FEDERAL AGRICULTURAL MORTGAGE CORPORATION
GUARANTEED REMIC AGRICULTURAL MORTGAGE-BACKED
SECURITIES PROGRAM
FORM OF TRUST AGREEMENT
THIS TRUST AGREEMENT made, executed and published as of the first day of
June 1996, at Washington, D.C., among the Federal Agricultural Mortgage
Corporation (herein called "▇▇▇▇▇▇ Mac"), a federally chartered instrumentality
of the United States, ▇▇▇▇▇▇ Mac Mortgage Securities Corporation (herein called
"FMMSC"), a corporation organized and existing under the laws of the State of
Delaware, and First Trust National Association, a national banking association
(the "Trustee");
W I T N E S S E T H
WHEREAS, ▇▇▇▇▇▇ Mac is authorized pursuant to Title VIII of the Farm
Credit Act of 1971, as amended (the "Act"), to guarantee the timely payment of
principal and interest in respect of securities evidencing undivided beneficial
interests in trust funds comprised of agricultural mortgage loans conforming to
the Act ("Qualified Loans");
WHEREAS, FMMSC has purchased and intends to purchase
Qualified Loans;
WHEREAS, FMMSC intends to assemble groups of such Qualified Loans and to
transfer and assign the same to the Trustee in exchange for multiple classes of
securities evidencing beneficial ownership interests in the Qualified Loans in
the related trust fund or trust funds (each a "Trust Fund");
WHEREAS, ▇▇▇▇▇▇ Mac and FMMSC, by the execution and delivery of an Issue
Supplement hereto, will have elected to treat each Trust Fund created hereby and
thereby as a "real estate mortgage investment conduit" ("REMIC") within the
meaning of Section 860D of the Internal Revenue Code of 1986; and
WHEREAS, ▇▇▇▇▇▇ Mac intends to service the Qualified Loans held in each
such Trust Fund and, pursuant to the Act, to guarantee to the holders of
securities evidencing undivided beneficial interests in each such Trust Fund the
timely distribution of all amounts of principal and interest required to be
distributed thereon;
NOW, THEREFORE, the parties to this Trust Agreement, in the several
capacities hereinabove set forth, do hereby declare and establish this Trust
Agreement and do hereby undertake and otherwise agree as follows:
ARTICLE I
Defined Terms
Section 1.01. General Definitions. Whenever used in this
Trust Agreement, the following words and phrases shall have the
following meanings:
Act: Title VIII of the Farm Credit Act of 1971, as amended
(12 U.S.C. ss.2279aa).
Advance: As to any Distribution Date and Trust Fund, any amount advanced
with respect to such Distribution Date by the related Central Servicer or
Central Servicers as required by the applicable Servicing Contract.
Agreement: With respect to any Series, the collective
provisions of this Trust Agreement and the related Issue
Supplement.
Aggregate Certificate Principal Balance: The aggregate of
the Certificate Principal Balances of all Certificates of a
Series as of the date of determination.
Amounts Held for Future Distribution: With respect to any Series and
Distribution Date, the total of all amounts held in the Collection Account on
the preceding Certificate Account Deposit Date on account of (i) Principal
Prepayments, Liquidation Proceeds and REO Proceeds received subsequent to the
preceding Prepayment Period, (ii) Installment Payments due subsequent to the
preceding Due Date and (iii) if such Series is comprised of two or more Classes
having different Distribution Dates, all proceeds of the related Qualified Loans
for the Class or Classes as to which such Distribution Date is not a
Distribution Date.
Appraisal Standards: With respect to any Series, the
updated appraisal/reappraisal standards at the time of the
related Issue Supplement acceptable to ▇▇▇▇▇▇ Mac.
Appraised Value: The appraised value of a Mortgaged Property, which is the
appraised value based upon the appraisal conducted in accordance with the
Appraisal Standards.
Authorized Officer: The Chairman of the Board, the
President or any Vice President of ▇▇▇▇▇▇ Mac or FMMSC, as the
context requires.
Authorized Signatory: With respect to any Residual Certificate, any
individual authorized to execute or authenticate the same on behalf of the
Trustee in its capacity as trustee or, in the case of authentication, in its
capacity as Certificate Registrar.
Balloon Payment: With respect to any Qualified Loan that provides for the
principal portion of the Installment Payments due thereon based on an
amortization schedule more than one year longer than the remaining term to
stated maturity of such Qualified Loan, the principal amount due on the stated
maturity date of such Qualified Loan.
Balloon Qualified Loan: Any Qualified Loan having a Balloon
Payment.
Borrower: With respect to any Qualified Loan, the obligor
or obligors thereon.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a day on
which the Federal Reserve Bank of New York authorizes banking institutions in
the Second Federal Reserve District to be closed, (iii) a day on which banking
institutions in the State of Minnesota or New York are required or authorized by
law to be closed or (iv) a day on which the offices of ▇▇▇▇▇▇ Mac are closed.
Central Servicer: With respect to any Trust Fund, the Person or Persons
which shall at the time be directly servicing the Qualified Loans included
therein pursuant to a Servicing Contract.
Central Servicer Fee Rate: With respect to any Qualified Loan, a
percentage per annum rate (inclusive of any sub-servicer fee rate) specified in
or calculated as described in the related Issue Supplement.
Certificate: A Guaranteed REMIC Agricultural Mortgage-Backed Security, in
the case of all Certificates other than Residual Certificate, issued in
book-entry form and maintained in the name of a record owner as an entry on the
books of a Reserve Bank under a designation specifying the Series, Class and
denomination thereof; and in the case of a Residual Certificate, issued in fully
registered certificated form as provided in Article II hereof.
Certificate Account: As to any Series, the account created
and maintained pursuant to Section 5.01.
Certificate Account Deposit Date: With respect to a Series, the fifteenth
day of each month (or if such fifteenth day is not a Business Day, the Business
Day next succeeding such fifteenth day) beginning with the month following the
month of the Cut-Off Date.
Certificate Distribution Amount: With respect to a
particular Series and Distribution Date, the sum of
(a) all interest accrued on the then outstanding Certificates for the
Interest Accrual Period immediately preceding such Distribution Date
(other than interest accrued on any Class as to which such date is not a
Distribution Date);
(b) the Principal Distribution Amount for such
Distribution Date; and
(c) to the extent specified in the related Issue Supplement, all
Prepayment Premiums collected (as opposed to due) during the preceding
Prepayment Period.
Certificate Distribution Amount Determination Date: With respect to a
Series and Distribution Date, a date on or before the fifth Business Day during
the month of such Distribution Date.
Certificate Interest Rate: With respect to any Class,, the annual rate at
which interest accrues on the Certificates of such Class, as specified or
described in the related Issue Supplement.
Certificate Principal Balance: As to any Certificate (other than an
Interest Only Certificate) prior to the initial Distribution Date for the
related Trust Fund, the denomination thereof and, as to any Certificate
subsequent to such initial Distribution Date, the denomination thereof
multiplied by the applicable Certificate Principal Factor.
Certificate Principal Factor: As of any date of determination and as to
any Class of Certificates (other than an Interest Only Class), a fraction the
numerator of which is (i) the aggregate of the denominations of all Certificates
of such Class less (ii) the aggregate amount of all Principal Distribution
Amounts, if any, allocable thereto prior to such date of determination and the
denominator of which is the aggregate of the denominations of all Certificates
of such Class. As to any Interest Only Class, a fraction calculated in the
manner described in the related Issue Supplement.
Certificateholder or Holder: As to any Regular Certificate, the record
owner on the appropriate Reserve Bank's books. As to any Residual Certificate,
the registered owner in the Certificate Register maintained by the Certificate
Registrar pursuant to Section 3.03 hereto.
Certificate Registrar: With respect to any Series, the entity acting as
certificate registrar and transfer agent pursuant to Section 3.03 unless
otherwise specified in an Issue Supplement. The Certificate Registrar for the
related Series shall be the Trustee.
Class: With respect to any Series, all Certificates of such
Series with the same terms.
Class Certificate Principal Balance: With respect to any
Class at any time, the aggregate of the Certificate Principal
Balances of all Certificates of such Class.
Class Notional Principal Balance: With respect to any
Interest Only Class at any time, the aggregate of the Notional
Principal Balance of all Certificates of such Class.
Closing Date: As to any Series, the date specified in the
related Issue Supplement.
Code: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
Collection Account: As to any Series, the account created
and maintained pursuant to Section 4.05.
Corporate Trust Officer: The principal office of the Trustee, at which of
any particular time its corporate trust business shall be administered, which
office at the date of the execution of this Trust Agreement is
_____________________.
Curtailment: Either (i) any Principal Prepayment made by a Borrower that
is not a Principal Prepayment in Full, (ii) any amount deemed to be such in
connection with a substitution pursuant to Section 4.03, (iii) any REO Principal
Amortization Amount or (iv) any Insurance Proceeds or other recoveries that are
not Liquidation Proceeds and were applied to reduce the principal balance of the
related Qualified Loan.
Custodial Agreement: The agreement dated of even date herewith between the
Trustee, as custodian, and ▇▇▇▇▇▇ Mac, pursuant to which the Trustee acts as
custodian for the Required Documents on behalf of the related Trust Fund.
Cut-Off Date: As to any Series, the first day of the month
during which Certificates of such Series are initially issued.
Cut-Off Date Principal Balance: With respect to any Qualified Loan, the
unpaid principal balance thereof at the Cut-Off Date after giving effect to all
amounts payable on or prior thereto, whether or not paid. With respect to any
Substitute Qualified Loan the unpaid principal balance thereof at the date of
substitution thereof after giving effect to all amounts payable on or prior
thereto, whether or not paid.
Disqualified Organization: A disqualified organization as
defined in Section 860E(e)5 of the Code.
Distribution Date: As to any Class, the 25th day (or if such 25th day is
not a Business Day, the Business Day immediately following) of each month
specified in the related Issue Supplement as a month for a Distribution Date for
the Certificates of such Class.
Due Date: With respect to any Qualified Loan, each date upon which an
installment of interest and principal, if any, is due in accordance with the
amortization schedule initially applicable thereto.
Due Period: With respect to any Class and Distribution Date, the period
beginning immediately following the preceding Due Period (or immediately
following the Cut-Off Date in the case of the initial Distribution Date) and
ending on and including the Due Date in the month of such Distribution Date.
Eligible Depository: Any Reserve Bank, the Trustee or any other depository
institution or trust company approved in writing by an Authorized Officer of
▇▇▇▇▇▇ Mac incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal or state
banking authorities.
Eligible Investments: Any one or more of the following
obligations or securities:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, ▇▇▇▇▇▇ Mac, or any other agency or
instrumentality of the United States of America;
(ii) as to any Collection Account, any other obligation
or security specified in the related Servicing Contract; and
(iii)as to any Series, any other obligation or security
specified in the related Issue Supplement.
Event of Default: An event as described in Section 7.03.
▇▇▇▇▇▇ Mac: Federal Agricultural Mortgage Corporation, a
federally chartered instrumentality of the United States, or its
successor in interest or any successor appointed as herein
provided.
▇▇▇▇▇▇ Mac Guarantee: With respect to any Series, the guarantee
obligations of ▇▇▇▇▇▇ Mac with respect to the Certificates of such Series
pursuant to Section 5.05 hereof.
Final Distribution Date: As to any Class, the Distribution Date specified
in the related Issue Supplement as being the Distribution Date on or before
which the Certificate Principal Balance or, in the case of an Interest Only
Class, Notional Principal Balance of each Certificate within such Class shall
have been reduced to zero.
FMMSC: ▇▇▇▇▇▇ Mac Mortgage Securities Corporation, a
corporation organized and existing under the laws of the State of
Delaware, or its successor in interest.
Guarantee Fee: With respect to any Series, the fee payable
to ▇▇▇▇▇▇ Mac pursuant to Section 5.03 and calculated in the
manner described in the related Issue Supplement.
Guarantee Reimbursement Amount: With respect to any Trust Fund, the
excess, if any of amounts paid by ▇▇▇▇▇▇ Mac pursuant to Section 5.05 to Holders
of Certificates evidencing beneficial interests therein, over amounts received
by ▇▇▇▇▇▇ Mac (other than Guarantee Fees or other fees or expenses otherwise
payable to it) in reimbursement therefor.
Holders: With respect to any Trust Fund, all of the Holders
of Certificates evidencing beneficial ownership interests therein.
Installment Payment: As to any Qualified Loan (including any REO Qualified
Loan) and any Due Date, the payment of principal and/or interest due thereon in
accordance with the amortization schedule provided at the time applicable
thereto (after adjustment, if any, for any Curtailments occurring prior to such
Due Date but before any other adjustment to such amortization schedule by reason
of any bankruptcy or similar proceeding or any moratorium or similar waiver or
grace period).
Interest Accrual Period: With respect to any Class and
Distribution Date, the period prior thereto specified in the
related Issue Supplement.
Interest Only Certificate: Any Certificate evidencing all
or part of an Interest Only Class.
Interest Only Class: Any Class identified as such in the
related Issue Supplement.
Issue Supplement: An instrument executed by the parties hereto pursuant to
Section 2.01 which supplements this Trust Agreement and identifies and
establishes, among other things, a particular Trust Fund and a particular Series
of Certificates related to such Trust Fund.
Liquidated Qualified Loan: Any defaulted Qualified Loan as to which ▇▇▇▇▇▇
Mac has determined that all amounts it expects to recover from or on account of
such Qualified Loan have been recovered, provided, however, that a defaulted
Balloon Qualified Loan shall be deemed to be a Liquidated Qualified Loan in the
absence of any such determination on the second anniversary of the Due Date for
the related Balloon Payment.
Liquidation Expenses: Expenses incurred by or on behalf of ▇▇▇▇▇▇ Mac in
connection with the liquidation of any defaulted Qualified Loan, including,
without limitation, legal fees and expenses, brokerage commissions paid to third
parties, any premiums for hazard insurance policies maintained with respect to
any related REO Property, any fees to third parties hired to issue environment
reports with respect to or to manage any related REO Property and any related
and unreimbursed expenditures for real estate and conveyance taxes or for
property restoration or preservation.
Liquidation Proceeds: Cash received in connection with the liquidation of
defaulted Qualified Loans and REO Qualified Loans, whether through trustee's
sale, foreclosure sale or otherwise.
Loan Sale Agreement: The agreement between a Seller and ▇▇▇▇▇▇ Mac
pursuant to which the Seller conveys Qualified Loans to FMMSC and makes certain
representations and warranties to ▇▇▇▇▇▇ Mac, FMMSC, as ▇▇▇▇▇▇ Mac's designee,
and their respective successors and assigns.
Master Trustee Agreement: The agreement, as the same may be
amended from time to time, between ▇▇▇▇▇▇ Mac and the Trustee.
Mortgage Rate: As to any Qualified Loan, the per annum rate
of interest borne thereby.
Net Liquidation Proceeds: With respect to any Liquidated
Qualified Loan, Liquidation Proceeds net of Liquidation Expenses
not previously reimbursed out of REO Proceeds or otherwise.
Net Mortgage Rate: As to any Qualified Loan, the Mortgage
Rate borne thereby net of the Central Servicer Fee Rate.
Opinion of Counsel: A written opinion of counsel, who may
be counsel for ▇▇▇▇▇▇ Mac.
Officer's Certificate: A certificate signed by an
Authorized Officer of ▇▇▇▇▇▇ Mac or FMMSC, as the context
requires.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Qualified Loan which has not been previously
reimbursed to the Central Servicer and which, in the good faith judgment of the
Central Servicer, will not or, in the case of a proposed Advance, would not be
ultimately recoverable from future Borrower payments or from Net Liquidation
Proceeds, REO Proceeds or other recoveries in respect of the related Qualified
Loan. The determination by the Central Servicer that it has made a
Nonrecoverable Advance or that any proposed advance, if made, would constitute a
Nonrecoverable Advance shall be evidenced by a written notification by the
Central Servicer delivered to the Trustee, with a copy to ▇▇▇▇▇▇ Mac, stating
(i) the amount of such Nonrecoverable Advance and (ii) that the Central Servicer
has determined in good faith that such advance is or would be a Nonrecoverable
Advance in accordance with the terms hereof.
Non-United States Person: Any person that is not a United
States Person.
Notional Principal Balance: As to any Interest Only Certificate prior to
the initial Distribution Date therefor, the denomination thereof, and as to any
Interest Only Certificate subsequent to such initial Distribution Date, the
denomination thereof multiplied by the then applicable Certificate Principal
Factor.
Participation Certificate: An instrument evidencing an
interest in one or more Qualified Loans.
Permitted Transferee: Any Transferee of a Residual
Certificate, other than a Disqualified Organization or Non-United
States Person.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Prepayment Period: With respect to any Class and Distribution Date, the
period beginning immediately following the preceding Prepayment Period (or
immediately following the calendar month next preceding the Cut-Off Date in the
case of the initial Distribution Date) and ending on the last day of the
calendar month next preceding the month of such Distribution Date.
Prepayment Premium: With respect to any Qualified Loan, any premium or
yield maintenance payment paid or payable, as the context requires, by the
related Borrower in connection with any Principal Prepayment.
Principal Distribution Amount: With respect to a particular
Class and Distribution Date, the sum of
(a) all Curtailments received with respect to the
Related Qualified Loans during the previous Prepayment
Period;
(b) the Scheduled Principal Balance of each Related Qualified Loan
which was the subject of a Principal Prepayment in Full during the
preceding Prepayment Period or which became a Liquidated Qualified Loan
during such preceding Prepayment Period;
(c) the principal component of each Installment Payment due in
respect of each Related Qualified Loan during the preceding Due Period
(other than any Balloon Payment); and
(d) if such Distribution Date is a Final Distribution Date for a
Class, any amount by which the Class Certificate Principal Balance
therefor would be greater than zero after distribution in accordance with
the applicable priorities of the amounts specified in (a) - (c) above.
With respect to a particular Special Distribution Date, the amount allocable to
principal which is distributed by ▇▇▇▇▇▇ Mac under the circumstances and subject
to the conditions set forth in Section 5.06 and the related Issue Supplement.
Principal Prepayment: Any payment or other recovery of principal on a
Qualified Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount as to interest representing scheduled interest due on
any date or dates in any period subsequent to the Prepayment Period in which
such prepayment occurs.
Principal Prepayment in Full: Any payment received on a Qualified Loan
that is in excess of the installment of principal and interest due thereon in an
amount sufficient to pay the entire principal balance of such Qualified Loan.
Purchase Price: As to any Qualified Loan, the unpaid principal balance
thereof together with accrued and unpaid interest thereon at the Net Mortgage
Rate to the Due Date next preceding the Distribution Date upon which the net
proceeds of such Purchase Price are to be distributed to Certificateholders.
Qualified Loan: With respect to any Trust Fund, any
mortgage loan included therein.
Qualified Loan Schedule: With respect to any Trust Fund,
the loan file set-up portion of the ▇▇▇▇▇▇ Mac tape
specifications attached as Schedule I hereto.
Record Date: As to any Distribution Date, the last day of
the month next preceding the month of such Distribution Date.
Regular Certificate: Any Certificate other than a Residual
Certificate.
Related Qualified Loan: With respect to any Class included in a Series
comprised of two or more Classes, any Qualified Loan identified in the related
Qualified Loan Schedule as pertaining to such Class.
REMIC Administrator: With respect to a Trust Fund, the entity identified
as such in the related Issue Supplement.
REMIC: A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
86OG of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Principal Amortization Amount: With respect to any REO Qualified Loan
and Prepayment Period, any amount, as determined by ▇▇▇▇▇▇ Mac, by which
aggregate related REO Proceeds received during a Prepayment Period are in excess
of interest that would have accrued during such period on the related REO
Qualified Loan and expenses payable in respect of such REO Property during such
Prepayment Period.
REO Proceeds: Proceeds, other than Liquidation Proceeds, received in
respect of any REO Qualified Loan (including, without limitation, proceeds from
the rental of the related Mortgaged Property).
REO Property: Any Mortgaged Property that has been acquired by a Trust
Fund by foreclosure, deed-in-lieu of foreclosure or otherwise.
REO Qualified Loan: Any Qualified Loan (whether or not the related
indebtedness has been extinguished) that is not a Liquidated Qualified Loan and
as to which the related Mortgaged Property is held as part of the Trust Fund.
Required Documents: As to each Qualified Loan (other than a
Qualified Loan represented by a Participation Certificate) the
documents specified in Section 2.05.
Reserve Bank: Any Federal Reserve Bank, including its
branches.
Responsible Officer: When used with respect to the Trustee, any officer of
the Trustee, including any Chairman or any President, any Vice President, any
Assistant Vice President, any Assistant Treasurer, any Trust Officer, any
Assistant Secretary or any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers and also, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
Residual Certificate: The Certificate or Certificates comprising the Class
designated in the related Issue Supplement as the sole "residual interest" in
the Trust Fund for purposes of the REMIC Provisions.
Scheduled Principal Balance: As to any Qualified Loan and any Distribution
Date, the principal balance of such Qualified Loan as of the beginning of the
related Due Period, as specified in the amortization schedule at the time
relating thereto (after adjustment, if any, for Curtailments occurring prior to
the related Prepayment Period but before any other adjustment to such
amortization schedule by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period), after giving effect to the
payment of principal due prior to such Due Period whether or not received from
the related Borrower (other than any Balloon Payment).
Seller: Any entity that sold Qualified Loans to FMMSC and
that is identified as a Seller in the Qualified Loan Schedule.
Series: A separate series of Certificates issued pursuant
to this Agreement and the related Issue Supplement.
Servicing Contract: The agreement between ▇▇▇▇▇▇ Mac and any Central
Servicer relating to the direct servicing by such Central Servicer of Qualified
Loans for a particular Trust Fund.
Special Distribution Date: Any date on which ▇▇▇▇▇▇ Mac elects or is
required to make a distribution under the circumstances and subject to the
conditions set forth in Section 5.06 and the related Issue Supplement, any such
date for a Series being the 25th day (or if such 25th day is not a Business Day,
the Business Day immediately following) of any month (other than any month in
which a Distribution Date for the related Class occurs).
Special Record Date: As to any Special Distribution Date, the date as of
which Certificateholders entitled to a special distribution are determined, any
such date being the last day of the month next preceding the month of such
Special Distribution Date.
Substitute Qualified Loan: Any loan substituted for a
defective Qualified Loan pursuant to Section 4.03.
Transfer Agent: With respect to any Series, the entity
acting as Certificate Registrar under the related Agreement.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of a Trust Fund due to its classification as a REMIC under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
Trust Agreement: This Trust Agreement, dated as of June 1, 1996, by and
among the Trustee, ▇▇▇▇▇▇ Mac and FMMSC, as the same is originally executed, or
as modified, amended or supplemented in accordance with the applicable
provisions hereof.
Trust Fund: As to any particular Series of Certificates, the corpus of the
trust created by this Trust Agreement and the Issue Supplement applicable
thereto, consisting of (a) the Qualified Loans and all proceeds thereof, (b) the
Collection Account, the Certificate Account and all cash and investments held
therein and (c) the ▇▇▇▇▇▇ Mac Guarantee applicable to the related Certificates
pursuant to Section 5.05.
Trustee: First Trust National Association, a national
banking association, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income is includible in gross income for United States federal
income tax purposes regardless of its connection with the conduct of a trade or
business within the United States.
ARTICLE II
Applicable Documentation; Conveying of Qualified Loans
Section 2.01. Issue Supplement. An Issue Supplement establishing a Trust
Fund and creating the Certificates evidencing beneficial ownership interests
therein shall be executed by the Trustee, ▇▇▇▇▇▇ Mac and FMMSC.
Each Issue Supplement shall identify and relate to a particular Series of
Certificates evidencing beneficial ownership interests in the related Trust
Fund. ▇▇▇▇▇▇ Mac shall prepare and maintain for each such Trust Fund a Qualified
Loan Schedule conforming, except as set forth in such Issue Supplement, to the
definition thereof in Article I hereof.
Section 2.02. Issue Supplement and Trust Agreement. With respect to each
Trust Fund established by an Issue Supplement and the related Certificates, the
collective terms of this Trust Agreement and such Issue Supplement shall govern
the issuance and administration of all Certificates related to such Trust Fund,
and all matters related thereto, and shall have no applicability to any other
Trust Fund or Certificates. As applied to each Trust Fund established by an
Issue Supplement, and the related Certificates, the collective terms of such
instruments shall constitute an agreement relating exclusively to such Trust
Fund and Certificates to like effect as if the collective terms of all such
instruments were set forth in a separate instrument, duly executed and delivered
by the respective signatories to this Trust Agreement.
Section 2.03. Authorized Officers. The manual or facsimile signature of
any individual appearing on an Issue Supplement, designated as the signature of
an Authorized Officer of ▇▇▇▇▇▇ Mac or FMMSC, shall constitute conclusive
evidence that such individual is, in fact, authorized by ▇▇▇▇▇▇ Mac or FMMSC, as
the case may be, to execute such Issue Supplement, notwithstanding that such
authorization may have lapsed prior to the effective date of such Issue
Supplement.
Section 2.04. Delivery of Instruments. The Trustee shall furnish to each
Certificateholder, upon request, copies of this Trust Agreement and the related
Issue Supplement, without attachments, applicable to the Certificate or
Certificates held by such Holder.
Section 2.05. Conveyance of Qualified Loans. (a) Concurrently with the
execution and delivery of an Issue Supplement, FMMSC shall transfer, assign, set
over and otherwise convey to the Trustee, on behalf of Holders of Certificates
evidencing beneficial interests therein, all of FMMSC's right, title and
interest in and to the Qualified Loans identified in the attached Qualified Loan
Schedule, including all payments of principal and interest thereon received
after the respective date or dates on which the Cut-Off Date Principal Balance
was determined (other than payments permitted to be retained by FMMSC by the
terms hereof, including payments of principal and interest due on or before the
Cut-Off Date). In connection with any such conveyance, ▇▇▇▇▇▇ Mac shall be
deemed to have assigned to the Trustee for the benefit of Certificateholders all
of ▇▇▇▇▇▇ Mac's rights under each applicable Loan Sale Agreement, including, but
not limited to, the right to enforce the representations and warranties therein
against the related Seller.
(b) In connection with any such transfer (other than pursuant to a
Participation Certificate) of a Qualified Loan, FMMSC shall cause to be
delivered to the Trustee:
(i) The related Mortgage Note endorsed to the order of "First Trust
National Association, as Custodian/Trustee" by the Seller thereof,
together with such other related documents as shall be specified in the
Custodial Agreement. In the case of Qualified Loans evidenced by a
Participation Certificate, FMMSC shall denote on the face of such
Participation Certificate that it has been assigned to the Trustee for the
exclusive benefit of Holders of Certificates evidencing beneficial
interests in the related Trust Fund;
(ii) The Mortgage with evidence of recording indicated thereon or, if
(x) the public recording office retains the original of the Mortgage or
(y) the Trustee receives a certificate executed by two officers of the
Seller certifying that the original of the Mortgage is lost, missing or
destroyed, a copy of the Mortgage certified by the public recording office
in which such Mortgage has been recorded to be a true and complete copy of
the original Mortgage;
(iii)A copy of the original assignment in the form "First Trust
National Association, as Custodian/Trustee" which assignment or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if
permitted by law and accompanied by an Opinion of Counsel to that effect
(a copy of such blanket assignment to be delivered in each applicable loan
file) and any intervening assignments in original recorded form evidencing
an unbroken chain of assignments from the initial assignor to the Trustee.
If the assignment is not complete due to the lack of necessary recording
information for insertion in the assignment as of the applicable Closing
Date, the original assignment will be retained by FMMSC until such time as
the necessary information becomes available, at which time FMMSC shall
promptly complete, or cause the Seller to complete, the Assignment and
forward, or cause the Seller to forward, it to the appropriate office for
recordation. Upon completion of recordation, FMMSC will forward the
original documents (or cause the original documents to be forwarded) to
the Trustee;
(iv) Evidence of title to the Mortgaged Property (either in the form
of an original opinion from an attorney or firm of attorneys or an
original or certified copy of a lender's title insurance policy or binding
title insurance commitment issued by a title insurance company); and
(v) Either (1) the original of each modification agreement and each
assumption agreement, if any, relating to such Qualified Loan or, if (x)
the public recording office retains the original of the modification or
assumption agreement or (y) the Trustee receives a certificate executed by
two officers of the Seller certifying that the original of the
modification or assumption agreement is lost, missing or destroyed, a copy
of the modification (with respect to the Mortgage) or assumption agreement
certified by the public recording office in which such Mortgage was
recorded to be a true and complete copy of the original modification or
assumption agreement, or (2) a signed statement of the Seller that there
is no modification agreement or assumption agreement relating to such
Qualified Loan (such statement may be part of a list of Qualified Loans as
to which no modification agreement or assumption agreement exists).
Section 2.06. Review and Certification of Required Documents and
Safekeeping of Documents. The Trustee shall review the completeness of the
Required Documents, certify as to such review as provided in the Custodial
Agreement and otherwise conform to the applicable provisions of the Custodial
Agreement.
ARTICLE III
Regular Certificates; Residual Certificates
Section 3.01. Certificates Issuable in Series and Classes; General
Provisions with Respect to Principal and Interest Distributions. Each Series of
Certificates shall be divided into two or more Classes and shall be designated
generally as Guaranteed REMIC Agricultural Mortgage-Backed Securities, with such
particular designations added or incorporated in such title for the Certificates
of any particular Series or Class as shall be specified in the related Issue
Supplement. One Class of each such Series shall be designated in the applicable
Issue Supplement as the "Residual Interest" in the related Trust Fund for
purposes of the REMIC Provisions.
The aggregate amount of principal of and interest distributable on the
Certificates of any Series on any Distribution Date shall be equal to the
Certificate Distribution Amount for such Series on such Distribution Date with
the principal component of such amount being equal to the related Principal
Distribution Amount. Distributions of any such Principal Distribution Amount
shall be made in such amounts as among Classes of Certificates, and subject to
such other conditions, as are provided in the Issue Supplement with respect to
such Series. All distributions of such Principal Distribution Amount for any
such Distribution Date which are made with respect to a particular Class of
Certificates shall be made pro rata among all Certificates of such Class in
proportion to their respective principal denominations, with no preference or
priority of any kind. All distributions made with respect to any Certificate on
any Distribution Date shall be applied first to the interest, if any,
distributable thereon on such Distribution Date and then to the principal, if
any, thereof. All computations of interest accrued on any Certificate shall be
made as if each year consisted of twelve months of thirty days each.
Interest accrued on any Certificate of a Series during any Interest
Accrual Period shall be distributable on the following Distribution Date for
such Series at the Certificate Interest Rate applicable to such Certificate
applied to the Certificate Principal Balance or, in the case of an Interest Only
Certificate, the Notional Principal Balance thereof.
Section 3.02. Issuance of Regular Certificates. The Certificates of any
Series shall be issued in book-entry form and shall be maintained in the names
of the record owners thereof as entries on the books of a Reserve Bank. The
Regular Certificates of any Series shall be in such authorized denominations as
shall be specified in the applicable Issue Supplement and may be transferred or
pledged in accordance with and subject to then applicable regulations governing
▇▇▇▇▇▇ Mac's use of the book-entry system (as the same shall be in effect at the
time of any such transfer or pledge), Federal Reserve Bank of New York Operating
Circulars 21 and 21A and procedures that are followed generally for book-entry
securities.
If an Issue Supplement for a Series so provides, the Regular Certificates
comprising a Series or the Regular Certificates comprising a Class or Classes of
Certificates of such Series may be issued in definitive or temporary form.
Certificates issued in such form shall be subject to the provisions of the
related Issue Supplement, including, without limitation, provisions regarding
denominations, registration, transfer, exchange, and, if applicable, conversion
to book-entry form.
Section 3.03. Execution, Authentication, Availability and Dating of the
Residual Certificates. The Residual Certificates of a Series shall be definitive
Certificates substantially in the form set forth in an exhibit to the related
Issue Supplement and shall be executed by an Authorized Signatory of the Trustee
under its corporate seal which may be in facsimile form and be imprinted or
otherwise reproduced thereon. The signature of any Authorized Signatory on a
Residual Certificate may be manual or facsimile.
A Residual Certificate bearing the manual or facsimile signature of an
individual who was at any time an Authorized Signatory shall be binding,
notwithstanding that such individual may have ceased to hold the relevant office
or title prior to the authentication and delivery of such Certificate or did not
hold such relevant office or title at the date of authentication and delivery of
such Certificate.
No Residual Certificate shall be entitled to any benefit under an
Agreement or be valid for any purpose, unless there appears on such Residual
Certificate a certificate of authentication substantially in the form provided
for herein, executed by the Certificate Registrar by the manual or facsimile
signature of an Authorized Signatory, and such certificate upon any Residual
Certificate shall be conclusive evidence, and the only evidence, that such
Residual Certificate has been duly authenticated and made available hereunder.
Each Residual Certificate shall be dated the date of its authentication.
Section 3.04. Registration and Registration of Transfer of Residual
Certificates. (a) The Trustee shall cause to be kept to the Corporate Trust
Office which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of the Residual Certificates and the
registration of transfers of the Residual Certificates. Unless otherwise
provided in an Issue Supplement for a Series, the Trustee shall act as
Certificate Registrar and Transfer Agent for the purpose of registration of the
Residual Certificates of such Series and transfers thereof, as provided herein.
Upon any resignation of any Certificate Registrar or Transfer Agent, ▇▇▇▇▇▇ Mac
shall promptly appoint a successor or, in the absence of such appointment,
assume the duties of Certificate Registrar or Transfer Agent, as the case may
be.
(b) Upon surrender for registration of transfer of any Residual
Certificate in accordance with this Section 3.04 at the Corporate Trust Office,
the Trustee shall execute, and the Certificate Registrar shall authenticate and
make available, in the name of the designated transferee, one or more new
Residual Certificates of the appropriate Class and aggregate denomination. A
Residual Certificate presented or surrendered for registration of transfer shall
(if so required by the Trustee or the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in form satisfactory
to the Certificate Registrar duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing, and shall be accompanied by such
other documents as the Trustee may require.
(c) Any purported transfer of record or beneficial ownership, direct
or indirect (whether pursuant to a purchase, a default under a secured lending
agreement or otherwise), to a Disqualified Organization of any Residual
Certificate, or any beneficial interest therein, shall be void and of no effect.
In no event shall the Certificate Registrar accept surrender for transfer,
registration of transfer, or register the transfer of any Residual Certificate
nor authenticate and make available any new Residual Certificate unless the
Certificate Registrar has received a properly executed United States Internal
Revenue Service Form W-9 together with an affidavit from the proposed transferee
in the form attached to the related Issue Supplement. The foregoing restrictions
that are applicable to prevent the transfer of a Residual Certificate to a
Disqualified Organization shall cease to have any further effect (and the
applicable portions of the legend to the Residual Certificate may be deleted) in
the event that the Trustee determines, upon the advice of its tax counsel, that
such restrictions are not necessary to preclude the imposition of a tax on the
Trust Fund or upon the transferor of a Residual Certificate, or to maintain the
qualification of each Trust Fund as a REMIC and, as a result of such
determination, each related Agreement is amended to declare such restrictions to
be of no further effect.
(d) Under the REMIC Provisions, any purported transfer to a U.S.
Person of record or beneficial ownership, direct or indirect (whether pursuant
to a purchase, a default under a secured lending agreement or otherwise), of a
Residual Certificate that is a "noneconomic residual interest" within the
meaning of the REMIC Provisions for the purpose of avoiding or impeding the
assessment or collection of tax shall be disregarded for all U.S. federal tax
purposes. The affidavit required to be supplied by each transferee of a Residual
Certificate pursuant to Section 3.04(c) also shall contain a statement that no
purpose of the transfer of the Residual Certificate is to avoid or impede the
assessment or collection of tax, that the proposed transferee understands that
it may incur tax liabilities in excess of any cash flows generated by a Residual
Certificate and that it intends to pay taxes associated with holding a Residual
Certificate as they become due.
(e) Any purported transfer of record or beneficial ownership, direct
or indirect (whether pursuant to a purchase, a default under a secured lending
agreement or otherwise), to a person that is not a U.S. Person, of any Residual
Certificate, or any beneficial interest therein, shall be void and of no effect.
The foregoing restriction shall cease to have any effect with respect to a
transfer of a Residual Certificate to a person that is not a U.S. Person only if
the Trustee has consented to such transfer expressly in writing.
(f) A Residual Certificate issued upon any registration of transfer
thereof shall be entitled to the same benefits under the related Agreement as
the Residual Certificate surrendered upon such registration of transfer.
(g) A service charge in an amount determined by the Trustee (such
amount being based on a service charge schedule on file in the Corporate Trust
Office of the Certificate Registrar and in the office of the Corporate Secretary
of ▇▇▇▇▇▇ Mac) shall be made for any registration of transfer of a Residual
Certificate, and the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer of a Residual Certificate, other than exchanges
pursuant to Section 3.05 hereof not involving any transfer.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Residual Certificates.
If (i) any mutilated Residual Certificate is surrendered to the Trustee or the
Certificate Registrar or (ii) the Trustee receives evidence to its satisfaction
of the destruction, loss or theft of any Residual Certificate, and there is
delivered to the Trustee such security or indemnity as may be required by it to
save it harmless, then, in the absence of notice to the Trustee that such
Residual Certificate has been acquired by a bona fide purchaser, the Trustee
shall execute and the Certificate Registrar shall authenticate and make
available, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Residual Certificate, a new Certificate of the appropriate Class. Upon
the issuance of any new Residual Certificate under this Section 3.05, the
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Registrar)
connected therewith. Any duplicate Residual Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership in
the Trust Fund as if originally issued, whether or not the lost or stolen
Residual Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners of Residual Certificates. Prior to due
presentation of a Residual Certificate for registration of transfer, ▇▇▇▇▇▇ Mac,
the Trustee, the Certificate Registrar and any agent of ▇▇▇▇▇▇ Mac or the
Trustee may treat the person in whose name the Residual Certificate is
registered as the owner of the Residual Certificate for the purpose of receiving
distributions, if any, pursuant hereto and for all other purposes whatsoever,
and neither ▇▇▇▇▇▇ Mac nor the Trustee, the Certificate Registrar or any agent
of ▇▇▇▇▇▇ Mac or the Trustee shall be affected by notice to the contrary.
Section 3.07. Reference in the Residual Certificates to Supplemental
Agreements. A Residual Certificate authenticated and made available after the
execution of any Supplemental Agreement pursuant to Article X of this Trust
Agreement may, and if required by the Trustee shall, bear a notation as to any
matter provided for in such Supplemental Agreement. If the Trustee shall so
determine, new Residual Certificates so modified as to conform, in the opinion
of the Trustee, to any such Supplemental Agreement may be prepared and executed
by the Trustee and authenticated and made available by the Certificate Registrar
in exchange for the outstanding Residual Certificates, as applicable.
Section 3.08. Amendment Relating to Transfers to Disqualified
Organizations. ▇▇▇▇▇▇ Mac, FMMSC and the Trustee may, without the consent of any
Holders of the Certificates, upon notice to the Holders of the Residual
Certificates, notwithstanding any provisions hereof to the contrary, amend this
Trust Agreement in such manner as they may choose; provided, however, that any
such amendment shall be limited to such matters as, in the judgment of the
parties hereto, based upon the written advice of tax counsel, are reasonably
necessary (i) to ensure that the record ownership of, or any beneficial interest
in, any Residual Certificate is not transferred, directly or indirectly, to a
Disqualified Organization; and (ii) to provide for a means to compel the
transfer of any Residual Certificate which is held by a Disqualified
Organization.
ARTICLE IV
Servicing of Qualified Loans
Section 4.01. General. ▇▇▇▇▇▇ Mac shall service the Qualified Loans
comprising each Trust Fund, and shall have full power and authority to do or
cause to be done any and all things in connection therewith as it may deem
necessary or appropriate in its sole discretion; provided, however, that ▇▇▇▇▇▇
Mac shall have no authority to sell or hypothecate, or, subject to Section 4.03,
make any substitution for any Qualified Loan.
▇▇▇▇▇▇ Mac in its discretion shall foreclose upon or otherwise comparably
convert the ownership of the Mortgaged Property securing any Qualified Loan as
to which a default occurs. To the extent consistent with then-current policies
of ▇▇▇▇▇▇ Mac or customary practices in the agricultural real estate mortgage
servicing industry, ▇▇▇▇▇▇ Mac in its discretion may enforce or waive
enforcement of any of the terms of any Qualified Loan or enter into an agreement
for the modification of any of the terms of any Qualified Loan (other than,
except as may be required by terms of the Mortgage Note, a reduction in the
Mortgage Interest Rate), or take any action or refrain from taking any action in
servicing any Qualified Loan. In such connection, ▇▇▇▇▇▇ Mac may waive, except
as may be provided in the related Issue Supplement, any Prepayment Premium,
assumption fee or late payment charge.
Although ▇▇▇▇▇▇ Mac will conduct such servicing through the facilities of
Central Servicers pursuant to Servicing Contracts it shall not thereby be
released from any of its duties or responsibilities hereunder or under the
applicable Issue Supplement.
Any Servicing Contract and any other transactions or services relating to
the Qualified Loans involving a Central Servicer shall be deemed to be between
the Central Servicer and ▇▇▇▇▇▇ Mac alone and the Trustee and Certificateholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to any Central Servicer.
Section 4.02. Transfers of Mortgaged Property. In connection with the
transfer, or prospective transfer, of title to a Mortgaged Property, ▇▇▇▇▇▇ Mac
may, but shall not be required to, accelerate the maturity of the related
Qualified Loan where such Qualified Loan contains a due-on-sale clause
permitting acceleration under such a circumstance. In the event that, for any
reason, ▇▇▇▇▇▇ Mac does not accelerate the maturity of a Qualified Loan upon the
transfer, or prospective transfer of title to the underlying Mortgaged Property,
▇▇▇▇▇▇ Mac may enter into a transaction by which the obligor is released from
liability on the related Qualified Loan and the transferee assumes such
liability; provided, however, that no such transaction shall provide for
reduction of the Mortgage Interest Rate or, to the extent adverse to the
interests of Certificateholders, provide for a change in any interest rate
adjustment provision or provision governing the calculation of scheduled
payments.
Section 4.03. Optional Purchase of Delinquent Qualified Loans or Mortgaged
Property; Substitution or Repurchase of Defective Qualified Loans. ▇▇▇▇▇▇ Mac
shall have the right and option, without obligation and in its discretion, to
purchase from the related Trust Fund, upon payment of the Purchase Price, any
Qualified Loan at any time after such Qualified Loan becomes and remains
delinquent in the payment of any Installment Payment or portion thereof for a
period of ninety days. ▇▇▇▇▇▇ Mac shall likewise have the right and option,
without obligation and in its discretion, to purchase from the related Trust
Fund, upon payment of the Purchase Price, any REO Property received in
connection with the foreclosure or comparable conversion of any Qualified Loan.
▇▇▇▇▇▇ Mac may, in the case of a breach of warranty by a Seller of any
Qualified Loan or a defect in documentation, (i) purchase, or cause the related
Seller to purchase, at the Purchase Price such Qualified Loan from the Trust
Fund or (ii) substitute, or cause the related Seller to substitute, an
additional Qualified Loan or Qualified Loans for such Qualified Loan as long as
any such substitution takes place within two years of the original issuance of
Certificates evidencing beneficial interests in the related Trust Fund and
otherwise conforms to the REMIC Provisions. Any Substitute Qualified Loan shall
(i) have a Cut-Off Date Principal Balance which is not greater than the
Scheduled Principal Balance of the replaced defective Qualified Loan (the amount
of any difference being deemed to be a Curtailment), (ii) have an original final
maturity not later than the original final maturity of any Qualified Loan in the
Trust Fund and not earlier than two years prior to the original final maturity
of the related replaced defective Qualified Loan, (iii) have a Mortgage Interest
Rate which, on the date of substitution, is not less than the interest rate
borne by the replaced defective Qualified Loan; (iv) have similar Due Dates as
the replaced defective Qualified Loan; and (v) conform to such other criteria
for Substitute Mortgage Loans as shall be set forth in the related Issue
Supplement. In connection with any such substitution, ▇▇▇▇▇▇ Mac shall amend the
Qualified Loan Schedule to reflect the withdrawal of the replaced defective
Qualified Loan and the assignment to the Trustee of the Substitute Qualified
Loan. If the Trustee's interest in a replaced defective Qualified Loan is
evidenced by a Participation Certificate, the assignment to the Trustee of the
Substitute Qualified Loan may be evidenced by a Participation Certificate.
Section 4.04. Servicing Compensation; Payment of Certain Expenses by
▇▇▇▇▇▇ Mac. As compensation for its activities and obligations hereunder, ▇▇▇▇▇▇
Mac or any Central Servicer acting on its behalf shall be entitled to retain
such amounts as shall be specified herein and in the related Issue Supplement.
▇▇▇▇▇▇ Mac shall pay the Trustee's fee and all other expenses incurred by it
hereunder in connection with its servicing activities and shall, except for
Liquidation Expenses and any such other reimbursable expenses as may be set
forth in the related Issue Supplement, not be entitled to reimbursement
therefor.
Unless otherwise provided in the applicable Issue Supplement, additional
servicing compensation in the form of Prepayment Premiums, assumption fees, late
payment charges or otherwise shall be retained by ▇▇▇▇▇▇ Mac or, to the extent
provided in the related Servicing Contract, by the related Central Servicer.
Section 4.05. Collection of Certain Qualified Loan Payments; Collection
Account. ▇▇▇▇▇▇ Mac shall require the Central Servicer in the related Servicing
Contract to establish and maintain a Collection Account (which Collection
Account may be the Collection Account for one or more Trust Funds) with an
Eligible Depository in the name of the Central Servicer in which the Central
Servicer shall deposit upon receipt on a daily basis, except as otherwise
specifically provided herein or in the related Issue Supplement, the following
payments and collections received by it subsequent to the Cut-Off Date (other
than in respect of principal and interest on the Qualified Loans due on or
before the Cut-Off Date):
(i) All payments on account of principal on the
Qualified Loans;
(ii) All payments on account of interest on the Qualified Loans
adjusted, in each case, to interest at the applicable Net Mortgage Rate;
(iii)Net Liquidation Proceeds, REO Proceeds (net of any related
expenses) and Insurance Proceeds (other than Insurance Proceeds to be
applied to the restoration or repair of the related Mortgaged Property or
released to the Borrower in accordance with the Central Servicer's normal
servicing procedures) net of any amounts permitted to be withheld by the
Central Servicer as servicing compensation pursuant to the Servicing
Contract or permitted to be paid to the Central Servicer pursuant to such
Servicing Contract;
(iv) Any Advance by the Central Servicer pursuant to the related
Servicing Contract (except that any such Advance made on the related
Qualified Loan shall be deposited directly into the related Certificate
Account on the Certificate Account Deposit Date in the month of the
related Distribution Date); and
(v) Any other amounts of the nature specified in the related
Servicing Contract or Issue Supplement.
The foregoing requirements for deposit in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments on the Qualified Loans that are not part of the Trust
Fund (including payments in respect of principal and interest on the Qualified
Loans due on or before the Cut-Off Date) and, unless otherwise specified in the
related Issue Supplement or Servicing Contract, payments or collections in the
nature of Prepayment Premiums, late payment charges or assumption fees may but
need not be deposited by the Central Servicer in the Collection Account. In the
event the Central Servicer shall deposit in the Collection Account any amount
not required to be deposited therein, it may at any time withdraw such amount
from the Collection Account, any provision herein to the contrary
notwithstanding.
All amounts held in the Collection Account may be invested by the Central
Servicer in Eligible Investments maturing prior to the applicable Certificate
Account Deposit Date.
Section 4.06. Permitted Withdrawals from the Collection Account. The
Central Servicer may, from time to time as provided herein, make withdrawals
from the Collection Account for the following purposes:
(i) to reimburse itself for previously unreimbursed Advances, the
Central Servicer's right to withdraw amounts pursuant to this clause (i)
being limited to amounts received on particular Qualified Loans which
represent late recoveries of Installment Payments respecting which any
such Advance was made;
(ii) to reimburse itself for any Nonrecoverable Advance, and to pay
to itself or to any other person or entity designated in the related
Servicing Contract any income from Eligible Investments in the Collection
Account;
(iii)to pay to ▇▇▇▇▇▇ Mac on or before each Certificate Account
Deposit Date for deposit in the Certificate Account all amounts at the
time held in the Collection Account other than amounts held therein which
consist of Amounts held for Future Distribution;
(iv) to pay to ▇▇▇▇▇▇ Mac on a daily basis any amounts held in the
Collection Account which are allocable to a Certificate Distribution
Amount and which were delinquent as of the Certificate Account Deposit
Date next preceding the related Distribution Date and were not represented
by any related Advance; and
(v) to withdraw such other amounts for such other purposes as shall
be specified in the related Issue Supplement, Servicing Contract or Loan
Sale Agreement.
ARTICLE V
Certificate Account; Distributions; ▇▇▇▇▇▇ Mac Guarantee
Section 5.01. Certificate Account. On or before the issuance of a Series
of Certificates, ▇▇▇▇▇▇ Mac shall either (i) open with an Eligible Depository
one or more trust accounts in the name of the Trustee applicable to the related
Trust Fund that shall collectively be the "Certificate Account" or (ii) in lieu
of maintaining any such account or accounts, maintain the Certificate Account
for the related Trust Fund by means of appropriate entries on its books and
records designating all amounts credited thereto in respect of the related
Qualified Loans as being held by it for the benefit of the Holders of
Certificates evidencing beneficial ownership of such Trust Fund. To the extent
that the Certificate Account for any Trust Fund is maintained by ▇▇▇▇▇▇ Mac in
the manner provided in clause (ii) above, all references herein to deposits and
withdrawals from the Certificate Account shall be deemed to refer to credits and
debits to the related books of ▇▇▇▇▇▇ Mac.
▇▇▇▇▇▇ Mac shall deposit in the Certificate Account all amounts remitted
to it by the Central Servicer representing withdrawals from the Collection
Account pursuant to Section 4.05, together with the Purchase Price for each
Qualified Loan or REO Property purchased pursuant to Section 4.03. ▇▇▇▇▇▇ Mac
shall also deposit in the Certificate Account the amount of any Curtailments in
connection with any Substitute Qualified Loans as described in Section 4.03. All
amounts deposited by ▇▇▇▇▇▇ Mac from time to time in a Certificate Account for a
Trust Fund, and all investments made with such moneys, including all income or
other gain from such investments, shall be held by ▇▇▇▇▇▇ Mac in the Certificate
Account as part of the Trust Fund as herein provided, subject to withdrawal by
▇▇▇▇▇▇ Mac for the purposes set forth in Section 5.03.
All or a portion of amounts on deposit in a Certificate Account shall be
invested and reinvested by ▇▇▇▇▇▇ Mac in one or more Eligible Investments
bearing interest or sold at a discount. No such investment shall mature later
than the Business Day immediately preceding the next applicable Distribution
Date except that (i) if ▇▇▇▇▇▇ Mac shall have determined to make a special
distribution on the related Series of Certificates pursuant to Section 5.06, no
such Eligible Investment purchased subsequent to such determination shall mature
subsequent to the Business Day next preceding such Special Distribution Date and
(ii) any investment on which the Eligible Depository, in its commercial
capacity, or ▇▇▇▇▇▇ Mac is the obligor, may mature on the related Distribution
Date or Special Distribution Date, as the case may be. No Eligible Investment
may be sold while in the Certificate Account except to the extent that (i)
▇▇▇▇▇▇ Mac believes that a sale of an Eligible Investment is desirable because
of the possibility of a default by the obligor thereon or (ii) ▇▇▇▇▇▇ Mac has
determined to make a special distribution on the related Series of Certificates
and amounts will not be on deposit in the Certificate Account on the related
Special Distribution Date sufficient to make the special distribution to be made
thereon, in which case Eligible Investments may be sold in the smallest amount
practicable to cure any such insufficiency.
Section 5.02. Calculation of Certificate Distribution Amount; Publication
of Certificate Principal Factors. On or before each Certificate Distribution
Amount Determination Date for a Series, ▇▇▇▇▇▇ Mac shall calculate the
Certificate Distribution Amount for the following Distribution Date. Immediately
following each such calculation, ▇▇▇▇▇▇ Mac shall notify the Trustee in writing
as to the amount so calculated and the allocation thereof as between principal
and interest. As soon as practicable thereafter, ▇▇▇▇▇▇ Mac shall make available
generally to financial publications or electronic services the Certificate
Principal Factor (carried to eight decimal places) for each Class of
Certificates after giving effect to the distribution of the Principal
Distribution Amount on the following Distribution Date.
Section 5.03. Withdrawals from the Certificate Account. Amounts on deposit
in the Certificate Account on the Distribution Date for a Series shall be
withdrawn by ▇▇▇▇▇▇ Mac, in the amounts required, to the extent funds are
available therefor, for application as follows:
first, towards the distribution to Certificateholders of the
Certificate Distribution Amount for such Distribution Date;
second, to the payment of any Guarantee Reimbursement Amount;
third, to the payment of any portion of the Guarantee Fee for such
Distribution Date or any prior Distribution Date which has not otherwise been
paid; and
fourth, to the payment to ▇▇▇▇▇▇ Mac of any amounts remaining in the
Certificate Account after the withdrawals referred to in clauses first through
third above any such amounts being deemed to be payable to ▇▇▇▇▇▇ Mac as
compensation for its servicing activities hereunder and to the reimbursement of
expenses incurred by it in connection herewith.
In addition, on any Special Distribution Date for a Series ▇▇▇▇▇▇ Mac
shall withdraw from the related Certificate Account such amount as it shall have
determined to distribute to Certificateholders on such Special Distribution
Date.
Section 5.04. Distributions on Certificates. On each Distribution Date for
a Series, ▇▇▇▇▇▇ Mac shall withdraw from the Certificate Account for such
Series, to the extent of funds available therefor, the Certificate Distribution
Amount for such Distribution Date previously calculated by it pursuant to
Section 5.02. In the event that the Certificate Distribution Amount may not be
paid from amounts in the Certificate Account, ▇▇▇▇▇▇ Mac shall, pursuant to its
guarantee obligations set forth in Section 5.05 hereof, provide from its own
funds the amount of any insufficiency and shall distribute in Federal Funds to
each Certificateholder of record on the preceding Record Date the amount
distributable on such Certificateholder's Certificate(s) as determined pursuant
to Section 3.01. Concurrently therewith, in the event the Certificate Account
shall not be maintained with the Trustee, ▇▇▇▇▇▇ Mac shall furnish to the
Trustee an Officer's Certificate (which may also relate to other Series
comprised of Classes having a similar Distribution Date) to the effect that
distribution of the Certificate Distribution Amount for such Series and
Distribution Date has been made by it.
As promptly as practicable following each Certificate Account Deposit Date
in the month of a Distribution Date, ▇▇▇▇▇▇ Mac shall, in the event the amount
on deposit in the Certificate Account shall be less than the Certificate
Distribution Amount for such Distribution Date, provide to the Trustee an
Officer's Certificate stating (i) the amount of such insufficiency, (ii) whether
▇▇▇▇▇▇ Mac is certain that funds will be available to it on such Distribution
Date in an amount sufficient to cure such insufficiency without the necessity of
borrowing from the United States Treasury and (iii) in the event that the
response to (ii) is in the negative, attaching to such Officer's Certificate a
copy of the certification furnished to the Secretary of the Treasury requesting
that funds in the necessary amount be made available to ▇▇▇▇▇▇ Mac on or before
such Distribution Date for purposes of satisfying its guarantee obligations in
respect of the related Series of Certificates.
Section 5.05. ▇▇▇▇▇▇ Mac Guarantee. ▇▇▇▇▇▇ Mac agrees to pay to the
Holders of Certificates of each Series on each Distribution Date therefor the
entire Certificate Distribution Amount for such Distribution Date irrespective
of whether amounts on deposit in the related Certificate Account shall be
sufficient therefor, any insufficiency being provided by ▇▇▇▇▇▇ Mac from its own
funds whether internally generated, borrowed from the United States Treasury or
otherwise available.
▇▇▇▇▇▇ Mac's obligations hereunder shall inure to the benefit of and shall
be enforceable by any Holder of a Certificate through the Trustee (or
individually by any such Holder in the event the Trustee shall have failed to
make prompt demand upon ▇▇▇▇▇▇ Mac after due notification from any such Holder)
if, for any reason beyond the control of such Holder, such Holder shall have
failed to receive on any Distribution Date such Holder's interest in the
Certificate Distribution Amount for such Distribution Date. ▇▇▇▇▇▇ Mac hereby
agrees that its obligations hereunder shall be unconditional, irrespective of
the validity, legality or enforceability of, or any change in or amendment to,
this Agreement, or any breach with respect to any Guarantee Fee payable to
▇▇▇▇▇▇ Mac in consideration of its guarantee, the absence of any action to
enforce the same, the waiver or consent by the Holder of any Certificate or by
the Trustee with respect to any provisions of this Agreement, or any action to
enforce the same or any other circumstance that might otherwise constitute a
legal or equitable discharge or defense of a guarantor. ▇▇▇▇▇▇ Mac hereby waives
diligence, presentment, demand of payment, protest or notice with respect to
each Certificate or the interest represented thereby, and all demands
whatsoever, and covenants that this guarantee will not be discharged except upon
complete irrevocable payment of the principal and interest obligations
represented by the Certificates.
▇▇▇▇▇▇ Mac shall be subrogated to all rights of the Holders of
Certificates of any Series against the related Trust Fund and the proceeds of
the Trust Fund in respect of any amounts paid by ▇▇▇▇▇▇ Mac pursuant to the
provisions of its guarantee; provided, however, that ▇▇▇▇▇▇ Mac's entitlement
thereto on any Distribution Date shall be limited to the amount, if any, of any
Guarantee Reimbursement Amount and shall be further subject to the priorities
set forth in Section 5.03 hereof.
No reference herein shall alter or impair the guarantee of ▇▇▇▇▇▇ Mac,
which is absolute and unconditional, of the due and punctual distribution to
Holders of Certificates of each Series on each Distribution Date of the
Certificate Distribution Amount therefor.
The ▇▇▇▇▇▇ Mac Guarantee is not an obligation of, and is not guaranteed as
to principal or interest by the Farm Credit Administration, the United States or
any other agency or instrumentality of the United States (other than ▇▇▇▇▇▇
Mac).
Section 5.06. Special Distributions. To the extent specified in the Issue
Supplement for a Series, ▇▇▇▇▇▇ Mac may elect to make, or, if so specified,
shall be required to make under circumstances described in such Issue Supplement
a special distribution with respect to such Series on a Special Distribution
Date selected by it.
All payments of principal pursuant to any special distribution shall be
made in the same priority and manner as distributions of principal on any
Distribution Date. Any such special distribution shall be made to the Holders of
Certificates of the applicable Class or Classes as of the Special Record Date
pertaining thereto and shall include accrued interest at the applicable
Certificate Interest Rate or Certificate Interest Rates on the principal amount
so distributed to the Special Distribution Date or to such earlier date as shall
be specified in the related Issue Supplement.
As soon as practicable after ▇▇▇▇▇▇ Mac has determined to make a special
distribution as provided in this Section 5.06, ▇▇▇▇▇▇ Mac will make available
generally to financial publications or electronic services notice of such
special distribution which shall include the Special Record Date and Special
Distribution Date applicable thereto, and the Certificate Principal Factor for
each Class of such Series after giving effect to such special distribution on
the related Special Distribution Date.
ARTICLE VI
Limitation of Liability
Section 6.01. General Limitation. ▇▇▇▇▇▇ Mac and FMMSC shall be liable
under the terms of the Certificates, this Trust Agreement and any related Issue
Supplement only to the extent of faithful performance of the duties and
responsibilities imposed by the terms of this Trust Agreement and any related
Issue Supplement.
Section 6.02. Measure of Liability. Neither ▇▇▇▇▇▇ Mac nor FMMSC nor any
of their respective directors, officers, employees or agents shall be under any
liability for any action taken or for refraining from the taking of any action
in good faith pursuant to the terms of this Trust Agreement and any related
Issue Supplement, or for errors in judgment; provided, however, that this
provision shall not protect ▇▇▇▇▇▇ Mac or FMMSC or any such person against any
liability for action or inaction by reason of willful misfeasance, bad faith or
gross negligence, or by reason of willful disregard of obligations and duties.
Neither ▇▇▇▇▇▇ Mac nor FMMSC shall have any obligation to appear in,
prosecute or defend any legal action which is not incidental to their respective
duties under this Trust Agreement and any related Issue Supplement and which in
their opinion may involve either of them in expense or liability; provided,
however, that either ▇▇▇▇▇▇ Mac or FMMSC in their discretion may undertake any
such legal action which they may deem necessary or desirable in the interests of
Holders of Certificates.
In the event that either ▇▇▇▇▇▇ Mac or FMMSC in their discretion so
determine to undertake any such legal action, the party taking such action for
its own account shall pay and defray the expense of any such action, including
attorneys' fees. Such expense resulting from any such legal action shall be
reimbursable only to the extent amounts are available for withdrawals from the
Certificate Account pursuant to clause fourth of Section 5.03.
ARTICLE VII
▇▇▇▇▇▇ Mac
Section 7.01. Resignation. ▇▇▇▇▇▇ Mac shall not resign
from the duties imposed upon it by the terms of this Trust
Agreement and any Issue Supplement.
Section 7.02. Merger or Consolidation. Any corporation or other entity
into which ▇▇▇▇▇▇ Mac is merged or consolidated, or any corporation or other
entity resulting from any merger, conversion or consolidation to which ▇▇▇▇▇▇
Mac shall be a party, or any corporation or other entity succeeding to the
business of ▇▇▇▇▇▇ Mac, shall succeed to and assume all duties imposed upon
▇▇▇▇▇▇ Mac by the terms of this Trust Agreement and all Issue Supplements,
without the filing of any instrument or the performance of any further act by
▇▇▇▇▇▇ Mac or any Certificateholder. ▇▇▇▇▇▇ Mac promptly shall furnish written
notice of such succession to all Certificateholders.
Section 7.03. Succession Upon Default. With respect to any
Trust Fund, each of the following events shall constitute an
Event of Default by ▇▇▇▇▇▇ Mac:
(a) any failure by ▇▇▇▇▇▇ Mac to distribute to Holders of
Certificates of any Class in such Trust Fund any distribution required to
be made under the terms of this Trust Agreement and the related Issue
Supplement (including, for this purpose, pursuant to the ▇▇▇▇▇▇ Mac
Guarantee) which continues unremedied for a period of five days after the
date upon which written notice of such failure, requiring the same to be
remedied, shall have been given to ▇▇▇▇▇▇ Mac by the Trustee or to ▇▇▇▇▇▇
Mac and the Trustee by the Holders of Certificates of such Class having
Certificate Principal Balances or Notional Principal Balances aggregating
not less than 5% of the aggregate of the Certificate Principal Balances or
Notional Principal Balances of all of the Certificates of such Class; or
(b) failure on the part of ▇▇▇▇▇▇ Mac duly to observe or perform in
any material respect any other of the covenants or agreements on the part
of ▇▇▇▇▇▇ Mac in this Trust Agreement and the related Issue Supplement
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 ▇▇▇▇▇▇ Mac and the Trustee by the Holders of
Certificates of any Class in the related Trust Fund having Certificate
Principal Balances or Notional Principal Balances aggregating not less
than 25% of the aggregate of the Certificate Principal Balances or
Notional Principal Balances of all of the Certificates of such Class; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
▇▇▇▇▇▇ Mac and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(d) ▇▇▇▇▇▇ Mac shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings relating to
▇▇▇▇▇▇ Mac or to all or substantially all of its property; or
(e) ▇▇▇▇▇▇ Mac shall admit in writing its inability to pay its debts
generally as they become due, file a petition to invoke any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its obligations.
With respect to any Trust Fund, upon the occurrence of an Event of
Default, and so long as such Event of Default shall not have been remedied, the
Trustee or the Holders of Certificates of any Class in the related Trust Fund
having Certificate Principal Balances or Notional Principal Balances aggregating
not less than 25% of the aggregate of the Certificate Principal Balances or
Notional Principal Balances of all of the Certificates of such Class may (a)
terminate all obligations and duties imposed upon ▇▇▇▇▇▇ Mac (other than its
obligations under the ▇▇▇▇▇▇ Mac Guarantee pursuant to Section 5.05) under this
Trust Agreement and the related Issue Supplement, and (b) name and appoint a
successor or successors to succeed to and assume all of such obligations and
duties. Such actions shall be effected by notice in writing to ▇▇▇▇▇▇ Mac and
shall become effective upon receipt of such notice by ▇▇▇▇▇▇ Mac and the
acceptance of such appointment by such successor or successors.
On and after the receipt by ▇▇▇▇▇▇ Mac of such written notice and the
acceptance by the successor or successors to ▇▇▇▇▇▇ Mac, all obligations (other
than its continuing obligations under the ▇▇▇▇▇▇ Mac Guarantee) and duties
imposed upon ▇▇▇▇▇▇ Mac under this Trust Agreement and the related Issue
Supplement shall pass to and vest in the successor or successors named in the
notice, and such successor or successors shall be authorized, and hereby are
authorized, to take all such action and execute and deliver all such instruments
and documents on behalf of ▇▇▇▇▇▇ Mac, as attorney in fact or otherwise, as may
be necessary and appropriate to effect the purposes of such written notice.
Section 7.04. ▇▇▇▇▇▇ Mac as Holder. ▇▇▇▇▇▇ Mac shall have the right to
purchase and hold for its own account any Certificate issued pursuant to the
terms of this Trust Agreement and any Issue Supplement, notwithstanding the
rights and duties conferred and imposed upon ▇▇▇▇▇▇ Mac by this Trust Agreement
and any such applicable Issue Supplement. In determining whether the Holders of
the requisite amount of Certificates have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, any Certificate
evidencing a beneficial ownership interest in the related Trust Fund held by
▇▇▇▇▇▇ Mac shall be disregarded and deemed not to be outstanding.
ARTICLE VIII
Concerning the Trustee
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Default occurs and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent investor would
exercise or use under the circumstances in the conduct of such investor's own
affairs. Any permissive right of the Trustee contained in this Agreement shall
not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee shall take action as it deems appropriate to have the instrument
corrected and if the instrument is not corrected to the Trustee's satisfaction,
the Trustee will provide notice thereof to the Certificateholders.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default that may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii)The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of ▇▇▇▇▇▇ Mac as to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement; and
(iv) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) For all purposes of this Agreement, the Trustee shall not be
deemed to have knowledge of any Event of Default or event that, with notice or
lapse of time, or both, would become an Event of Default, unless a Responsible
Officer of the Trustee shall have received written notice thereof from the
Central Servicer or ▇▇▇▇▇▇ Mac or a Responsible Officer of the Trustee shall
have actual knowledge thereof, and in the absence of such written notice or
knowledge no provision hereof requiring the taking of any action or the
assumption of any duties or responsibility by the Trustee following the
occurrence of any Event of Default or event which, with notice or lapse of time,
or both, would become an Event of Default, shall be effective as to the Trustee.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document prima facie in
proper form and believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) The Trustee may consult with counsel (including counsel for
▇▇▇▇▇▇ Mac), and any opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such Opinion of Counsel;
(iii)The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Certificateholders or
▇▇▇▇▇▇ Mac, pursuant to the provisions of this Agreement, unless such
Certificateholders or ▇▇▇▇▇▇ Mac shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
been cured), to exercise such of the rights and powers vested in it
by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in
writing so to do by ▇▇▇▇▇▇ Mac or by the Holders of Certificates of
the related series evidencing not less than 25% of the Aggregate
Certificate Principal Balance (together with the total of all Class
Notional Principal Balances if such Series includes one or more
Interest Only Classes); provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity against
such expense or liability as a condition to so proceeding. The
reasonable expense of every such investigation shall be paid by
▇▇▇▇▇▇ Mac; and
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys.
(b) It is understood and agreed that, in exercising any right to
direct the Trustee in the performance of its duties under this Agreement prior
to the occurrence of an Event of Default and after the curing of all Events of
Default, ▇▇▇▇▇▇ Mac shall be acting for the benefit of the Certificateholders of
the related Series; provided, that nothing in this Agreement shall be construed
to require ▇▇▇▇▇▇ Mac to exercise any such right or to impose any liability on
▇▇▇▇▇▇ Mac for its election, in its sole discretion, in any instance to exercise
or to refrain from exercising any such right. No failure by ▇▇▇▇▇▇ Mac to
exercise such right in any instance shall be deemed a waiver of such right in
any other instance. The Trustee shall be entitled to rely on any such direction
rendered to it by ▇▇▇▇▇▇ Mac without inquiry as to the propriety or validity
thereof, and shall be protected in acting on such direction.
Section 8.03. Trustee Not Liable for Certificates or Qualified Loans.
Except as otherwise expressly provided herein, the Trustee shall not be
accountable for the use or application by the Central Servicer or ▇▇▇▇▇▇ Mac of
any funds paid to the Central Servicer or ▇▇▇▇▇▇ Mac, in respect of the
Qualified Loans or deposited in or withdrawn from the Collection Account or the
Certificate Account by the Central Servicer or ▇▇▇▇▇▇ Mac, as the case may be.
The Trustee makes no representations or warranties as to the validity or
sufficiency of the Certificates or of any Qualified Loan or related document,
except that the Trustee represents that this Agreement has been duly authorized,
executed and delivered by it and, assuming due execution and delivery by the
other parties hereto, constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (i) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally, and (ii) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law.
Section 8.04. Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates of any
series with the same rights it would have if it were not Trustee.
Section 8.05. Indemnification of the Trustee. Each Trust Fund shall
indemnify the Trustee in its individual capacity and as Trustee and any
director, officer, employee or agent of the Trustee in its individual capacity
and as Trustee for, and hold them harmless against, any loss or liability
incurred by any of them without negligence or bad faith on the part of the
Trustee in its individual capacity and as Trustee or any such director, officer,
employee or agent of the Trustee in its individual capacity and as Trustee and
arising out of or in connection with the acceptance or administration of the
trusts created herewith, including the costs and expenses of defending the
Trustee in its individual capacity and as Trustee or any such director, officer,
employee or agent of the Trustee in its individual capacity and as Trustee
against any claim or liability incurred by any of them in connection with the
exercise or performance of any of their powers or duties hereunder, but not
including any expenses incurred in the ordinary course of performing the
Trustee's duties as set forth herein.
Section 8.06. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation having its principal office in a state and
city acceptable to ▇▇▇▇▇▇ Mac and organized and doing business under the laws of
such state or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation 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 shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.07.
Section 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to ▇▇▇▇▇▇ Mac. Upon
receiving such notice of resignation, ▇▇▇▇▇▇ Mac shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 90 days after giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by ▇▇▇▇▇▇ Mac or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
▇▇▇▇▇▇ Mac may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee and ▇▇▇▇▇▇ Mac shall
give written notice thereof to the Central Servicer. Notwithstanding the
foregoing, any liability of the Trustee under this Agreement arising prior to
such termination shall survive such termination.
(c) ▇▇▇▇▇▇ Mac may at any time remove the Trustee solely pursuant to
the Master Trustee Agreement and appoint a successor trustee by written
instrument or instruments within 90 days of such predecessor Trustee's removal.
If no successor trustee shall have been so appointed and have accepted
appointment within 90 days after the giving of such notice of removal, the
predecessor trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08 but in no event shall become effective until a successor has been
appointed and has accepted the duties of the Trustee.
Section 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to ▇▇▇▇▇▇ Mac and to its predecessor trustee an
instrument accepting such appointment hereunder, and the successor trustee shall
secure an Opinion of Counsel (which shall be an expense of such successor
trustee) to the effect that, to the extent that the Trust Fund is exempt from
Federal income taxation, the Trust Fund is not subject to state and local
taxation in the jurisdiction where the successor trustee is located, whereupon
the resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall execute and deliver such instruments and
do such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers, duties
and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06.
Section 8.09. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible under the provisions of
Section 8.06, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located,
▇▇▇▇▇▇ Mac and the Trustee acting jointly shall have the power to execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee or co-trustees, jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of the related Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to such Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as ▇▇▇▇▇▇ Mac and the
Trustee may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder. Except as specifically provided in the
first sentence of this paragraph, the Trustee shall have no other rights to
appoint a co-trustee.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, 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 or co-trustee at the direction of the
Trustee.
(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 and co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee and co-trustee may, at any time constitute
the Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Controlling Provisions. In the event of any
conflict between the provisions of the Master Trustee Agreement
and this Agreement, the provisions of this Agreement shall be
deemed controlling.
Section 8.12. Trustee Fees. As compensation for its services hereunder,
the Trustee shall be entitled to receive from ▇▇▇▇▇▇ Mac fees at such times, and
in such amounts, as shall be specified for the related Trust Fund in the Master
Trustee Agreement. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust.
ARTICLE IX
Termination
Section 9.01. Termination Upon Repurchase by ▇▇▇▇▇▇ Mac of All Qualified
Loans. The respective obligations and responsibilities of ▇▇▇▇▇▇ Mac created
hereby and by an Issue Supplement shall terminate as to the related Trust Fund
upon the distribution by ▇▇▇▇▇▇ Mac to all Holders of Certificates evidencing
beneficial ownership interests in such Trust Fund of all amounts required to be
distributed hereunder and thereunder upon (i) the repurchase by ▇▇▇▇▇▇ Mac of
all Qualified Loans and REO Property remaining in the related Trust Fund at a
price computed in the manner specified in the related Issue Supplement, (ii) the
final payment of the last Qualified Loan and/or REO Property remaining in the
related Trust Fund; or (iii) distribution by ▇▇▇▇▇▇ Mac pursuant to the ▇▇▇▇▇▇
Mac Guarantee on the Final Distribution Date for the latest maturing Class of
the Related Series of an amount sufficient to reduce the Class Certificate
Principal Balance of such Class to zero; provided, however, that in no event
shall any trust created hereby and by the related Issue Supplement continue
beyond the expiration of 21 years from the death of the survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States of
America to the Court of St. ▇▇▇▇▇', living on the Cut-Off Date of the related
Series of Certificates.
The right of ▇▇▇▇▇▇ Mac to repurchase all Qualified Loans and REO Property
in a Trust Fund pursuant to (i) above shall be subject to such conditions as
shall be set forth in the related Issue Supplement. Any such repurchase shall
take place on a Distribution Date, and the proceeds of any such repurchase shall
be distributed to Holders of Certificates on such Distribution Date in the
respective proportions specified in the related Issue Supplement.
In connection with any such termination, ▇▇▇▇▇▇ Mac shall make available
to financial publications notice for the benefit of Holders of Certificates in
the related Trust Fund to the effect that the final distribution will be made on
the Distribution Date therein specified to Certificateholders of record on the
applicable Record Date.
ARTICLE X
Supplemental Agreements
Section 10.01. Permissible Without Action by Certificateholders. ▇▇▇▇▇▇
Mac, FMMSC and the Trustee, from time to time and at any time, may, without the
consent of or notice (other than in the case of any instrument supplemental
thereto pursuant to clause (b) below) to any Holder of a Certificate, enter into
an agreement or other instrument supplemental hereto and which thereafter shall
form a part hereof, for any one or more of the following purposes:
(a) to add to the covenants of ▇▇▇▇▇▇ Mac, whether
applicable to one or more Trust Funds;
(b) to evidence the succession pursuant to Article VII of another
Person or Persons to ▇▇▇▇▇▇ Mac and the assumption by such successor or
successors of the obligations of ▇▇▇▇▇▇ Mac hereunder;
(c) to eliminate any right reserved to or conferred
upon ▇▇▇▇▇▇ Mac;
(d) to take such action to cure any ambiguity or correct or
supplement any provision in this Trust Agreement or in any Issue
Supplement as ▇▇▇▇▇▇ Mac may deem necessary or desirable; or
(e) to modify, eliminate or add to the provisions of this Trust
Agreement and any related Issue Supplement to such extent as shall be
necessary to maintain the qualification of the Trust Fund as a REMIC under
the Code; provided that (i) there shall have been delivered to the Trustee
an Opinion of Counsel to the effect that such action is necessary or
advisable to maintain such qualification, and (ii) such amendment shall
not have any of the effects described in paragraphs (a) through (c) of the
proviso to Section 10.02.
Section 10.02. Waivers and Supplemental Agreements With Consent of
Holders. With the consent of the Holders of Certificates of each Class in the
related Trust Fund having Certificate Principal Balances and Notional Principal
Balances aggregating not less than 66% of the aggregate of the Certificate
Principal Balances or Notional Principal Balances, as applicable, of all of the
Certificates of such Class, (i) compliance by ▇▇▇▇▇▇ Mac with any of the terms
of this Trust Agreement or the related Issue Supplement may be waived or (ii)
▇▇▇▇▇▇ Mac may enter into any Supplemental Agreement for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Trust Agreement or the related Issue Supplement or of modifying in any
manner the rights of the Holders of the Certificates issued under this Trust
Agreement and the related Issue Supplement; provided that no such waiver or
Supplemental Agreement shall:
(a) without the consent of all Certificateholders affected thereby
reduce in any manner the amount of, or delay the timing of, distributions
which are required to be made on any Certificate;
(b) without the consent of all Certificateholders (i) terminate or
modify the ▇▇▇▇▇▇ Mac Guarantee with respect to the Certificates of such
Series, or (ii) reduce the aforesaid percentages of Certificates, the
Holders of which are required to consent to any waiver or any Supplemental
Agreement; or
(c) without the consent of the Holder of each Residual Certificate,
adversely effect materially the rights of each such Holder, including,
without limitation, which might have the effect of increasing any taxes
payable by such Holders.
It shall not be necessary for Holders to approve the particular form of
any proposed Supplemental Agreement, but it shall be sufficient if such Holders
shall approve the substance thereof.
Promptly after the execution of any Supplemental Agreement pursuant to
this Section, ▇▇▇▇▇▇ Mac shall give notice thereof to Holders of Certificates.
Any failure of ▇▇▇▇▇▇ Mac to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such Supplemental
Agreement.
ARTICLE XI
REMIC Provisions
Section 11.01. REMIC Administration.
(a) Unless otherwise specified in the Issue Supplement for a Series,
the Closing Date shall be deemed to have been designated as the "startup day" of
the related Trust fund within the meaning of Section 860(a)(9) of the Code.
(b) The Holder of Certificates in a Series evidencing the largest
percentage interest in the Class designated as the "residual interest" in the
related REMIC shall be deemed to have designated the REMIC Administrator as the
fiduciary in the performance of all the duties required of, or permitted to be
taken by, the tax matters person for such REMIC and, if necessary, to execute a
power of attorney to such effect. The REMIC Administrator, in such capacity,
shall (i) act on behalf of the REMIC in relation to any tax matter or
controversy involving the Trust Fund and (ii) 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 legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the REMIC Administrator shall be entitled to reimbursement
therefor from _____________ unless such legal expenses and costs are incurred by
reason of the REMIC Administrator's willful misfeasance, bad faith or gross
negligence.
(c) The REMIC Administrator shall prepare or cause to be prepared all
of the Tax Returns that it determines are required with respect to the REMIC and
deliver such Tax Returns in a timely manner to the Trustee and the Trustee shall
sign and file such Tax Returns in a timely manner. The expenses of preparing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The REMIC Administrator agrees to indemnify and hold
harmless the Trustee with respect to any tax or liability arising from the
Trustee's signing of Tax Returns that contain errors or omissions. The Trustee
and ▇▇▇▇▇▇ Mac shall promptly provide the REMIC Administrator with such
information as the REMIC Administrator may from time to time request for the
purpose of enabling the REMIC Administrator to prepare Tax Returns.
(d) The REMIC Administrator shall provide (i) to any Transferor of a
Residual Certificate such information as is necessary for the application of any
tax relating to the transfer of a Certificate to any Person who is not a
Permitted Transferee and, (ii) to the Trustee and the Trustee shall forward to
the Certificateholders such information or reports as are required by the Code
or the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium.
(e) The ▇▇▇▇▇▇ Mac and the REMIC Administrator shall take such
actions and shall cause the REMIC created hereunder and the related Issue
Supplement to take such actions as are reasonably within ▇▇▇▇▇▇ Mac's or the
REMIC Administrator's control and the scope of its duties more specifically set
forth herein as shall be necessary or desirable to maintain the status thereof
as a REMIC under the REMIC Provisions (and the Trustee shall assist the ▇▇▇▇▇▇
Mac and the REMIC Administrator, to the extent reasonably requested by the
▇▇▇▇▇▇ Mac's and the REMIC Administrator to do so). ▇▇▇▇▇▇ Mac and the REMIC
Administrator shall not knowingly or intentionally take any action, cause the
REMIC to take any action or fail to take (or fail to cause to be taken) any
action reasonably within its control and the scope of duties more specifically
set forth herein, that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of the related REMIC as a REMIC
or (ii) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on prohibited transactions as defined in Section 860(a)(2) of
the Code and the tax on contributions to a REMIC set forth in Section 86OG(d) of
the Code) (either such event, an "Adverse REMIC Event") unless ▇▇▇▇▇▇ Mac or the
REMIC Administrator, as applicable, has 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, with respect to the REMIC created hereunder and
the related Issue Supplement, endanger such status or, unless ▇▇▇▇▇▇ Mac or the
REMIC Administrator, as applicable, determines in its sole discretion to
indemnify the Trust Fund against such tax, result in the imposition of such a
tax. The Trustee shall not take or fail to take any action (whether or not
authorized hereunder) as to which ▇▇▇▇▇▇ Mac or the REMIC Administrator, as
applicable, has advised it in writing that it has received an Opinion of Counsel
to the effect that an Adverse REMIC Event could occur with respect to such
action. In addition, prior to taking any action with respect to the REMIC or its
assets, or causing the REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, the Trustee will consult with
▇▇▇▇▇▇ Mac or the REMIC Administrator, as applicable, or its designee, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to the REMIC, and the Trustee shall not take any such
action or cause the REMIC to take any such action as to which ▇▇▇▇▇▇ Mac or the
REMIC Administrator, as applicable, has advised it in writing that an Adverse
REMIC Event could occur. ▇▇▇▇▇▇ Mac or the REMIC Administrator, as applicable,
may consult with counsel to make such written advice, and the cost of same shall
be borne by the party seeking to take the action not expressly permitted by this
Agreement. At all times as may be required by the Code, ▇▇▇▇▇▇ Mac will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of the REMIC as
"qualified mortgages" as defined in Section 86OG(a)(3) of the Code and
"permitted investments" as defined in Section 86OG(a)(5) of the Code.
(f) In the event that any tax is imposed on "prohibited transactions"
of the REMIC created hereunder and the related Issue Supplement as defined in
Section 86OF(a)(2) of the Code, on "net income from foreclosure property" of the
REMIC as defined in Section 86OG(c) of the Code, on any contributions to the
REMIC after the Startup Day therefor pursuant to Section 86OG(d) of the Code, or
any other tax laws, such tax shall be charged (i) to ▇▇▇▇▇▇ Mac, if such tax
arises out of or results from a breach by ▇▇▇▇▇▇ Mac of any of its obligations
under this Agreement or ▇▇▇▇▇▇ Mac has in its sole discretion determined to
indemnify the Trust Fund against such tax or (ii) to the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Article VIII.
(g) The Trustee and ▇▇▇▇▇▇ Mac shall, for federal income tax
purposes, maintain books and records with respect to the REMIC on a calendar
year and on an accrual basis or as otherwise may be required by the REMIC
Provisions.
(h) Following the Startup Day, neither ▇▇▇▇▇▇ Mac nor the Trustee
shall accept any contributions of assets to the REMIC unless ▇▇▇▇▇▇ Mac and the
Trustee shall have received an Opinion of Counsel (at the expenses of the party
seeking to make such contribution) to the effect that the inclusion of such
assets in the REMIC will not cause the REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding or subject the REMIC to any tax
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(i) Neither ▇▇▇▇▇▇ Mac nor the Trustee shall enter into any
arrangement by which the REMIC will receive a fee or other compensation for
services nor permit the REMIC to receive any income from assets other than
"qualified mortgages" as defined in Section 86OG(a)(3) of the Code or "permitted
investments" as defined in Section 86OG(a)(5) of the Code.
(j) Solely for the purposes of Section 1.86OG-l(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the Class
Certificate Principal Balance of each Class comprising a Series shall be reduced
to zero shall be the Distribution Date immediately following the second
anniversary of the latest scheduled maturity of any Qualified Loan in the
related Trust Fund.
(k) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of the
Collateralized
Debt Obligations" for the REMIC.
Section 11.02. Indemnification.
(a) The REMIC Administrator agrees to indemnify the Trust Fund,
▇▇▇▇▇▇ Mac and the Trustee for any taxes and costs (including, without
limitation, any reasonable attorneys' fees) imposed on or incurred by the Trust
Fund, ▇▇▇▇▇▇ Mac or the Trustee, as a result of a breach of the REMIC
Administrator's covenants set forth in this Article XI with respect to
compliance with the REMIC Provisions, including without limitation, any
penalties arising from the Trustee's execution of Tax Returns prepared by the
REMIC Administrator that contain errors or omissions; provided, however, that
such liability will not be imposed to the extent such breach is a result of an
error or omission in information provided to the REMIC Administrator by ▇▇▇▇▇▇
Mac in which case Section 11.02(b) will apply.
(b) ▇▇▇▇▇▇ Mac agrees to indemnify the Trust Fund, the REMIC
Administrator and the Trustee for any taxes and costs (including, without
limitation, any reasonable attorneys' fees) imposed on or incurred by the Trust
Fund or the Trustee as a result of a breach of ▇▇▇▇▇▇ Mac's covenants set forth
in this Trust Agreement or the related Issue Supplement, including without
limitation, any penalties arising from the Trustee's execution of Tax Returns
prepared by ▇▇▇▇▇▇ Mac that contain errors or omissions.
(c) ▇▇▇▇▇▇ Mac agrees to hold harmless and indemnify the Holder of
any Residual Certificate against any liability on account of any federal income
tax (including interest and penalties) imposed on the related Trust Fund to the
extent any such tax shall be paid or payable by it.
ARTICLE XII
Miscellaneous
Section 12.01. Holders. The death or incapacity of any Holder of a
Certificate shall not operate to terminate this Trust Agreement or any Issue
Supplement, nor entitle such Holder's legal representative or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of the affairs of the related Trust Fund, nor otherwise affect the
rights, duties and obligations of any of the parties to this Trust Agreement or
any such Issue Supplement.
No Holder shall have any right to control or to participate in the control
and administration of any Trust Fund, nor shall any of the terms of this Trust
Agreement or any such Issue Supplement be construed to constitute the Holders
and ▇▇▇▇▇▇ Mac as partners or members of an association, nor shall any Holder
have any duty or liability to any third person by reason of any action taken by
the parties to this Trust Agreement or any such Issue Supplement pursuant to the
provisions hereof and thereof.
No Holder shall have any right by virtue of any provision of this Trust
Agreement or any Issue Supplement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Trust Agreement or any
Issue Supplement unless an Event of Default shall have occurred and be
continuing in respect of the Trust Agreement and related Issue Supplement. For
the protection and enforcement of the provisions of this Section, each and every
Holder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 12.02. Reserve Banks as Agent. For each Regular Certificate, the
appropriate Reserve Bank shall be considered to be acting as the agent of ▇▇▇▇▇▇
Mac in providing to and conferring upon the owners of the Regular Certificates,
as such owners shall appear on the records of such Reserve Bank, the substantive
rights and benefits which are provided for herein for Holders of Certificates.
Accordingly, the substantive effect of all provisions herein providing rights
and benefits to Holders of Regular Certificates, including, without limitation,
provisions relating to distributions, voting and notices, shall apply to such
record owners on the books of the Reserve Bank, through the appropriate Reserve
Bank acting as agent for ▇▇▇▇▇▇ Mac.
Section 12.03. Governing Law. The terms of this Trust
Agreement and any Issue Supplement shall be construed in
accordance with the laws of the District of Columbia.
Section 12.04. Demands, Notices, Communications. All formal demands,
notices and communications by and between ▇▇▇▇▇▇ Mac, the Trustee and the Holder
of any Certificate shall be in writing and delivered in person or by first class
mail, postage prepaid (a) if to ▇▇▇▇▇▇ Mac or the Depositor, to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or to such other address as shall be set forth in
a notification to Holders, or (b) if to the Trustee, the Certificate Registrar
or the Transfer Agent to First Trust Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇
▇▇▇▇▇, Attn: Vice President-Structured Finance or (c) if to the Holder of a
Regular Certificate, to the appropriate Holder in care of the Reserve Bank at
the address provided to ▇▇▇▇▇▇ Mac by such Reserve Bank or (d) if to the Holder
of a Residual Certificate, to such Holder at the address shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Trust Agreement or any Issue Supplement shall be conclusively presumed to have
been duly given whether or not the Holder receives such notice.
Section 11.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Trust Agreement or any Issue
Supplement 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 Trust Agreement or any Issue
Supplement and shall in no way affect the validity or enforceability of the
other provisions of this Trust Agreement or any Issue Supplement or of the
Certificates or the rights of the Holders thereof.
IN WITNESS WHEREOF, the parties hereto hereby execute this Trust
Agreement, as of the day and year first above written.
FEDERAL AGRICULTURAL MORTGAGE
CORPORATION
[SEAL]
By:
-------------------------------
Attest: ____________________
▇▇▇▇▇▇ MAC MORTGAGE
SECURITIES CORPORATION
[SEAL]
By: ______________________________
Attest: __________________
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee
[SEAL]
By: _____________________________
Attest: ___________________