11.10 Headings Not To Affect Interpretation.
The headings contained in this Agreement are for convenience of
reference only, and they shall not be used in the interpretation hereof.
Section 11.11 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates, any benefit or any
legal or equitable right, power, remedy or claim under this Agreement, except
to the extent specified in Section 11.15.
Section 11.12 Special Notices to the Rating Agencies.
(a) The Depositor shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any assignment by the Master Servicer of its rights hereunder
or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in Section
6.14;
(iv) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(v) the appointment of any successor to any Master Servicer
pursuant to Section 6.14;
138
(vi) the making of a final payment pursuant to Section 7.02; and
(vii) any termination of the rights and obligations of any
Servicer under the applicable Purchase and Servicing Agreement.
(b) All notices to the Rating Agencies provided for this Section shall
be in writing and sent by first class mail, telecopy or overnight courier, to
the address specified therefor in the definition corresponding to the name of
such Rating Agency.
(c) The Securities Administrator shall provide or make available to the
Rating Agencies reports prepared pursuant to Section 4.05. In addition, the
Securities Administrator shall, at the expense of the Trust Fund, make
available to each Rating Agency such information as such Rating Agency may
reasonably request regarding the Certificates or the Trust Fund, to the extent
that such information is reasonably available to the Securities Administrator.
(d) The Depositor hereby represents to S&P that, to the Depositor's
knowledge, the information provided to such Rating Agency, including the loan
level detail, is true and correct according to such Rating Agency's
requirements.
Section 11.13 Conflicts.
To the extent that the terms of this Agreement conflict with the terms
of any Purchase and Servicing Agreement, the related Purchase and Servicing
Agreement shall govern.
Section 11.14 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Section 11.15 No Petitions.
The Trustee and the Master Servicer (not in its individual corporate
capacity, but solely as Master Servicer hereunder), by entering into this
Agreement, hereby covenant and agree that they shall not at any time institute
against the Depositor, or join in any institution against the Depositor of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to this
Agreement or any of the documents entered into by the Depositor in connection
with the transactions contemplated by this Agreement, except that the Trustee
shall not be prohibited from filing a proof of claim in any such proceeding.
139
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers hereunto duly authorized as of the
day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.,
as Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Securities Administrator
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
WASHINGTON MUTUAL MORTGAGE SECURITIES
CORP.,
as a Servicer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Solely for purposes of Section 2.05
accepted and agreed to by:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President
2
EXHIBIT A
FORMS OF CERTIFICATES
A-1
EXHIBIT B
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and
says:
1. That he [she] is [title of officer] ________________________ of
[name of Purchaser] _________________________________________ (the
"Purchaser"), a _______________________ [description of type of
entity] duly organized and existing under the laws of the [State
of __________] [United States], on behalf of which he [she] makes
this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within
the meaning of Section 860E(e)(5) of the Internal Revenue Code of
1986, as amended (the "Code") and will not be a "disqualified
organization" as of [date of transfer], and that the Purchaser is
not acquiring a Residual Certificate (as defined in the
Agreement) for the account of, or as agent (including a broker,
nominee, or other middleman) for, any person or entity from which
it has not received an affidavit substantially in the form of
this affidavit. For these purposes, a "disqualified
organization" means the United States, any state or political
subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the
foregoing (other than an instrumentality if all of its activities
are subject to tax and a majority of its board of directors is
not selected by such governmental entity), any cooperative
organization furnishing electric energy or providing telephone
service to persons in rural areas as described in Code
Section 1381(a)(2)(C), any "electing large partnership" within
the meaning of Section 775 of the Code, or any organization
(other than a farmers' cooperative described in Code Section 521)
that is exempt from federal income tax unless such organization
is subject to the tax on unrelated business income imposed by
Code Section 511.
4. That the Purchaser either (x) is not, and on __________________
[date of transfer] will not be, an employee benefit plan or other
retirement arrangement subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Code ("Code"), (collectively, a "Plan") or a
person acting on behalf of any such Plan or investing the assets
of any such Plan to acquire a Residual Certificate; (y) is an
insurance company that is purchasing the Certificate with funds
contained in an "insurance company general account" as defined in
Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60 and the purchase and holding of the Certificate satisfy the
requirements for exemptive relief under Sections I and III of
▇▇▇▇
▇-▇
95-60; or (z) herewith delivers to the Certificate Registrar an
opinion of counsel satisfactory to the Certificate Registrar, and
upon which the Certificate Registrar, the Trustee, the Master
Servicer, the Depositor and Securities Administrator shall be
entitled to rely, to the effect that the purchase or holding of
such Residual Certificate by the Investor will not result in any
non-exempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate
Registrar, the Trustee, the Depositor, the Master Servicer or the
Securities Administrator to any obligation in addition to those
undertaken by such entities in the Pooling and Servicing
Agreement, which opinion of counsel shall not be an expense of the
Trust Fund or any of the above parties.
5. That the Purchaser hereby acknowledges that under the terms of
the Pooling and Servicing Agreement, dated as of July 1, 2004
(the "Agreement"), by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as
Depositor, ▇▇▇▇▇ Fargo Bank, National Association, as Master
Servicer and as Securities Administrator, Washington Mutual
Mortgage Securities Corp., as Servicer and Deutsche Bank National
Trust Company, as Trustee with respect to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Loan Trust 2004-6AR, Mortgage Pass-Through Certificates, no
transfer of the Residual Certificates shall be permitted to be
made to any person unless the Certificate Registrar has received
a certificate from such transferee containing the representations
in paragraphs 3 and 4 hereof.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such
securities through electronic book-entry changes in accounts of
participating organizations (such entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes
legally required to be paid with respect to such Residual
Certificate.
8. That the Purchaser will not transfer a Residual Certificate to
any person or entity (i) as to which the Purchaser has actual
knowledge that the requirements set forth in paragraph 3,
paragraph 6 or paragraph 10 hereof are not satisfied or that the
Purchaser has reason to believe does not satisfy the requirements
set forth in paragraph 7 hereof, and (ii) without obtaining from
the prospective Purchaser an affidavit substantially in this form
and providing to the Certificate Registrar a written statement
substantially in the form of Exhibit C to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of
any cash flows generated by the interest and that it intends to
pay taxes associated with holding such Residual Certificate as
they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in connection
with the conduct of a trade or business within the United States
and has furnished the transferor the Certificate Registrar
B-2
with an effective Internal Revenue Service Form W-8ECI
(Certificate of Foreign Person's Claim for Exemption From
Withholding on Income Effectively Connected With the Conduct of a
Trade or Business in the United States) or successor form at the
time and in the manner required by the Code or (iii) is a Non-U.S.
Person that has delivered to the transferor, the Trustee and the
Certificate Registrar an opinion of a nationally recognized tax
counsel to the effect that the transfer of such Residual
Certificate to it is in accordance with the requirements of the
Code and the regulations promulgated thereunder and that such
transfer of a Residual Certificate will not be disregarded for
federal income tax purposes. "Non-U.S. Person" means an
individual, corporation, partnership or other person other than
(i) a citizen or resident of the United States; (ii) a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any state thereof,
including for this purpose, the District of Columbia; (iii) an
estate that is subject to U.S. federal income tax regardless of
the source of its income; (iv) a trust if a court within the
United States is able to exercise primary supervision over the
administration of the trust and one or more United States trustees
have authority to control all substantial decisions of the trust;
and, (v) to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996 that are treated as United
States persons prior to such date and elect to continue to be
treated as United States persons.
11. The Purchaser will not cause income from the Residual Certificate
to be attributable to a foreign permanent establishment or fixed
base of the Purchaser or another U.S. taxpayer.
12. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such a
"disqualified organization," an agent thereof, a Book-Entry
Nominee, or a person that does not satisfy the requirements of
paragraph 7 and paragraph 10 hereof.
13. That the Purchaser consents to the designation of the Securities
Administrator to act as agent for the "tax matters person" of each
REMIC created by the Trust Fund pursuant to the Pooling and
Servicing Agreement.
B-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________ 20__.
---------------------------------
[name of Purchaser]
By:
--------------------------------
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________ 20__.
NOTARY PUBLIC
COUNTY OF
--------------------
STATE OF
---------------------
My commission expires the _____ day of __________ 20__.
B-4
EXHIBIT C
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
----------------------------
Date
Re: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2004-6AR
Mortgage Pass-Through Certificates
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
------------------------------------
Name:
Title:
C-1
EXHIBIT D
FORM OF CERTIFICATION OF ▇▇▇▇▇ FARGO AS MASTER SERVICER AND SECURITIES
ADMINISTRATOR
Re: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2004-6AR (the "Trust"), Mortgage
Pass-Through Certificates, Series 2004-6AR, issued pursuant to the
Pooling and Servicing Agreement, dated as of July 1, 2001 (the "Pooling
and Servicing Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as
depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, National Association, as
master servicer (the "Master Servicer") and as securities administrator
(the "Securities Administrator"), Washington Mutual Mortgage Securities
Corp. ("WMMSC"), as servicer, and Deutsche Bank National Trust Company,
as trustee
I, [identify the certifying individual], certify to the Depositor and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K ("Annual Report"), and
all reports on Form 8-K containing distribution reports (collectively
with the Annual Report, the "Reports") filed in respect of periods
included in the year covered by the Annual Report, of the Trust;
2. To the best of my knowledge, the information in the Reports, taken as a
whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by the Annual
Report;
3. To the best of my knowledge, the distribution or servicing information
required to be provided to the Trustee by the Securities Administrator
or the Master Servicer, as applicable, under the Pooling and Servicing
Agreement, for inclusion in the Reports is included in these Reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer and the Securities Administrator under the Pooling and
Servicing Agreement and the servicers other than WMMSC (the
"Servicers") under their respective purchase and servicing agreements
(the "Purchase and Servicing Agreements"), and to the best of my
knowledge and the annual compliance review required under the Purchase
and Servicing Agreements, and except as disclosed in the Reports, each
of the Master Servicer, the Securities Administrator and each Servicer
has fulfilled its respective obligations under the Pooling and
Servicing Agreement or the applicable Purchase and Servicing Agreement;
and
5. The Reports disclose all significant deficiencies relating to the
compliance by each of the Servicers with the minimum servicing standards
based upon the reports provided by independent public accountants, after
conducting a review in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure, as set forth in the
related Purchase and Servicing Agreement, that are included in the
Reports.
D-2
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the
Servicers.
By:
--------------------------------
Name:
Title:
Dated: ___________, ____
D-2
EXHIBIT E
LIST OF PURCHASE AND SERVICING AGREEMENTS
1. Mortgage Loan Sale and Servicing Agreement, dated as of May 1, 2004 between
Countrywide Home Loans, Inc., as seller, Countrywide Home Loans Servicing LP,
as servicer, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser;
2. First Amended and Restated Mortgage Loan Flow Purchase, Sale And Servicing
Agreement, dated as of March 1, 2004 among Cendant Mortgage Corporation, as a
seller and servicer, ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust, as a seller,
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser;
3. Amended and Restated Master Seller's Warranties and Servicing Agreement,
dated as of February 5, 2004 between National City Mortgage Co., as seller and
servicer, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser;
4. Mortgage Loan Sale and Servicing Agreement, dated as of September 1, 2003
between GreenPoint Mortgage Funding, Inc., as seller and servicer, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser;
5. First Amended and Restated Mortgage Loan Purchase and Warranties Agreement,
dated as of February 1, 2004 between U.S. Bank, N.A., as seller, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser;
6. Mortgage Loan Purchase and Warranties Agreement, dated as of April 1, 2004
between US Bank, N.A., as seller, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as
purchaser;
7. Servicing Agreement, dated as of April 1, 2004, between US Bank, N.A., as
servicer, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser;
8. Seller's Warranties and Servicing Agreement, dated as of April 1, 2004
among ▇▇▇▇▇ Fargo Bank, N.A. (successor by merger to ▇▇▇▇▇ Fargo Home
Mortgage, Inc.) as seller and servicer, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc., as purchaser;
9. Second Amended and Restated Master Mortgage Loan Purchase Agreement, dated
as of February 1, 2004 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Credit Corporation,
as seller, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser;
10. Amended and Restated Master Servicing Agreement, dated as of February 1,
2004 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Credit Corporation, as servicer, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.;
11. Servicing Agreement, dated as of May 14, 2004 between Washington Mutual
Mortgage Securities Corp., as servicer, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc.;
E-2
12. Servicing Agreement, dated as of May 29, 2003 between Option One Mortgage
Corporation, as servicer, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.,
as owner;
13. Mortgage Loan Purchase and Warranties Agreement, dated as of June 1, 2004
between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser, and Quicken Loans,
Inc., as seller;
14. Mortgage Loan Purchase and Warranties Agreement, dated as of February 1,
2004 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser, and RBMG,
INC., as seller;
15. Mortgage Loan Purchase and Warranties Agreement, dated as of November 1,
2003 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser, and American
Home Mortgage Holding Corp., as seller;
16. Servicing Rights Purchase and Servicing Agreement dated as of July 1, 2004
between Homeq Servicing Corporation, as servicer, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc., as purchaser.
F-1
EXHIBIT F
LIST OF CUSTODIAL AGREEMENTS
[to be revised]
1. Custodial Agreement dated as of April 1, 2004 between Countrywide Home
Loans, Inc., as seller, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser,
and Deutsche Bank Trust Company Americas, as custodian;
2. Custodial Agreement dated as of March 1, 2004 between Cendant Mortgage
Corporation and ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust, as a ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser, and Deutsche Bank Trust Company
Americas, as custodian;
3. Custodial Agreement dated as of September 25, 2003 between National City
Mortgage Co., as seller, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser,
and Deutsche Bank Trust Company Americas, as custodian;
4. Custodial Agreement dated as of November 4, 2003 between National City
Mortgage Co., as seller, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as purchaser,
and Deutsche Bank Trust Company Americas, as custodian;
5. Custodial Agreement dated as of September 1, 2003 between GreenPoint
Mortgage Funding, Inc., as seller, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as
purchaser, and Deutsche Bank Trust Company Americas, as custodian;
6. Custodial Agreement dated as of November 26, 2003 between U.S. Bank, N.A.,
as seller and interim servicer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as
purchaser, and Deutsche Bank Trust Company Americas, as custodian; [to be
updated]
7. Custodial Agreement dated as of May 1, 2004 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Credit Corporation, as seller and servicer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc., as purchaser, and Deutsche Bank National Trust Company, as
custodian.
8. Custodial Agreement, dated as of June 1, 2004 between Bank of America,
N.A., as seller and servicer, ▇▇▇▇▇ Fargo Bank, N.A. (successor by merger to
▇▇▇▇▇ Fargo Home Mortgage, Inc.), as seller and servicer, ▇▇▇▇▇ Fargo Bank,
N.A., as master servicer and securities administrator, Deutsche Bank National
Trust Company, as trustee and JPMorgan Chase Bank, as custodian.
F-1
EXHIBIT G
ASSIGNMENT AND NOTICE OF TRANSFER WITH RESPECT TO ADDITIONAL COLLATERAL
MORTGAGE LOANS
G-1
EXHIBIT H
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2004-6AR,
Mortgage Pass-Through Certificates
Reference is hereby made to the Pooling and Servicing Agreement, dated
as of July 1, 2004 (the "Pooling and Servicing Agreement"), by and among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as Depositor, ▇▇▇▇▇ Fargo Bank, National
Association, as Master Servicer and as Securities Administrator, Washington
Mutual Mortgage Securities Corp., as Servicer and Deutsche Bank National Trust
Company, as Trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to $__________ initial Certificate Balance of Class
_____ Certificates which are held in the form of Definitive Certificates
registered in the name of ______________ (the "Transferor"). The Transferor
has requested a transfer of such Definitive Certificates for Definitive
Certificates of such Class registered in the name of [insert name of
transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and the Certificates and (ii) Rule 144A under the
Securities Act to a purchaser that the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A purchasing for
its own account or for the account of a "qualified institutional buyer," which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Underwriter, the Certificate Registrar and the
Depositor.
------------------------------------
[Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ___________, ____
H-1
EXHIBIT I
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2004-6AR, Mortgage Pass-Through
Certificates (the "Privately Offered Certificates") of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital
I Inc. (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been, and
will not be, registered under the Securities Act of 1933, as amended
(the "Securities Act"), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we
should sell any Privately Offered Certificates within two years of the
later of the date of original issuance of the Privately Offered
Certificates or the last day on which such Privately Offered
Certificates are owned by the Depositor or any affiliate of the
Depositor we will do so only (A) to the Depositor, (B) to "qualified
institutional buyers" (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act
("QIBs"), (C) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act, or (D) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Certificate Registrar under the Pooling and Servicing
Agreement, dated as of July 1, 2004 (the "Pooling and Servicing
Agreement"), by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as Depositor,
▇▇▇▇▇ Fargo Bank, National Association, as Master Servicer and as
Securities Administrator, Washington Mutual Mortgage Securities Corp.,
as Servicer and Deutsche Bank National Trust Company, as Trustee, a
signed letter in the form of this letter; and we further agree, in the
capacities stated above, to provide to any person purchasing any of the
Privately Offered Certificates from us a notice advising such purchaser
that resales of the Privately Offered Certificates are restricted as
stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor,
we will be required to furnish to the Certificate Registrar a
certification from such transferee in the form hereof to confirm that
the proposed sale is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing effect.
I-1
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Privately Offered Certificates, and we and any account for which we are
acting are each able to bear the economic risk of such investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion.
(5) We have received such information as we deem necessary in order to make
our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that in
accordance with ERISA, the Code and the Exemption, no Plan and no person
acting on behalf of such a Plan may acquire such Certificate except in
accordance with Section 3.03(d) of the Pooling and Servicing Agreement.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Pooling and Servicing
Agreement.
I-2
You and the Certificate Registrar are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
------------------------------------
[Purchaser]
By:
--------------------------------
Name:
Title:
I-3
EXHIBIT J
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of ______________ (the
"Investor"), a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. The Investor either (x) is not, and on ___________ [date of transfer]
will not be, an employee benefit plan or other retirement arrangement subject
to Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), (collectively, a "Plan") or a person acting on behalf of
any such Plan or investing the assets of any such Plan; (y) if the Certificate
has been the subject of an ERISA-Qualifying Underwriting and is not a Class OC
Certificate, is an insurance company that is purchasing the Certificate with
funds contained in an "insurance company general account" as defined in
Section V(e) of Prohibited Transaction Class Exemption ("PTCE") 95-60 and the
purchase and holding of the Certificate satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60; or (z) herewith delivers to the
Certificate Registrar an opinion of counsel satisfactory to the Certificate
Registrar, and upon which the Certificate Registrar, the Trustee, the Master
Servicer, the Depositor and the Securities Administrator shall be entitled to
rely, to the effect that the purchase or holding of such Certificate by the
Investor will not constitute or result in any non-exempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code and will not
subject the Certificate Registrar, the Trustee, the Master Servicer, the
Depositor or the Securities Administrator to any obligation in addition to
those undertaken by such entities in the Pooling and Servicing Agreement,
which opinion of counsel shall not be an expense of the Trust Fund or the
above parties.
3. The Investor hereby acknowledges that under the terms of the Pooling
and Servicing Agreement, dated as of July 1, 2004 (the "Pooling and Servicing
Agreement"), by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as Depositor, ▇▇▇▇▇
Fargo Bank, National Association, as Master Servicer and as Securities
Administrator, Washington Mutual Mortgage Securities Corp., as Servicer and
Deutsche Bank National Trust Company, as Trustee, no transfer of the
ERISA-Restricted Certificates shall be permitted to be made to any person
unless the Certificate Registrar has received a certificate from such
transferee in the form hereof.
J-1
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________ 20___.
--------------------------------------
[Investor]
By:
--------------------------------
Name:
Title:
ATTEST:
------------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named ________________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Investor, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this _____ day of _________ 20___.
------------------------------------
NOTARY PUBLIC
My commission expires the
_____ day of __________ 20___.
J-2
EXHIBIT K
FORM OF LETTER OF REPRESENTATIONS
WITH THE DEPOSITORY TRUST COMPANY
[On File with Securities Administrator]
K-1
EXHIBIT L
INITIAL CERTIFICATION OF CUSTODIAN
[DATE]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Trust Administration-MS0406
RE: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2004-6AR,
Mortgage Pass-Through Certificates Series 2004-6AR
--------------------------------------------------
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
Pooling and Servicing Agreement, the undersigned, as Custodian on behalf of
the Trustee, hereby certifies that, except for the exceptions noted on the
schedule attached hereto, (a) all documents required to be delivered to the
Custodian on behalf of the Trustee pursuant to Sections 2.01(a)(i) through
(iv) and (b), (c), (d), (e) and (g), and if delivered to it, the documents
identified in Section 2.01(a)(v) through (viii) and (ix)(c) and (f) of the
Pooling and Servicing Agreement are in its possession, (b) 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,
(c) based on its examination and only as to the foregoing documents, these
documents with respect to each Mortgage Loan accurately reflects the
information contained in the Mortgage Note and Mortgage and (d) each Mortgage
Note has been endorsed and each assignment of Mortgage has been delivered as
provided in Section 2.01 of the Pooling and Servicing Agreement. The Custodian
has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically mentioned above. The Custodian
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents delivered in accordance
with Section 2.01 of the Pooling and Servicing Agreement or any of the
Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Custodian on behalf of 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 Depositor's right, title
and interest in and to the Mortgage Loans.
L-1
Capitalized terms used herein without definition shall have the meaning
assigned to them in the Pooling and Servicing Agreement.
[DEUTSCHE BANK NATIONAL TRUST COMPANY]
[JPMORGAN CHASE BANK],
as Custodian
By:
--------------------------------
Authorized Representative
L-2
EXHIBIT M
[RESERVED]
M-1
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[On File with the Trustee and the Securities Administrator]
SCHEDULE B
PRINCIPAL BALANCES SCHEDULE
[Not Applicable]