EXHIBIT 4.1
EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES LLC, as Master Servicer,
and
JPMORGAN CHASE BANK, N.A., as Trustee
---------------------------
TRUST AGREEMENT
Dated as of January 1, 2005
---------------------------
STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-2
TABLE OF CONTENTS
(CONTINUED)
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ARTICLE I DEFINITIONS............................................................................3
Section 1.01. Definitions.......................................................................3
Section 1.02. Calculations Respecting Mortgage Loans...........................................32
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES........................................33
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans.............33
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation for Trust
Fund.............................................................................36
Section 2.03. Representations and Warranties of the Depositor..................................38
Section 2.04. Discovery of Breach..............................................................40
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans...........................40
Section 2.06. Grant Clause.....................................................................41
ARTICLE III THE CERTIFICATES......................................................................42
Section 3.01. The Certificates.................................................................42
Section 3.02. Registration.....................................................................43
Section 3.03. Transfer and Exchange of Certificates............................................43
Section 3.04. Cancellation of Certificates.....................................................49
Section 3.05. Replacement of Certificates......................................................49
Section 3.06. Persons Deemed Owners............................................................50
Section 3.07. Temporary Certificates...........................................................50
Section 3.08. Appointment of Paying Agent......................................................50
Section 3.09. Book-Entry Certificates..........................................................51
ARTICLE IV ADMINISTRATION OF THE TRUST FUND......................................................52
Section 4.01. Collection Account...............................................................52
Section 4.02. Application of Funds in the Collection Account...................................54
Section 4.03. Reports to Certificateholders....................................................56
Section 4.04. Certificate Account..............................................................59
Section 4.05. Determination of LIBOR...........................................................59
Section 4.06. Certain Provisions with Respect to the Participations............................59
ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES..............................................60
Section 5.01. Distributions Generally..........................................................60
Section 5.02. Distributions from the Certificate Account.......................................60
Section 5.03. Allocation of Realized Losses....................................................64
Section 5.04. Advances by the Master Servicer and the Trustee..................................66
Section 5.05. Compensating Interest Payments...................................................66
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ARTICLE VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT.............................................66
Section 6.01. Duties of Trustee................................................................67
Section 6.02. Certain Matters Affecting the Trustee............................................69
Section 6.03. Trustee Not Liable for Certificates..............................................70
Section 6.04. Trustee May Own Certificates.....................................................70
Section 6.05. Eligibility Requirements for Trustee.............................................71
Section 6.06. Resignation and Removal of Trustee...............................................71
Section 6.07. Successor Trustee................................................................72
Section 6.08. Merger or Consolidation of Trustee...............................................72
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.........................73
Section 6.10. Authenticating Agents............................................................74
Section 6.11. Indemnification of Trustee.......................................................75
Section 6.12. Fees and Expenses of Trustee and Custodian.......................................76
Section 6.13. Collection of Monies.............................................................76
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor......................76
Section 6.15. Additional Remedies of Trustee Upon Event of Default.............................80
Section 6.16. Waiver of Defaults...............................................................80
Section 6.17. Notification to Holders..........................................................80
Section 6.18. Directions by Certificateholders and Duties of Trustee During Event of
Default..........................................................................81
Section 6.19. Action Upon Certain Failures of the Master Servicer and Upon Event of
Default..........................................................................81
Section 6.20. Preparation of Tax Returns and Other Reports.....................................81
ARTICLE VII PURCHASE AND TERMINATION OF THE TRUST FUND............................................83
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation of All Mortgage
Loans............................................................................83
Section 7.02. Procedure Upon Termination of Trust Fund.........................................84
Section 7.03. Additional Requirements under the REMIC Provisions...............................85
ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS..........................................................85
Section 8.01. Limitation on Rights of Holders..................................................85
Section 8.02. Access to List of Holders........................................................86
Section 8.03. Acts of Holders of Certificates..................................................87
ARTICLE IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER.................87
Section 9.01. Duties of the Master Servicer....................................................87
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and Omissions
Insurance Policy.................................................................88
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Section 9.03. Master Servicer's Financial Statements and Related Information...................88
Section 9.04. Power to Act; Procedures.........................................................89
Section 9.05. Servicing Agreements Between the Master Servicer and Servicers;
Enforcement of Servicers' Obligations............................................91
Section 9.06. Collection of Taxes, Assessments and Similar Items...............................91
Section 9.07. Termination of Servicing Agreements; Successor Servicers.........................92
Section 9.08. Master Servicer Liable for Enforcement...........................................92
Section 9.09. No Contractual Relationship Between Servicers and Trustee or Depositor...........93
Section 9.10. Assumption of Servicing Agreement by Trustee.....................................93
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements.....................................94
Section 9.12. Release of Mortgage Files........................................................94
Section 9.13. Documents, Records and Funds in Possession of Master Servicer To Be Held
for Trustee......................................................................95
Section 9.14. Representations and Warranties of the Master Servicer............................96
Section 9.15. Closing Certificate and Opinion..................................................99
Section 9.16. Standard Hazard and Flood Insurance Policies.....................................99
Section 9.17. Presentment of Claims and Collection of Proceeds.................................99
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies..........................100
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies and Documents........100
Section 9.20. Realization Upon Defaulted Mortgage Loans.......................................100
Section 9.21. Compensation to the Master Servicer.............................................101
Section 9.22. REO Property....................................................................102
Section 9.23. [Reserved]......................................................................102
Section 9.24. Reports to the Trustee..........................................................102
Section 9.25. Annual Officer's Certificate as to Compliance...................................103
Section 9.26. Annual Independent Accountants' Servicing Report................................104
Section 9.27. Merger or Consolidation.........................................................104
Section 9.28. Resignation of Master Servicer..................................................105
Section 9.29. Assignment or Delegation of Duties by the Master Servicer.......................105
Section 9.30. Limitation on Liability of the Master Servicer and Others.......................105
Section 9.31. Indemnification; Third-Party Claims.............................................106
ARTICLE X REMIC ADMINISTRATION.................................................................107
Section 10.01. REMIC and Grantor Trust Administration..........................................107
Section 10.02. Prohibited Transactions and Activities..........................................109
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of REMIC Status..........109
Section 10.04. REO Property....................................................................110
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TABLE OF CONTENTS
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ARTICLE XI MISCELLANEOUS PROVISIONS.............................................................111
Section 11.01. Binding Nature of Agreement; Assignment.........................................111
Section 11.02. Entire Agreement................................................................111
Section 11.03. Amendment.......................................................................111
Section 11.04. Voting Rights...................................................................112
Section 11.05. Provision of Information........................................................112
Section 11.06. Governing Law...................................................................113
Section 11.07. Notices.........................................................................113
Section 11.08. Severability of Provisions......................................................113
Section 11.09. Indulgences; No Waivers.........................................................114
Section 11.10. Headings Not To Affect Interpretation...........................................114
Section 11.11. Benefits of Agreement...........................................................114
Section 11.12. Special Notices to the Rating Agencies..........................................114
Section 11.13. Counterparts....................................................................115
Section 11.14. Transfer of Servicing...........................................................115
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ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Initial Certification
Exhibit B-2 Form of Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreements
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreements
Exhibit L-1 Form of Transfer Certificate for Transfer from Restricted Global
Security to Regulation S Global Security
Exhibit L-2 Form of Transfer Certificate for Transfer from Regulation S
Global Security to Restricted Global Security
Exhibit M Form of Certification to be Provided to the Depositor and the
Master Servicer by the Trustee
Schedule A Mortgage Loan Schedule
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This TRUST AGREEMENT, dated as of January 1, 2005 (the "Agreement"), is
by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as
depositor (the "Depositor"), AURORA LOAN SERVICES LLC, as master servicer (the
"Master Servicer"), and JPMORGAN CHASE BANK, N.A., a national banking
association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from ▇▇▇▇▇▇ Brothers
Holdings (the "Seller"), and at the Closing Date is the owner of the Mortgage
Loans and the other property being conveyed by it to the Trustee for inclusion
in the Trust Fund. On the Closing Date, the Depositor will acquire the
Certificates from the Trust Fund as consideration for its transfer to the Trust
Fund of the Mortgage Loans and the other property constituting the Trust Fund.
The Depositor has duly authorized the execution and delivery of this Agreement
to provide for the conveyance to the Trustee of the Mortgage Loans and the other
property constituting the Trust Fund. All covenants and agreements made by the
Depositor, the Master Servicer and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates. The Depositor and
the Master Servicer are entering into this Agreement, and the Trustee is
accepting the Trust Fund created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund (other
than the rights to Prepayment Penalty Amounts) be treated for federal income tax
purposes as two separate real estate mortgage investment conduits (each a
"REMIC" or, in the alternative, REMIC 1 and REMIC 2 (REMIC 2 also being referred
to herein as the "Upper Tier REMIC")). As described in Section 10.01 hereof, the
Trust Fund will also be treated for federal income tax purposes as including two
grantor trusts. The REMIC Regular Interests represent regular interests in the
Upper Tier REMIC for purposes of the REMIC provisions. The Class R Certificate
represents ownership of the sole class of residual interest in each of REMIC 1
and REMIC 2 for purposes of the REMIC provisions. The Upper Tier REMIC shall
hold as assets the several classes of uncertificated REMIC 1 Regular Interests.
Each REMIC 1 Regular Interest is hereby designated as a regular interest in
REMIC 1. REMIC 1 shall hold as assets all property of the Trust Fund other than
the REMIC 1 Regular Interests, and the rights to Prepayment Penalty Amounts.
REMIC 1
The following table specifies the class designation, interest rate, and
initial principal amount for each class of REMIC 1 Interests.
Corresponding Certificates
Designation Interest Rate Initial Principal Amount or Components
----------- ------------- ------------------------ --------------------------
LT1-A1 (1) $ 153,443,000.00 A1
LT1-A2 (1) $ 148,000,000.00 ▇▇, ▇▇▇▇, ▇▇▇▇
LT1-AR (1) $ 100.00 R
LT1-B1 (2) $ 6,972,000.00 ▇▇, ▇▇▇ Component
LT1-B2 (2) $ 1,945,000.00 ▇▇, ▇▇▇ Component
LT1-B3 (2) $ 3,567,000.00 ▇▇, ▇▇▇ Component
LT1-B4 (2) $ 1,459,000.00 ▇▇, ▇▇▇ Component
LT1-B5 (2) $ 2,432,000.00 ▇▇, ▇▇▇ Component
LT1-B6 (2) $ 972,000.00 ▇▇, ▇▇▇ Component
LT1-B7 (1) $ 810,000.00 ▇▇
▇▇▇-▇▇ (1) $ 1,621,000.00 ▇▇
▇▇▇-▇▇ (1) $ 1,783,000.00 ▇▇
▇▇▇-▇▇▇ (1) $ 1,302,547.46 ▇▇▇
▇▇▇-▇ (3) (3) N/A
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(1) For any Distribution Date, the interest rate for these interests shall be
a per annum rate equal to the Net WAC.
(2) For any Distribution Date, the interest rate for these interests shall be
a per annum rate equal to the Net WAC multiplied by 30 and divided by the
actual number of days in the related Accrual Period.
(3) The Class LT1-R Interest shall represent the sole class of residual
interest in REMIC 1. The Class LT1-R Interest will not have a principal
amount or an interest rate. The Class LT1-R Interest shall be represented
by the Class R Certificate.
Principal and interest shall be payable to, and shortfalls, losses, prepayments
and increases in principal amounts pursuant to the proviso in the definition of
Certificate Principal Amount are allocable to, the Class LT1-A1 Interest, Class
LT1-A2, Class LT1-AR Interest, Class LT1-B1 Interest, Class LT1-B2 Interest,
Class LT1-B3 Interest, Class LT1-B4 Interest, Class LT1-B5 Interest, Class
LT1-B6 Interest, Class LT1-B7 Interest, Class LT1-B8 Interest, Class LT1-B9
Interest and Class LT1-B10 Interest in the same amounts as such items are
allocated among the Corresponding Certificates or Components. Notwithstanding
the preceding sentence, (i) the first $0.46 of losses with respect to principal
on the Mortgage Loans shall be allocated to the Class LT1-B8 Interest and (ii)
immediately preceding any payment to the Class R Certificate pursuant to Section
5.02(e) attributable to principal received with respect to any Mortgage Loan, a
payment shall be treated as made to the Class LT1-B10 Interest in reduction of
the principal balance thereof, if any, to zero.
UPPER TIER REMIC
The following table specifies the Class designation, Certificate Interest Rate,
initial Class Principal Amount, and minimum denomination (by dollar amount or
Percentage Interest) for each Class of Certificates representing the interests
in the Trust Fund created hereunder. Each Certificate, other than the Class P
and Class R Certificates, represents ownership of one or more regular interests
in the Upper Tier REMIC for purposes of the REMIC provisions.
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Initial Class
Principal Amount or
Certificate Class Notional Minimum
Class Designation Interest Rate Amount Denomination
----------------- ------------- ------------------- ------------
Class A1 (1) $ 153,443,000 $ 25,000
Class A2 (2) $ 148,000,000 $ 25,000
Class A2X1 (3) $ 148,000,000 $ 1,000,000
Class A2X2 (3) $ 148,000,000 $ 1,000,000
Class B1 (2) $ 6,972,000 $ 100,000
Class B2 (2) $ 1,945,000 $ 100,000
Class B3 (2) $ 3,567,000 $ 100,000
Class B4 (2) $ 1,459,000 $ 100,000
Class B5 (2) $ 2,432,000 $ 100,000
Class B6 (2) $ 972,000 $ 100,000
Class B7 (1) $ 810,000 $ 100,000
Class BX (4) $ 17,347,000(4) $ 1,000,000
Class B8 (1) $ 1,621,000 $ 250,000
Class B9 (1) $ 1,783,000 $ 250,000
Class B10 (1) $ 1,302,547 $ 250,000
Class R (1) $ 100 $ 100
Class P (5) (5) 25%
----------
(1) The Class A1, Class R, Class B7, Class B8, Class B9 and Class B10
Certificates will accrue interest with respect to each Distribution Date at
a per annum rate equal to the Net WAC for the Mortgage Pool for such
Distribution Date.
(2) The Class A2 Certificates will accrue interest with respect to each
Distribution Date at a per annum rate equal to LIBOR plus 0.25%, subject to
the LIBOR Available Funds Cap. The Class B1 Certificates will accrue
interest with respect to each Distribution Date at a per annum rate equal to
LIBOR plus 0.47%, subject to the LIBOR Available Funds Cap. The Class B2
Certificates will accrue interest with respect to each Distribution Date at
a per annum rate equal to LIBOR plus 0.52%, subject to the LIBOR Available
Funds Cap. The Class B3 Certificates will accrue interest with respect to
each Distribution Date at a per annum rate equal to LIBOR plus 0.75%,
subject to the LIBOR Available Funds Cap. The Class B4 Certificates will
accrue interest with respect to each Distribution Date at a per annum rate
equal to LIBOR plus 0.78%, subject to the LIBOR Available Funds Cap. The
Class B5 Certificates will accrue interest with respect to each Distribution
Date at a per annum rate equal to LIBOR plus 1.40%, subject to the LIBOR
Available Funds Cap. The Class B6 Certificates will accrue interest with
respect to each Distribution Date at a per annum rate equal to LIBOR plus
2.25%, subject to the LIBOR Available Funds Cap.
(3) The Class A2X1 and Class A2X2 Certificates are Notional Certificates. The
Class Notional Amount of the Class A2X1 Certificates for any Distribution
Date will be equal to the Class Principal Amount of the Class A2
Certificates immediately prior to such Distribution Date. The initial Class
Notional Amount of the Class A2X1 Certificates is $148,000,000. The Class
Notional Amount of the Class A2X2 Certificates for any Distribution Date
will be equal to the Class Principal Amount of the Class A2 Certificates
immediately prior to such Distribution Date. The initial Class Notional
Amount of the Class A2X2 Certificates is $148,000,000. The Class A2X1
Certificates will accrue interest with respect to each Distribution Date at
an annual rate equal to the greater of (x) the Net WAC for the Mortgage Pool
for such Distribution Date minus the sum of (i) LIBOR and (ii) 0.30% and (y)
0.00%. The Class A2X2 Certificates will accrue interest with respect to each
Distribution Date at an annual rate equal to the lesser of (i) 0.05% and
(ii) the greater of (a) 0.00% and (b) the Net WAC minus the sum of (I) LIBOR
and (II) 0.25%. For purposes of the REMIC Provisions, the Class A2X2
Certificates represent the right to a "specified portion" of the interest
accruing on the Class LT1-A2 Interest. Such "specified portion" shall be all
interest accruing on the Class LT1-A2 Interest in excess of the interest
3
accruing thereon at a variable rate. Such variable rate shall be the greater
of (i) LIBOR plus 0.25% per annum and (ii) the Net WAC minus 0.05% per
annum.
(4) The Class BX Certificates are Notional Certificates comprised of six
components: the B1X Component, the B2X Component, the B3X Component, the B4X
Component, the B5X Component and the B6X Component. With respect to each
Distribution Date and the related Accrual Period, the Class BX Certificates
will be entitled to the interest accrued on each of its six components. On
each Distribution Date, the B1X Component shall be entitled to current
interest equal to the amount of interest accrued during the related Accrual
Period on the B1X Component Notional Amount at the B1X Component Interest
Rate. On each Distribution Date, the B2X Component shall be entitled to
current interest equal to the amount of interest accrued during the related
Accrual Period on the B2X Component Notional Amount at the B2X Component
Interest Rate. On each Distribution Date, the B3X Component shall be
entitled to current interest equal to the amount of interest accrued during
the related Accrual Period on the B3X Component Notional Amount at the B3X
Component Interest Rate. On each Distribution Date, the B4X Component shall
be entitled to current interest equal to the amount of interest accrued
during the related Accrual Period on the B4X Component Notional Amount at
the B4X Component Interest Rate. On each Distribution Date, the B5X
Component shall be entitled to current interest equal to the amount of
interest accrued during the related Accrual Period on the B5X Component
Notional Amount at the B5X Component Interest Rate. On each Distribution
Date, the B6X Component shall be entitled to current interest equal to the
amount of interest accrued during the related Accrual Period on the B6X
Component Notional Amount at the B6X Component Interest Rate. On each
Distribution Date, the Class Notional Amount of the Class BX Certificates
will be equal to the sum of the B1X Component Notional Amount, the B2X
Component Notional Amount, the B3X Component Notional Amount, the B4X
Component Notional Amount, the B5X Component Notional Amount and the B6X
Component Notional Amount. The initial Class Notional Amount of the Class BX
Certificates will be $17,347,000 for the first Distribution Date.
(5) The Class P Certificates will be entitled to receive Prepayment Penalty
Amounts paid by borrowers upon voluntary full or partial prepayment of the
Mortgage Loans. Class P Certificates will be issued in definitive, fully
registered form.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $324,306,647.46.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
The following words and phrases, unless the context otherwise requires,
shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer or (y) as provided in the applicable Servicing Agreement,
to the extent applicable to the related Servicer.
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Accountant: A person engaged in the practice of accounting who (except
when this Agreement provides that an Accountant must be Independent) may be
employed by or affiliated with the Depositor or an Affiliate of the Depositor.
Accretion Directed Certificate: Not applicable.
Accretion Termination Date: Not applicable.
Accrual Amount: As to any Class of Accrual Certificates and each
Distribution Date through the Credit Support Depletion Date, the sum of (x) any
amount of Accrued Certificate Interest allocable to such Class pursuant to
Section 5.02(a)(ii) on such Distribution Date and (y) any Interest Shortfall
allocable to such Class pursuant to Section 5.02(a)(iii) on such Distribution
Date. As to any Class of Accrual Certificates and each Distribution Date after
the Credit Support Depletion Date, zero.
Accrual Certificate: Not applicable.
Accrual Component: Not applicable.
Accrual Period: For each Class of Certificates (except for the Class A2,
Class B1, Class B2, Class B3, Class B4, Class B5 and Class B6 Certificates) and
each Lower Tier Regular Interest (other than the Class LT1-A2 Interest, Class
LT1-B1 Interest, Class LT1-B2 Interest, Class LT1-B3 Interest, Class LT1-B4
Interest, Class LT1-B5 Interest and Class LT1-B6 Interest), the one-month period
immediately preceding the month in which the related Distribution Date occurs.
For the Class A2, Class B1, Class B2, Class B3, Class B4, Class B5 and Class B6
Certificates and the Class LT1-A2 Interest, Class LT1-B1 Interest, Class LT1-B2
Interest, Class LT1-B3 Interest, Class LT1-B4 Interest, Class LT1-B5 Interest
and Class LT1-B6 Interest, the Accrual Period will be the period from and
including the preceding Distribution Date (or from January 25, 2005 in the case
of the first Distribution Date) to and including the day prior to such
Distribution Date.
Accrued Certificate Interest: As to any Class of Certificates (other
than the Class A2X1, Class A2X2, Class BX and Class P Certificates) on any
Distribution Date, the amount of interest accrued during the related Accrual
Period on the related Class Principal Amount immediately prior to that
Distribution Date or, in the case of the Class A2X1 and Class A2X2 Certificates
and each Component, the related Class Notional Amount or Component Notional
Amount for that Distribution Date, at the applicable Certificate Interest Rate
or Component Interest Rate, as reduced by such Class's or Component's share of
(1) the interest portion of any Excess Losses for such Distribution Date, and
(2) any Relief Act Reduction for the related Mortgage Pool for such Distribution
Date, in each case allocable among the Certificates pro rata based on the
Accrued Certificate Interest otherwise distributable thereto. All calculations
of interest on each Class of Certificates (other than the Class B1, Class B2,
Class B3, Class B4, Class B5 and Class B6 Certificates) and each Lower Tier
Regular Interest (other than the Class LT1-B1 Interest, Class LT1-B2 Interest,
Class LT1-B3 Interest, Class LT1-B4 Interest, Class LT1-B5 Interest and Class
LT1-B6 Interest) will be made on the basis of a 360-day year and twelve 30-day
months. All calculations of interest on the Class B1, Class B2, Class B3, Class
B4, Class B5 and Class B6 Certificates and the Class LT1-B1 Interest, Class
LT1-B2 Interest, Class LT1-B3 Interest,
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Class LT1-B4 Interest, Class LT1-B5 Interest and Class LT1-B6 Interest, will be
made on the basis of a 360-day year and the actual number of days elapsed in the
applicable Accrual Period. The Accrued Certificate Interest with respect to the
Class BX Certificates shall be the sum of the Accrued Certificate Interest with
respect to each Component. The interest shall accrue during the related Accrual
Period.
Act: As defined in Section 3.03(c).
Additional Collateral: Not applicable.
Additional Collateral Servicing Agreement: Not applicable.
Adjustable Rate Mortgage Loan: Not applicable.
Advance: An advance of the aggregate of payments of principal and
interest (net of the Retained Interest Rate (if applicable), the Master
Servicing Fee and the applicable Servicing Fee) on one or more Mortgage Loans
that were due on the Due Date in the related Due Period and not received as of
the close of business on the related Determination Date, required to be made by
or on behalf of the Master Servicer and the related Servicer (or by the Trustee
solely in its capacity as successor master servicer in accordance with Section
6.14) pursuant to Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Master Servicing Compensation: Not applicable.
Aggregate Principal Balance: The aggregate of the Scheduled Principal
Balances for all Mortgage Loans at any date of determination.
Aggregate Subordinate Percentage: Not applicable.
Aggregate Voting Interests: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
AP Percentage: Not applicable.
AP Principal Distribution Amount: Not applicable.
Apportioned Principal Balance: Not applicable.
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Appraised Value: With respect to any Mortgage Loan, the amount set forth
in an appraisal made in connection with the origination of such Mortgage Loan as
the value of the related Mortgaged Property.
Associated Mortgage Loan: Not applicable.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by law; provided, however, that the Trustee shall not
be responsible for determining whether any such assignment is in recordable
form.
Aurora: Aurora Loan Services LLC or its successor in interest, in its
capacity as a Servicer.
Authenticating Agent: Any authenticating agent appointed by the Trustee
pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's Certificate
on behalf of the Depositor.
Available Distribution Amount: As to any Distribution Date, the sum of
the following amounts:
(i) the total amount of all cash received by the Master
Servicer through the Remittance Date applicable to each Servicer and
deposited by the Master Servicer by the Master Servicer Remittance Date
for such Distribution Date on the Mortgage Loans of such Mortgage Pool
(including proceeds of any Insurance Policy and any other credit support
relating to such Mortgage Loans and including any Subsequent Recovery),
plus all Advances made by the Master Servicer or any Servicer (or the
Trustee, in its capacity as successor Master Servicer) for such
Distribution Date, any Compensating Interest Payment for such date and
Mortgage Pool, any amounts received with respect to any Additional
Collateral, if any, or any Surety Bond, if any, related thereto and any
amounts paid by any Servicer in respect of Prepayment Interest
Shortfalls in respect of the related Mortgage Loans for such date, but
not including:
(A) all amounts distributed pursuant to Section 5.02
on prior Distribution Dates;
(B) all Scheduled Payments of principal and interest
collected but due on a date subsequent to the related Due
Period;
(C) all Principal Prepayments received or identified
by the applicable Servicer after the applicable Prepayment
Period (together with any interest payments received with such
prepayments to the extent that
7
they represent the payment of interest accrued on the related
Mortgage Loans for the period subsequent to the applicable
Prepayment Period);
(D) any other unscheduled collection, including Net
Liquidation Proceeds, Subsequent Recoveries and Insurance
Proceeds, received by the Master Servicer after the applicable
Prepayment Period;
(E) all fees and amounts due or reimbursable to the
Master Servicer, the Trustee (other than the Trustee Fee), the
Custodian or a Servicer pursuant to the terms of this Agreement,
the applicable Custodial Agreement or the applicable Servicing
Agreement;
(F) [Reserved];
(G) [Reserved];
(H) Prepayment Interest Excess, to the extent not
offset by Prepayment Interest Shortfalls; and
(ii) any other payment made by the Master Servicer, any
Servicer, the Trustee, the Seller, the Depositor, or any other Person
with respect to such Distribution Date (including the Purchase Price
with respect to any Mortgage Loan purchased by the Seller, the Depositor
or any other Person).
B1X Component: One of the six components of the Class BX Certificates.
B1X Component Interest Rate: With respect to each Distribution Date, the
excess, if any, of (x) the Net WAC for such Distribution Date over (y) the
product of (i) the Certificate Interest Rate on the Class B1 Certificates for
such Distribution Date and (ii) a fraction the numerator of which is the actual
number of days in the related Accrual Period for the Class B1 Certificates and
the denominator of which is 30.
B1X Component Notional Amount: The Class Principal Amount of the Class
B1 Certificates immediately prior to the Distribution Date.
B2X Component: One of the six components of the Class BX Certificates.
B2X Component Interest Rate: With respect to each Distribution Date, the
excess, if any, of (x) the Net WAC for such Distribution Date over (y) the
product of (i) the Certificate Interest Rate on the Class B2 Certificates for
such Distribution Date and (ii) a fraction the numerator of which is the actual
number of days in the related Accrual Period for the Class B2 Certificates and
the denominator of which is 30.
B2X Component Notional Amount: The Class Principal Amount of the Class
B2 Certificates immediately prior to the Distribution Date.
B3X Component: One of the six components of the Class BX Certificates.
8
B3X Component Interest Rate: With respect to each Distribution Date, the
excess, if any, of (x) the Net WAC for such Distribution Date over (y) the
product of (i) the Certificate Interest Rate on the Class B3 Certificates for
such Distribution Date and (ii) a fraction the numerator of which is the actual
number of days in the related Accrual Period for the Class B3 Certificates and
the denominator of which is 30.
B3X Component Notional Amount: The Class Principal Amount of the Class
B3 Certificates immediately prior to the Distribution Date.
B4X Component: One of the six components of the Class BX Certificates.
B4X Component Interest Rate: With respect to each Distribution Date, the
excess, if any, of (x) the Net WAC for such Distribution Date over (y) the
product of (i) the Certificate Interest Rate on the Class B4 Certificates for
such Distribution Date and (ii) a fraction the numerator of which is the actual
number of days in the related Accrual Period for the Class B4 Certificates and
the denominator of which is 30.
B4X Component Notional Amount: The Class Principal Amount of the Class
B4 Certificates immediately prior to the Distribution Date.
B5X Component: One of the six components of the Class BX Certificates.
B5X Component Interest Rate: With respect to each Distribution Date, the
excess, if any, of (x) the Net WAC for such Distribution Date over (y) the
product of (i) the Certificate Interest Rate on the Class B5 Certificates for
such Distribution Date and (ii) a fraction the numerator of which is the actual
number of days in the related Accrual Period for the Class B5 Certificates and
the denominator of which is 30.
B5X Component Notional Amount: The Class Principal Amount of the Class
B5 Certificates immediately prior to the Distribution Date.
B6X Component: One of the six components of the Class BX Certificates.
B6X Component Interest Rate: With respect to each Distribution Date, the
excess, if any, of (x) the Net WAC for such Distribution Date over (y) the
product of (i) the Certificate Interest Rate on the Class B6 Certificates for
such Distribution Date and (ii) a fraction the numerator of which is the actual
number of days in the related Accrual Period for the Class B6 Certificates and
the denominator of which is 30.
B6X Component Notional Amount: The Class Principal Amount of the Class
B6 Certificates immediately prior to the Distribution Date.
Balloon Mortgage Loan: Not applicable.
Balloon Payment: Not applicable.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry
9
of an order for relief in a bankruptcy or insolvency proceeding, the seeking of
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief, or seeking, consenting to or acquiescing in the appointment
of a trustee, receiver or liquidator, dissolution, or termination, as the case
may be, of such Person pursuant to the provisions of either the United States
Bankruptcy Code of 1986, as amended, or any other similar state laws.
Bankruptcy Coverage Termination Date: The Distribution Date on which the
Bankruptcy Loss Limit has been reduced to zero (or less than zero).
Bankruptcy Loss Limit: As of the Cut-off Date, $100,000, which amount
shall be reduced from time to time by the amount of Bankruptcy Losses that are
allocated to the Certificates.
Bankruptcy Losses: With respect to the Mortgage Loans, losses that are
incurred as a result of Deficient Valuations and any reduction, in a bankruptcy
proceeding, of the amount of the Scheduled Payment on a Mortgage Loan other than
as a result of a Deficient Valuation.
Blanket Mortgage: Not applicable.
Book-Entry Certificates: Beneficial interests in Certificates designated
as "Book-Entry Certificates" in this Agreement, ownership and transfers of which
shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the occurrence of a condition
whereupon book-entry registration and transfer are no longer permitted and
Definitive Certificates are to be issued to Certificate Owners, such Book-Entry
Certificates shall no longer be "Book-Entry Certificates." As of the Closing
Date, all of the Classes of Certificates listed in the second table of the
Preliminary Statement, other than the Class R and Class P Certificates, will
constitute Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a day
on which banking institutions in New York, New York or Colorado, if other than
New York or Colorado, the city in which the Corporate Trust Office of the
Trustee is located, or (iii) with respect to any Remittance Date or any Servicer
reporting date, the States specified in the definition of "Business Day" in the
applicable Servicing Agreement, are authorized or obligated by law or executive
order to be closed.
Certificate: Any one of the certificates signed and countersigned by the
Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in accordance
with the provisions of Section 4.04.
Certificate Group: Not applicable.
Certificate Interest Rate: With respect to each Class of Certificates
(other than the Class P Certificates), the applicable per annum rate specified
or determined as provided in the Preliminary Statement hereto.
10
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate other than
the Class P Certificates and the Notional Certificates, at the time of
determination, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (plus, in the
case of any Negative Amortization Certificate, any Deferred Interest allocated
thereto on previous Distribution Dates, and plus, in the case of any Accrual
Certificate, its Percentage Interest of any related Accrual Amount for each
previous Distribution Date), less the amount of all principal distributions
previously made with respect to such Certificate, and all Realized Losses
allocated to such Certificate and, in the case of a Subordinate Certificate, any
Subordinate Certificate Writedown Amount allocated to such Certificates;
provided, however, that on any Distribution Date on which a Subsequent Recovery
is distributed, the Certificate Principal Amount of any Class of Certificates
then outstanding for which any Realized Loss or any Subordinate Certificate
Writedown Amount has been applied will be increased, in order of seniority, by
an amount equal to the lesser of (i) the amount the Class of Certificates has
been reduced by any Realized Losses or any Subordinate Certificate Writedown
Amount which have not been previously offset by any Subsequent Recovery pursuant
to this proviso and (ii) the total amount of any Subsequent Recovery distributed
on such date to Certificateholders (as reduced (x) by increases in the
Certificate Principal Amount of more senior Classes of Certificates on such
Distribution Date and (y) to reflect a proportionate amount of what would (but
for this clause (y) have been the increases in the Certificate Principal Amount
of Classes of Certificates of equal seniority on such Distribution Date). For
purposes of Article V hereof, unless specifically provided to the contrary,
Certificate Principal Amounts shall be determined as of the close of business of
the immediately preceding Distribution Date, after giving effect to all
distributions made on such date. Notional Certificates are issued without
Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.02.
Class: All Certificates bearing the same class designation.
Class AP Certificate: None.
Class AP Deferred Amount: Not applicable.
Class B Certificate: Any Class B1, Class B2, Class B3, Class B4, Class
B5, Class B6, Class B7, Class BX, Class B8, Class B9 or Class B10 Certificate.
Class LT1-R Interest: The sole residual interest in REMIC 1.
Class Notional Amount: With respect to each Class of Notional
Certificates, the applicable Class Notional Amount calculated as provided in the
Preliminary Statement.
11
Class Percentage: With respect to each Class of Subordinate
Certificates, for each Distribution Date, the percentage obtained by dividing
the Class Principal Amount of such Class immediately prior to such Distribution
Date by the sum of the Class Principal Amounts of all Certificates immediately
prior to such date.
Class Principal Amount: With respect to each Class of Certificates other
than any Class of Notional Certificates, the aggregate of the Certificate
Principal Amounts of all Certificates of such Class at the date of
determination. With respect to each Class of Notional Certificates and the Class
P Certificates, zero.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
Clearstream: Clearstream Banking, societe anonyme, and any successor
thereto.
Closing Date: January 28, 2005.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: A separate account established and maintained by the
Master Servicer pursuant to Section 4.01.
Compensating Interest Payment: With respect to any Distribution Date, an
amount equal to the aggregate amount of any Prepayment Interest Shortfalls
required to be paid by the Servicers with respect to such Distribution Date. The
Master Servicer shall not be responsible to make any Compensating Interest
Payment.
Component: Any of the B1X Component, the B2X Component, the B3X
Component, the B4X Component, the B5X Component and the B6X Component.
Component Certificate: The Class BX Certificates.
Component Interest Rate: Any of the B1X Component Interest Rate, the B2X
Component Interest Rate, the B3X Component Interest Rate, the B4X Component
Interest Rate, the B5X Component Interest Rate or the B6X Component Interest
Rate.
Component Notional Amount: Any of the B1X Component Notional Amount, the
B2X Component Notional Amount, the B3X Component Notional Amount, the B4X
Component Notional Amount, the B5X Component Notional Amount or the B6X
Component Notional Amount.
12
Component Principal Amount: Not applicable.
Component Writedown Amount: Not applicable.
Conventional Loan: Not applicable.
Converted Mortgage Loan: Not applicable.
Convertible Mortgage Loan: Not applicable.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
Cooperative Loan Documents: As to any Cooperative Loan, (i) the
Cooperative Shares, together with a stock power in blank; (ii) the original
executed Security Agreement and the assignment of the Security Agreement
endorsed in blank; (iii) the original executed Proprietary Lease and the
assignment of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and the assignment of the Recognition Agreement
(or a blanket assignment of all Recognition Agreements) endorsed in blank; (v)
the executed UCC-1 financing statement with evidence of recording thereon, which
has been filed in all places required to perfect the security interest in the
Cooperative Shares and the Proprietary Lease; and (vi) executed UCC-3 financing
statements (or copies thereof) or other appropriate UCC financing statements
required by state law, evidencing a complete and unbroken line from the
mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the Cooperative Shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single-family dwelling located in a Cooperative
Property.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, (a) its corporate trust business shall
be administered, which office at the date hereof is located at JPMorgan Chase
Bank, N.A., 4 New York Plaza, 6th Floor, New York, New York 10004, Attention:
Institutional Trust Services/Global Debt, SARM 2005-2 and (b) Certificates may
be presented for transfer and exchange and for purposes of presentment and
surrender for the final distributions thereon, which office at the date hereof
is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Attention:
Institutional Trust Services SARM 2005-2.
13
Corresponding Certificates: With respect to the REMIC 1 Regular
Interests, the Classes of Certificates so designated in the Preliminary
Statement hereto.
Corresponding Class: Not applicable.
Corresponding Component: With respect to the REMIC 1 Regular Interests,
the Components so designated in the Preliminary Statement hereto.
Credit Score: With respect to any Mortgage Loan, a numerical assessment
of default risk with respect to the Mortgagor under such Mortgage Loan,
determined on the basis of a methodology developed by Fair, ▇▇▇▇▇ & Co., Inc.
Credit Support Depletion Date: The Distribution Date on which, after
giving effect to all distributions on such date, the aggregate Certificate
Principal Amount of the Subordinate Certificates is reduced to zero.
Credit Support Percentage: As to any Class of Subordinate Certificates
and any Distribution Date, the sum of the Class Percentages of all Classes of
Certificates that rank lower in priority than such Class.
Custodial Agreement: Each custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto. The initial Custodians are
LaSalle Bank National Association and U.S. Bank, National Association.
Cut-off Date: January 1, 2005.
Cut-off Date Aggregate Principal Balance: Not applicable.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
of the Scheduled Payment that the related Mortgagor is obligated to pay on any
Due Date as a result of any proceeding under Bankruptcy law or any similar
proceeding.
Deferred Interest: With respect to any Class of Negative Amortization
Certificates and any Distribution Date, the lesser of (x) the applicable
Interest Distribution Amount for such date (without giving effect to any
Deferred Interest) and (y) the aggregate Mortgage Loan Negative Amortization, if
any, for the related Due Period.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding indebtedness under such Mortgage Loan, which valuation
results from a proceeding under Bankruptcy law or any similar proceeding.
Definitive Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form.
14
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Deposit Date: Not applicable.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Designated Rate: Not applicable.
Determination Date: With respect to each Distribution Date, the
Remittance Date immediately preceding such Distribution Date.
Discount Mortgage Loan: Not applicable.
Disqualified Organization: Either (i) the United States, (ii) any state
or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative described
in section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by section 511
of the Code, (vii) any organization described in section 1381(a)(2)(C) of the
Code, (viii) any "electing large partnership" described in section 775 of the
Code, or (ix) any other entity designated as a Disqualified Organization by
relevant legislation amending the REMIC Provisions and in effect at or proposed
to be effective as of the time of the determination. In addition, a corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof if all of its activities are subject to tax
and, with the exception of the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month, or, if such 25th day is
not a Business Day, the next succeeding Business Day commencing in February
2005.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period commencing
on the second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the first day of the month in which such
Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable to
the Rating Agencies or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided that
any such deposits not so insured shall be maintained in an account at a
depository institution or trust company whose commercial paper or other short
term debt obligations (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the commercial
paper or other short term debt or deposit obligations of such holding company or
depository institution, as the case may be) have
15
been rated by each Rating Agency in its highest short-term rating category, or
(iii) a segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity, in a
manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts may
bear interest.
Eligible Investments: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully guaranteed
as to timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of America
the obligations of which are backed by the full faith and credit of the
United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries of
foreign depositories and the Trustee or any agent of the Trustee, acting
in its respective commercial capacity) incorporated or organized under
the laws of the United States of America or any state thereof and
subject to supervision and examination by federal or state banking
authorities, so long as at the time of investment or the contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the commercial
paper or other short-term debt or deposit obligations of such holding
company or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC, if
such broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest short-term rating
category;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each Rating
Agency, at the time of investment or the contractual commitment
providing for such investment, at least equal to one of the two highest
short-term credit ratings of each Rating Agency; provided, however, that
securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the then
outstanding principal amount of securities issued by such corporation
and held as part of the Trust Fund to exceed 20% of the sum of the
Aggregate Principal Balance and the aggregate principal amount of all
Eligible Investments in the Certificate Account; provided, further, that
such securities will not be Eligible Investments if they are published
as being under review with negative implications from either Rating
Agency;
16
(v) commercial paper (including both non interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than 180 days after the date of issuance
thereof) rated by each Rating Agency in its highest short-term ratings;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of the
United States of America or its agencies or instrumentalities (which
obligations are backed by the full faith and credit of the United States
of America) held by a custodian in safekeeping on behalf of the holders
of such receipts; and
(viii) any other demand, money market fund, common trust fund
or time deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency (if rated by such Rating Agency) or (B) that would not adversely
affect the then current rating by either Rating Agency of any of the
Certificates and has a short term rating of at least "A-1" or its
equivalent by each Rating Agency. Such investments in this subsection
(viii) may include money market mutual funds or common trust funds,
including, without limitation, the ▇.▇. ▇▇▇▇▇▇ Prime Money Market Fund
or any other fund for which JPMorgan Chase Bank, N.A., the Trustee or an
affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian,
notwithstanding that (i) JPMorgan Chase Bank, N.A. or an affiliate
thereof charges and collects fees and expenses from such funds for
services rendered, (ii) JPMorgan Chase Bank, N.A. or an affiliate
thereof charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (iii) services performed for such funds
and pursuant to this Agreement may converge at any time. The Trustee
specifically authorizes JPMorgan Chase Bank, N.A. or an affiliate
thereof to charge and collect from the Trust Fund such fees as are
collected from all investors in such funds for services rendered to such
funds (but not to exceed investment earnings thereon);
provided, however, that (x) no such instrument shall be an Eligible Investment
if such instrument evidences either (i) a right to receive only interest
payments with respect to the obligations underlying such instrument or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations and (y) each such investment must
be a "permitted investment" within the meaning of Section 860G(a)(5) of the
Code.
Employee Mortgage Loan: Not applicable.
ERISA: The Employee Retirement Income Security Act of 1974, as amended,
and as it may be further amended from time to time, any successor statutes
thereto, and applicable U.S. Department of Labor regulations issued pursuant
thereto in temporary or final form.
17
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that would satisfy the requirements of the
Underwriter's Exemption, except, in relevant part, for the requirement that the
certificates have received a rating at the time of acquisition that is in one of
the three (or four, in the case of a "designated transaction") highest generic
rating categories by at least one of the Rating Agencies.
ERISA-Restricted Certificate: Any Class R, Class P, Class B8, Class B9
or Class B10 Certificate and any other Certificate, unless the acquisition and
holding of such other Certificate is covered by and exempt under the
Underwriter's Exemption.
Escrow Account: Any account established and maintained by a Servicer
pursuant to the applicable Servicing Agreement.
Euroclear: Euroclear S.A./N.A., as operator of the Euroclear System.
Event of Default: Any one of the conditions or circumstances enumerated
in Section 6.14(a).
Excess Loss: Any Bankruptcy Loss, or portion thereof, in excess of the
then-applicable Bankruptcy Loss Limit, any Fraud Loss, or portion thereof, in
excess of the then-applicable Fraud Loss Limit, and any Special Hazard Loss, or
portion thereof, in excess of the then-applicable Special Hazard Loss Limit.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: The Distribution Date in February
2035.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Fraud Loss: Any Realized Loss on a Liquidated Mortgage Loan sustained by
reason of a default arising from fraud, dishonesty or misrepresentation in
connection with the related Mortgage Loan, as reported by the applicable
Servicer to the Master Servicer.
Fraud Loss Limit: With respect to any Distribution Date (x) prior to the
first anniversary of the Cut-off Date, $6,486,132 less the aggregate of Fraud
Losses since the Cut-off Date, (y) from the first to the fifth anniversary of
the Cut-off Date, an amount equal to (1) the lesser of
18
(a) the Fraud Loss Limit as of the most recent anniversary of the Cut-off Date
and (b) 1% of the aggregate principal balance of all the Mortgage Loans as of
the most recent anniversary of the Cut-off Date less (2) the aggregate of Fraud
Losses since the most recent anniversary of the Cut-off Date and (z) on or after
the fifth anniversary of the Cut-off Date, an amount equal to zero.
Global Securities: The global certificates representing the Book-Entry
Certificates.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Grantor Trust: Any of Grantor Trust I or any grantor trust described in
Section 10.01 hereof.
Grantor Trust I: That certain "grantor trust" (within the meaning of the
Grantor Trust Provisions) consisting of the Grantor Trust Assets.
Grantor Trust Assets: Any Prepayment Penalty Amounts collected with
respect to the Mortgage Pool.
Grantor Trust Provisions: Subpart E of Subchapter J of the Code,
including Treasury regulation section 301.7701-4(c)(2).
Holder or Certificateholder: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar except that, solely for the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Certificate registered in the name of the Depositor, the Trustee, the Master
Servicer, any Servicer or any Affiliate thereof shall be deemed not to be
outstanding in determining whether the requisite percentage necessary to effect
any such consent has been obtained, except that, in determining whether the
Trustee shall be protected in relying upon any such consent, only Certificates
which a Responsible Officer of the Trustee knows to be so owned shall be
disregarded. The Trustee may request and conclusively rely on certifications by
the Depositor, the Master Servicer and any Servicer in determining whether any
Certificates are registered to an Affiliate of the Depositor, the Master
Servicer or such Servicer.
HUD: The United States Department of Housing and Urban Development, or
any successor thereto.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and Exchange
Commission's Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct financial
interest in such other Person or any Affiliate of such other Person, and (c) is
not connected with such other Person or any Affiliate of such other Person as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
Initial LIBOR Rate: 2.55%.
Initial Net Mortgage Rate: Not applicable.
Initial Senior Enhancement Percentage: 7.05%.
19
Insurance Policy: Any Primary Mortgage Insurance Policy and any standard
hazard insurance policy, flood insurance policy, earthquake insurance policy or
title insurance policy relating to the Mortgage Loans or the Mortgaged
Properties, to be in effect as of the Closing Date or thereafter during the term
of this Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of the
applicable Servicer in connection with procuring such proceeds, (ii) to be
applied to restoration or repair of the related Mortgaged Property, or (iii)
required to be paid over to the Mortgagor pursuant to law or the related
Mortgage Note.
Interest Distribution Amount: Not applicable.
Interest Shortfall: With respect to any Class of Certificates and any
Distribution Date, any Accrued Certificate Interest not distributed (or added to
principal) with respect to any previous Distribution Date, other than any Net
Prepayment Interest Shortfalls.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: The Distribution Date in February 2035.
▇▇▇▇▇▇ Brothers Holdings: ▇▇▇▇▇▇ Brothers Holdings Inc., or any
successor in interest.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR Rate.
With respect to each subsequent Accrual Period, the per annum rate determined
pursuant to Section 4.05 on the basis of London interbank offered rate
quotations for one month Eurodollar deposits, as such quotations may appear on
the display designated as page "LIBOR" on the Bloomberg Financial Markets
Commodities News (or such other page as may replace such page on that service
for the purpose of displaying London interbank offered quotations of major
banks).
LIBOR Available Funds Cap: With respect to each Distribution Date, the
Net WAC for such Distribution Date; in the case of the Subordinate LIBOR
Certificates, the LIBOR Available Funds Cap shall be multiplied by the fraction,
the numerator of which is 30 and the denominator of which is the actual number
of days in the related Accrual Period.
LIBOR Certificate: Any Class A2, Class B1, Class B2, Class B3, Class B4,
Class B5 or Class B6 Certificate.
LIBOR Component: Not applicable.
LIBOR Determination Date: The second London Business Day immediately
preceding the commencement of each Accrual Period with respect to any LIBOR
Certificate other than the first such Accrual Period.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Master Servicer or the applicable Servicer has determined that all amounts that
it expects to recover on behalf of the Trust Fund from or on account of such
Mortgage Loan have been recovered.
20
Liquidation Expenses: Expenses that are incurred by the Master Servicer
or any Servicer in connection with the liquidation of any defaulted Mortgage
Loan and are not recoverable under the applicable Primary Mortgage Insurance
Policy, including, without limitation, foreclosure and rehabilitation expenses,
legal expenses and unreimbursed amounts expended pursuant to Sections 9.06, 9.16
or 9.22.
Liquidation Proceeds: Cash received in connection with the liquidation
of a defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the
related Mortgaged Property (including any Additional Collateral) if the
Mortgaged Property (including such Additional Collateral) is acquired in
satisfaction of the Mortgage Loan, including any amounts remaining in the
related Escrow Account.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of the
principal balance of such Mortgage Loan at origination, or such other date as is
specified, to the Original Value thereof.
London Business Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England and New York City.
Lower Tier Interest: Not applicable.
Lower Tier Interest Rate: Not applicable.
Lower Tier Regular Interest: Any of the REMIC 1 Regular Interests.
Lower Tier REMIC: Not applicable.
Maintenance: With respect to any Cooperative Unit, the rent or fee paid
by the Mortgagor to the Cooperative Corporation pursuant to the Proprietary
Lease.
Master Servicer: Aurora Loan Services LLC, or any successor in interest,
or if any successor master servicer shall be appointed as herein provided, then
such successor master servicer.
Master Servicer Remittance Date: With respect to each Distribution Date,
the second Business Day immediately preceding such Distribution Date.
Master Servicing Fee: As to any Distribution Date and each Mortgage
Loan, an amount equal to the product of the Master Servicing Fee Rate and the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Due Period. The Master Servicing Fee for any Mortgage Loan shall be
payable in respect of any Distribution Date solely from the interest portion of
the Scheduled Payment or other payment or recovery with respect to such Mortgage
Loan.
Master Servicing Fee Rate: With respect to each Mortgage Loan (other
than any Participation), 0.000% per annum.
21
Material Defect: As defined in Section 2.02(c) hereof.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
Corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related Mortgage,
or an Assignment of Mortgage, has been or will be recorded in the name of MERS,
as agent for the holder from time to time of the Mortgage Note.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or any successor in interest.
Monthly Report: As defined in Section 4.03(a).
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage 100(SM) Loan: Not applicable.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the Trustee
or a Custodian pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned
to or deposited with the Trustee pursuant to Section 2.01 or Section 2.05,
including without limitation, each Mortgage Loan listed on the Mortgage Loan
Schedule, as amended from time to time. In addition, as used herein the term
"Mortgage Loan" includes the Participations, except where otherwise specified or
where the context requires otherwise.
Mortgage Loan Sale Agreement: The agreement, dated as of January 1,
2005, for the sale of certain Mortgage Loans by ▇▇▇▇▇▇ Brothers Holdings to the
Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund. The Depositor shall be responsible for
providing the Trustee and the Master Servicer with all amendments to the
Mortgage Loan Schedule.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in the Trust Fund.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
22
Mortgaged Property: Either of (x) the fee simple interest in real
property, together with improvements thereto including any exterior improvements
to be completed within 120 days of disbursement of the related Mortgage Loan
proceeds, or (y) in the case of a Cooperative Loan, the related Cooperative
Shares and Proprietary Lease, securing the indebtedness of the Mortgagor under
the related Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization Certificate: None.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan,
the related Liquidation Proceeds net of unreimbursed expenses incurred in
connection with liquidation or foreclosure and unreimbursed Advances, Servicing
Advances and Servicing Fees received and retained in connection with the
liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage Rate
thereof reduced by the sum of the Trustee Fee Rate, the Master Servicing Fee
Rate, the applicable Servicing Fee Rate, the Retained Interest Rate (if
applicable) and any mortgage insurance premium rate (if applicable).
Net Prepayment Interest Shortfall: With respect to any Master Servicer
Remittance Date, the excess, if any, of any Prepayment Interest Shortfalls for
such date over the sum of any amounts paid by the applicable Servicer with
respect to such shortfalls and any amount that is required to be paid by the
Master Servicer in respect of such shortfalls pursuant to this Agreement.
Net WAC: With respect to any Distribution Date, the weighted average of
Net Mortgage Rates of the Mortgage Loans at the beginning of the related Due
Period, weighted on the basis of their Scheduled Principal Balances as of the
preceding Distribution Date or, in the case of the first Distribution Date, the
Cut-off Date.
Non-AP Percentage: Not applicable.
Non-AP Senior Certificate: Not applicable.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: Not applicable.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than (i) a citizen or resident of the
United States; (ii) a corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the District
of Columbia; (iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United States
or of any state
23
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class Notional
Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any of the Class A2X1, Class A2X2 or Class BX
Certificate.
Notional Component: Not applicable.
Offering Document: Either of the private placement memorandum dated
January 27, 2005 relating to the Class B8, Class B9 and Class B10 Certificates,
or the Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Trustee, and who may be in-house or outside counsel
to the Depositor, the Master Servicer or the applicable Servicer but which must
be Independent outside counsel with respect to any such opinion of counsel
concerning the transfer of any Residual Certificate or concerning certain
matters with respect to ERISA, or the taxation, or the federal income tax
status, of each REMIC. For purpose of Section 2.01(c)(i), the Opinion of Counsel
referred to therein may take the form of a memorandum of law or other acceptable
assurance.
Original Credit Support Percentage: With respect to each Class of
Subordinate Certificates, the Credit Support Percentage for such Class of
Certificates on the Closing Date.
Original Subordinate Amount: The Subordinate Amount on the Closing Date.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor at
the time the related Mortgage Loan was originated.
Parent Power(SM) Loan: Not applicable.
Participation Agreement: Not applicable.
Participation: Not applicable.
24
Participation Schedule: Not applicable.
Participation Master Servicer: Not applicable.
PAX Mortgage Loans: Not applicable.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate and the related
Class, such Certificate's percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any Certificate other than a Notional
Certificate, the Percentage Interest evidenced thereby shall equal the initial
Certificate Principal Amount thereof divided by the initial Class Principal
Amount of all Certificates of the same Class. With respect to any Notional
Certificate, the Percentage Interest evidenced thereby shall equal the initial
Certificate Notional Amount thereof divided by the initial Class Notional Amount
of all Certificates of the same Class. With respect to any Class P Certificate,
the Percentage Interest evidenced thereby shall be as specified on the face
thereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Placement Agent: ▇▇▇▇▇▇ Brothers Inc.
Plan Asset Regulations: Not applicable.
Pool Balance: As to any Distribution Date, the sum of the Scheduled
Principal Balance of each Mortgage Loan included in the Mortgage Pool.
Pledged Asset Loan-to-Value Ratio: Not applicable.
Pledged Asset Mortgage Loan: Not applicable.
Prepayment Interest Excess: With respect to any Distribution Date and
any Principal Prepayment in full received on the Mortgage Loans serviced by
Aurora from the first day through the sixteenth day of the month during which
such Distribution Date occurs, all amounts paid in respect of interest at the
applicable Net Mortgage Rate on such Principal Prepayment in full.
Prepayment Interest Shortfall: With respect to any Distribution Date and
(x) any Principal Prepayment in part (and, with respect to those Mortgage Loans
serviced by Servicers other than Aurora, any Principal Prepayment in full) and
(y) any Principal Prepayment in full with respect to those Mortgage Loans
serviced by Aurora if received on or after the seventeenth day of the month
immediately preceding the month of such Distribution Date but on or before the
last day of the month immediately preceding the month of such Distribution Date,
the difference between (i) one full month's interest at the applicable Mortgage
Rate (after giving effect to any applicable Relief Act Reduction), as reduced by
the applicable Servicing Fee Rate,
25
the Master Servicing Fee Rate and the applicable Retained Interest Rate, if any,
on the outstanding principal balance of such Mortgage Loan immediately prior to
such prepayment and (ii) the amount of interest actually received with respect
to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty Amounts: With respect to any Distribution Date, all
premiums or charges paid by the obligors under the related Mortgage Notes due to
Principal Prepayments collected by the applicable Servicer during the
immediately preceding Prepayment Period, if any.
Prepayment Period: With respect to those Mortgage Loans serviced by
Servicers other than Aurora, any Distribution Date and any Principal Prepayment,
whether in part or in full (including any liquidation), the calendar month
immediately preceding the month in which such Distribution Date occurs. With
respect to any Distribution Date and a Principal Prepayment in full (including
any liquidation) with respect to those Mortgage Loans serviced by Aurora, the
period from the seventeenth (or, in the case of the first Distribution Date, the
first) day of the month immediately preceding the month of such Distribution
Date to the sixteenth day of the month of such Distribution Date. With respect
to those Mortgage Loans serviced by Aurora, any Distribution Date and any
Principal Prepayment in part, the calendar month immediately preceding the month
in which such Distribution Date occurs.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if any,
on an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Amount Schedules: Not applicable.
Principal Only Certificate: Not applicable.
Principal Prepayment: Any Mortgagor payment of principal (other than a
Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled Due
Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the applicable Servicing
Agreement.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated January 27, 2005, together
with the accompanying prospectus dated January 25, 2005, relating to the Senior
Certificates and the Class B1, Class B2, Class B3, Class B4, Class B5, Class B6,
Class B7 and Class BX Certificates.
Purchase Price: With respect to the repurchase of a Mortgage Loan
pursuant to this Agreement, an amount equal to the sum of (a) 100% of the unpaid
principal balance of such Mortgage Loan, (b) accrued interest thereon at the
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date immediately preceding the related Distribution Date, (c)
any unreimbursed Servicing Advances with respect to such Mortgage Loan and (d)
any costs and damages incurred by the Trust Fund in connection with any
violation by such Mortgage Loan of any predatory- or abusive-lending law. The
Master Servicer or the applicable Servicer (or the Trustee, if applicable) shall
be reimbursed from the Purchase Price for
26
any Mortgage Loan or related REO Property for any Advances made with respect to
such Mortgage Loan that are reimbursable to the Master Servicer or such Servicer
under this Agreement or the applicable Servicing Agreement, as well as any
unreimbursed Servicing Advances and accrued and unpaid Master Servicing Fees or
Servicing Fees, as applicable.
QIB: As defined in Section 3.03(c).
Qualified GIC: A guaranteed investment contract or surety bond providing
for the investment of funds in the Collection Account or the Certificate Account
and insuring a minimum, fixed or floating rate of return on investments of such
funds, which contract or surety bond shall:
(b) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two highest
rating categories or, if such insurance company has no long-term debt, whose
claims paying ability is rated by each Rating Agency in one of its two highest
rating categories, and whose short-term debt is rated by each Rating Agency in
its highest rating category;
(b) provide that the Trustee may exercise all of the rights under such
contract or surety bond without the necessity of taking any action by any other
Person;
(c) provide that if at any time the then current credit standing of the
obligor under such guaranteed investment contract is such that continued
investment pursuant to such contract of funds would result in a downgrading of
any rating of the Certificates, the Trustee shall terminate such contract
without penalty and be entitled to the return of all funds previously invested
thereunder, together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the Trustee;
(d) provide that the Trustee's interest therein shall be transferable to
any successor trustee hereunder; and
(e) provide that the funds reinvested thereunder and accrued interest
thereon be returnable to the Collection Account or the Certificate Account, as
the case may be, not later than the Business Day prior to any Distribution Date.
Qualified Insurer: Not applicable.
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan, provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together with
interest thereon at the applicable Mortgage Rate net of the applicable Master
Servicing Fee and the applicable Servicing Fee from the date as to which
interest was last paid through the end of the Due Period in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Master Servicer for deposit into the
27
Collection Account, and shall be treated as a Principal Prepayment hereunder;
(ii) has a Net Mortgage Rate not lower than the Net Mortgage Rate of the related
Deleted Mortgage Loan and will be a Discount Mortgage Loan if the Deleted
Mortgage Loan was a Discount Mortgage Loan or a Non-Discount Mortgage Loan if
the Deleted Mortgage Loan was a Non-Discount Mortgage Loan; (iii) has a
remaining stated term to maturity not more than eighteen months longer than, and
not more than eighteen months shorter than, the remaining term to stated
maturity of the related Deleted Mortgage Loan; (iv) (A) has a Loan-to-Value
Ratio as of the date of such substitution of not greater than 80%, provided,
however, that if the related Deleted Mortgage Loan has a Loan-to-Value Ratio of
greater than 80%, then the Loan-to-Value Ratio of such substitute Mortgage Loan
may be greater than 80% but shall not be greater than the Loan-to-Value Ratio of
the related Deleted Mortgage Loan and (B) the addition of such substitute
Mortgage Loan does not increase the weighted average Loan-to-Value Ratio of the
related Mortgage Pool by more than 5%; (v) will comply with all of the
representations and warranties relating to Mortgage Loans set forth herein, as
of the date as of which such substitution occurs; (vi) is not a Cooperative Loan
unless the related Deleted Mortgage Loan was a Cooperative Loan; (vii) if
applicable, has the same index as and a margin not less than that of the related
Deleted Mortgage Loan; (viii) has not been delinquent for a period of more than
30 days more than once in the twelve months immediately preceding such date of
substitution; (ix) is covered by a Primary Mortgage Insurance Policy if the
related Deleted Mortgage Loan is so covered, and the Loan-to-Value Ratio of such
Mortgage Loan is greater than 80%; (x) has a Credit Score not greater than 20
points lower than the Credit Score of the related Deleted Mortgage Loan,
provided, however, that if the Deleted Mortgage Loan does not have a Credit
Score, then such substitute Mortgage Loan shall have a Credit Score equal to or
greater than 700; (xi) has its initial adjustment date after the related Reset
Date; and (xii) has a gross margin no less than the related Deleted Mortgage
Loan. In the event that either one mortgage loan is substituted for more than
one Deleted Mortgage Loan or more than one mortgage loan is substituted for one
or more Deleted Mortgage Loans, then (a) the Scheduled Principal Balance
referred to in clause (i) above shall be determined such that the aggregate
Scheduled Principal Balance of all such substitute Mortgage Loans shall not
exceed the aggregate Scheduled Principal Balance of all Deleted Mortgage Loans
and (b) each of (1) the rate referred to in clause (ii) above, (2) the remaining
term to stated maturity referred to in clause (iii) above, (3) the Loan-to-Value
Ratio referred to in clause (iv) above and (4) the Credit Score referred to in
clause (x) above shall be determined on a weighted average basis, provided that
the final scheduled maturity date of any Qualifying Substitute Mortgage Loan
shall not exceed the Final Scheduled Distribution Date of any Class of
Certificates. Whenever a Qualifying Substitute Mortgage Loan is substituted for
a Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify such qualification in writing to the Trustee and the
Master Servicer.
Rating Agency: Each of S&P and ▇▇▇▇▇'▇.
Realized Loss: (a) With respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of the
date of liquidation, plus (ii) interest at the applicable Net Mortgage Rate from
the date as to which interest was last paid up to the last day of the month of
such liquidation, minus (iii) Liquidation Proceeds received, net of amounts that
are reimbursable to the Master Servicer or the applicable Servicer with respect
to such Mortgage Loan (other than Advances of principal and interest) including
expenses of liquidation and (b) with respect to each Mortgage Loan that has
become the subject of a
28
Deficient Valuation, the difference between the unpaid principal balance of such
Mortgage Loan immediately prior to such Deficient Valuation and the unpaid
principal balance of such Mortgage Loan as reduced by the Deficient Valuation.
In determining whether a Realized Loss on a Liquidated Mortgage Loan is a
Realized Loss of interest or principal, Liquidation Proceeds shall be allocated,
first, to payment of expenses related to such Liquidated Mortgage Loan
(including payment of any Retained Interest), then to accrued unpaid interest
and finally to reduce the principal balance of the Mortgage Loan.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the related Cooperative Corporation and the originator of such
Mortgage Loan to establish the rights of such originator in the related
Cooperative Property.
Record Date: With respect to any Distribution Date and each Class of
Certificates (other than the Class A2, Class B1, Class B2, Class B3, Class B4,
Class B5 and Class B6 Certificates), the close of business on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs. With respect to any Distribution Date and each of Class A2, Class B1,
Class B2, Class B3, Class B4, Class B5 and Class B6 Certificates, the close of
business on the Business Day immediately preceding such Distribution Date.
Redemption Certificate: Not applicable.
Reference Banks: As defined in Section 4.05(c).
Regulation S: Regulation S promulgated under the Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition or
term, as the case may be, or any successor thereto, in each case as the same may
be amended from time to time.
Regulation S Global Security: The meaning specified in Section 3.01(c).
Relief Act Reduction: With respect to any Mortgage Loan as to which
there has been a reduction in the amount of interest collectible thereon as a
result of application of the Servicemembers' Civil Relief Act or any similar
state law, any amount by which interest collectible on such Mortgage Loan for
the Due Date in the related Due Period is less than interest accrued thereon for
the applicable one-month period at the Mortgage Rate without giving effect to
such reduction.
REMIC: Each of REMIC 1 and the Upper Tier REMIC, as described in the
Preliminary Statement hereto.
REMIC 1: REMIC 1 as described in the Preliminary Statement hereto.
REMIC 1 Regular Interest: Any of the interests in REMIC 1 described in
the Preliminary Statement hereto other than the Class LT1-R Interest.
29
REMIC BX Components: Any of the REMIC B1X Component, REMIC B2X
Component, REMIC B3X Component, REMIC B4X Component, REMIC B5X Component and
REMIC B6X Component.
REMIC B1X Component: A regular interest in the Upper Tier REMIC entitled
to a specified portion of the interest on the Class LT1-B1 Interest, such
portion being equal to the interest accrued on the Class LT1-B1 Interest in
excess of interest accrued at a rate equal to the Certificate Interest Rate for
the Class B-1 Certificates for such Distribution Date.
REMIC B2X Component: A regular interest in the Upper Tier REMIC entitled
to a specified portion of the interest on the Class LT1-B2 Interest, such
portion being equal to the interest accrued on the Class LT1-B2 Interest in
excess of interest accrued at a rate equal to the Certificate Interest Rate for
the Class B-2 Certificates for such Distribution Date.
REMIC B3X Component: A regular interest in the Upper Tier REMIC entitled
to a specified portion of the interest on the Class LT1-B3 Interest, such
portion being equal to the interest accrued on the Class LT1-B3 Interest in
excess of interest accrued at a rate equal to the Certificate Interest Rate for
the Class B-3 Certificates for such Distribution Date.
REMIC B4X Component: A regular interest in the Upper Tier REMIC entitled
to a specified portion of the interest on the Class LT1-B4 Interest, such
portion being equal to the interest accrued on the Class LT1-B4 Interest in
excess of interest accrued at a rate equal to the Certificate Interest Rate for
the Class B-4 Certificates for such Distribution Date.
REMIC B5X Component: A regular interest in the Upper Tier REMIC entitled
to a specified portion of the interest on the Class LT1-B5 Interest, such
portion being equal to the interest accrued on the Class LT1-B5 Interest in
excess of interest accrued at a rate equal to the Certificate Interest Rate for
the Class B-5 Certificates for such Distribution Date Component.
REMIC B6X Component: A regular interest in the Upper Tier REMIC entitled
to a specified portion of the interest on the Class LT1-B6 Interest, such
portion being equal to the interest accrued on the Class LT1-B6 Interest in
excess of interest accrued at a rate equal to the Certificate Interest Rate for
the Class B-6 Certificates for such Distribution Date.
REMIC Provisions: The provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMIC Regular Interest: Any of (i) the Class A1, Class A2, Class A2X1,
Class A2X2, Class B7, Class B8, Class B9 and Class B10 Certificates, (ii) the
uncertificated REMIC regular interests represented by the rights associated with
the Class B1, Class B2, Class B3, Class B4, Class B5 and Class B6 Certificates
other than the rights to receive payments in respect of Subordinate Floating
Rate Certificate Shortfalls and Unpaid Subordinate Floating Rate Certificate
Shortfalls and (iii) the REMIC BX Components.
30
Remittance Date: The day in each month on which each Servicer is
required to remit payments to the account maintained by the Master Servicer, as
specified in the applicable Servicing Agreement, which is the 18th day of each
month (or if such 18th day is not a Business Day, the next succeeding Business
Day).
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Repurchase Price: As defined in Section 7.01(b) hereof.
Reserve Interest Rate: As defined in Section 4.05(a)(ii).
Reset Date: Not applicable.
Residual Certificate: Any Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary, any
Trust Officer, the Treasurer, or any assistant treasurer, working in its
corporate trust department and having direct responsibility for the
administration of this Agreement.
Restricted Certificate: Any Class B8, Class B9 or Class B10 Certificate
but excluding any Regulation S Global Security.
Restricted Global Security: The meaning specified in Section 3.01(c).
Retained Interest: Interest in respect of each Employee Mortgage Loan,
retained in each case by the Retained Interest Holder at the Retained Interest
Rate.
Retained Interest Holder: ▇▇▇▇▇▇ Brothers Holdings or any successor in
interest by assignment or otherwise.
Retained Interest Rate: For each Due Period, 0.00% per annum; provided,
however, if the Mortgagor of the Employee Mortgage Loan ceases to be an employee
of ▇▇▇▇▇▇ Brothers Inc. or its Affiliates, 0.25% per annum.
Rounding Account: Not applicable.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
Scheduled Payment: Each scheduled payment of principal and interest (or
of interest only, if applicable) to be paid by the Mortgagor on a Mortgage Loan,
as reduced (except where otherwise specified herein) by the amount of any
related Debt Service Reduction (excluding all amounts of principal and interest
that were due on or before the Cut-off Date whenever received) and, in the case
of an REO Property, an amount equivalent to the Scheduled Payment that would
have been due on the related Mortgage Loan if such Mortgage Loan had remained in
existence. In the case of any bi-weekly payment Mortgage Loan, all payments due
on such Mortgage Loan
31
during any Due Period shall be deemed collectively to constitute the Scheduled
Payment due on such Mortgage Loan in such Due Period.
Scheduled Principal Amount: Not applicable.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as of
any Distribution Date, the principal balance of such Mortgage Loan at the close
of business on the Cut-off Date, after giving effect to principal payments due
on or before the Cut-off Date, whether or not received, less an amount equal to
principal payments due after the Cut-off Date and on or before the Due Date in
the related Due Period, whether or not received from the Mortgagor or advanced
by the applicable Servicer or the Master Servicer, and all amounts allocable to
unscheduled principal payments (including Principal Prepayments, Net Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the applicable Prepayment
Period) and (ii) any REO Property as of any Distribution Date, the Scheduled
Principal Balance of the related Mortgage Loan on the Due Date immediately
preceding the date of acquisition of such REO Property by or on behalf of the
Trustee (reduced by any amount applied as a reduction of principal on the
Mortgage Loan). With respect to any Mortgage Loan as of the Cut-off Date, as
specified in the Mortgage Loan Schedule or the Participation Schedule, as the
case may be.
Security Agreement: With respect to any Cooperative Loan, the agreement
between the owner of the related Cooperative Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Cooperative Shares and the related Proprietary Lease.
Seller: ▇▇▇▇▇▇ Brothers Holdings or any successor in interest.
Senior Certificate: Any Class A1, Class A2, Class A2X1, Class A2X2 or
Class R Certificate.
Senior Enhancement Percentage: For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of the Class
Principal Amounts of the Subordinate Certificates and the denominator of which
is the Pool Balance for the immediately preceding Distribution Date.
Senior Percentage: With respect to any Distribution Date, the percentage
equivalent of the fraction, the numerator of which is the aggregate of the
Certificate Principal Amounts of the Senior Certificates, in each case
immediately prior to such Distribution Date and the denominator of which is the
related Pool Balance for the immediately preceding Distribution Date.
Senior Prepayment Percentage: With respect to any Distribution Date
occurring during the ten years beginning on the first Distribution Date, 100%,
except as described herein below. With respect to for any Distribution Date
occurring on or after the tenth anniversary of the first Distribution Date, the
related Senior Percentage plus the following percentage of the related
Subordinate Percentage for such Distribution Date: for any Distribution Date in
the first year thereafter, 70%; for any Distribution Date in the second year
thereafter, 60%; for any Distribution Date in the third year thereafter, 40%;
for any Distribution Date in the fourth year
32
thereafter, 20%; and for any subsequent Distribution Date, 0%; provided,
however, that (i) if on any of the foregoing Distribution Dates the Senior
Enhancement Percentage is less than the Initial Senior Enhancement Percentage,
the Senior Prepayment Percentage on such Distribution Date shall once again
equal 100%, (ii) unless the condition described in (i) has occurred, if on any
Distribution Date before the Distribution Date in February 2008, prior to giving
effect to any distributions on such Distribution Date, the Senior Enhancement
Percentage for such Distribution Date is greater than or equal to twice the
Initial Senior Enhancement Percentage, then the Senior Prepayment Percentage for
such Distribution Date will equal the related Senior Percentage plus 50% of the
related Subordinate Percentage and (iii) unless the condition described in (i)
has occurred, if on any Distribution Date on or after the Distribution Date in
February 2008, prior to giving effect to any distributions on such Distribution
Date, the Senior Enhancement Percentage for such Distribution Date is greater
than or equal to twice the Initial Senior Enhancement Percentage, then the
Senior Prepayment Percentage on such Distribution Date will equal the related
Senior Percentage.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage below the respective levels in effect for the most recent prior
period set forth in the paragraph above shall be effective on any Distribution
Date if, as of the first Distribution Date as to which any such decrease
applies, (i) the average outstanding principal balance on such Distribution Date
and for the preceding five Distribution Dates of all Mortgage Loans that were
delinquent 60 days or more (including for this purpose any Mortgage Loans in
foreclosure and the Scheduled Payments that would have been due on Mortgage
Loans with respect to which the related Mortgaged Properties have been acquired
by the Trust Fund if the related Mortgage Loan had remained in existence) is
greater than or equal to 50% of the applicable Subordinate Amount immediately
prior to such Distribution Date or (ii) cumulative Realized Losses with respect
to the Mortgage Loans exceed (a) with respect to the Distribution Date prior to
the third anniversary of the first Distribution Date, 20% of the related
Original Subordinate Amount, (b) with respect to the Distribution Date on or
after the third anniversary and prior to the sixth anniversary of the first
Distribution Date, 30% of the related Original Subordinate Amount, (c) with
respect to the Distribution Date on or after the sixth anniversary and prior to
the seventh anniversary of the first Distribution Date, 35% of the related
Original Subordinate Amount, (d) with respect to the Distribution Date on or
after the seventh anniversary and prior to the eighth anniversary of the first
Distribution Date, 40% of the related Original Subordinate Amount, (e) with
respect to the Distribution Date on or after the eighth anniversary and prior to
the ninth anniversary of the first Distribution Date, 45% of the related
Original Subordinate Amount, and (f) with respect to the Distribution Date on or
after the ninth anniversary of the first Distribution Date or thereafter, 50% of
the related Original Subordinate Amount. After the Class Principal Amount of
each Class of Senior Certificates in any Certificate Group has been reduced to
zero, the Senior Prepayment Percentage shall be 0%.
Senior Principal Distribution Amount: For any Distribution Date, the sum
of the following amounts:
(i) the product of (a) the Senior Percentage for such date
and (b) the principal portion of each Scheduled Payment (without giving
effect to any Debt Service Reduction occurring prior to the Bankruptcy
Coverage Termination Date), on each Mortgage Loan due during the related
Due Period;
33
(ii) the product of (a) the Senior Prepayment Percentage for
such date and (b) each of the following amounts: (1) each Principal
Prepayment on the Mortgage Loans collected during the related Prepayment
Period, (2) each other unscheduled collection, including any Subsequent
Recovery, Insurance Proceeds and Net Liquidation Proceeds (other than
with respect to any Mortgage Loan that was finally liquidated during the
related Prepayment Period) representing or allocable to recoveries of
principal received during the related Prepayment Period, and (3) the
principal portion of all proceeds of the purchase of any Mortgage Loan
(or, in the case of a permitted substitution, amounts representing a
principal adjustment) actually received by the Trustee during the
related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to
principal of any Mortgage Loan that was finally liquidated during the
related Prepayment Period, the lesser of (a) the related net Liquidation
Proceeds allocable to principal and (b) the product of the Senior
Prepayment Percentage for such date and the Scheduled Principal Balance
of such related Mortgage Loan at the time of liquidation; and
(iv) any amounts described in clauses (i) through (iii) for
any previous Distribution Date that remain unpaid.
If on any Distribution Date the Class Principal Amount of each Class of Senior
Certificates in any Certificate Group has been reduced to zero, the Senior
Principal Distribution Amount for such Certificate Group for such date
(following such reduction) and each subsequent Distribution Date shall be zero.
Servicer: Any Servicer that has entered into any of the Servicing
Agreements attached as Exhibit E hereto, or any successor in interest.
Initially, the Servicers are Aurora, Colonial Savings, F.A. and ▇▇▇▇▇ Fargo
Bank, N.A.
Servicing Advances: Expenditures incurred by a Servicer in connection
with the liquidation or foreclosure of a Mortgage Loan which are eligible for
reimbursement under the applicable Servicing Agreement.
Servicing Agreement: Each Servicing Agreement between a Servicer and the
Seller, dated as of January 1, 2005, attached hereto in Exhibit E, and any other
servicing agreement entered into between a successor servicer and the Seller or
the Trustee pursuant to the terms hereof.
Servicing Fee: With respect to each Servicer, the Servicing Fee
specified in the applicable Servicing Agreement.
Servicing Fee Rate: With respect to a Servicer, the rate specified in
the applicable Servicing Agreement.
Servicing Officer: Any officer of the Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished by
the Master Servicer to the Trustee, as such list may from time to time be
amended.
34
Special Hazard Loss: With respect to the Mortgage Loans, (x) any
Realized Loss arising out of any direct physical loss or damage to a Mortgaged
Property which is caused by or results from any cause, exclusive of any loss
covered by a hazard policy or a flood insurance policy required to be maintained
in respect of such Mortgaged Property and any loss caused by or resulting from
(i) normal wear and tear, (ii) conversion or other dishonest act on the part of
the Trustee, the Master Servicer, any Servicer or any of their agents or
employees, or (iii) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues, or (y) any
Realized Loss arising from or related to the presence or suspected presence of
hazardous wastes, or hazardous substances on a Mortgaged Property unless such
loss is covered by a hazard policy or flood insurance policy required to be
maintained in respect of such Mortgaged Property, in any case, as reported by
any Servicer to the Master Servicer.
Special Hazard Loss Limit: As of the Cut-off Date, $6,755,000 which
amount shall be reduced from time to time to an amount equal on any Distribution
Date to the lesser of (a) the greatest of (i) 1% of the aggregate of the
Scheduled Principal Balances of the Mortgage Loans; (ii) twice the Scheduled
Principal Balance of the Mortgage Loan having the highest Scheduled Principal
Balance, and (iii) the aggregate Scheduled Principal Balances of the Mortgage
Loans secured by Mortgaged Properties located in the single California postal
zip code area having the highest aggregate Scheduled Principal Balance of
Mortgage Loans of any such postal zip code area and (b) the Special Hazard Loss
Limit as of the Closing Date less the amount, if any, of Special Hazard Losses
incurred with respect to Mortgage Loans since the Closing Date.
Specified Rating: Not applicable.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Subordinate Amount: With respect to any Distribution Date, the excess,
if any, of the Pool Balance for the immediately preceding Distribution Date over
the sum of the aggregate of the Certificate Principal Amounts of the Senior
Certificates immediately prior to the related Distribution Date.
Subordinate Certificate: Any Class B Certificate.
Subordinate Certificate Writedown Amount: As to any Distribution Date,
the amount by which (i) the sum of the Class Principal Amounts of all the
Certificates (after giving effect to the distribution of principal and the
allocation of Realized Losses in reduction of the Certificate Principal Amounts
of the Certificates on such Distribution Date) exceeds (ii) the aggregate
Scheduled Principal Balance of the Mortgage Loans for such Distribution Date.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, the percentage obtained by dividing the
Class Principal Amount of such Class immediately prior to such Distribution Date
by the aggregate Certificate Principal Amount of all Subordinate Certificates
immediately prior to such Distribution Date. Subordinate Component Percentage:
Not applicable.
Subordinate Floating Rate Certificate Shortfall: With respect to each
Distribution Date and any Class of Subordinate LIBOR Certificates, the amount
equal to the excess of the amount
35
of Accrued Certificate Interest calculated under clause (i) of the definition of
Certificate Interest Rate for such Class exceeds the amount of Accrued
Certificate Interest as calculated based on the LIBOR Available Funds Cap.
Subordinate LIBOR Certificate: Any Class B1, Class B2, Class B3, Class
B4, Class B5 or Class B6 Certificate.
Subordinate Percentage: With respect to any Distribution Date, the
difference between 100% and the related Senior Percentage for such Distribution
Date.
Subordinate Prepayment Percentage: With respect to any Distribution
Date, the difference between 100% and the Senior Prepayment Percentage for such
Distribution Date.
Subordinate Principal Distribution Amount: For any Distribution Date,
the sum of the following:
(i) the product of (a) the related Subordinate Percentage
for such date and (b) the principal portion of each Scheduled Payment
(without giving effect to any Debt Service Reduction occurring prior to
the applicable Bankruptcy Coverage Termination Date) on each Mortgage
Loan due during the related Due Period;
(v) the product of (a) the Subordinate Prepayment Percentage
for such date and (b) each of the following amounts: (1) each Principal
Prepayment on the Mortgage Loans collected during the related Prepayment
Period, (2) each other unscheduled collection, including, any Subsequent
Recoveries, Insurance Proceeds and Net Liquidation Proceeds (other than
with respect to any Mortgage Loan that was finally liquidated during the
related Prepayment Period) representing or allocable to recoveries of
principal received during the related Prepayment Period, and (3) the
principal portion of all proceeds of the purchase of any Mortgage Loan
(or, in the case of a permitted substitution, amounts representing a
principal adjustment) actually received by the Trustee during the
related Prepayment Period;
(vi) with respect to unscheduled recoveries allocable to
principal of any Mortgage Loan that was finally liquidated during the
related Prepayment Period, the related net Liquidation Proceeds
allocable to principal less any related amount paid pursuant to
subsection (iii) of the definition of Senior Principal Distribution
Amount; and
(vii) any amounts described in clauses (i) through (iii) for
any previous Distribution Date that remain unpaid;
Subsequent Recovery: The amount, if any, recovered by the related
Servicer or the Master Servicer with respect to a Liquidated Mortgage Loan with
respect to which a Realized Loss has been incurred after liquidation and
disposition of such Mortgage Loan.
Surety: Not applicable.
Surety Bond: Not applicable.
36
Tax Matters Person: The "tax matters person" as specified in the REMIC
Provisions.
Title Insurance Policy: A title insurance policy maintained with respect
to a Mortgage Loan.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: Each seller of Mortgage Loans to ▇▇▇▇▇▇ Brothers Holdings
pursuant to a Transfer Agreement.
Trust Fund or Trust: The corpus of the trust created pursuant to this
Agreement, consisting of the Mortgage Loans (other than any Retained Interest),
the assignment of the Depositor's rights under the Mortgage Loan Sale Agreement
and the Participation Agreement, the Participations, the Additional Collateral,
such amounts as shall from time to time be held in the Collection Account, the
Certificate Account, any Escrow Account, the Insurance Policies, any REO
Property and the other items referred to in, and conveyed to the Trustee under,
Section 2.01(a).
Trust Rate: Not applicable.
Trust REMIC: Any of REMIC 1 and the Upper Tier REMIC.
Trustee: JPMorgan Chase Bank, N.A., not in its individual capacity but
solely as Trustee, or any successor in interest, or if any successor trustee or
any co-trustee shall be appointed as herein provided, then such successor
trustee and such co-trustee, as the case may be.
Trustee Fee: As to any Distribution Date, an amount equal to the product
of the Trustee Fee Rate and the aggregate Scheduled Principal Balance of the
related Mortgage Loans as of the first day of the related Due Period in the
aggregate.
Trustee Fee Rate: 0.000% per annum.
Undercollateralization Distribution: Not applicable.
Undercollateralized Group: Not applicable.
Underlying Subordinate Rate: Not applicable.
Underwriter's Exemption: Prohibited Transaction Exemption 91-14, 56 Fed.
Reg. 7413 (1991), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor.
Unpaid Subordinate Floating Rate Certificate Shortfall: With respect to
any Distribution Date, for any Class of LIBOR Certificates the total of all
Subordinate Floating Rate Certificate Shortfalls for such Class remaining unpaid
from all previous Distribution Dates, together with interest thereon at the
applicable Certificate Interest Rate, computed without regard to the LIBOR
Available Funds Cap.
37
Upper Tier REMIC: One of the separate REMICs as described in the
Preliminary Statement hereto.
Upper Tier REMIC Residual Interest: The sole class of residual interest
in the Upper Tier REMIC, representing the rights to receive all distributions on
the Class R Certificate other than distributions in respect of the Class LT1-R
Interest.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
the Notional Certificates will be allocated 5% of all voting rights, the Class P
Certificates will be allocated 1% of all voting rights and the remaining Classes
of Certificates will be allocated 94% of all voting rights. Voting Interests
shall be allocated among the Classes of Certificates other than the Class P
Certificates (and among the Certificates of each such Class) in proportion to
their Class Principal Amounts (or Certificate Principal Amounts). Voting
Interests allocated to the Class P Certificates shall be allocated among the
Certificates of such Class in proportion to their Percentage Interests.
Section 1.02. Calculations Respecting Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect
to any Mortgage Loan in the Trust Fund shall be made based upon current
information as to the terms of the Mortgage Loans and reports of payments
received from the Mortgagor on such Mortgage Loans and payments to be made to
the Trustee by the Master Servicer as supplied to the Trustee by the Master
Servicer. The Trustee shall not be required to recompute, verify or recalculate
the information supplied to it by the Master Servicer.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, subject to Sections 2.02, 2.04, 2.05
and 2.06, in trust, all the right, title and interest of the Depositor in and to
the Mortgage Loans (including the Participations). Such conveyance includes,
without limitation, the right to all distributions of principal and interest
received on or with respect to the Mortgage Loans on and after the Cut-off Date
(other than payments of principal and interest due on or before such date), and
all such payments due after such date but received prior to such date and
intended by the related Mortgagors to be applied after such date, together with
all of the Depositor's right, title and interest in and to the Collection
Account and all amounts from time to time credited to and the proceeds of the
Collection Account, the Certificate Account and all amounts from time to time
credited to and the proceeds of the Certificate Account, any Escrow Account
established pursuant to Section 9.06 hereof and all amounts from time to time
credited to and the proceeds of any such Escrow Account, any REO Property and
the proceeds thereof, the Depositor's rights under any Insurance Policies
related
38
to the Mortgage Loans, and the Depositor's security interest in any collateral
pledged to secure the Mortgage Loans, including the Mortgaged Properties and any
Additional Collateral, and any proceeds of the foregoing, to have and to hold,
in trust; and the Trustee declares that, subject to the review provided for in
Section 2.02, it (or a Custodian on its behalf) has received and shall hold the
Trust Fund, as trustee, in trust, for the benefit and use of the Holders of the
Certificates and for the purposes and subject to the terms and conditions set
forth in this Agreement, and, concurrently with such receipt, has caused to be
executed, authenticated and delivered to or upon the order of the Depositor, in
exchange for the Trust Fund, Certificates in the authorized denominations
evidencing the entire ownership of the Trust Fund.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest under
the Mortgage Loan Sale Agreement; including all rights of the Seller under the
applicable Servicing Agreement to the extent assigned under the Mortgage Loan
Sale Agreement. The Trustee hereby accepts such assignment, and shall be
entitled to exercise all rights of the Depositor under the Mortgage Loan Sale
Agreement as if, for such purpose, it were the Depositor. The foregoing sale,
transfer, assignment, set-over, deposit and conveyance does not and is not
intended to result in creation or assumption by the Trustee of any obligation of
the Depositor, the Seller, or any other Person in connection with the Mortgage
Loans or any other agreement or instrument relating thereto except as
specifically set forth herein.
In addition, with respect to any Pledged Asset Mortgage Loan, the
Depositor does hereby transfer, assign, set-over and otherwise convey to the
Trustee without recourse (except as provided herein) (i) its rights as assignee
under any security agreements, pledge agreements or guarantees relating to the
Additional Collateral supporting any Pledged Asset Mortgage Loan, (ii) its
security interest in and to any Additional Collateral, (iii) its right to
receive payments in respect of any Pledged Asset Mortgage Loan pursuant to the
Additional Collateral Servicing Agreement, and (iv) its rights as beneficiary
under the Surety Bond in respect of any Pledged Asset Mortgage Loan.
Notwithstanding anything to the contrary in this Agreement, the Trust Fund shall
not obtain title to or beneficial ownership of any Additional Collateral as a
result of or in lieu of the disposition thereof or otherwise.
The Depositor, the Master Servicer and the Trustee acknowledge and agree
that it is not intended that any Mortgage Loan be included in the Trust Fund
that is a "High Cost Home Loan" as defined in the New Jersey Home Ownership Act
effective November 27, 2003 or the New Mexico Home Protection Act effective
January 1, 2004.
(b) In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, or cause to be delivered to and deposited
with, the Trustee, and/or any custodian acting on the Trustee's behalf, if
applicable, the following documents or instruments with respect to each Mortgage
Loan (each a "Mortgage File") so transferred and assigned (other than the
Participations):
(i) with respect to each Mortgage Loan, the original
Mortgage Note endorsed without recourse in proper form to the order of
the Trustee, or in blank (in each case, with all necessary intervening
endorsements as applicable);
39
(ii) the original of any guarantee, security agreement or
pledge agreement relating to any Additional Collateral and executed in
connection with the Mortgage Note, assigned to the Trustee;
(iii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original recorded Mortgage with evidence of
recording indicated thereon and the original recorded power of attorney,
if the Mortgage was executed pursuant to a power of attorney, with
evidence of recording thereon or, if such Mortgage or power of attorney
has been submitted for recording but has not been returned from the
applicable public recording office, has been lost or is not otherwise
available, a copy of such Mortgage or power of attorney, as the case may
be, certified to be a true and complete copy of the original submitted
for recording. If, in connection with any Mortgage Loan, the Depositor
cannot deliver the Mortgage with evidence of recording thereon on or
prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for recordation
or because such Mortgage has been lost, the Depositor shall deliver or
cause to be delivered to the Trustee (or its custodian), in the case of
a delay due to recording, a true copy of such Mortgage, pending delivery
of the original thereof, together with an Officer's Certificate of the
Depositor certifying that the copy of such Mortgage delivered to the
Trustee (or its custodian) is a true copy and that the original of such
Mortgage has been forwarded to the public recording office, or, in the
case of a Mortgage that has been lost, a copy thereof (certified as
provided for under the laws of the appropriate jurisdiction) and a
written Opinion of Counsel acceptable to the Trustee and the Depositor
that an original recorded Mortgage is not required to enforce the
Trustee's interest in the Mortgage Loan;
(iv) the original of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loans, or, as
to any assumption, modification or substitution agreement which cannot
be delivered on or prior to the Closing Date because of a delay caused
by the public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy
of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer's Certificate
of the Depositor certifying that the copy of such assumption,
modification or substitution agreement delivered to the Trustee (or its
custodian) is a true copy and that the original of such agreement has
been forwarded to the public recording office;
(v) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each Mortgage
Loan;
(vi) if applicable, such original intervening assignments of
the Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete chain
of assignment from the originator, or, in the case of an Intervening
Assignment that has been lost, a written Opinion of Counsel acceptable
to the Trustee that such original Intervening Assignment is not required
to enforce the Trustee's interest in the Mortgage Loans;
40
(vii) the original Primary Mortgage Insurance Policy or
certificate, if private mortgage guaranty insurance is required;
(viii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original mortgagee title insurance policy or
attorney's opinion of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage
or equivalent executed in connection with the Mortgage or as to any
security agreement, chattel mortgage or their equivalent that cannot be
delivered on or prior to the Closing Date because of a delay caused by
the public recording office where such document has been delivered for
recordation, a photocopy of such document, pending delivery of the
original thereof, together with an Officer's Certificate of the
Depositor certifying that the copy of such security agreement, chattel
mortgage or their equivalent delivered to the Trustee (or its custodian)
is a true copy and that the original of such document has been forwarded
to the public recording office; and
(x) with respect to any Cooperative Loan, the Cooperative
Loan Documents.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
With respect to each Participation, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or any custodian acting on the Trustee's behalf, a copy of the
Participation Agreement and the original Participation issued to the Trustee.
(c) (i) Assignments of Mortgage with respect to each Non-MERS
Mortgage Loan other than a Cooperative Loan shall be recorded; provided,
however, that such Assignments need not be recorded if, in the Opinion
of Counsel (which must be from Independent counsel) acceptable to the
Trustee and the Rating Agencies, recording in such states is not
required to protect the Trustee's interest in the related Non-MERS
Mortgage Loans. Subject to the preceding sentence, as soon as
practicable after the Closing Date (but in no event more than 3 months
thereafter except to the extent delays are caused by the applicable
recording office), the Trustee (or its Custodian), at the expense of the
Depositor and with the cooperation of the applicable Servicer, shall
cause to be properly recorded by such Servicer in each public recording
office where the related Mortgages are recorded each Assignment of
Mortgage referred to in subsection (b)(v) above with respect to a
Non-MERS Mortgage Loan. With respect to each Cooperative Loan, the
Trustee (or its Custodian), at the expense of the Depositor and with the
cooperation of the applicable Servicer, shall cause such Servicer to
take such actions as are necessary under applicable law in order to
perfect the interest of the Trustee in the related Mortgaged Property.
(ii) With respect to each MERS Mortgage Loan, the Trustee (or
its applicable Custodian), at the expense of the Depositor and with the
cooperation of the applicable Servicer, shall cause to be taken such
actions by such Servicer as are necessary to cause
41
the Trustee to be clearly identified as the owner of each such Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee, or to the applicable Custodian on behalf of the
Trustee, under clause (b)(viii) above and is not so delivered, the Depositor
will provide a copy of such Title Insurance Policy to the Trustee, or to the
applicable Custodian on behalf of the Trustee, as promptly as practicable after
the execution and delivery hereof, but in any case within 180 days of the
Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer's Certificate which
shall include a statement to the effect that all amounts received in connection
with such prepayment that are required to be deposited in the applicable
Collection Account pursuant to Section 4.01 have been so deposited. All original
documents that are not delivered to the Trustee or the applicable Custodian on
behalf of the Trustee shall be held by the Master Servicer or the applicable
Servicer in trust for the benefit of the Trustee and the Certificateholders.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund.
(a) The Trustee or the applicable Custodian on behalf of the
Trustee, by execution and delivery hereof, acknowledges receipt of the
Participations and the Mortgage Files pertaining to the Mortgage Loans listed on
the Mortgage Loan Schedule, subject to review thereof by the Trustee, or by the
applicable Custodian on behalf of the Trustee, under this Section 2.02. The
Trustee, or the applicable Custodian on behalf of the Trustee, will execute and
deliver to the Trustee, the Depositor and the Master Servicer on the Closing
Date an Initial Certification in the form annexed hereto as Exhibit B-1 (or in
the form annexed to the applicable Custodial Agreement as Exhibit B-1, as
applicable).
(b) Within 45 days after the Closing Date, the applicable Custodian
will, on behalf of the Trustee and for the benefit of Holders of the
Certificates, review each Mortgage File to ascertain that all required documents
set forth in Section 2.01 have been received and appear on their face to contain
the requisite signatures by or on behalf of the respective parties thereto, and
shall deliver to the Trustee, the Depositor and the Master Servicer an Interim
Certification in the form annexed hereto as Exhibit B-2 (or in the form annexed
to the applicable Custodial Agreement as Exhibit B-2, as applicable) to the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan prepaid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i) all
of the applicable documents specified in Section 2.01(b) are in its possession
and (ii) such documents have been reviewed by it and appear to relate to such
Mortgage Loan. The Trustee, or the applicable Custodian on behalf of the
Trustee, shall make sure that the documents are executed and endorsed, but shall
be under no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that the same are valid,
binding, legally effective, properly endorsed, genuine, enforceable or
appropriate for the
42
represented purpose or that they have actually been recorded or are in
recordable form or that they are other than what they purport to be on their
face. Neither the Trustee nor any Custodian shall have any responsibility for
verifying the genuineness or the legal effectiveness of or authority for any
signatures of or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (b) above
the Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear regular
on its face (i.e., is mutilated, damaged, defaced, torn or otherwise physically
altered) or appears to be unrelated to the Mortgage Loans identified in the
Mortgage Loan Schedule (each, a "Material Defect"), the Trustee, or the
applicable Custodian on behalf of the Trustee, shall promptly identify the
Mortgage Loan to which such Material Defect relates in the Interim Certificate
delivered to the Depositor or the Master Servicer (and to the Trustee). Within
90 days of its receipt of such notice, the Depositor shall be required to cure
such Material Defect (and, in such event, the Depositor shall provide the
Trustee with an Officer's Certificate confirming that such cure has been
effected). If the Depositor does not so cure such Material Defect, it shall, if
a loss has been incurred with respect to such Mortgage Loan that would, if such
Mortgage Loan were not purchased from the Trust Fund, constitute a Realized
Loss, and such loss is attributable to the failure of the Depositor to cure such
Material Defect, repurchase the related Mortgage Loan from the Trust Fund at the
Purchase Price. A loss shall be deemed to be attributable to the failure of the
Depositor to cure a Material Defect if, as determined by the Depositor, upon
mutual agreement with the Servicer acting in good faith, absent such Material
Defect, such loss would not have been incurred. Within the two-year period
following the Closing Date, the Depositor may, in lieu of repurchasing a
Mortgage Loan pursuant to this Section 2.02, substitute for such Mortgage Loan a
Qualifying Substitute Mortgage Loan subject to the provisions of Section 2.05.
The failure of the Trustee or the applicable Custodian to give the notice
contemplated herein within 45 days after the Closing Date shall not affect or
relieve the Depositor of its obligation to repurchase any Mortgage Loan pursuant
to this Section 2.02 or any other Section of this Agreement requiring the
repurchase of Mortgage Loans from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Trustee, the Depositor and the Master
Servicer a Final Certification substantially in the form annexed hereto as
Exhibit B-3 (or in the form annexed to the applicable Custodial Agreement as
Exhibit B-3, as applicable) evidencing the completeness of the Mortgage Files in
its possession or control, with any exceptions noted thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Each of the parties hereto acknowledges that the applicable
Custodian shall perform the applicable review of the Mortgage Loans and deliver
the respective certifications thereof as provided in this Section 2.02.
43
Section 2.03. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
the benefit of Certificateholders, and to the Master Servicer, as of the Closing
Date or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter into
and perform its obligations under this Agreement, and to create the
trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on
the part of the Depositor; neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result
in a breach of, or constitute a default under, any of the provisions of
any law, governmental rule, regulation, judgment, decree or order
binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
hereof;
(iv) this Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and delivery by
the Trustee and the Master Servicer, constitutes a valid and binding
obligation of the Depositor enforceable against it in accordance with
its terms except as such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally and (B) general
principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or,
to the knowledge of the Depositor, threatened or likely to be asserted
against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will
be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect it or its
business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this
Agreement; and
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good and
marketable title thereto, and had full right to
44
transfer and sell each Mortgage Loan to the Trustee free and clear,
subject only to (1) liens of current real property taxes and assessments
not yet due and payable and, if the related Mortgaged Property is a
condominium unit, any lien for common charges permitted by statute, (2)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage acceptable to mortgage lending institutions in the area in
which the related Mortgaged Property is located and specifically
referred to in the lender's Title Insurance Policy or attorney's opinion
of title and abstract of title delivered to the originator of such
Mortgage Loan, and (3) such other matters to which like properties are
commonly subject which do not, individually or in the aggregate,
materially interfere with the benefits of the security intended to be
provided by the Mortgage, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and had full
right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan
pursuant to this Agreement.
(b) The representations and warranties of each Transferor with
respect to the related Mortgage Loans in the applicable Transfer Agreement,
which have been assigned to the Trustee hereunder, were made as of the date
specified in the applicable Transfer Agreement (or underlying agreement, if such
Transfer Agreement is in the form of an assignment of a prior agreement). To the
extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of both (i) a representation or warranty of the applicable
Transferor under the applicable Transfer Agreement and (ii) a representation or
warranty of ▇▇▇▇▇▇ Brothers Holdings under the Mortgage Loan Sale Agreement, the
only right or remedy of the Trustee or of any Certificateholder shall be the
Trustee's right to enforce the obligations of the applicable Transferor under
any applicable representation or warranty made by it. The Trustee acknowledges
that ▇▇▇▇▇▇ Brothers Holdings shall have no obligation or liability with respect
to any breach of a representation or warranty made by it with respect to the
Mortgage Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the applicable
Transferor in the applicable Transfer Agreement, without regard to whether such
Transferor fulfills its contractual obligations in respect of such
representation or warranty. The Trustee further acknowledges that the Depositor
shall have no obligation or liability with respect to any breach of any
representation or warranty with respect to the Mortgage Loans (except as set
forth in Section 2.03(a)(vi)) under any circumstances.
Section 2.04. Discovery of Breach.
It is understood and agreed that the representations and warranties (i)
set forth in Section 2.03, (ii) of ▇▇▇▇▇▇ Brothers Holdings set forth in the
Mortgage Loan Sale Agreement and assigned to the Trustee by the Depositor
hereunder and (iii) of each Transferor, assigned by ▇▇▇▇▇▇ Brothers Holdings to
the Depositor pursuant to the Mortgage Loan Sale Agreement and assigned to the
Trustee by the Depositor hereunder shall each survive delivery of the Mortgage
Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and
shall continue throughout the term of this Agreement. Upon discovery by either
the Depositor, the Master Servicer or the Trustee of a breach of any of such
representations and warranties that adversely and materially affects the value
of the related Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties. Within 90 days of the discovery of a
breach of any representation or warranty given to the Trustee by the Depositor,
any Transferor, or
45
▇▇▇▇▇▇ Brothers Holdings and assigned to the Trustee, the Depositor, such
Transferor, or ▇▇▇▇▇▇ Brothers Holdings, as applicable, shall either (a) cure
such breach in all material respects, (b) repurchase such Mortgage Loan or any
property acquired in respect thereof from the Trustee at the Purchase Price or
(c) within the two year period following the Closing Date, substitute a
Qualifying Substitute Mortgage Loan for the affected Mortgage Loan. In the event
of discovery of a breach of any representation and warranty of any Transferor
assigned to the Trustee, the Trustee shall enforce its rights under the
applicable Transfer Agreement and the Mortgage Loan Sale Agreement for the
benefit of Certificateholders. As provided in the Mortgage Loan Sale Agreement,
if any Transferor substitutes for a Mortgage Loan for which there is a breach of
any representations and warranties in the related Transfer Agreement which
adversely and materially affects the value of such Mortgage Loan and such
substitute mortgage loan is not a Qualifying Substitute Mortgage Loan, under the
terms of the Mortgage Loan Sale Agreement, ▇▇▇▇▇▇ Brothers Holdings will, in
exchange for such substitute Mortgage Loan, (i) provide the applicable Purchase
Price for the affected Mortgage Loan or (ii) within two years of the Closing
Date, substitute such affected Mortgage Loan with a Qualifying Substitute
Mortgage Loan.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.
(a) With respect to any Mortgage Loan repurchased by the Depositor
pursuant to this Agreement, by ▇▇▇▇▇▇ Brothers Holdings pursuant to the
applicable Mortgage Loan Sale Agreement or by any Transferor pursuant to the
applicable Transfer Agreement, the principal portion of the funds received by
the Master Servicer in respect of such repurchase of a Mortgage Loan will be
considered a Principal Prepayment and shall be deposited in the Collection
Account pursuant to Section 4.01. The Trustee, upon receipt of the full amount
of the Purchase Price for a Deleted Mortgage Loan, or upon receipt of the
Mortgage File for a Qualifying Substitute Mortgage Loan substituted for a
Deleted Mortgage Loan (and any applicable Substitution Amount), shall release or
cause to be released to the Depositor, ▇▇▇▇▇▇ Brothers Holdings or the
applicable Transferor, as applicable, the related Mortgage File for the Deleted
Mortgage Loan and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as shall
be necessary to vest in such party or its designee or assignee title to any
Deleted Mortgage Loan released pursuant hereto, free and clear of all security
interests, liens and other encumbrances created by this Agreement, which
instruments shall be prepared by the Trustee (or its custodian), and the Trustee
shall have no further responsibility with respect to the Mortgage File relating
to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its applicable Custodian) pursuant to the terms of
this Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor, or ▇▇▇▇▇▇ Brothers Holdings, as applicable, must deliver
to the Trustee (or its custodian) the Mortgage File for the Qualifying
Substitute Mortgage Loan containing the documents set forth in Section 2.01(b)
along with a written certification certifying as to the delivery of such
Mortgage File and containing the granting language set forth in Section 2.01(a);
and (ii) the Depositor will be deemed to have made, with respect to such
Qualified Substitute Mortgage Loan, each of the representations and warranties
made by it with respect to the related Deleted Mortgage Loan. As soon as
practicable after the delivery of any Qualifying Substitute Mortgage Loan
hereunder, (i) the Master Servicer, at the expense of the Depositor and at the
direction and with the cooperation
46
of the applicable Servicer, shall (i) with respect to a Qualifying Substitute
Mortgage Loan that is a Non-MERS Mortgage Loan, cause the Assignment of Mortgage
to be recorded by such Servicer if required pursuant to Section 2.01(c)(i), or
(ii) with respect to a Qualifying Substitute Mortgage Loan that is a MERS
Mortgage Loan, cause to be taken such actions by such Servicer as are necessary
to cause the Trustee to be clearly identified as the owner of each such Mortgage
Loan on the records of MERS if required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Qualifying Substitute Mortgage
Loan for a Deleted Mortgage Loan shall be made unless the Trustee has received
an Opinion of Counsel (at the expense of the party seeking to make the
substitution) that, under current law, such substitution will not (A) affect
adversely the status of any REMIC established hereunder as a REMIC, or of the
related "regular interests" as "regular interests" in any such REMIC, or (B)
cause any such REMIC to engage in a "prohibited transaction" or prohibited
contribution pursuant to the REMIC Provisions. The Depositor shall cause the
Mortgage Loan Schedule to be amended in accordance with the terms of this
Agreement.
Section 2.06. Grant Clause.
It is intended that the conveyance of the Depositor's right, title and
interest in and to property constituting the Trust Fund pursuant to this
Agreement shall constitute, and shall be construed as, a sale of such property
and not a grant of a security interest to secure a loan. However, if such
conveyance is deemed to be in respect of a loan, it is intended that: (i) the
rights and obligations of the parties shall be established pursuant to the terms
of this Agreement; (ii) the Depositor hereby grants to the Trustee for the
benefit of the Holders of the Certificates a first priority security interest in
all of the Depositor's right, title and interest in, to and under, whether now
owned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting the Trust Fund to secure payment of the Certificates; and
(iii) this Agreement shall constitute a security agreement under applicable law.
If such conveyance is deemed to be in respect of a loan and the Trust created by
this Agreement terminates prior to the satisfaction of the claims of any Person
holding any Certificate, the security interest created hereby shall continue in
full force and effect and the Trustee shall be deemed to be the collateral agent
for the benefit of such Person, and all proceeds shall be distributed as herein
provided.
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates.
(a) The Certificates shall be issuable in registered form only and
shall be securities governed by Article 8 of the New York Uniform Commercial
Code. The Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the dollar denominations in
Certificate Principal Amount, as applicable, or in the Percentage Interests,
specified herein. Each Class of Book-Entry Certificates shall be issued in the
minimum denominations in Certificate Principal Amount or Percentage Interest
specified in
47
the Preliminary Statement hereto and in integral multiples of $1 or 5% (in the
case of Certificates issued in Percentage Interests) in excess thereof. Each
Class of Non-Book Entry Certificates other than the Residual Certificate shall
be issued in definitive, fully registered form in the minimum denominations in
Certificate Principal Amount specified in the Preliminary Statement hereto and
in integral multiples of $1 in excess thereof. The Residual Certificate shall be
issued as a single Certificate and maintained in definitive, fully registered
form in a minimum denomination equal to $100. The Class P Certificates shall be
maintained in definitive, fully registered form in a minimum denomination equal
to 25% of the Percentage Interest of such Class of Certificates. The
Certificates may be issued in the form of typewritten certificates. One
Certificate of each Class of Certificates other than any Class of Residual
Certificates may be issued in any denomination in excess of the minimum
denomination.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of the
Depositor upon receipt by the Trustee of the Mortgage Files described in Section
2.01. No Certificate shall be entitled to any benefit under this Agreement, or
be valid for any purpose, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein, executed by an
authorized officer of the Trustee or the Authenticating Agent, if any, by manual
signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver such
Certificates as in this Agreement provided and not otherwise.
(c) The Class B8, Class B9 or Class B10 Certificates offered and
sold in reliance on the exemption from registration under Rule 144A shall be
issued initially in the form of one or more permanent global Certificates in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A added to the forms of such Certificates (each, a
"Restricted Global Security"), which shall be deposited on behalf of the
subscribers for such Certificates represented thereby with the Trustee, as
custodian for DTC and registered in the name of a nominee of DTC, duly executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Restricted Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee or DTC
or its nominee, as the case may be, as hereinafter provided.
The Class B8, Class B9 or Class B10 Certificates sold in offshore
transactions in reliance on Regulation S shall be issued initially in the form
of one or more permanent global Certificates in definitive, fully registered
form without interest coupons with the applicable legends set forth in Exhibit A
hereto added to the forms of such Certificates (each, a "Regulation S Global
Security"), which shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for DTC and
registered in the name of a nominee of DTC, duly executed and authenticated by
the Trustee as hereinafter provided. The aggregate principal amounts of the
Regulation S Global Securities may from time to time be increased or decreased
by
48
adjustments made on the records of the Trustee or DTC or its nominee, as the
case may be, as hereinafter provided.
(d) The Class B8, Class B9 or Class B10 Certificates sold to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the Act shall
be issued initially in the form of one or more Definitive Certificates.
Section 3.02. Registration.
The Trustee is hereby appointed, and hereby accepts its appointment as,
Certificate Registrar in respect of the Certificates and shall maintain books
for the registration and for the transfer of Certificates (the "Certificate
Register"). The Trustee may appoint a bank or trust company to act as
Certificate Registrar. A registration book shall be maintained for the
Certificates collectively. The Certificate Registrar may resign or be discharged
or removed and a new successor may be appointed in accordance with the
procedures and requirements set forth in Sections 6.06 and 6.07 hereof with
respect to the resignation, discharge or removal of the Trustee and the
appointment of a successor trustee. The Certificate Registrar may appoint, by a
written instrument delivered to the Holders and the Master Servicer, any bank or
trust company to act as co-registrar under such conditions as the Certificate
Registrar may prescribe; provided, however, that the Certificate Registrar shall
not be relieved of any of its duties or responsibilities hereunder by reason of
such appointment.
Section 3.03. Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall be
satisfactory to the Certificate Registrar. Upon the transfer of any Certificate
in accordance with the preceding sentence, the Trustee shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver to the
transferee, one or more new Certificates of the same Class and evidencing, in
the aggregate, the same aggregate Certificate Principal Amount as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in
49
connection with any exchange of Certificates. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute, and the Trustee or the
Authenticating Agent shall authenticate, date and deliver the Certificates which
the Certificateholder making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate or a Regulation S
Global Security, whether upon original issuance or subsequent transfer, each
Holder of such a Certificate acknowledges the restrictions on the transfer of
such Certificate set forth thereon and agrees that it will transfer such a
Certificate only as provided herein. In addition, each Holder of a Regulation S
Global Security shall be deemed to have represented and warranted to the
Trustee, the Certificate Registrar and any of their respective successors that:
(i) such Person is not a U.S. person within the meaning of Regulation S and was,
at the time the buy order was originated, outside the United States and (ii)
such Person understands that such Certificates have not been registered under
the Securities Act of 1933, as amended (the "Act"), and that (x) until the
expiration of the 40-day distribution compliance period (within the meaning of
Regulation S), no offer, sale, pledge or other transfer of such Certificates or
any interest therein shall be made in the United States or to or for the account
or benefit of a U.S. person (each as defined in Regulation S), (y) if in the
future it decides to offer, resell, pledge or otherwise transfer such
Certificates, such Certificates may be offered, resold, pledged or otherwise
transferred only (A) to a person which the seller reasonably believes is a
"qualified institutional buyer" (a "QIB") as defined in Rule 144A under the Act,
that is purchasing such Certificates for its own account or for the account of a
qualified institutional buyer to which notice is given that the transfer is
being made in reliance on Rule 144A or (B) in an offshore transaction (as
defined in Regulation S) in compliance with the provisions of Regulation S, in
each case in compliance with the requirements of this Agreement; and it will
notify such transferee of the transfer restrictions specified in this Section.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that takes
delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of
a Restricted Certificate if the requested transfer is (x) to the
Depositor or the Placement Agent, an affiliate (as defined in Rule 405
under the Act) of the Depositor or the Placement Agent or (y) being made
to a QIB by a transferor that has provided the Trustee with a
certificate in the form of Exhibit F hereto; and
(ii) The Certificate Registrar shall register the transfer of
a Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the
Act by a transferor who furnishes to the Trustee a letter of the
transferee substantially in the form of Exhibit G hereto.
(d) No transfer of an ERISA Restricted Certificate that is a Class R
Certificate shall be made unless the prospective transferee provides the Trustee
and the Depositor with a representation, as set forth in Exhibit D-1, that such
transferee is not an employee benefit plan subject to Title I of ERISA, a plan
subject to Section 4975 of the Code or a plan subject to any state, local,
federal, non-U.S. or other law or regulation substantively similar to the
foregoing
50
provisions of ERISA or the Code ("Similar Law"), and such transferee
is not directly or indirectly acquiring the Certificate for, on behalf of, or
with any assets of any such plan (collectively, "Plan"). Each Person to whom a
Class R Certificate is to be transferred shall be required or deemed to
represent that it is not a Plan.
No transfer of an ERISA-Restricted Certificate other than a Class R
Certificate shall be made unless the prospective transferee provides the Trustee
and the Depositor with (A) a representation, as set forth in Exhibit H, that
such transferee is not a Plan, (B) if the Certificate has been the subject of an
ERISA-Qualifying Underwriting, a representation as set forth in Exhibit H that
such transferee is an insurance company that is acquiring the Certificate with
assets of an "insurance company general account," as defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60, and the acquisition and
holding of the Certificate are covered and exempt under Sections I and III of
PTCE 95-60, or (C) solely in the case of a Definitive Certificate, an Opinion of
Counsel satisfactory to the Trustee and the Depositor, and upon which the
Trustee and the Depositor shall be entitled to rely, to the effect that the
acquisition and holding of such Certificate by the prospective transferee will
not constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code, or a violation of Similar Law, and will not
subject the Trustee, the Master Servicer, the Certificate Registrar, any
Servicer or the Depositor to any obligation in addition to those undertaken by
such entities in the Trust Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Master Servicer, the Certificate Registrar, any
Servicer or the Depositor. Notwithstanding the foregoing, no representation or
opinion shall be required for the initial issuance of the ERISA-Restricted
Certificates.
For purposes of this Subsection 3.03(d), other than clause (C) in the
immediately preceding paragraph, the representations set forth in Exhibit D-1 or
Exhibit H, as applicable, shall be deemed to have been made to the Trustee by
the transferee's acceptance of an ERISA-Restricted Certificate (or the
acceptance by a Certificate Owner of the beneficial interest in any Class of
ERISA-Restricted Certificates). Notwithstanding any other provision herein to
the contrary, any purported transfer of an ERISA-Restricted Certificate to or on
behalf of a Plan without receipt by the Trustee of a representation or an
Opinion of Counsel satisfactory to the Trustee as described above shall be void
and of no effect. The Trustee shall not be under any liability to any Person for
any registration or transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 3.03(d) nor shall the Trustee be under any
liability for making any payments due on such Certificate to the holder thereof
or taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. The Trustee shall be entitled, but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact a Plan and that held such Certificate in violation of this
Section 3.03(d) all payments made on such ERISA-Restricted Certificate at and
after the time it commenced such holding. Any such payments so recovered shall
be paid and delivered to the last preceding qualified holder of such
Certificate.
(e) As a condition of the registration of transfer or exchange of
any Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
51
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless, in the case of clause (ii),
such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person that holds
a Residual Certificate in connection with the conduct of a trade or business
within the United States and has furnished the transferor and the Trustee with
an effective Internal Revenue Service Form W-8ECI or successor form at the time
and in the manner required by the Code (any such person who is not covered by
clause (A) or (B) above is referred to herein as a "Non-permitted Foreign
Holder").
Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto as
Exhibit D-1 representing and warranting, among other things, that such
transferee is neither a Disqualified Organization, an agent or nominee acting on
behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder (any
such transferee, a "Permitted Transferee"), and the proposed transferor shall
deliver to the Trustee an affidavit in substantially the form attached hereto as
Exhibit D-2. In addition, the Trustee may (but shall have no obligation to)
require, prior to and as a condition of any such transfer, the delivery by the
proposed transferee of an Opinion of Counsel, addressed to the Depositor and the
Trustee satisfactory in form and substance to the Depositor, that such proposed
transferee or, if the proposed transferee is an agent or nominee, the proposed
beneficial owner, is not a Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder. Notwithstanding the registration in the
Certificate Register of any transfer, sale, or other disposition of a Residual
Certificate to a Disqualified Organization, an agent or nominee thereof, or
Non-permitted Foreign Holder, such registration shall be deemed to be of no
legal force or effect whatsoever and such Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to, the
receipt of distributions on such Residual Certificate. The Trustee shall not be
under any liability to any person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder or for the maturity of any payments due on such
Residual Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of the Agreement, so long as the
transfer was effected in accordance with this Section 3.03(f), unless the
Trustee shall have actual knowledge at the time of such transfer or the time of
such payment or other action that the transferee is a Disqualified Organization,
agent or nominee thereof, or Non-permitted Foreign Holder. The Trustee shall be
entitled to recover from any Holder of a Residual Certificate that was a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder at the time it became a Holder or any subsequent time it became a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder, all payments made on such Residual Certificate at and after either such
times (and all costs and expenses, including but not limited to attorneys' fees,
incurred in connection therewith). Any payment (not including any such costs and
expenses) so recovered by the Trustee shall be paid and delivered to the last
preceding Holder of such Residual Certificate.
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If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this Section
3.03(f), the last preceding Permitted Transferee shall be restored to all rights
as Holder thereof retroactive to the date of such registration of transfer of
such Residual Certificate. The Trustee shall be under no liability to any Person
for any registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.03(f), for making any payment due on such
Certificate to the registered Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered upon receipt of the affidavit described in the preceding
paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
(h) Notwithstanding any provision to the contrary herein, so long as
a Global Security representing any of the Class B8, Class B9 or Class B10
Certificates remains outstanding and is held by or on behalf of DTC, transfers
of a Global Security representing any such Certificates, in whole or in part,
shall only be made in accordance with Section 3.01 and this Section 3.03(h).
(A) Subject to clauses (B) and (C) of this Section
3.03(h), transfers of a Global Security representing any of the
Class B8, Class B9 or Class B10 Certificates shall be limited to
transfers of such Global Security, in whole or in part, to
nominees of DTC or to a successor of DTC or such successor's
nominee.
(B) Restricted Global Security to Regulation S
Global Security. If a holder of a beneficial interest in a
Restricted Global Security deposited with or on behalf of DTC
wishes at any time to exchange its interest in such Restricted
Global Security for an interest in a Regulation S Global
Security, or to transfer its interest in such Restricted Global
Security to a Person who wishes to take delivery thereof in the
form of an interest in a Regulation S Global Security, such
holder, provided such holder is not a U.S. person, may, subject
to the rules and procedures of DTC, exchange or cause the
exchange of such interest for an equivalent beneficial interest
in the Regulation S Global Security. Upon receipt by the
Trustee, as Certificate Registrar, of (I) instructions from DTC
directing the Trustee, as Certificate Registrar, to be credited
a beneficial interest in a Regulation S Global Security in an
amount equal to the beneficial interest in such Restricted
Global Security to be exchanged but not less than the minimum
denomination applicable to such holder's Certificates held
through a Regulation S Global Security, (II) a written order
given in accordance with DTC's procedures containing information
regarding the participant account of DTC and, in the case of a
transfer pursuant to and in accordance with Regulation S, the
Euroclear or Clearstream account to be credited with such
increase and (III) a certificate in the form of Exhibit A hereto
given by the holder of such beneficial interest stating that the
exchange or transfer of such interest has been made in
compliance with
53
the transfer restrictions applicable to the Global Securities,
including that the holder is not a U.S. person, and pursuant to
and in accordance with Regulation S, the Trustee, as Certificate
Registrar, shall reduce the principal amount of the Restricted
Global Security and increase the principal amount of the
Regulation S Global Security by the aggregate principal amount
of the beneficial interest in the Restricted Global Security to
be exchanged, and shall instruct Euroclear or Clearstream, as
applicable, concurrently with such reduction, to credit or cause
to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global
Security equal to the reduction in the principal amount of the
Restricted Global Security.
(C) Regulation S Global Security to Restricted
Global Security. If a holder of a beneficial interest in a
Regulation S Global Security deposited with or on behalf of DTC
wishes at any time to transfer its interest in such Regulation S
Global Security to a Person who wishes to take delivery thereof
in the form of an interest in a Restricted Global Security, such
holder may, subject to the rules and procedures DTC, exchange or
cause the exchange of such interest for an equivalent beneficial
interest in a Restricted Global Security. Upon receipt by the
Trustee, as Certificate Registrar, of (I) instructions from DTC
directing the Trustee, as Certificate Registrar, to cause to be
credited a beneficial interest in a Restricted Global Security
in an amount equal to the beneficial interest in such Regulation
S Global Security to be exchanged but not less than the minimum
denomination applicable to such holder's Certificates held
through a Restricted Global Security, to be exchanged, such
instructions to contain information regarding the participant
account with DTC to be credited with such increase, and (II) a
certificate in the form of Exhibit L-2 hereto given by the
holder of such beneficial interest and stating, among other
things, that the Person transferring such interest in such
Regulation S Global Security reasonably believes that the Person
acquiring such interest in a Restricted Global Security is a
QIB, is obtaining such beneficial interest in a transaction
meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any State of the United States or
any other jurisdiction, then the Trustee, as Certificate
Registrar, will reduce the principal amount of the Regulation S
Global Security and increase the principal amount of the
Restricted Global Security by the aggregate principal amount of
the beneficial interest in the Regulation S Global Security to
be transferred and the Trustee, as Certificate Registrar, shall
instruct DTC, concurrently with such reduction, to credit or
cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Restricted Global
Security equal to the reduction in the principal amount of the
Regulation S Global Security.
(D) Other Exchanges. In the event that a Global
Security is exchanged for Certificates in definitive registered
form without interest
54
coupons, pursuant to Section 3.09(c) hereof, such Certificates
may be exchanged for one another only in accordance with such
procedures as are substantially consistent with the provisions
above (including certification requirements intended to insure
that such transfers comply with Rule 144A, comply with Rule
501(a)(1), (2), (3) or (7) or are to non-U.S. persons in
compliance with Regulation S under the Act, as the case may be),
and as may be from time to time adopted by the Trustee.
(E) Restrictions on U.S. Transfers. Transfers of
interests in the Regulation S Global Security to U.S. persons
(as defined in Regulation S) shall be limited to transfers made
pursuant to the provisions of Section 3.03(h)(C).
Section 3.04. Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange
shall be cancelled and retained in accordance with normal retention policies
with respect to cancelled certificates maintained by the Trustee or the
Certificate Registrar.
Section 3.05. Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the Trustee or
any Authenticating Agent or (ii) the Trustee or any Authenticating Agent
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee or the Authenticating Agent
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Depositor and any Authenticating
Agent that such destroyed, lost or stolen Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute and the Trustee or any
Authenticating Agent shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee or the Authenticating Agent) connected
therewith. Any replacement Certificate issued pursuant to this Section 3.05
shall constitute complete and indefeasible evidence of ownership in the
applicable Trust Fund, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of any of them may treat the Person in whose name any
Certificate is registered upon the books of the Certificate Registrar as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Sections 5.01 and 5.02 and for all other purposes whatsoever, and neither the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar nor any
agent of any of them shall be affected by notice to the contrary.
55
Section 3.07. Temporary Certificates.
(a) Pending the preparation of definitive Certificates, upon the
order of the Depositor, the Trustee shall execute and shall authenticate and
deliver temporary Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Certificates in lieu of which they
are issued and with such variations as the authorized officers executing such
Certificates may determine, as evidenced by their execution of such
Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in exchange
therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same Class.
Section 3.08. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent (which may be the Trustee) for
the purpose of making distributions to Certificateholders hereunder. The Trustee
shall cause such Paying Agent (if other than the Trustee) to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in an Eligible Account in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to the
Certificateholders. All funds remitted by the Trustee to any such Paying Agent
for the purpose of making distributions shall be paid to Certificateholders on
each Distribution Date and any amounts not so paid shall be returned on such
Distribution Date to the Trustee. If the Paying Agent is not the Trustee, the
Trustee shall cause to be remitted to the Paying Agent on or before the Business
Day prior to each Distribution Date, by wire transfer in immediately available
funds, the funds to be distributed on such Distribution Date. Any Paying Agent
shall be either a bank or trust company or otherwise authorized under law to
exercise corporate trust powers.
If the Trustee is not the Paying Agent hereunder, the Paying Agent (i)
may not be an Originator, Master Servicer, Servicer, the Depositor or an
affiliate of the Depositor unless the Paying Agent is in an institutional trust
department of the Paying Agent, (ii) must be authorized to exercise corporate
trust powers under the laws of its jurisdiction of organization, and (iii) must
be rated at least A/F1 by Fitch, if Fitch is a Rating Agency, or the equivalent
rating by S&P or ▇▇▇▇▇'▇. If no successor Paying Agent shall have been appointed
and shall have accepted appointment within 60 days after the Paying Agent ceases
to be the Paying Agent pursuant to this Section 3.08, then the Trustee shall
perform the duties of the Paying Agent pursuant to this Agreement. The Trustee
shall notify the Rating Agencies of any change of Paying Agent.
56
Section 3.09. Book-Entry Certificates.
(a) Each Class of Book-Entry Certificates, upon original issuance,
shall be issued in the form of one or more typewritten Certificates representing
the Book-Entry Certificates, to be delivered to The Depository Trust Company,
the initial Clearing Agency, by, or on behalf of, the Depositor. The Book-Entry
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of the Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Book-Entry Certificates, except as provided in Section 3.09(c). Unless
Definitive Certificates have been issued to Certificate Owners of Book-Entry
Certificates pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full
force and effect;
(ii) the Depositor, the Master Servicer, the Paying Agent,
the Certificate Registrar and the Trustee may deal with the Clearing
Agency for all purposes (including the making of distributions on the
Book-Entry Certificates) as the authorized representatives of the
Certificate Owners and the Clearing Agency shall be responsible for
crediting the amount of such distributions to the accounts of such
Persons entitled thereto, in accordance with the Clearing Agency's
normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions of
this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Certificates are issued
pursuant to Section 3.09(c), the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the Trustee
shall give all such notices and communications specified herein to be given to
Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a Class
of Book-Entry Certificates identified as such to the Trustee by an Officer's
Certificate from the Clearing Agency advise the Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation of a
book-entry system
57
through the Clearing Agency is no longer in the best interests of the
Certificate Owners of a Class of Book-Entry Certificates, the Trustee shall
notify or cause the Certificate Registrar to notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing Agency, of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Book-Entry Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the Trustee
shall issue the Definitive Certificates. Neither the Transferor nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Trustee, to the extent
applicable, with respect to such Definitive Certificates and the Trustee shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account.
(a) On the Closing Date, the Master Servicer shall open and
shall thereafter maintain a segregated account held in trust (the "Collection
Account"), entitled "Aurora Loan Services LLC, as Master Servicer, in trust for
the benefit of the Holders of Structured Adjustable Rate Mortgage Loan Trust
Mortgage Pass-Through Certificates, Series 2005-2." The Collection Account shall
relate solely to the Certificates issued by the Trust Fund hereunder, and funds
in such Collection Account shall not be commingled with any other monies.
(b) The Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the Master
Servicer shall establish a new Collection Account that is an Eligible Account
within 30 days and transfer all funds on deposit in such existing Collection
Account into such new Collection Account.
(c) The Master Servicer shall give to the Trustee prior written
notice of the name and address of the depository institution at which the
Collection Account is maintained and the account number of such Collection
Account. On each Master Servicer Remittance Date, the entire amount on deposit
in the Collection Account (subject to permitted withdrawals set forth in Section
4.02), not including any amounts which are to be excluded from the Available
Distribution Amount for such Distribution Date pursuant to clauses (A) through
(G) of paragraph (i) of the definition thereof (other than any amounts due or
reimbursable to the Trustee pursuant to this Agreement), shall be remitted to
the Trustee for deposit into the Certificate Account by wire transfer in
immediately available funds. The Master Servicer, at its option, may choose to
make daily remittances from the Collection Account to the Trustee for deposit
into the Certificate Account.
(d) The Master Servicer shall deposit or cause to be deposited into
the Collection Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the
58
Master Servicer on or before the Closing Date. Thereafter, the Master Servicer
shall deposit or cause to be deposited in the Collection Account on the
applicable Remittance Date the following amounts received or payments made by it
(other than in respect of principal of and interest on the Mortgage Loans due on
or before the Cut-Off Date):
(i) all payments on account of principal, including
Principal Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage
Loans (other than payments due prior to the Cut-off Date), net of the
applicable Servicing Fee and Master Servicing Fee with respect to each
such Mortgage Loan, but only to the extent of the amount permitted to be
withdrawn or withheld from the Collection Account in accordance with
Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with respect
to a Mortgage Loan not otherwise specified in this paragraph (d),
including any Subsequent Recovery, all Net Liquidation Proceeds with
respect to the Mortgage Loans and REO Property, and all amounts received
in connection with the operation of any REO Property, net of any unpaid
Servicing Fees and Master Servicing Fees with respect to such Mortgage
Loans, but only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections 5.04
and 9.21; provided that if the applicable Servicer is also the Retained
Interest Holder with respect to any Mortgage Loan, payments on account
of interest on the Mortgage Loans as to which such Servicer is the
Retained Interest Holder may also be made net of the related Retained
Interest with respect to each such Mortgage Loan.
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or the
applicable Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; and
(vi) all Prepayment Penalty Amounts; and
(vii) all proceeds of any Mortgage Loan purchased by any
Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments (selected by and at the written direction of the Master Servicer)
which shall mature not later than one Business Day prior to the Master Servicer
Remittance Date (except that if such Eligible Investment is an obligation of the
Trustee, then such Eligible Investment shall mature not later than such
applicable Master Servicer Remittance Date), and any such Eligible Investment
shall not be sold or disposed of prior to its maturity. All such Eligible
Investments shall be made in the name of the Master Servicer in trust for the
benefit of the Trustee and Holders of Structured Adjustable Rate Mortgage Loan
Trust Mortgage Pass-Through Certificates, Series 2005-2. All income and gain
realized from any such investment shall be for the benefit of the Master
Servicer, while such Collection Account is maintained by the Master Servicer,
and shall be subject to its withdrawal or order from time to time and shall not
be part of the Trust Fund. The amount of any losses incurred in respect of any
such investments shall be deposited in such Collection Account by the Master
Servicer out of its own funds, without any right of
59
reimbursement therefor, immediately as realized. The foregoing requirements for
deposit in the Collection Account are exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, payments of interest on
funds in the Collection Account and payments in the nature of late payment
charges or assumption fees need not be deposited by the Master Servicer in the
Collection Account and may be retained by the Master Servicer or the applicable
Servicer as additional servicing compensation. If the Master Servicer deposits
in the Collection Account any amount not required to be deposited therein, it
may at any time withdraw such amount from such Collection Account.
Section 4.02. Application of Funds in the Collection Account.
The Master Servicer may, from time to time, make, or cause to be made,
withdrawals from the Collection Account for the following purposes:
(i) to reimburse itself or any Servicer for Advances made by
it or by such Servicer pursuant to Section 5.04 or the applicable
Servicing Agreement; the Master Servicer's right to reimburse itself
pursuant to this subclause (i) is limited to amounts received on or in
respect of particular Mortgage Loans (including, for this purpose,
Liquidation Proceeds and amounts representing Insurance Proceeds with
respect to the property subject to the related Mortgage) which represent
late recoveries (net of the applicable Servicing Fee and the Master
Servicing Fee) of payments of principal or interest respecting which any
such Advance was made, it being understood, in the case of any such
reimbursement, that the Master Servicer's or Servicer's right thereto
shall be prior to the rights of the Certificateholders;
(ii) to reimburse itself or any Servicer for any Advances or
Servicing Advances made by it or by such Servicer that it or such
Servicer determines in good faith will not be recoverable from amounts
representing late recoveries of payments of principal or interest
respecting the particular Mortgage Loan as to which such Advance or
Servicing Advance was made or from Liquidation Proceeds or Insurance
Proceeds with respect to such Mortgage Loan, it being understood, in the
case of any such reimbursement, that such Master Servicer's or
Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(iii) to reimburse itself or any Servicer from Liquidation
Proceeds for Liquidation Expenses and for amounts expended by it
pursuant to Sections 9.20 and 9.22(a) or the applicable Servicing
Agreement in good faith in connection with the restoration of damaged
property and, to the extent that Liquidation Proceeds after such
reimbursement exceed the unpaid principal balance of the related
Mortgage Loan, together with accrued and unpaid interest thereon at the
applicable Mortgage Rate less the applicable Servicing Fee and the
Master Servicing Fee for such Mortgage Loan to the Due Date next
succeeding the date of its receipt of such Liquidation Proceeds, to pay
to itself out of such excess the amount of any unpaid assumption fees,
late payment charges or other Mortgagor charges on the related Mortgage
Loan and to retain any excess remaining thereafter as additional
servicing compensation, it being understood, in the case of any such
reimbursement or payment, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the Certificateholders;
60
(iv) in the event it has elected not to pay itself the Master
Servicing Fee out of any Mortgagor payment on account of interest or
other recovery with respect to a particular Mortgage Loan prior to the
deposit of such Mortgagor payment or recovery in the Collection Account,
to pay to itself the Master Servicing Fee for each Distribution Date and
any unpaid Master Servicing Fees for prior Distribution Dates, as
reduced pursuant to Section 5.05, from any Mortgagor payment as to
interest or such other recovery with respect to that Mortgage Loan, as
is permitted by this Agreement;
(v) to reimburse itself or any Servicer for expenses
incurred by and recoverable by or reimbursable to it or such Servicer
pursuant to Section 9.04, 9.06, 9.16 or 9.22(a) or pursuant to the
applicable Servicing Agreement (to the extent such reimbursement
constitutes "unanticipated expenses" within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii)), and to reimburse itself for any
expenses reimbursable to it pursuant to Section 10.01(c);
(vi) to pay to the applicable Person, with respect to each
Mortgage Loan or REO Property acquired in respect thereof that has been
repurchased by such Person pursuant to this Agreement, all amounts
received thereon and not distributed on the date on which the related
repurchase was effected;
(vii) subject to Section 5.04, to pay to itself income earned
on the investment of funds deposited in the Collection Account;
(viii) to make payments to the Trustee on each Master Servicer
Remittance Date for deposit into the Certificate Account in the amount
provided in Section 4.04;
(ix) [Reserved];
(x) to make payment to itself, the Trustee and others
pursuant to any provision of this Agreement and to reimburse the
Custodian pursuant to the Custodial Agreement, but only to the extent
that the items reimbursed constitute "unanticipated expenses" within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii);
(xi) to withdraw funds deposited in error in the Collection
Account;
(xii) to clear and terminate any Collection Account pursuant
to Section 7.02;
(xiii) to reimburse a successor Master Servicer (solely in its
capacity as successor Master Servicer), for any fee or advance
occasioned by a termination of the Master Servicer, and the assumption
of such duties by the Trustee or a successor Master Servicer appointed
by the Trustee pursuant to Section 6.14, in each case to the extent not
reimbursed by the terminated Master Servicer, it being understood, in
the case of any such reimbursement or payment, that the right of the
Master Servicer or the Trustee thereto shall be prior to the rights of
the Certificateholders; and
(xiv) to reimburse any Servicer for such amounts as are due
thereto under the applicable Servicing Agreement and have not been
retained by or paid to such Servicer to the extent provided in such
Servicing Agreement provided such amounts are Servicing Fees or
"unanticipated expenses" within the meaning of Treasury Regulation
Section 1.860G-1(b)(3)(ii).
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If provided in the related Servicing Agreement, each Servicer shall be
entitled to retain as additional servicing compensation any Prepayment Interest
Excess (to the extent not offset by Prepayment Interest Shortfalls). The
Servicers of the Participations shall be entitled to retain as additional
servicing compensation any Prepayment Penalty Amounts received with respect to
the Participations.
In connection with withdrawals pursuant to subclauses (i), (iii), (iv)
and (vi) above, the Master Servicer's or Servicer's entitlement thereto is
limited to collections or other recoveries on the related Mortgage Loan. The
Master Servicer shall therefore keep and maintain a separate accounting for each
Mortgage Loan it master services for the purpose of justifying any withdrawal
from the Collection Account it maintains pursuant to such subclause (i), (iii),
(iv) and (vi).
In the event that the Master Servicer fails on any Master Servicer
Remittance Date to remit to the Trustee any amounts required to be so remitted
to the Trustee pursuant to subclause (viii) by such date, the Master Servicer
shall pay the Trustee, for the account of the Trustee, interest calculated at
the "prime rate" (as published in the "Money Rates" section of The Wall Street
Journal) on such amounts not timely remitted for the period from and including
that Master Servicer Remittance Date to but not including the related
Distribution Date. The Master Servicer shall only be required to pay the Trustee
interest for the actual number of days such amounts are not timely remitted
(e.g., one day's interest, if such amounts are remitted one day after the Master
Servicer Remittance Date).
Section 4.03. Reports to Certificateholders.
(a) On each Distribution Date, the Trustee shall have prepared
(based solely on information provided by the Master Servicer) and shall make
available to each Certificateholder a report (each, a "Monthly Report") setting
forth the following information (on the basis of Mortgage Loan level information
obtained from the applicable Servicer and the Master Servicer):
(i) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates, to
the extent applicable, allocable to principal on the Mortgage Loans,
including any Subsequent Recovery, Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled
principal payments and unscheduled payments in the nature of principal
in the Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates
allocable to interest, including any Accrual Amount added to the Class
Principal Amount of any Class of Accrual Certificates;
(iii) the amount, if any, of any distribution to the Holders
of a Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be
made by or on behalf of the Master Servicer or any Servicer (or, if
applicable, the Trustee solely in its
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capacity as successor Master Servicer) with respect to such Distribution
Date, (B) the aggregate amount of such Advances actually made, and (C)
the amount, if any, by which (A) above exceeds (B) above;
(v) the Aggregate Principal Balance of the Mortgage Loans
and the Pool Balance for such Distribution Date, after giving effect to
payments allocated to principal reported under clause (i) above;
(vi) the Class Principal Amount of each Class of
Certificates, to the extent applicable, as of such Distribution Date
after giving effect to payments allocated to principal reported under
clause (i) above (and to the addition of any Accrual Amount in the case
of any Class of Accrual Certificates), separately identifying any
reduction of any of the foregoing Certificate Principal Amounts due to
Realized Losses;
(vii) any Realized Losses realized with respect to the
Mortgage Loans (x) in the applicable Prepayment Period and (y) in the
aggregate since the Cut-off Date, stating separately the amount of
Special Hazard Losses, Fraud Losses and Bankruptcy Losses and the
aggregate amount of such Realized Losses, and the remaining Special
Hazard Loss Amount, Fraud Loss Amount and Bankruptcy Loss Amount;
(viii) the amount of the Master Servicing Fees, Servicing Fees
and Trustee Fee paid during the Due Period to which such distribution
relates;
(ix) the number and aggregate Scheduled Principal Balance of
Mortgage Loans, as reported to the Trustee by the Master Servicer, (a)
remaining outstanding (b) delinquent one month, (c) delinquent two
months, (d) delinquent three or more months, and (e) as to which
foreclosure proceedings have been commenced as of the close of business
on the last Business Day of the calendar month immediately preceding the
month in which such Distribution Date occurs;
(x) the deemed aggregate principal balance of all REO
Properties as of the close of business on the last Business Day of the
calendar month immediately preceding the month in which such
Distribution Date occurs;
(xi) with respect to substitution of Mortgage Loans in the
preceding calendar month, the aggregate Scheduled Principal Balance of
all such Deleted Mortgage Loans, and of all Qualifying Substitute
Mortgage Loans;
(xii) the aggregate outstanding Interest Shortfalls and Net
Prepayment Interest Shortfalls, if any, for each Class of Certificates,
after giving effect to the distribution made on such Distribution Date;
(xiii) the Certificate Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates;
(xiv) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest which
Certificateholders would have received
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if there were sufficient available amounts in the Certificate Account
and the amounts actually distributed);
(xv) the amount of payments made to each of the Class B1,
Class B2, Class B3, Class B4, Class B5 and Class B6 Certificates in
respect of Subordinate Floating Rate Certificate Shortfalls and Unpaid
Subordinate Floating Rate Certificate Shortfalls; and
(xvi) the amount of payments made to each Class of
Certificates in respect of a REMIC Regular Interest and the amount of
payments made to each Class of Certificates not in respect of a REMIC
Regular Interest.
In the case of information furnished pursuant to subclauses (i), (ii)
and (viii) above, the amounts shall be expressed as a dollar amount per $1,000
of original principal amount of Certificates.
The Trustee will make such report and additional loan level information
(and, at its option, any additional files provided by the Master Servicer
containing the same information in an alternative format) available each month
to Certificateholders and Rating Agencies via the Trustee's internet website.
The Trustee's internet website shall initially be located at
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇. Assistance in using the website can be obtained by calling
the Trustee's customer service desk at ▇-▇▇▇-▇▇▇-▇▇▇▇. Such parties that are
unable to use the website are entitled to have a paper copy mailed to them via
first class mail by calling the customer service desk and indicating such. The
Trustee shall have the right to change the way such statements are distributed
in order to make such distribution more convenient and/or more accessible to the
above parties and the Trustee shall provide timely and adequate notification to
all above parties regarding any such changes.
The Trustee shall provide a "zero settlement file" to Bloomberg L.P.
within seven (7) calendar days after the receipt of the collateral data file
from the Depositor, but in no event later than the first Distribution Date,
which shall contain all of the information in the initial Monthly Report
(without giving effect to any distributions); provided, however, that in no
event will such zero settlement file contain any mortgagor-specific information.
The foregoing information and reports shall be prepared and determined
by the Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master Servicer no later than four Business Days prior to the Distribution Date.
In preparing or furnishing the Mortgage Loan data to the Trustee, the Master
Servicer shall be entitled to rely conclusively on the accuracy of the
information or data regarding the Mortgage Loans and the related REO Property
that has been provided to the Master Servicer by each Servicer, and the Master
Servicer shall not be obligated to verify, recompute, reconcile or recalculate
any such information or data. The Trustee shall be entitled to conclusively rely
on the Mortgage Loan data provided by the Master Servicer and shall have no
liability for any errors in such Mortgage Loan data.
(b) Upon the reasonable advance written request of any
Certificateholder that is a savings and loan, bank or insurance company, which
request, if received by the Trustee, will be promptly forwarded to the Master
Servicer, the Master Servicer shall provide, or cause to be provided, (or, to
the extent that such information or documentation is not required to be provided
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by a Servicer under the applicable Servicing Agreement, shall use reasonable
efforts to obtain such information and documentation from such Servicer, and
provide) to such Certificateholder such reports and access to information and
documentation regarding the Mortgage Loans as such Certificateholder may
reasonably deem necessary to comply with applicable regulations of the Office of
Thrift Supervision or its successor or other regulatory authorities with respect
to investment in the Certificates; provided, however, that the Master Servicer
shall be entitled to be reimbursed by such Certificateholder for such Master
Servicer's actual expenses incurred in providing such reports and access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Trustee shall,
upon written request, send to each Person who at any time during the calendar
year was a Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to Certificateholders
pursuant to Section 4.03(a) on an annual basis as may be required to enable such
Holders to prepare their federal income tax returns. Such information shall
include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
requirement shall be deemed to have been satisfied to the extent such
information is provided pursuant to applicable requirements of the Code from
time to time in effect. The Master Servicer shall provide the Trustee with
Mortgage Loan level information as is necessary for the Trustee to prepare such
reports.
Section 4.04. Certificate Account.
(a) The Trustee shall establish and maintain in its name, as
trustee, a trust account (the "Certificate Account"), to be held in trust for
the benefit of the Certificateholders until disbursed pursuant to the terms of
this Agreement. The Certificate Account shall be an Eligible Account. If the
existing Certificate Account ceases to be an Eligible Account, the Trustee shall
establish a new Certificate Account that is an Eligible Account within 20
Business Days and transfer all funds on deposit in such existing Certificate
Account into such new Certificate Account. The Certificate Account shall relate
solely to the Certificates issued hereunder and funds in the Certificate Account
shall be held separate and apart from and shall not be commingled with any other
monies including, without limitation, other monies of the Trustee held under
this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate
Account on the day on which, or, if such day is not a Business Day, the Business
Day immediately following the day on which, any monies are remitted by the
Master Servicer to the Trustee all such amounts. The Trustee shall make
withdrawals from the Certificate Account only for the following purposes:
(i) to withdraw amounts deposited in the Certificate Account
in error;
(ii) to pay itself the Trustee Fee and any investment income
earned with respect to funds in the Certificate Account invested in
Eligible Investments as set forth in subsection (c) below, and to make
payments to itself prior to making distributions pursuant to Section
5.02 for any expenses or other indemnification owing to the Trustee and
others pursuant to any provision of this Agreement;
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(iii) to make payments of the Master Servicing Fee (to the
extent not already withheld or withdrawn from the Collection Account by
the Master Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders pursuant
to Article V; and
(v) to clear and terminate the Certificate Account pursuant
to Section 7.02.
(c) All amounts held in the Certificate Account shall remain
uninvested.
Section 4.05. Determination of LIBOR.
(a) If the outstanding Certificates include any LIBOR Certificates,
then on each LIBOR Determination Date the Trustee shall determine LIBOR on the
basis of the offered LIBOR quotations of the Reference Banks as of 11:00 a.m.
London time on such LIBOR Determination Date as follows:
(i) If on any LIBOR Determination Date two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Accrual Period will be the arithmetic mean of such offered quotations
(rounding such arithmetic mean if necessary to the nearest five decimal
places);
(ii) If on any LIBOR Determination Date only one or none of
the Reference Banks provides such offered quotations, LIBOR for the next
Accrual Period will be whichever is the higher of (x) LIBOR as
determined on the previous LIBOR Determination Date or (y) the Reserve
Interest Rate. The "Reserve Interest Rate" will be either (A) the rate
per annum which the Trustee determines to be the arithmetic mean
(rounding such arithmetic mean if necessary to the nearest five decimal
places) of the one-month Eurodollar lending rates that New York City
banks selected by the Depositor are quoting, on the relevant LIBOR
Determination Date, to the principal London offices of at least two
leading banks in the London interbank market or (B) in the event that
the Trustee can determine no such arithmetic mean, the lowest one-month
Eurodollar lending rate that the New York City banks selected by the
Depositor are quoting on such LIBOR Determination Date to leading
European banks; and
(iii) If on any LIBOR Determination Date the Trustee is
required but is unable to determine the Reserve Interest Rate in the
manner provided in paragraph (ii) above, LIBOR for the next Accrual
Period will be LIBOR as determined on the previous LIBOR Determination
Date or, in the case of the first LIBOR Determination Date, the Initial
LIBOR Rate.
(b) The establishment of LIBOR by the Trustee and the Trustee's
subsequent calculation of the Certificate Interest Rate (or Rates) applicable to
the LIBOR Certificates for the relevant Accrual Period, in the absence of
manifest error, will be final and binding. In all cases, the Trustee may
conclusively rely on quotations of LIBOR for the Reference Banks as such
quotations appear on the display designated "LIBOR" on the Bloomberg Financial
Markets Commodities News.
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(c) As used herein, "Reference Banks" shall mean four leading banks
engaged in transactions in Eurodollar deposits in the international Eurocurrency
market (i) with an established place of business in London, England, (ii) whose
quotations appear on the "Bloomberg Screen LIBOR Index Page" (as described in
the definition of LIBOR) on the applicable LIBOR Determination Date and (iii)
which have been designated as such by the Depositor and are able and willing to
provide such quotations to the Depositor on each LIBOR Determination Date. The
Reference Banks initially shall be: Barclay's plc, Bank of Tokyo, National
Westminster Bank and Trust Company and Bankers Trust Company. If any of the
initial Reference Banks should be removed from the Bloomberg Screen LIBOR Index
Page or in any other way fail to meet the qualifications of a Reference Bank,
the Depositor shall use its best efforts to designate alternate Reference Banks.
(d) If (i) with respect to any LIBOR Determination Date LIBOR is
determined pursuant to clause (a)(iii) of this Section and (ii) on the next
succeeding LIBOR Determination Date LIBOR would, without giving effect to this
paragraph (d), be determined pursuant to such clause (a)(iii), then the
Depositor shall select an alternative interest rate index over which the
Depositor has no control that is used for determining Eurodollar lending rates
and is calculated and published (or otherwise made available) by an independent
third party, and such alternative interest rate index shall constitute LIBOR for
all purposes hereof.
Section 4.06. Certain Provisions with Respect to the Participations.
If the Trustee shall not have received a payment with respect to any
Participation by the date on which such payment was due and payable pursuant to
the terms thereof, the Trustee shall make demand upon the Participation Master
Servicer for immediate payment, and may, and at the direction of a majority (by
Voting Interests) of the Certificateholders shall, take any available legal
action, including the prosecution of any claims in connection therewith. The
Depositor shall cooperate with the Trustee in connection with any such demand or
action to the extent reasonably requested by the Trustee. The reasonable legal
fees and expenses incurred by the Trustee in connection with the prosecution of
any such legal action shall be reimbursable to the Trustee from the Trust Fund.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally.
(a) Subject to Section 7.01 with respect to the final distribution
on the Certificates, on each Distribution Date the Trustee or the Paying Agent
shall make distributions in accordance with this Article V. Such distributions
shall be made by (a) by wire transfer in immediately available funds if the
Certificateholder has provided to the Trustee wire instructions for such Holder
or (b) check mailed to each Certificateholder's address as it appears on the
Certificate Register of the Certificate Registrar (which shall initially be the
Trustee) or, upon written request made to the Trustee at least five Business
Days prior to the related Distribution Date to any Certificateholder; provided,
however, that the final distribution in respect of any Certificate shall be made
only upon presentation and surrender of such Certificate at the Corporate Trust
Office.
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Wire transfers may be made at the expense of the Holder requesting such wire
transfer by deducting a wire transfer fee from the related distribution.
Notwithstanding such final payment of principal of any of the Certificates, each
Residual Certificate will remain outstanding until the termination of each REMIC
and the payment in full of all other amounts due with respect to the Residual
Certificate and at such time such final payment in retirement of the Residual
Certificate will be made only upon presentation and surrender of such
Certificate at the Corporate Trust Office of the Trustee or at the office of its
designated presenting agent in New York City. If any payment required to be made
on the Certificates is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in proportion
to their respective initial Certificate Principal Amounts
Section 5.02. Distributions from the Certificate Account.
(a) On each Distribution Date, the Trustee (or the Paying Agent on
behalf of the Trustee) shall withdraw from the Certificate Account the Available
Distribution Amount, and shall distribute such amount to the Holders of record
of each Class of Certificates, in the following order of priority:
(i) to payment of the Trustee Fee for such Distribution
Date;
(ii) from the remaining Available Distribution Amount, to
each Class of Senior Certificates, the Accrued Certificate Interest
thereon for such Distribution Date, as reduced by such Class's allocable
share of any Net Prepayment Interest Shortfalls for such Distribution
Date; provided, however, that any shortfall in available amounts for the
Mortgage Pool shall be allocated among the Classes of Certificates in
proportion to the amount of Accrued Certificate Interest (as so reduced)
that would otherwise be distributable thereon;
(iii) from the remaining Available Distribution Amount, to
each Class of Senior Certificates, any related Interest Shortfall for
such Distribution Date; provided, however, that any shortfall in
available amounts shall be allocated among the Classes of Certificates
in proportion to the Interest Shortfall for each such Class on such
Distribution Date;
(iv) from the remaining Available Distribution Amount, to the
Senior Certificates (other than the Class A2X1 and Class A2X2
Certificates), an amount equal to the Senior Principal Distribution
Amount in reduction of the Class Principal Amounts thereof, sequentially
as follows:
(A) first, to the Class R Certificate, in reduction
of its Class Principal Amount, until its Class Principal Amount
has been reduced to zero; and
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(B) second, pro rata, to the Class A1 and Class A2
Certificates, in reduction of their Class Principal Amount,
until their Class Principal Amounts have been reduced to zero;
(v) from the remaining Available Distribution Amount, to the
Subordinated Certificates, in the following order of priority:
(A) to the Class B1 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(B) to the Class B1 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(C) to the Class B1 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero;
(D) to the Class B2 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(E) to the Class B2 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(F) to the Class B2 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been
reduced to zero;
(G) to the Class B3 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(H) to the Class B3 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(I) to the Class B3 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been
reduced to zero;
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(J) to the Class B4 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(K) to the Class B4 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(L) to the Class B4 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero;
(M) to the Class B5 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(N) to the Class B5 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(O) to the Class B5 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero;
(P) to the Class B6 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(Q) to the Class B6 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(R) to the Class B6 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero;
(S) sequentially, to the Class B1, Class B2, Class
B3, Class B4, Class B5 and Class B6 Certificates, from amounts
otherwise paid to the Class BX Certificates pursuant to clause
5.02(a)(v)(T), the Subordinate Floating Rate Certificate
Shortfall and Unpaid Subordinate Floating Rate Certificate
Shortfall for each such class;
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(T) to the Class BX Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(U) to the Class BX Certificates, any Interest
Shortfall for such Class on such Distribution Date (provided,
however, that the Class BX Certificates shall not be entitled to
reimbursement for amounts distributed to the Class B1, Class B2,
Class B3, Class B4, Class B5 or Class B6 Certificates in respect
of Subordinate Floating Rate Certificate Shortfalls or Unpaid
Subordinate Floating Rate Certificate Shortfalls);
(V) to the Class B7 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(W) to the Class B7 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(X) to the Class B7 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been
reduced to zero;
(Y) to the Class B8 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(Z) to the Class B8 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
(AA) to the Class B8 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero;
(BB) to the Class B9 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(CC) to the Class B9 Certificates, any Interest
Shortfall for such Class on such Distribution Date;
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(DD) to the Class B9 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Balance thereof has been
reduced to zero;
(EE) to the Class B10 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(FF) to the Class B10 Certificates, any Interest
Shortfall for such Class on such Distribution Date; and
(GG) to the Class B10 Certificates, in reduction of
the Class Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero.
(b) Net Prepayment Interest Shortfalls shall be allocated among the
Certificates pro rata based on the Accrued Certificate Interest otherwise
distributable thereon.
(c) (i) If on any Distribution Date the Credit Support Percentage
for the Class B1 Certificates is less than the Original Credit Support
Percentage for such Class, then, notwithstanding anything to the contrary in
Section 5.02(a), no distribution of amounts described in clauses (ii) and (iii)
of the definition of Subordinate Principal Distribution Amount will be made in
respect of the Class B2, Class B3, Class B4, Class B5, Class B6, Class B7, Class
B8, Class B9 or Class B10 Certificates on such Distribution Date; (ii) if on any
Distribution Date the Credit Support Percentage for the Class B2 Certificates is
less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution of
amounts described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount will be made in respect of the Class B3, Class B4,
Class B5, Class B6, Class B7, Class B8, Class B9 or Class B10 Certificates on
such Distribution Date; (iii) if on any Distribution Date the Credit Support
Percentage for the Class B3 Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Class B4, Class B5, Class B6, Class B7, Class B8,
Class B9 or Class B10 Certificates on such Distribution Date; (iv) if on any
Distribution Date the Credit Support Percentage for the Class B4 Certificates is
less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution of
amounts described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount will be made in respect of the Class B5, Class B6,
Class B7, Class B8, Class B9 or Class B10 Certificates on such Distribution
Date; (v) if on any Distribution Date the Credit Support Percentage for the
Class B5 Certificates is less than the Original Credit Support Percentage for
such Class, then, notwithstanding anything to the contrary in Section 5.02(a),
no distribution of amounts described
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in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B6, Class B7, Class B8,
Class B9 or Class B10 Certificates on such Distribution Date; (vi) if on any
Distribution Date the Credit Support Percentage for the Class B6 Certificates is
less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution of
amounts described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount will be made in respect of the Class B7, Class B8,
Class B9 or Class B10 Certificates on such Distribution Date; (vii) if on any
Distribution Date the Credit Support Percentage for the Class B7 Certificates is
less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution of
amounts described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount will be made in respect of the Class B8, Class B9
or Class B10 Certificates on such Distribution Date; (viii) if on any
Distribution Date the Credit Support Percentage for the Class B8 Certificates is
less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution of
amounts described in clauses (ii) and (iii) of the definition of Subordinate
Principal Distribution Amount will be made in respect of the Class B9 or Class
B10 Certificates on such Distribution Date; and (ix) if on any Distribution Date
the Credit Support Percentage for the Class B9 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the B10 Certificates on such
Distribution Date.
Any amount not distributed in respect of any Class on any Distribution
Date pursuant to the immediately preceding paragraph will be allocated among the
remaining Subordinate Classes in proportion to their respective Certificate
Principal Amounts.
(d) On each Distribution Date, the Trustee shall distribute to
Holders of the Class P Certificates any Prepayment Penalty Amounts related to
the Mortgage Pool for such Distribution Date.
(e) On each Distribution Date, the Trustee shall distribute to the
Holder of the Class R Certificate any Available Distribution Amount remaining
for such Distribution Date after application of all amounts described in
paragraph (a) and (d) of this Section 5.02. Any distributions pursuant to this
paragraph (e) shall not reduce the Class Principal Amount of the Class R
Certificate.
Section 5.03. Allocation of Realized Losses.
(a) On any Distribution Date, the principal portion of each Realized
Loss (other than any Excess Loss) in respect of a Mortgage Loan shall be
allocated in the following order of priority:
first, to the Class B10 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
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second, to the Class B9 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
third, to the Class B8 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
fourth, to the Class B7 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
fifth, to the Class B6 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B5 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
seventh, to the Class B4 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
eighth, to the Class B3 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
ninth, to the Class B2 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
tenth, to the Class B1 Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
eleventh, to the Classes of Senior Certificates, pro rata, in
accordance with their Class Principal Amounts; provided, that any such
loss allocated to any Class of Accrual Certificates shall be allocated
(subject to Section 5.03(c)) on the basis of the lesser of (x) the Class
Principal Amount thereof immediately prior to the applicable
Distribution Date and (y) the Class Principal Amount thereof on the
Closing Date (as reduced by any Realized Losses previously allocated
thereto).
Notwithstanding the foregoing, the first $0.46 of principal portion of Realized
Losses shall not be allocated to any Class of Certificates.
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(b) With respect to any Distribution Date, the principal portion of
any Excess Loss in respect of a Mortgage Loan shall be allocated, pro rata, to
the Subordinate Certificates and the Senior Certificates and on the basis of the
Class Principal Amounts of the Classes of Subordinate Certificates and Senior
Certificates; provided, that any such loss allocated to any Class of Accrual
Certificates (and any Accrual Component) shall be allocated (subject to Section
5.03(c)) on the basis of the lesser of (x) the Class Principal Amount thereof
immediately prior to the applicable Distribution Date and (y) the Class
Principal Amount thereof on the Closing Date (as reduced by any Realized Losses
previously allocated thereto).
(c) Any Realized Losses allocated to a Class of Certificates
pursuant to Section 5.03(a) or (b) shall be allocated among the Certificates of
such Class in proportion to their respective Certificate Principal Amounts. Any
allocation of Realized Losses pursuant to this paragraph (c) shall be
accomplished by reducing the Certificate Principal Amount on the related
Distribution Date in accordance with Section 5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03
shall be allocated on the Distribution Date in the month following the month in
which such loss was incurred and, in the case of the principal portion thereof,
after giving effect to distributions made on such Distribution Date.
(e) On each Distribution Date, the Subordinate Certificate Writedown
Amount for such date shall effect a corresponding reduction in the Certificate
Principal Amount of the lowest ranking Class of outstanding Subordinate
Certificates, which reduction shall occur on such Distribution Date after giving
effect to distributions made on such Distribution Date.
Section 5.04. Advances by the Master Servicer and the Trustee.
(a) Advances shall be made in respect of each Master Servicer
Remittance Date as provided herein. If, on any Determination Date, the Master
Servicer determines that any Scheduled Payments due during the related Due
Period (other than Balloon Payments) have not been received, the Master Servicer
shall, or shall cause the applicable Servicer to, advance such amount, less an
amount, if any, to be set forth in an Officer's Certificate to be delivered to
the Trustee on such Determination Date, which if advanced the Master Servicer or
such Servicer has determined would not be recoverable from amounts received with
respect to such Mortgage Loan, including late payments, Liquidation Proceeds,
Insurance Proceeds or otherwise. If the Master Servicer determines that an
Advance is required, it shall on the Master Servicer Remittance Date immediately
following such Determination Date either (i) remit to the Trustee from its own
funds (or funds advanced by the applicable Servicer) for deposit in the
Certificate Account immediately available funds in an amount equal to such
Advance, (ii) cause to be made an appropriate entry in the records of the
Collection Account that funds in such account being held for future distribution
or withdrawal have been, as permitted by this Section 5.04, used by the Master
Servicer to make such Advance, and remit such immediately available funds to the
Trustee for deposit in the Certificate Account or (iii) make Advances in the
form of any combination of clauses (i) and (ii) aggregating the amount of such
Advance. Any funds being held in the Collection Account for future distribution
to Certificateholders and so used shall be replaced by the Master Servicer from
its own funds by remittance to the Trustee for deposit in the Certificate
Account on or before any future Master Servicer Remittance Date to the extent
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that funds in the Certificate Account on such Master Servicer Remittance Date
shall be less than payments to Certificateholders required to be made on the
related Distribution Date. The Trustee shall be entitled to conclusively rely
upon any determination by the Master Servicer that an Advance, if made, would
constitute a non-recoverable advance. The Master Servicer and each Servicer
shall be entitled to be reimbursed from the Collection Account for all Advances
made by it as provided in Section 4.02.
(b) In the event that the Master Servicer fails for any reason to
make an Advance required to be made pursuant to Section 5.04(a) on or before the
Master Servicer Remittance Date, the Trustee, solely in its capacity as
successor Master Servicer pursuant to Section 6.14, shall, on or before the
related Distribution Date, deposit in the Certificate Account an amount equal to
the excess of (a) Advances required to be made by the Master Servicer or any
Servicer that would have been deposited in such Certificate Account over (b) the
amount of any Advance made by the Master Servicer or such Servicer with respect
to such Distribution Date; provided, however, that the Trustee shall be required
to make such Advance only if it is not prohibited by law from doing so and it
has determined that such Advance would be recoverable from amounts to be
received with respect to such Mortgage Loan, including late payments,
Liquidation Proceeds, Insurance Proceeds, or otherwise. The Trustee shall be
entitled to be reimbursed from the Certificate Account for Advances made by it
pursuant to this Section 5.04 as if it were the Master Servicer.
Section 5.05. Compensating Interest Payments.
The Master Servicer shall not be responsible for making any Compensating
Interest Payments not made by the Servicers. Any Compensating Interest Payments
made by the Servicers shall be a component of the Interest Remittance Amount.
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee.
(a) The Trustee, except during the continuance of an Event of
Default (of which a Responsible Officer of the Trustee shall have actual
knowledge), undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. Any permissive right of the Trustee
provided for in this Agreement shall not be construed as a duty of the Trustee.
If an Event of Default (of which a Responsible Officer of the Trustee shall have
actual knowledge) has occurred and has not otherwise been cured or waived, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs unless the Trustee is acting as Master Servicer, in
which case it shall use the same degree of care and skill as the Master Servicer
hereunder.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to
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determine whether they are in the form required by this Agreement; provided,
however, that the Trustee shall not be responsible for the accuracy or content
of any such resolution, certificate, statement, opinion, report, document, order
or other instrument furnished by the Master Servicer, to the Trustee pursuant to
this Agreement, and the Trustee shall not be required to recalculate or verify
any numerical information furnished to the Trustee pursuant to this Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful misconduct.
No provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith
in accordance with the consent or direction of Holders of Certificates
as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Master Servicer (i) to remit funds (or
to make Advances) or (ii) to furnish information to the Trustee when
required to do so) unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is
in fact such a default is received by the Trustee at the Corporate Trust
Office, and such notice references the Holders of the Certificates and
this Agreement;
(iii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Master Servicer to furnish information
to the Trustee when required to do so) unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the
address provided in Section 11.07, and such notice references the
Holders of the Certificates and this Agreement; and
(iv) With respect to amounts that would be treated as
"unanticipated expenses" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii) if paid or reimbursed by any REMIC hereunder,
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, and none of the provisions
contained in this Agreement shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement except, with
respect to the Trustee, during such time, if any, as the Trustee shall
be the successor to, and be vested with the rights, duties, powers and
privileges of, the Master Servicer in accordance with the terms of this
Agreement.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered
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to or served upon it by the parties as a consequence of the assignment of any
Mortgage Loan hereunder; provided, however, that the Trustee shall use its best
efforts to remit to the Master Servicer upon receipt any such complaint, claim,
demand, notice or other document (i) which is delivered to the Corporate Trust
Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge,
and (iii) which contains information sufficient to permit the Trustee to make a
determination that the real property to which such document relates is a
Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Certificateholders of any Class holding Certificates which
evidence, as to such Class, Percentage Interests aggregating not less than 25%
as to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement.
(f) Subject to Section 4.04, the Trustee shall not be held liable by
reason of any insufficiency in any account (including without limitation the
Collection Account and the Certificate Account) held by or on behalf of the
Trustee resulting from any investment loss on any Eligible Investment included
therein (except to the extent that the Trustee is the obligor and has defaulted
thereon).
(g) Except as otherwise provided herein, the Trustee shall have no
duty (A) to see to any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any re-recording, re-filing or
re-depositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Collection Account or the Certificate Account, or (D) to confirm or verify the
contents of any reports or certificates of the Master Servicer delivered to the
Trustee pursuant to this Agreement believed by the Trustee, as applicable, to be
genuine and to have been signed or presented by the proper party or parties.
(h) The Trustee shall not be liable in its individual capacity for
an error of judgment made in good faith by a Responsible Officer or other
officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(i) Notwithstanding anything in this Agreement to the contrary, the
Trustee shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
Section 6.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors, Opinion of Counsel or
any other certificate, statement, instrument, opinion, report, notice,
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request, consent, order, approval, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) The Trustee may consult with counsel and any advice of
its counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document (provided the same appears
regular on its face), unless requested in writing to do so by Holders of
at least a majority in Class Principal Amount of each Class of
Certificates; provided, however, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability or
payment of such estimated expenses as a condition to proceeding. The
reasonable expense thereof shall be paid by the Holders requesting such
investigation;
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians, or attorneys, which agents, custodians or
attorneys shall have any and all of the rights, powers, duties and
obligations of the Trustee conferred on them by such appointment
provided that the Trustee shall continue to be responsible for its
duties and obligations hereunder to the extent provided herein, and
provided further that the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed with due care by the Trustee;
(vi) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto, in
each case at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby;
(vii) The right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and
the Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act; and
(viii) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby or
the powers granted hereunder.
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Section 6.03. Trustee Not Liable for Certificates.
The Trustee makes no representations as to the validity or sufficiency
of this Agreement or of the Certificates (other than the certificate of
authentication on the Certificates) or of any Mortgage Loan, or related document
save that the Trustee represents that, assuming due execution and delivery by
the other parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law. The Trustee shall not be accountable for the use
or application by the Depositor of funds paid to the Depositor in consideration
of the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for the use or application of any funds deposited into the Collection Account,
the Certificate Account, any Escrow Account or any other fund or account
maintained with respect to the Certificates. The Trustee shall not be
responsible for the legality or validity of this Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates issued
or intended to be issued hereunder. Except as otherwise provided herein, the
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
record this Agreement.
Section 6.04. Trustee May Own Certificates.
The Trustee and any Affiliate or agent of the Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates and may
transact banking and trust with the other parties hereto with the same rights it
would have if it were not Trustee or such agent.
Section 6.05. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) an institution insured
by the FDIC and (ii) a corporation or national banking association, organized
and doing business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation or national
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.06.
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Section 6.06. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice thereof to the Depositor and the
Master Servicer. Upon receiving such notice of resignation, the Depositor will
promptly appoint a successor trustee by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee, one copy to the
successor trustee and one copy to the Master Servicer. If no successor trustee
shall have been so appointed and shall have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund held by the Trustee is located, or (iv) the continued
use of the Trustee would result in a downgrading of the rating by the Rating
Agencies of any Class of Certificates with a rating, then the Depositor shall
remove the Trustee and appoint a successor trustee by written instrument, one
copy of which instrument shall be delivered to the Trustee so removed, one copy
to the successor trustee and one copy to the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Amount of
each Class of Certificates may at any time upon 30 days' written notice to the
Trustee and the Depositor remove the Trustee by such written instrument, signed
by such Holders or their attorney-in-fact duly authorized, one copy of which
instrument shall be delivered to the Depositor, one copy to the Trustee so
removed and one copy to the Master Servicer; the Depositor shall thereupon use
its best efforts to appoint a mutually acceptable successor trustee in
accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon (i) payment of all unpaid amounts owed to the Trustee and (ii)
acceptance of appointment by the successor trustee as provided in Section 6.07.
Section 6.07. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 6.06
shall execute, acknowledge and deliver to the Depositor, the Master Servicer and
to its predecessor trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee. The predecessor trustee (or its custodian) shall deliver to
the successor trustee (or assign to the successor trustee its interest under
each Custodial Agreement, to the extent permitted thereunder) all Mortgage Files
and documents and statements related to each Mortgage Files held by it
hereunder, and shall duly assign, transfer, deliver and pay over to the
successor trustee the entire Trust Fund, together with all necessary instruments
of transfer and assignment or other
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documents properly executed necessary to effect such transfer and such of the
record or copies thereof maintained by the predecessor trustee in the
administration hereof as may be requested by the successor trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Master Servicer and the predecessor trustee shall
execute and deliver such other instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in
this Section unless at the time of such appointment such successor trustee shall
be eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Master Servicer shall mail notice of the
succession of such trustee and to all Holders of Certificates at their addresses
as shown in the Certificate Register and to the Rating Agencies. The expenses of
such mailing shall be borne by the predecessor trustee.
Section 6.08. Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the business of the Trustee, shall be the successor to the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding,
provided that such Person shall be eligible under the provisions of Section
6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of the
Class Principal Amount of each Class of Certificates shall each have the power
from time to time to appoint one or more Persons to act either as co-trustees
jointly with the Trustee, or as separate trustees, or as custodians, for the
purpose of holding title to, foreclosing or otherwise taking action with respect
to any Mortgage Loan outside the state where the Trustee has its principal place
of business where such separate trustee or co-trustee is necessary or advisable
(or the Trustee has been advised by the Master Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust Fund is located. The separate trustees,
co-trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders and shall have such powers, rights and
remedies as shall be specified in the instrument of appointment; provided,
however, that no such appointment shall, or shall be deemed to, constitute the
appointee an agent of the Trustee. The obligation of the Trustee to make
Advances pursuant to Section 5.04 and 6.14 hereof shall not be affected or
assigned by the appointment of a co-trustee.
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(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of
moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee,
co-trustee, or custodian jointly, except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations, including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other Trustee or
custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing more
than 50% of the Aggregate Voting Interests of the Certificates may at
any time accept the resignation of or remove any separate trustee,
co-trustee or custodian, so appointed by it or them, if such resignation
or removal does not violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. The Trustee shall not
be responsible for any action or inaction of any separate trustee, co-trustee or
custodian. If any separate trustee, co-trustee or custodian shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
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(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trust Fund shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10. Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which
shall be authorized to act on behalf of the Trustee in authenticating
Certificates. Wherever reference is made in this Agreement to the authentication
of Certificates by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
must be a corporation organized and doing business under the laws of the United
States of America or of any state, having a combined capital and surplus of at
least $15,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 6.10. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Any Authenticating Agent shall be entitled to reasonable compensation for its
services and, if paid by the Trustee, it shall be a reimbursable expense to the
extent provided in Section 6.12.
Section 6.11. Indemnification of Trustee.
The Trustee and its respective directors, officers, employees and agents
shall be entitled to indemnification from the Trust Fund for any loss, liability
or expense incurred (a) in connection with any legal proceeding or incurred
without negligence or willful misconduct on
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their part, arising out of, or in connection with, the acceptance or
administration of the trusts created hereunder or in connection with the
performance of their duties hereunder or under the Certificates, any Custodial
Agreement or any Servicing Agreement and (b) with respect to the last paragraph
of Section 2.01(a), including any applicable fees and expenses payable pursuant
to Section 6.12 and the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall have
given the Depositor, the Master Servicer and the Holders written notice
thereof promptly after the Trustee shall have knowledge thereof;
provided that failure to so notify shall not relieve the Trust Fund of
the obligation to indemnify the Trustee; however, any reasonable delay
by the Trustee to provide written notice to the Depositor, the Master
Servicer and the Holders promptly after the Trustee shall have obtained
knowledge of a claim shall not relieve the Trust Fund of the obligation
to indemnify the Trustee under this Section 6.11;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Depositor in
preparing such defense;
(iii) notwithstanding anything to the contrary in this Section
6.11, the Trust Fund shall not be liable for settlement of any such
claim by the Trustee entered into without the prior consent of the
Depositor, which consent shall not be unreasonably withheld; and
(iv) any such loss, liability or expense indemnified by the
Trust Fund must constitute an "unanticipated expense" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii).
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense under
any environmental law.
Section 6.12. Fees and Expenses of Trustee and Custodian.
The Trustee shall be entitled to (a) the Trustee Fee and (b) all
reasonable expenses, disbursements and advancements incurred or made by the
Trustee in accordance with this Agreement (including fees and expenses of its
counsel and all persons not regularly in its employment), except any such
expenses, disbursements and advancements that either (i) arise from its
negligence, bad faith or willful misconduct or (ii) do not constitute
"unanticipated expenses" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). The Custodian shall be compensated as separately agreed with
the Depositor.
Section 6.13. Collection of Monies.
Except as otherwise expressly provided in this Agreement, the Trustee
may demand payment or delivery of, and shall receive and collect, all money and
other property payable to or receivable by the Trustee pursuant to this
Agreement. The Trustee shall hold all such money and property received by it as
part of the Trust Fund and shall distribute it as provided in this Agreement. If
the Trustee shall not have timely received amounts to be remitted with respect
to
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the Mortgage Loans from the Master Servicer, the Trustee shall request the
Master Servicer to make such distribution as promptly as practicable or legally
permitted. If the Trustee shall subsequently receive any such amount, it may
withdraw such request.
Section 6.14. Events of Default; Trustee To Act; Appointment of
Successor.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default":
(i) Any failure by the Master Servicer to furnish the
Trustee the Mortgage Loan data sufficient to prepare the reports
described in Section 4.03(a) which continues unremedied for a period of
two (2) Business Days after the date upon which written notice of such
failure shall have been given to such Master Servicer by the Trustee or
to such Master Servicer, the Trustee by the Holders of not less than 25%
of the Class Principal Amount of each Class of Certificates affected
thereby; or
(ii) Any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants or
agreements on the part of such Master Servicer contained in this
Agreement which continues unremedied for a period of 30 days (or 15
days, in the case of a failure to maintain any Insurance Policy required
to be maintained pursuant to this Agreement) after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to such Master Servicer by the Trustee, or to such
Master Servicer and the Trustee by the Holders of not less than 25% of
the Class Principal Amount of each Class of Certificates affected
thereby; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days or
any Rating Agency reduces or withdraws or threatens to reduce or
withdraw the rating of the Certificates because of the financial
condition or loan servicing capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities, voluntary liquidation or
similar proceedings of or relating to such Master Servicer or of or
relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors or voluntarily suspend
payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose
of all or substantially all of its assets, or consolidate with or merge
into another entity or shall permit another entity to consolidate or
merge into it, such that the resulting entity does not meet the criteria
for a successor servicer as specified in Section 9.27 hereof; or
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(vii) If a representation or warranty set forth in Section
9.14 hereof shall prove to be incorrect as of the time made in any
respect that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have been
eliminated or cured within 60 days after the date on which written
notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee, or to the Master Servicer
and the Trustee by the Holders of not less than 25% of the Aggregate
Certificate Principal Amount of each Class of Certificates; or
(viii) A sale or pledge of the any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master Servicer
hereunder shall have occurred in any manner not otherwise permitted
hereunder and without the prior written consent of the Trustee and
Certificateholders holding more than 50% of the Class Principal Amount
of each Class of Certificates; or
(ix) The Master Servicer has notice or actual knowledge that
any Servicer at any time is not either an FNMA- or FHLMC- approved
Seller/Servicer, and the Master Servicer has not terminated the rights
and obligations of such Servicer under the applicable Servicing
Agreement and replaced such Servicer with an FNMA- or FHLMC-approved
servicer within 60 days of the date the Master Servicer receives such
notice or actual knowledge; or
(x) Any failure of the Master Servicer to remit to the
Trustee any payment required to be made to the Trustee for the benefit
of Certificateholders under the terms of this Agreement, including any
Advance, on any Master Servicer Remittance Date, which such failure
continues unremedied for a period of one Business Day after the date
upon which notice of such failure shall have been given to the Master
Servicer by the Trustee.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount of
each Class of Certificates, terminate all of the rights and obligations of the
Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. If an Event of Default described in clause (x) of this Section 6.14
shall occur, then, in each and every case, subject to applicable law, so long as
such Event of Default shall not have been remedied within the time period
prescribed by clause (x) of this Section 6.14, the Trustee, by notice in writing
to the Master Servicer, shall promptly terminate all of the rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. On or after the receipt by the Master Servicer of such
written notice, all authority and power of the Master Servicer, and only in its
capacity as Master Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under the terms of this Agreement; and the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the defaulting Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the
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purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents or
otherwise. The defaulting Master Servicer agrees to cooperate with the Trustee
in effecting the termination of the defaulting Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying Servicers of the assignment of the master servicing
function and providing the Trustee or its designee all documents and records in
electronic or other form reasonably requested by it to enable the Trustee or its
designee to assume the defaulting Master Servicer's functions hereunder and the
transfer to the Trustee for administration by it of all amounts which shall at
the time be or should have been deposited by the defaulting Master Servicer in
the Collection Account maintained by such defaulting Master Servicer and any
other account or fund maintained with respect to the Certificates or thereafter
received with respect to the Mortgage Loans. The Master Servicer being
terminated shall bear all costs of a master servicing transfer, including but
not limited to those of the Trustee reasonably allocable to specific employees
and overhead, legal fees and expenses, accounting and financial consulting fees
and expenses, and costs of amending the Agreement, if necessary. The Trustee
shall be entitled to be reimbursed from the Master Servicer (or by the Trust
Fund, if the Master Servicer is unable to fulfill its obligations hereunder) for
all costs associated with the transfer of servicing from the predecessor Master
Servicer, including, without limitation, any costs or expenses associated with
the complete transfer of all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the Trustee to correct
any errors or insufficiencies in the servicing data or otherwise to enable the
Trustee to master service the Mortgage Loans properly and effectively. If the
terminated Master Servicer does not pay such reimbursement within thirty (30)
days of its receipt of an invoice therefor, such reimbursement shall be an
expense of the Trust and the Trustee shall be entitled to withdraw such
reimbursement from amounts on deposit in the Certificate Account pursuant to
Section 4.04; provided that the terminated Master Servicer shall reimburse the
Trust for any such expense incurred by the Trust.
Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 4.02(i), (ii), (iii), (iv), (v), (vi), (vii),
(ix) and (xi) to the extent such reimbursement relates to the period prior to
such Master Servicer's termination.
If any Event of Default shall occur of which a Responsible Officer of
the Trustee has actual knowledge, the Trustee shall promptly notify the Rating
Agencies of the nature and extent of such Event of Default. The Trustee shall
immediately give written notice to the Master Servicer upon such Master
Servicer's failure to remit funds on the Master Servicer Remittance Date.
(b) Within 90 days of the time the Master Servicer receives a notice
of termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.28, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the Master
Servicer in its capacity as such under this Agreement and the transactions set
forth or provided for herein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Master Servicer hereunder, including the
obligation to make Advances; provided, however, that any failure to perform such
duties or responsibilities caused by the Master Servicer's or the Trustee's
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failure to provide information required by this Agreement shall not be
considered a default by the Trustee hereunder. In addition, the Trustee shall
have no responsibility for any act or omission of the Master Servicer prior to
the issuance of any notice of termination and within a period of time not to
exceed 90 days after the issuance of any notice of termination pursuant to
Section 6.14(a) or Section 9.28. The Trustee shall have no liability relating to
the representations and warranties of the Master Servicer set forth in Section
9.14. In the Trustee's capacity as such successor, the Trustee shall have the
same limitations on liability herein granted to the Master Servicer. As
compensation therefor, the Trustee shall be entitled to receive all compensation
payable to the Master Servicer under this Agreement, including the Master
Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer as are set
forth in this Agreement, as the successor to such Master Servicer in the
assumption of all of the responsibilities, duties or liabilities of a master
servicer, like the Master Servicer. Any entity designated by the Trustee as a
successor master servicer may be an Affiliate of the Trustee; provided, however,
that, unless such Affiliate meets the net worth requirements and other standards
set forth herein for a successor master servicer, the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate's actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted to the
Master Servicer hereunder. The Trustee and such successor shall take such
actions, consistent with this Agreement, as shall be necessary to effectuate any
such succession and may make other arrangements with respect to the servicing to
be conducted hereunder which are not inconsistent herewith. The Master Servicer
shall cooperate with the Trustee and any successor master servicer in effecting
the termination of the Master Servicer's responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other form
reasonably requested by it to enable it to assume the Master Servicer's
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Master Servicer to deliver,
or any delay in delivering, cash, documents or records to it, (ii) the failure
of the Master Servicer to cooperate as required by this Agreement, (iii) the
failure of the Master Servicer to deliver the Mortgage Loan data to the Trustee
as required by this Agreement or (iv) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer.
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Section 6.15. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as trustee
of an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
Section 6.16. Waiver of Defaults.
35% or more of the Aggregate Voting Interests of Certificateholders may
waive any default or Event of Default by the Master Servicer in the performance
of its obligations hereunder, except that a default in the making of any
required deposit to the Certificate Account that would result in a failure of
the Trustee to make any required payment of principal of or interest on the
Certificates may only be waived with the consent of 100% of the affected
Certificateholders. Upon any such waiver of a past default, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
Section 6.17. Notification to Holders.
Upon termination of the Master Servicer or appointment of a successor to
the Master Servicer, in each case as provided herein, the Trustee shall promptly
mail notice thereof by first class mail to the Certificateholders at their
respective addresses appearing on the Certificate Register. The Trustee shall
also, within 45 days after the occurrence of any Event of Default known to a
Responsible Officer of the Trustee, give written notice thereof to the
Certificateholders, unless such Event of Default shall have been cured or waived
prior to the issuance of such notice and within such 45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default.
Subject to the provisions of Section 8.01 hereof, during the continuance
of any Event of Default, Holders of Certificates evidencing not less than 25% of
the Class Principal Amount of each Class of Certificates may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Agreement; provided, however, that the Trustee shall be under no obligation to
pursue any such remedy, or to exercise any of the trusts or powers vested in it
by this Agreement (including, without limitation, (i) the conducting or
defending of any administrative action or litigation hereunder or in relation
hereto and (ii) the terminating of the Master Servicer or any successor master
servicer from its rights and duties as master servicer hereunder) at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders shall
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have offered to the Trustee reasonable security or indemnity against the cost,
expenses and liabilities which may be incurred therein or thereby; and, provided
further, that, subject to the provisions of Section 8.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee, in accordance
with an Opinion of Counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith determines that the
action or proceeding so directed would involve it in personal liability or be
unjustly prejudicial to the non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event of Default.
In the event that a Responsible Officer of the Trustee shall have actual
knowledge of any action or inaction of the Master Servicer that would become an
Event of Default upon the Master Servicer's failure to remedy the same after
notice, the Trustee shall give notice thereof to the Master Servicer. For all
purposes of this Agreement, in the absence of actual knowledge by a Responsible
Officer of the Trustee, the Trustee shall not be deemed to have knowledge of any
failure of the Master Servicer or any other Event of Default unless notified in
writing by the Depositor, the Master Servicer or a Certificateholder.
Section 6.20. Preparation of Tax Returns and Other Reports.
(a) The Trustee shall prepare or cause to be prepared on behalf of the
Trust Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, and the Trustee shall file,
federal tax returns and appropriate state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund, and
shall file any other documents to the extent required by applicable state tax
law (to the extent such documents are in the Trustee's possession). The Trustee
shall forward copies to the Depositor of all such returns and Form 1099
supplemental tax information and such other information within the control of
the Trustee as the Depositor may reasonably request in writing, and shall
forward to each Certificateholder such forms and furnish such information within
the control of the Trustee as are required by the Code and the REMIC Provisions
to be furnished to them, and will prepare and distribute Certificateholders Form
1099 (supplemental tax information) (or otherwise furnish information within the
control of the Trustee) to the extent required by applicable law. The Master
Servicer will indemnify the Trustee for any liability of or assessment against
the Trustee, as applicable, resulting from any error in any of such tax or
information returns directly resulting from errors in the information provided
by such Master Servicer.
(b) The Trustee shall prepare and file with the Internal Revenue Service
("IRS"), on behalf of each REMIC, an application for a taxpayer identification
number on IRS Form SS-4 or any other acceptable method approved by the IRS. The
Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned for each REMIC, shall promptly forward copies of such notice to
the Master Servicer and the Depositor. The Trustee will file an IRS Form 8811
for all REMICs created hereunder.
(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K. Thereafter, within 10 days (or, if applicable,
within such shorter period of time as is required under the rules of the U.S.
Securities and Exchange Commission (the "Commission") as in effect from time to
time (the "Rules")) following each Distribution Date, the Trustee shall, in
accordance with industry standards and the Rules, prepare and file with the
Commission via the Electronic Data Gathering and Retrieval System (▇▇▇▇▇), a
Form 8-K (or such other form as is prescribed by the Rules) that includes (i) a
copy of the statement to the Certificateholders for such Distribution Date and
(ii) such other information as is required by the Rules and available to the
Trustee in a format compatible with ▇▇▇▇▇ filing requirements. Prior to January
30 in the first year, unless it has received prior instructions from the
Depositor not to do so, the Trustee shall, in accordance with industry
standards, prepare and file a Form 15 Suspension Notification with respect to
the Trust Fund, if applicable. Prior to March 30, 2006 and, unless and until a
Form 15 Suspension Notification shall have been filed, on or prior to March 30
of each year thereafter, the Trustee shall file (but will not execute) a Form
10-K, in substance conforming to industry standards and complying with the
Rules, with respect to the Trust Fund. The Form 10-K shall include the
certification required pursuant to Rule 13a-14 under the Securities and Exchange
Act of 1934, as amended (the "Form 10-K Certification") signed by an appropriate
party or parties (which Form 10-K Certification the Trustee shall not be
required to prepare or sign) and such other information as is required by the
Rules. The Trustee shall promptly send copies of each periodic report filed on
Form 8-K or other applicable form, each annual report on Form 10-K, and each
Form 15 Suspension Notification, together in each case with the acceptance
confirmation receipt from ▇▇▇▇▇, to ▇▇▇▇▇ ▇▇▇▇▇▇ LLP and to the Depositor (i) by
e-mail to the e-mail addresses provided in writing by each of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP
and the Depositor, respectively and (ii) to ▇▇▇▇▇ ▇▇▇▇▇▇ LLP at ▇▇▇▇ ▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, and to the Depositor at the address specified in
Section 11.07, in each case to the attention of a designated contact
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specified by each of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP and the Depositor, respectively. The
Trustee shall have no liability for any delay in filing the Form 10-K or Form
10-K Certification due to the failure of any party to sign such Form 10-K or
Form 10-K Certification. The Depositor hereby grants to the Trustee a limited
power of attorney to execute and file each Form 8-K (or other applicable form
for filing of periodic reports) on behalf of the Depositor. Such power of
attorney shall continue until either the earlier of (i) receipt by the Trustee
from the Depositor of written termination of such power of attorney or (ii) the
termination of the Trust Fund. The Depositor agrees to promptly furnish to the
Trustee, from time to time upon request, such further information, reports, and
financial statements within its control related to this Agreement and the
Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file
all necessary reports with the Commission. The Trustee shall have no
responsibility to file any items other than those specified in this Section
6.20(c).
(d) If so requested, the Trustee shall sign a certification (in the
form attached hereto as Exhibit M) for the benefit of the Person(s) signing the
Form 10-K Certification regarding certain aspects of such Form 10-K
Certification (provided, however, that the Trustee shall not be required to
undertake an analysis of, and shall have no responsibility for, any financial
information, accountant's report, certification or other matter contained
therein, except for computations performed by the Trustee and reflected in
distribution reports), which certification shall be delivered to such Person(s)
not later than five Business Days prior to the date on which the Form 10-K is
required to be filed with the Commission.
(e) If so requested, the Master Servicer shall sign a certification
for the benefit of the Person(s) signing the Form 10-K Certification regarding
certain aspects of such Form 10-K Certification (provided, however, that the
Master Servicer shall not be required to undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K).
(f) Each person (including their officers or directors) that signs
any Form 10-K Certification shall be entitled to indemnification from the Trust
Fund for any liability or expense incurred by it in connection with such
certification, other than any liability or expense attributable to such Person's
own bad faith, negligence or willful misconduct. The provisions of this
subsection shall survive any termination of this Agreement and the resignation
or removal of such Person.
Section 6.21 Reporting Requirements of the Commission.
The Trustee and the Master Servicer shall reasonably cooperate with the
Depositor and its counsel to enter into such amendments or modifications to the
Agreement as may be necessary to comply with the Rules and any interpretation
thereof by the staff of the Commission, subject to the provisions of Section
11.03 hereof.
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ARTICLE VII
PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation
of All Mortgage Loans.
(a) The respective obligations and responsibilities of the Trustee
and the Master Servicer created hereby (other than the obligation of the Trustee
to make payments to Certificateholders as set forth in Section 7.02, the
obligation of the Master Servicer to make a final remittance to the Trustee for
deposit into the Certificate Account pursuant to Section 4.02 and the
obligations of the Master Servicer to the Trustee pursuant to Sections 9.10 and
9.14), shall terminate on the earlier of (i) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the sale of all remaining property held
by the Trust Fund in accordance with Section 7.01(b); provided, however, that in
no event shall the Trust Fund created hereby continue beyond the expiration of
21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. James's,
living on the date hereof. Any termination of the Trust Fund shall be carried
out in such a manner so that the termination of each REMIC included therein
shall qualify as a "qualified liquidation" under the REMIC Provisions.
(b) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans in the Trust Fund is
less than 1% of the Principal Balance of the Mortgage Loans in the Trust Fund
(determined in the aggregate rather than by pool) as of the Cut-off Date, the
Master Servicer, with the consent of the Seller (which consent will not be
unreasonably withheld), may, upon written direction to the Trustee, cause the
Trustee to sell (or arrange for the sale of) the assets of the Trust Fund. Upon
the repurchase of the Mortgage Loans in the Trust Fund, the Master Servicer
shall, upon written direction to the Trustee, cause each REMIC included in the
Trust Fund to adopt a plan of complete liquidation pursuant to Section 7.03
hereof to sell all of its property. The property of the Trust Fund shall be sold
at a price (the "Repurchase Price") equal to: (i) 100% of the unpaid principal
balance of each Mortgage Loan on the day of such purchase plus interest accrued
thereon at the applicable Mortgage Rate with respect to any Mortgage Loan to the
Due Date in the Due Period immediately preceding such Distribution Date, (ii)
the fair market value of any REO Property and any other property held by the
Trust Fund (reduced by (x) reasonably anticipated disposition costs and (y) any
amount by which the fair market value as so reduced exceeds the outstanding
principal balance of the related Mortgage Loan), such fair market value to be
determined by an appraiser or appraisers appointed by the Master Servicer with
the consent of the Trustee and (iii) any unreimbursed Servicing Advances with
respect to each Mortgage Loan in the Trust Fund. The Master Servicer and each
Servicer (or the Trustee, if applicable) shall be reimbursed from the Repurchase
Price for any Mortgage Loan or related REO Property for any Advances or
Servicing Advances made with respect to the Mortgage Loans that are reimbursable
to the Master Servicer under this Agreement or to each Servicer under the
related Servicing Agreement (or to the Trustee hereunder), together with any
accrued and unpaid compensation and any other amounts due to the Master Servicer
and the Trustee hereunder or the Servicers thereunder provided such other
amounts due to the Servicers are "unanticipated expenses" within the meaning of
Treasury Regulation Section 1.860G-(1)(b)(3)(ii). The Trustee shall distribute
the assets of the Trust Fund on the Distribution Date on which the repurchase
occurred. Upon the repurchase of the Mortgage Loans, the Trust Fund shall
terminate in accordance with the terms of this Agreement.
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Section 7.02. Procedure Upon Termination of Trust Fund.
(a) Notice of any termination pursuant to the provisions of Section
7.01, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to
Certificateholders mailed (x) no later than five Business Days after the Trustee
has received notice from the Master Servicer of its intent to exercise its right
to cause the termination of the Trust Fund pursuant to Section 7.01(b) or (y)
upon the final payment or other liquidation of the last Mortgage Loan or REO
Property in the Trust Fund. Such notice shall specify (A) the Distribution Date
upon which final distribution on the Certificates of all amounts required to be
distributed to Certificateholders pursuant to Section 5.02 will be made upon
presentation and surrender of the Certificates at the Corporate Trust Office,
and (B) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distribution being made only upon presentation and surrender of
the Certificates at the office or agency of the Trustee therein specified. The
Trustee shall give such notice to the Master Servicer, the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the
Certificates. Upon any such termination, the duties of the Certificate Registrar
with respect to the Certificates shall terminate and the Trustee shall
terminate, or request the Master Servicer to terminate, the Collection Account
it maintains, the Certificate Account and any other account or fund maintained
with respect to the Certificates, subject to the Trustee's obligation hereunder
to hold all amounts payable to Certificateholders in trust without interest
pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to contact
the remaining Certificateholders concerning surrender of such Certificates, and
the cost thereof shall be paid out of the amounts distributable to such Holders.
If within two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee shall, subject to applicable state law
relating to escheatment, hold all amounts distributable to such Holders for the
benefit of such Holders. No interest shall accrue on any amount held by the
Trustee and not distributed to a Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section.
(c) Any reasonable expenses incurred by the Trustee in connection
with any termination or liquidation of the Trust Fund shall be paid from
proceeds received from the liquidation of the Trust Fund, but only to the extent
that such expenses constitute "unanticipated expenses" within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(ii).
Section 7.03. Additional Requirements under the REMIC Provisions.
(a) Any termination of the Trust Fund shall be effected in
accordance with the following additional requirements, unless the Trustee seeks
(at the request of the Master Servicer), and subsequently receives, an Opinion
of Counsel (at the expense of the Master Servicer), addressed to the Trustee to
the effect that the failure of the Trust Fund to comply with the requirements of
this Section 7.03 will not (i) result in the imposition of taxes on any REMIC
under the REMIC Provisions or (ii) cause any REMIC established hereunder to fail
to qualify as a REMIC at any time that any Certificates are outstanding:
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(i) The Trustee shall sell all of the assets of the Trust
Fund for cash and, within 90 days of such sale, shall distribute the
proceeds of such sale to the Certificateholders in complete liquidation
of the Trust Fund and each REMIC; and
(ii) The Trustee shall attach a statement to the final
Federal income tax return for each REMIC stating that pursuant to
Treasury Regulation Section 1.860F-1, the first day of the 90-day
liquidation period for each such REMIC was the date on which the Trustee
sold the assets of the Trust Fund.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take the action described in paragraph (a)
above and (ii) agrees to take such other action as may be necessary to
facilitate liquidation of each REMIC created under this Agreement, which
authorization shall be binding upon all successor Residual Certificateholders.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of this
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
the operation and management of the Trust Fund, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Class
Principal Amount of Certificates of each Class shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given such Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders
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of Certificates shall have any right in any manner whatever by virtue or by
availing of any provision of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of such Certificates, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Agreement, except in the manner herein provided and for the
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 8.02. Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such Applicants reasonable access during the normal
business hours of the Trustee to the most recent list of Certificateholders held
by the Trustee or shall, as an alternative, send, at the Applicants' expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Master Servicer, the Certificate Registrar and the Trustee that neither the
Depositor, the Master Servicer, the Certificate Registrar nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section 8.03. Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders or Certificate Owner, if the Holder is a Clearing Agency, may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where expressly required herein, to the Master Servicer. Such instrument or
instruments (as the action embodies therein and evidenced thereby) are herein
sometimes referred to as an "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agents shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee and Master Servicer, if made in the
manner provided in this Section. Each of the
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Trustee and Master Servicer shall promptly notify the other of receipt of any
such instrument by it, and shall promptly forward a copy of such instrument to
the other.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the individual
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and the Trustee, the Master Servicer and the Depositor
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee or
the Master Servicer in reliance thereon, whether or not notation of such action
is made upon such Certificate.
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer.
The Certificateholders, by their purchase and acceptance of the
Certificates, appoint Aurora Loan Services LLC, as Master Servicer. For and on
behalf of the Depositor, the Trustee and the Certificateholders, the Master
Servicer shall master service the Mortgage Loans in accordance with the
provisions of this Agreement and the provisions of the applicable Servicing
Agreement.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors
and Omissions Insurance Policy.
(a) The Master Servicer, at its expense, shall maintain in effect a
Fidelity Bond and an Errors and Omissions Insurance Policy, affording coverage
with respect to all directors, officers, employees and other Persons acting on
such Master Servicer's behalf, and covering errors and omissions in the
performance of the Master Servicer's obligations hereunder. The Errors and
Omissions Insurance Policy and the Fidelity Bond shall be in such form and
amount that would meet the requirements of FNMA or FHLMC if it were the
purchaser of the Mortgage Loans. The Master Servicer shall (i) require each
Servicer to maintain an Errors and Omissions
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Insurance Policy and a Fidelity Bond in accordance with the provisions of the
applicable Servicing Agreement, (ii) cause each Servicer to provide to the
Master Servicer certificates evidencing that such policy and bond is in effect
and to furnish to the Master Servicer any notice of cancellation, non-renewal or
modification of the policy or bond received by it, as and to the extent provided
in the applicable Servicing Agreement, and (iii) furnish copies of the
certificates and notices referred to in clause (ii) to the Trustee upon its
request. The Fidelity Bond and Errors and Omissions Insurance Policy may be
obtained and maintained in blanket form.
(b) The Master Servicer shall promptly report to the Trustee any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to the
Trustee, on request, certificates evidencing that such bond and insurance policy
are in full force and effect. The Master Servicer shall promptly report to the
Trustee all cases of embezzlement or fraud, if such events involve funds
relating to the Mortgage Loans. The total losses, regardless of whether claims
are filed with the applicable insurer or surety, shall be disclosed in such
reports together with the amount of such losses covered by insurance. If a bond
or insurance claim report is filed with any of such bonding companies or
insurers, the Master Servicer shall promptly furnish a copy of such report to
the Trustee. Any amounts relating to the Mortgage Loans collected by the Master
Servicer under any such bond or policy shall be promptly remitted by the Master
Servicer to the Trustee for deposit into the Certificate Account. Any amounts
relating to the Mortgage Loans collected by any Servicer under any such bond or
policy shall be remitted to the Master Servicer to the extent provided in the
applicable Servicing Agreement.
Section 9.03. Master Servicer's Financial Statements and Related
Information.
For each year this Agreement is in effect, the Master Servicer shall
submit to the Trustee, each Rating Agency and the Depositor a copy of its annual
unaudited financial statements on or prior to the last day of February of each
year commencing on February 28, 2006. Such financial statements shall include a
balance sheet, income statement, statement of retained earnings, statement of
additional paid-in capital, statement of changes in financial position and all
related notes and schedules and shall be in comparative form, certified by a
nationally recognized firm of Independent Accountants to the effect that such
statements were examined and prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of the preceding
year.
Section 9.04. Power to Act; Procedures.
(a) The Master Servicer shall master service the Mortgage Loans and
shall have full power and authority, subject to the REMIC Provisions and the
provisions of Article X hereof, and each Servicer shall have full power and
authority (to the extent provided in the applicable Servicing Agreement) to do
any and all things that it may deem necessary or desirable in connection with
the servicing and administration of the Mortgage Loans, including but not
limited to the power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing
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any Mortgage Loan, in each case, in accordance with the provisions of this
Agreement and the applicable Servicing Agreement, as applicable; provided that
the Master Servicer shall not take, or knowingly permit any Servicer to take,
any action that is inconsistent with or prejudices the interests of the Trust
Fund or the Certificateholders in any Mortgage Loan or the rights and interests
of the Depositor, the Trustee and the Certificateholders under this Agreement.
The Master Servicer further is authorized and empowered by the Trustee, on
behalf of the Certificateholders and the Trustee, in its own name or in the name
of any Servicer, when the Master Servicer or a Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
with MERS, or cause the removal from the registration of any Mortgage Loan on
the MERS system, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not make or knowingly permit any Servicer to
make any modification, waiver or amendment of any term of any Mortgage Loan that
would cause any REMIC included in the Trust Fund to fail to qualify as a REMIC
or result in the imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code. Without limiting the generality of the foregoing, the Master
Servicer in its own name or in the name of a Servicer, and each Servicer, to the
extent such authority is delegated to such Servicer by the Master Servicer under
the applicable Servicing Agreement, is hereby authorized and empowered by the
Trustee when the Master Servicer or a Servicer, as the case may be, believes it
appropriate in its best judgment and in accordance with Accepted Servicing
Practices and the applicable Servicing Agreement, to execute and deliver, on
behalf of itself and the Certificateholders, the Trustee or any of them, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall furnish
the Master Servicer or a Servicer, upon request, with any powers of attorney
prepared by the Master Servicer or such Servicer empowering the Master Servicer
or such Servicer to execute and deliver instruments of satisfaction or
cancellation, or of partial or full release or discharge, and to foreclose upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend in
any court action relating to the Mortgage Loans or the Mortgaged Property, in
accordance with the applicable Servicing Agreement and this Agreement, and the
Trustee shall execute and deliver such other documents, as the Master Servicer
may request, necessary or appropriate to enable the Master Servicer to master
service the Mortgage Loans and carry out its duties hereunder and to allow each
Servicer to service the Mortgage Loans, in each case in accordance with Accepted
Servicing Practices (and the Trustee shall have no liability for misuse of any
such powers of attorney by the Master Servicer or the applicable Servicer). If
the Master Servicer or the Trustee has been advised that it is likely that the
laws of the state in which action is to be taken prohibit such action if taken
in the name of the Trustee or that the Trustee would be adversely affected under
the "doing business" or tax laws of such state if such action is taken in its
name, then upon request of the Trustee, the Master Servicer shall join with the
Trustee in the appointment of a co-trustee pursuant to Section 6.09 hereof. In
the performance of its duties hereunder, the Master Servicer shall be an
independent contractor and shall not, except in those instances where it is
taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
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(b) In master servicing and administering the Mortgage Loans, the
Master Servicer shall employ procedures and exercise the same care that it
customarily employs and exercises in master servicing and administering loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with this Agreement. Consistent with the
foregoing, the Master Servicer may, and may permit any Servicer to, in its
discretion (i) waive any late payment charge or any prepayment charge or penalty
interest in connection with the prepayment of a Mortgage Loan and (ii) extend
the due dates for payments due on a Mortgage Note for a period not greater than
120 days; provided, however, that the maturity of any Mortgage Loan shall not be
extended past the date on which the final payment is due on the latest maturing
Mortgage Loan as of the Cut-off Date. In the event of any extension described in
clause (ii) above, the Master Servicer shall make or cause to be made Advances
on the related Mortgage Loan in accordance with the provisions of Section 5.04
on the basis of the amortization schedule of such Mortgage Loan without
modification thereof by reason of such extension. Notwithstanding anything to
the contrary in this Agreement, the Master Servicer shall not make or knowingly
permit any modification, waiver or amendment of any material term of any
Mortgage Loan unless: (1) such Mortgage Loan is in default or default by the
related Mortgagor is, in the reasonable judgment of the Master Servicer or the
applicable Servicer, reasonably foreseeable, (2) in the case of a waiver of a
Prepayment Premium if (a) such Mortgage Loan is in default or default by the
related Mortgagor is reasonably foreseeable, and such waiver would maximize
recovery of total proceeds taking into account the value of such Prepayment
Premium and the related Mortgage Loan or (b) the prepayment is not the result of
a refinance by the Servicer or any of its affiliates and (i) such Mortgage Loan
is in default or default by the related Mortgagor is, in the reasonable judgment
of the Master Servicer or the applicable Servicer, reasonably foreseeable, and
such waiver would maximize recovery of total proceeds taking into account the
value of such Prepayment Premium and the related Mortgage Loan or (ii) the
collection of the Prepayment Premium would be in violation of applicable laws or
(iii) the collection of such Prepayment Premium would be considered "predatory"
pursuant to written guidance published or issued by any applicable federal,
state or local regulatory authority acting in its official capacity and having
jurisdiction over such matters, and (3) the Master Servicer shall have provided
or caused to be provided to the Trustee an Opinion of Counsel (which opinion
shall, if provided by the Master Servicer, be an expense reimbursed, to the
extent it is an unanticipated expense within the meaning of Treasury Regulation
Section 1.860G-1(b)(3)(ii), from the Collection Account pursuant to Section
4.02(v)) in writing to the effect that such modification, waiver or amendment
would not cause an Adverse REMIC Event; provided, in no event shall an Opinion
of Counsel be required for the waiver of a Prepayment Premium under clause (2)
above.
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations.
(a) Each Servicing Agreement requires the applicable Servicer to
service the Mortgage Loans in accordance with the provisions thereof. References
in this Agreement to actions taken or to be taken by the Master Servicer include
such actions taken or to be taken by a Servicer pursuant to a Servicing
Agreement. Any fees, costs and expenses and other amounts payable to such
Servicers shall be deducted from amounts remitted to the Master Servicer by the
applicable Servicer (to the extent permitted by the applicable Servicing
Agreement) and shall not be an obligation of the Trust, the Trustee or the
Master Servicer.
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(b) The Master Servicer shall not be required to (i) take any action
with respect to the servicing of any Mortgage Loan that the related Servicer is
not required to take under the related Servicing Agreement and (ii) cause a
Servicer to take any action or refrain from taking any action if the related
Servicing Agreement does not require the Servicer to take such action or refrain
from taking such action; in both cases notwithstanding any provision of this
Agreement that requires the Master Servicer to take such action or cause the
Servicer to take such action.
(c) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall use its reasonable best efforts to
enforce the obligations of each Servicer under the related Servicing Agreement
and shall, upon its obtaining actual knowledge of the failure of a Servicer to
perform its obligations in accordance with the related Servicing Agreement, to
the extent that the non-performance of any such obligations would have a
material adverse effect on a Mortgage Loan, the Trust Fund or
Certificateholders, terminate the rights and obligations of such Servicer
thereunder to the extent and in the manner permitted by the related Servicing
Agreement and either act as servicer of the related Mortgage Loans or enter into
a Servicing Agreement with a successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement at
its own expense, and shall be reimbursed therefor initially only (i) from a
general recovery resulting from such enforcement only to the extent, if any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans (ii) from a specific recovery of costs, expenses or attorneys' fees
against the party against whom such enforcement is directed, and then, to the
extent that such amounts are insufficient to reimburse the Master Servicer for
the costs of such enforcement or (iii) from the Collection Account.
(d) The Master Servicer shall be entitled to conclusively rely on
any certifications or other information provided by the Servicers under the
terms of the applicable Servicing Agreement, in its preparation of any
certifications, filings or reports, in accordance with the terms hereof or as
may be required by applicable law or regulation.
Section 9.06. Collection of Taxes, Assessments and Similar Items.
(a) To the extent provided in the applicable Servicing Agreement,
the Master Servicer shall cause each Servicer to establish and maintain one or
more custodial accounts at a depository institution (which may be a depository
institution with which the Master Servicer or any Servicer establishes accounts
in the ordinary course of its servicing activities), the accounts of which are
insured to the maximum extent permitted by the FDIC (each, an "Escrow Account")
and shall deposit therein any collections of amounts received with respect to
amounts due for taxes, assessments, water rates, Standard Hazard Insurance
Policy premiums or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have been
escrowed for such purpose) only in accordance with the applicable Servicing
Agreement. Each Servicer shall be entitled to all investment income not required
to be paid to Mortgagors on any Escrow Account maintained by such Servicer. The
Master Servicer shall make (or cause to be made) to the extent provided in the
applicable
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Servicing Agreement advances to the extent necessary in order to effect timely
payment of taxes, water rates, assessments, Standard Hazard Insurance Policy
premiums or comparable items in connection with the related Mortgage Loan (to
the extent that the Mortgagor is required, but fails, to pay such items),
provided that it has determined that the funds so advanced are recoverable from
escrow payments, reimbursement pursuant to Section 4.02(v) or otherwise.
(b) Costs incurred by the Master Servicer or by Servicers in
effecting the timely payment of taxes and assessments on the properties subject
to the Mortgage Loans may be added to the amount owing under the related
Mortgage Note where the terms of the Mortgage Note so permit; provided, however,
that the addition of any such cost shall not be taken into account for purposes
of calculating the distributions to be made to Certificateholders. Such costs,
to the extent that they are unanticipated expenses within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(ii) shall be recoverable by the
Master Servicer pursuant to Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor Servicers.
(a) The Master Servicer shall be entitled to terminate the rights
and obligations of any Servicer under the applicable Servicing Agreement in
accordance with the terms and conditions of such Servicing Agreement and without
any limitation by virtue of this Agreement; provided, however, that in the event
of termination of any Servicing Agreement by the Master Servicer or the related
Servicer, the Master Servicer shall either act as Servicer of the related
Mortgage Loans, or enter into a Servicing Agreement with a successor Servicer.
(b) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces. The Master Servicer shall use reasonable efforts to have the
successor Servicer assume liability for the representations and warranties made
by the terminated Servicer in respect of the related Mortgage Loans, and in the
event of any such assumption by the successor Servicer, the Trustee or the
Master Servicer, as applicable, may, in the exercise of its business judgment,
release the terminated Servicer from liability for such representations and
warranties.
Section 9.08. Master Servicer Liable for Enforcement.
Notwithstanding any Servicing Agreement, the Master Servicer shall
remain obligated and liable to the Trustee and the Certificateholders in
accordance with the provisions of this Agreement, to the extent of its
obligations hereunder, without diminution of such obligation or liability by
virtue of such Servicing Agreements or arrangements. The Master Servicer shall
use commercially reasonable efforts to ensure that the Mortgage Loans are
serviced in accordance with the provisions of this Agreement and shall use
commercially reasonable efforts to enforce the provisions of each Servicing
Agreement for the benefit of the Certificateholders. The Master Servicer shall
be entitled to enter into any agreement with the Servicers for indemnification
of the Master Servicer and nothing contained in this Agreement shall be deemed
to limit or modify such indemnification. Except as expressly set forth herein,
the Master Servicer shall have no liability for the acts or omissions of any
Servicer in the performance by such Servicer of its obligations under the
related Servicing Agreement.
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Section 9.09. No Contractual Relationship Between Servicers and Trustee
or Depositor.
Any Servicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Servicer in
its capacity as such and not as an originator shall be deemed to be between such
Servicer, the Seller, the Master Servicer, and, except to the extent expressly
provided therein, the Trustee and the Depositor shall not be deemed parties
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to such Servicer except as set forth in Section 9.10 hereof.
Section 9.10. Assumption of Servicing Agreement by Trustee.
(a) In the event the Master Servicer shall for any reason no longer
be the Master Servicer (including by reason of any Event of Default under this
Agreement), after a period not to exceed ninety days after the issuance of any
notice of termination pursuant to Section 6.14 or Section 9.28, as applicable,
the Trustee, or a successor master servicer appointed by it in accordance with
Section 6.14, shall assume all of the rights and obligations of such Master
Servicer hereunder and under each Servicing Agreement entered into with respect
to the Mortgage Loans. The Trustee, its designee or any successor master
servicer appointed by the Trustee shall be deemed to have assumed all of the
Master Servicer's interest herein and therein to the same extent as if such
Servicing Agreement had been assigned to the assuming party, except that the
Master Servicer shall not thereby be relieved of any liability or obligations of
the Master Servicer under such Servicing Agreement accruing prior to its
replacement as Master Servicer, and shall be liable to the Trustee, and hereby
agrees to indemnify and hold harmless the Trustee from and against all costs,
damages, expenses and liabilities (including reasonable attorneys' fees)
incurred by the Trustee as a result of such liability or obligations of the
Master Servicer and in connection with the Trustee's assumption (but not its
performance, except to the extent that costs or liability of the Trustee are
created or increased as a result of negligent or wrongful acts or omissions of
the Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer's obligations, duties or responsibilities thereunder; provided that the
Master Servicer shall not indemnify or hold harmless the Trustee against
negligent or willful misconduct of the Trustee.
(b) The Master Servicer that has been terminated shall, upon request
of the Trustee but at the expense of such Master Servicer or at the expense of
the Trust Fund, deliver to the assuming party all documents and records relating
to each Servicing Agreement and the related Mortgage Loans and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of each Servicing Agreement to the assuming
party.
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements.
(a) To the extent provided in the applicable Servicing Agreement, to
the extent Mortgage Loans contain enforceable due-on-sale clauses, and to the
extent that the Master Servicer has knowledge of the conveyance of a Mortgaged
Property, the Master Servicer shall use its reasonable best efforts to cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
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(b) The Master Servicer or the related Servicer, as the case may be,
shall be entitled to approve a request from a Mortgagor for the granting of an
easement thereon in favor of another Person or any alteration or demolition of
the related Mortgaged Property if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of the
related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be materially adversely affected
thereby. Any fee collected by the Master Servicer or the related Servicer for
processing such a request will be retained by the Master Servicer or such
Servicer as additional servicing compensation.
Section 9.12. Release of Mortgage Files.
(a) Upon (i) becoming aware of the payment in full of any Mortgage
Loan, (ii) the receipt by the Master Servicer of a notification that payment in
full has been or will be escrowed in a manner customary for such purposes, or
(iii) in the case of a Mortgage Loan as to which the related Mortgaged Property
is located in California, receipt by the Master Servicer of notification from
the applicable Servicer that the Servicer reasonably expects that payment in
full will be received promptly, the Master Servicer will, or will cause the
applicable Servicer to, promptly notify the Trustee (or the applicable
Custodian) by a certification (which certification shall include a statement to
the effect that all amounts received or to be received in connection with such
payment that are required to be deposited in the Collection Account maintained
by the Master Servicer pursuant to Section 4.01 have been or will be so
deposited) of a Servicing Officer and shall request the Trustee or the
applicable Custodian, to deliver to the applicable Servicer the related Mortgage
File. In lieu of sending a hard copy certification of a Servicing Officer, the
Master Servicer may, or may cause the Servicer to, deliver the request for
release in a mutually agreeable electronic format. To the extent that such a
request, on its face, originates from a Servicing Officer, no signature shall be
required. Upon receipt of such certification and request, the Trustee or the
applicable Custodian, shall promptly release the related Mortgage File to the
applicable Servicer and neither the Trustee nor the Custodian shall have any
further responsibility with regard to such Mortgage File. The Master Servicer is
authorized, and each Servicer, to the extent such authority is delegated to such
Servicer by the Master Servicer under the applicable Servicing Agreement, is
authorized, to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of, or other legal proceedings relating to, any Mortgage Loan and in
accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such pleadings, request for trustee's sale
or other documents as shall be prepared and furnished to the Trustee by the
Master Servicer, or by a Servicer (in form reasonably acceptable to the Trustee)
and as are necessary to the prosecution of any such proceedings. The Trustee or
the Custodian, shall, upon request of the Master Servicer, or of a Servicer, and
delivery to the Trustee or the applicable Custodian, of a trust receipt signed
by a Servicing Officer substantially in the form annexed hereto as Exhibit C or
in the form annexed to the applicable Custodial Agreement as Exhibit C,
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release the related Mortgage File held in its possession or control to the
Master Servicer (or the applicable Servicer). Such trust receipt shall obligate
the Master Servicer or applicable Servicer to return the Mortgage File to the
Trustee or Custodian, as applicable, when the need therefor by the Master
Servicer or applicable Servicer no longer exists unless (i) the Mortgage Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that herein above specified, the trust receipt shall be
released by the Trustee or the Custodian, as applicable, to the Master Servicer
(or the applicable Servicer) or (ii) the Mortgage File has been delivered
directly or through a Servicer to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing legal
action or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Master Servicer has delivered directly or
through a Servicer to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage File
or such document was delivered and the purpose or purposes of such delivery.
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee.
(a) The Master Servicer shall transmit, or cause the applicable
Servicer to transmit, to the Trustee such documents and instruments coming into
the possession of the Master Servicer or such Servicer from time to time as are
required by the terms hereof to be delivered to the Trustee. Any funds received
by the Master Servicer or by a Servicer in respect of any Mortgage Loan or which
otherwise are collected by the Master Servicer or by a Servicer as a Subsequent
Recovery, Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage
Loan shall be held for the benefit of the Trustee and the Certificateholders
subject to the Master Servicer's right to retain or withdraw from the Collection
Account the Master Servicing Fee and other amounts provided in this Agreement,
and to the right of each Servicer to retain its Servicing Fee and other amounts
as provided in the applicable Servicing Agreement. The Master Servicer shall,
and shall (to the extent provided in the applicable Servicing Agreement) cause
each Servicer to, provide access to information and documentation regarding the
Mortgage Loans to the Trustee, its agents and accountants at any time upon
reasonable request and during normal business hours, and to Certificateholders
that are savings and loan associations, banks or insurance companies, the Office
of Thrift Supervision, the FDIC and the supervisory agents and examiners of such
Office and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of the
Office of Thrift Supervision or other regulatory authority, such access to be
afforded without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, or any Servicer, in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from a
Subsequent Recovery, Liquidation Proceeds or Insurance Proceeds, shall be held
by the Master Servicer, or by such Servicer, for and on behalf of the Trustee
and the Certificateholders and shall be and remain the sole and exclusive
property of the Trustee; provided, however, that the Master Servicer and each
Servicer shall be entitled to setoff against, and deduct from, any such funds
any amounts that are properly due and payable to the Master Servicer or such
Servicer under this Agreement or the applicable Servicing
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Agreement and shall be authorized to remit such funds to the Trustee in
accordance with this Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee shall own or, to the extent that a
court of competent jurisdiction shall deem the conveyance of the Mortgage Loans
from the Seller to the Depositor not to constitute a sale, the Trustee shall
have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by, or
under the control of, a Servicer or the Master Servicer that are collected by
such Servicer or the Master Servicer in connection with the Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds or otherwise, and in all proceeds of
the foregoing and proceeds of proceeds (but excluding any fee or other amounts
to which such Servicer is entitled under the applicable Servicing Agreement, or
the Master Servicer or the Depositor is entitled to hereunder); and the Master
Servicer agrees that so long as the Mortgage Loans are assigned to and held by
the Trustee, all documents or instruments constituting part of the Mortgage
Files, and such funds relating to the Mortgage Loans which come into the
possession or custody of, or which are subject to the control of, the Master
Servicer or any Servicer shall be held by the Master Servicer or such Servicer
for and on behalf of the Trustee as the Trustee's agent and bailee for purposes
of perfecting the Trustee's security interest therein as provided by the
applicable Uniform Commercial Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not
authorize any Servicer to, create, incur or subject any Mortgage Loans, or any
funds that are deposited in any custodial account, Escrow Account or the
Collection Account, or any funds that otherwise are or may become due or payable
to the Trustee, to any claim, lien, security interest, judgment, levy, writ of
attachment or other encumbrance, nor assert by legal action or otherwise any
claim or right of setoff against any Mortgage Loan or any funds collected on, or
in connection with, a Mortgage Loan.
Section 9.14. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the
Depositor and the Trustee, for the benefit of the Certificateholders, as of the
Closing Date that:
(i) it is validly existing and in good standing under the
jurisdiction of its formation, and as Master Servicer has full power and
authority to transact any and all business contemplated by this
Agreement and to execute, deliver and comply with its obligations under
the terms of this Agreement, the execution, delivery and performance of
which have been duly authorized by all necessary corporate action on the
part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the
Master Servicer and its performance and compliance with the terms of
this Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or
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result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is
bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master
Servicer's ability to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
in general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to
any order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that any
such default would materially and adversely affect its performance
hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and adversely
affect its ability as Master Servicer to perform its obligations under
this Agreement or that requires the consent of any third person to the
execution of this Agreement or the performance by the Master Servicer of
its obligations under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential mortgage
loans, is an FNMA- and FHLMC- approved seller/servicer;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of or compliance by the
Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders (if any) as have been obtained;
(ix) the consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the Master
Servicer; and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section 9.02,
each of which is in full force and effect, and each of which provides at
least such coverage as is required hereunder.
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(b) It is understood and agreed that the representations and
warranties set forth in this Section 9.14 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Depositor
and the Trustee and hold them harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Master Servicer's
representations and warranties contained in Section 9.14(a). Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not be
liable for special, indirect or consequential losses or damages of any kind
whatsoever (including, but not limited to, lost profits). It is understood and
agreed that the enforcement of the obligation of the Master Servicer set forth
in this Section to indemnify the Depositor and the Trustee as provided in this
Section constitutes the sole remedy (other than as set forth in Section 6.14) of
the Depositor and the Trustee, respecting a breach of the foregoing
representations and warranties. Such indemnification shall survive any
termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any cause of action against the Master Servicer relating to or arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by either the Depositor, the Master
Servicer or the Trustee or notice thereof by any one of such parties to the
other parties.
(c) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 2.03(a)(i) through (vi) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicer and hold it harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or assertion
based on or grounded upon, or resulting from, a breach of the Depositor's
representations and warranties contained in Sections 2.03(a)(i) through (vi). It
is understood and agreed that the enforcement of the obligation of the Depositor
set forth in this Section to indemnify the Master Servicer as provided in this
Section constitutes the sole remedy of the Master Servicer respecting a breach
by the Depositor of the representations and warranties in Sections 2.03(a)(i)
through (vi).
Any cause of action against the Depositor relating to or arising out of
the breach of the representations and warranties made in Sections 2.03(a)(i)
through (vi) shall accrue upon discovery of such breach by either the Depositor
or the Master Servicer or notice thereof by any one of such parties to the other
parties.
Section 9.15. Closing Certificate and Opinion.
On or before the Closing Date, the Master Servicer shall cause to be
delivered to the Depositor and ▇▇▇▇▇▇ Brothers Inc. an Opinion of Counsel, dated
the Closing Date, in form and substance reasonably satisfactory to the Depositor
and ▇▇▇▇▇▇ Brothers Inc., as to the due authorization, execution and delivery of
this Agreement by the Master Servicer and the enforceability thereof.
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Section 9.16. Standard Hazard and Flood Insurance Policies.
For each Mortgage Loan (other than a Cooperative Loan), the Master
Servicer shall maintain, or cause to be maintained by each Servicer, standard
fire and casualty insurance and, where applicable, flood insurance, all in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. It is understood and agreed that such insurance shall
be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
Pursuant to Section 4.01, any amounts collected by the Master Servicer,
or by any Servicer, under any insurance policies maintained pursuant to this
Section 9.16 (other than amounts to be applied to the restoration or repair of
the property subject to the related Mortgage or released to the Mortgagor in
accordance with the Master Servicer's or the Servicer's normal servicing
procedures and Accepted Servicing Practices) shall be deposited into the
Collection Account, subject to withdrawal pursuant to Section 4.02. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Section 4.02(v).
Section 9.17. Presentment of Claims and Collection of Proceeds.
The Master Servicer shall, or shall cause each Servicer (to the extent
provided in the applicable Servicing Agreement) to, prepare and present on
behalf of the Trustee and the Certificateholders all claims under the Insurance
Policies with respect to the Mortgage Loans, and take such actions (including
the negotiation, settlement, compromise or enforcement of the insured's claim)
as shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to a Servicer and remitted to the
Master Servicer) in respect of such policies or bonds shall be promptly
deposited in the Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the Master
Servicer's or the Servicer's normal servicing procedures need not be so
deposited (or remitted).
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or knowingly permit any
Servicer (consistent with the applicable Servicing Agreement) to take, any
action that would result in non-coverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of such Master Servicer
or Servicer, would have been covered thereunder. To the extent that coverage is
available, the Master Servicer shall use its best reasonable efforts to keep in
force and effect, or to cause each Servicer to keep in force and effect (to the
extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable
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to each Mortgage Loan in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable. The Master Servicer shall not,
and shall not permit any Servicer to, cancel or refuse to renew any such Primary
Mortgage Insurance Policy that is in effect at the date of the initial issuance
of the Certificates and is required to be kept in force hereunder except as
required by applicable law or in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
to present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in the
Collection Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies
and Documents.
The Trustee (or its custodian, if any, as directed by the Trustee),
shall retain possession and custody of the originals of the Primary Mortgage
Insurance Policies or certificate of insurance if applicable and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect of
the Certificates have been distributed in full and the Master Servicer otherwise
has fulfilled its obligations under this Agreement, the Trustee (or its
custodian, if any, as directed by the Trustee) shall also retain possession and
custody of each Mortgage File in accordance with and subject to the terms and
conditions of this Agreement. The Master Servicer shall promptly deliver or
cause to be delivered to the Trustee (or its custodian, if any, as directed by
the Trustee), upon the execution or receipt thereof the originals of the Primary
Mortgage Insurance Policies and any certificates of renewal thereof, and such
other documents or instruments that constitute portions of the Mortgage File
that come into the possession of the Master Servicer from time to time.
Section 9.20. Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall use its reasonable best efforts to, or to
cause each Servicer to, foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement. Alternatively, the Master
Servicer may take, or authorize any Servicer to take, other actions in respect
of a defaulted Mortgage Loan, which may include (i) accepting a short sale (a
payoff of the Mortgage Loan for an amount less than the total amount
contractually owed in order to facilitate a sale of the Mortgaged Property by
the Mortgagor) or permitting a short refinancing (a payoff of the Mortgage Loan
for an amount less than the total amount contractually owed in order to
facilitate refinancing transactions by the Mortgagor not involving a sale of the
Mortgaged Property), (ii) arranging for a repayment plan or (iii) agreeing to a
modification in accordance with Section 9.04. In connection with such
foreclosure or other conversion or action, the Master Servicer shall, consistent
with Section 9.18, follow such practices and procedures as it shall reasonably
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determine to be in the best interests of the Trust Fund and the
Certificateholders and which shall be consistent with its customary practices in
performing its general mortgage servicing activities; provided that the Master
Servicer shall not be liable in any respect hereunder if the Master Servicer is
acting in connection with any such foreclosure or other conversion or action in
a manner that is consistent with the provisions of this Agreement. Neither the
Master Servicer, nor any Servicer, shall be required to expend its own funds or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or toward the correction of any
default on a related senior mortgage loan, or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to the
Certificateholders after reimbursement to itself for such expenses or charges
and (ii) that such expenses and charges will be recoverable to it through
Liquidation Proceeds or Insurance Proceeds (as provided in Section 4.02).
Section 9.21. Compensation to the Master Servicer.
The Master Servicer shall (i) be entitled, at its election, either (a)
to pay itself the Master Servicing Fee, as reduced pursuant to Section 5.05, in
respect of the Mortgage Loans out of any Mortgagor payment on account of
interest prior to the deposit of such payment in the Collection Account it
maintains or (b) to withdraw from the Collection Account, subject to Section
5.05, the Master Servicing Fee to the extent permitted by Section 4.02(iv). The
Master Servicer shall also be entitled, at its election, either (a) to pay
itself the Master Servicing Fee in respect of each delinquent Mortgage Loan
master serviced by it out of Liquidation Proceeds in respect of such Mortgage
Loan or other recoveries with respect thereto to the extent permitted in Section
4.02 or (b) to withdraw from the Collection Account it maintains the Master
Servicing Fee in respect of each Liquidated Mortgage Loan to the extent of such
Liquidation Proceeds or other recoveries, to the extent permitted by Section
4.02. Servicing compensation in the form of assumption fees, if any, late
payment charges, as collected, if any, or otherwise shall be retained by the
Master Servicer (or the applicable Servicer) and shall not be deposited in the
Collection Account. If the Master Servicer does not retain or withdraw the
Master Servicing Fee from the Collection Account as provided herein, the Master
Servicer shall be entitled to direct the Trustee to pay the Master Servicing Fee
to such Master Servicer by withdrawal from the Certificate Account to the extent
that payments have been received with respect to the applicable Mortgage Loan.
The Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement. Pursuant to Section
4.01(e), all income and gain realized from any investment of funds in the
Collection Account shall be for the benefit of the Master Servicer as additional
compensation. The provisions of this Section 9.21 are subject to the provisions
of Section 6.14(b).
Section 9.22. REO Property.
(a) In the event the Trust Fund acquires ownership of any REO
Property in respect of any Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the
Certificateholders. The Master Servicer shall use its reasonable best efforts to
sell, or, to the extent provided in the applicable Servicing Agreement, cause
the applicable Servicer to sell, any REO Property as expeditiously as possible
and in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable, but in
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all events within the time period, and subject to the conditions set forth in
Article X hereof. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall protect and conserve, or cause the applicable Servicer to protect
and conserve, such REO Property in the manner and to such extent required by the
applicable Servicing Agreement, subject to Article X hereof.
(b) The Master Servicer shall deposit or cause to be deposited all
funds collected and received by it, or recovered from any Servicer, in
connection with the operation of any REO Property in the Collection Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided, that (without limitation of any
other right of reimbursement that the Master Servicer or any Servicer shall have
hereunder) any such unreimbursed Advances as well as any unpaid Master Servicing
Fees or Servicing Fees may be reimbursed or paid, as the case may be, prior to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable Servicer
as provided above, shall be deposited in the Collection Account on or prior to
the Determination Date in the month following receipt thereof (and the Master
Servicer shall provide prompt written notice to the Trustee upon such deposit)
and be remitted by wire transfer in immediately available funds to the Trustee
for deposit into the Certificate Account on the next succeeding Master Servicer
Remittance Date.
Section 9.23. [Reserved].
Section 9.24. Reports to the Trustee.
(a) Not later than 30 days after each Distribution Date, the Master
Servicer shall forward to the Trustee a statement, deemed to have been certified
by a Servicing Officer, setting forth the status of the Collection Account
maintained by the Master Servicer as of the close of business on the related
Distribution Date, indicating that all distributions required by this Agreement
to be made by the Master Servicer have been made (or if any required
distribution has not been made by the Master Servicer, specifying the nature and
status thereof) and showing, for the period covered by such statement, the
aggregate of deposits into and withdrawals from the Collection Account
maintained by the Master Servicer. Copies of such statement shall be provided by
the Master Servicer, upon request, to the Depositor, Attention: Contract
Finance, and, upon request, any Certificateholders (or by the Trustee at the
Master Servicer's expense if the Master Servicer shall fail to provide such
copies (unless (i) the Master Servicer shall have failed to provide the Trustee
with such statement or (ii) the Trustee shall be unaware of the Master
Servicer's failure to provide such statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar
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transactions, "loan level" information with respect to the Mortgage Loans as of
the related Determination Date, to the extent that such information has been
provided to the Master Servicer by the Servicers or by the Depositor.
(c) All information, reports and statements prepared by the Master
Servicer under this Agreement shall be based on information supplied to the
Master Servicer by the Servicers without independent verification thereof and
the Master Servicer shall be entitled to rely on such information.
(d) The Master Servicer shall provide the Trustee with such
information as the Trustee may reasonably request in connection with its
responsibilities under Section 10.01 hereof.
Section 9.25. Annual Officer's Certificate as to Compliance.
(a) The Master Servicer shall deliver to the Trustee and the Rating
Agencies five Business Days after March 15 of each year commencing in March
2006, an Officer's Certificate, certifying that with respect to the period
ending on the immediately preceding December 31; (i) such Servicing Officer has
reviewed the activities of such Master Servicer during the preceding calendar
year or portion thereof and its performance under this Agreement; (ii) to the
best of such Servicing Officer's knowledge, based on such review, such Master
Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement in all material respects throughout such year,
or, if there has been a default in the fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof, (iii) nothing has come to
the attention of such Servicing Officer to lead such Servicing Officer to
believe that any Servicer has failed to perform any of its duties,
responsibilities and obligations under its Servicing Agreement in all material
respects throughout such year, or, if there has been a material default in the
performance or fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature and
status thereof, (iv) the Master Servicer has received from each Servicer such
Servicer's annual certificate of compliance and a copy of such Servicer's annual
audit report, in each case to the extent required under the applicable Servicing
Agreement, or, if any such certificate or report has not been received by the
Master Servicer, the Master Servicer is using its best reasonable efforts to
obtain such certificate or report, and (v) such other additional items as may be
required by applicable law or regulation.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at the
Master Servicer's expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement).
Section 9.26. Annual Independent Accountants' Servicing Report.
If the Master Servicer has, during the course of any fiscal year,
directly serviced any of the Mortgage Loans, then the Master Servicer at its
expense shall cause a nationally recognized firm of independent certified public
accountants to furnish a statement to the Trustee, the Rating
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Agencies and the Depositor on or before March 15 commencing on March 15, 2006,
to the effect that, with respect to the most recently ended fiscal year, such
firm has examined certain records and documents relating to the Master
Servicer's performance of its servicing obligations under this Agreement and
pooling and servicing and trust agreements in material respects similar to this
Agreement and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
FHLMC or the Uniform Single Attestation Program for Mortgage Bankers or such
other attestation program as may be required by applicable law or regulation,
such firm is of the opinion that the Master Servicer's activities have been
conducted in compliance with this Agreement, or that such examination has
disclosed no material items of noncompliance except for (i) such exceptions as
such firm believes to be immaterial, (ii) such other exceptions as are set forth
in such statement and (iii) such exceptions that the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages Serviced by
FHLMC requires it to report. Copies of such statements shall be provided to any
Certificateholder upon request by the Master Servicer, or by the Trustee at the
expense of the Master Servicer if the Master Servicer shall fail to provide such
copies. If such report discloses exceptions that are material, the Master
Servicer shall advise the Trustee whether such exceptions have been or are
susceptible of cure, and will take prompt action to do so.
To the extent that the Master Servicer receives an Annual Independent
Accountants' Servicing Report from any Servicer, the Master Servicer shall
forward a copy of such report to the Trustee. If the report is not received from
the Servicer, the Trustee may request that the Master Servicer contact the
applicable Servicer to obtain such report. The Master Servicer will not be
liable for the failure of a Servicer to provide such report.
Section 9.27. Merger or Consolidation.
Any Person into which the Master Servicer may be merged or consolidated,
or any Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or resulting
Person to the Master Servicer shall be a Person that shall be qualified and
approved to service mortgage loans for FNMA or FHLMC and shall have a net worth
of not less than $15,000,000.
Section 9.28. Resignation of Master Servicer.
Except as otherwise provided in Sections 9.27 and 9.29 hereof, the
Master Servicer shall not resign from the obligations and duties hereby imposed
on it unless it or the Trustee determines that the Master Servicer's duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by it
and cannot be cured. Any such determination permitting the resignation of the
Master Servicer shall be evidenced by an Opinion of Counsel that shall be
Independent to such effect delivered to the Trustee. In the event such
determination of ineligibility of the Master Servicer to continue in the
capacity of master servicer is made by the Master Servicer, no such resignation
shall become effective until a period of time not to exceed ninety days after
the
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Trustee receives written notice thereof from the Master Servicer and until the
Trustee shall have assumed, or a successor master servicer shall have been
appointed by the Trustee and until such successor shall have assumed, the Master
Servicer's responsibilities and obligations under this Agreement. Notice of such
resignation shall be given promptly by the Master Servicer to the Depositor.
Section 9.29. Assignment or Delegation of Duties by the Master Servicer.
Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; provided, however, that the Master
Servicer shall have the right without the prior written consent of the Trustee,
the Depositor or the Rating Agencies to delegate or assign to or subcontract
with or authorize or appoint an Affiliate of the Master Servicer to perform and
carry out any duties, covenants or obligations to be performed and carried out
by the Master Servicer hereunder. In no case, however, shall any such
delegation, subcontracting or assignment to an Affiliate of the Master Servicer
relieve the Master Servicer of any liability hereunder. Notice of such permitted
assignment shall be given promptly by the Master Servicer to the Depositor and
the Trustee. If, pursuant to any provision hereof, the duties of the Master
Servicer are transferred to a successor master servicer, the entire amount of
the Master Servicing Fees and other compensation payable to the Master Servicer
pursuant hereto, including amounts payable to or permitted to be retained or
withdrawn by the Master Servicer pursuant to Section 9.21 hereof, shall
thereafter be payable to such successor master servicer.
Section 9.30. Limitation on Liability of the Master Servicer and Others.
(a) The Master Servicer undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Master Servicer from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that the duties
and obligations of the Master Servicer shall be determined solely by the express
provisions of this Agreement, the Master Servicer 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 Master Servicer and, in absence of bad faith on the part
of the Master Servicer, the Master Servicer 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 Master Servicer and
conforming to the requirements of this Agreement.
(c) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect the Master
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by
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reason of reckless disregard for its obligations and duties under this
Agreement. The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be entitled to indemnification by the Trust Fund and
will be held harmless against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the Certificates
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of his or its duties
hereunder or by reason of reckless disregard of his or its obligations and
duties hereunder. The Master Servicer and any director, officer, employee or
agent of the Master Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Master Servicer shall be under no obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties to
master service the Mortgage Loans in accordance with this Agreement and that in
its opinion may involve it in any expenses or liability; provided, however, that
the Master Servicer may in its sole discretion undertake any such action that it
may deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account it maintains as provided by Section 4.02.
Notwithstanding anything herein to the contrary, neither the Master Servicer nor
the Trustee shall have any liability for the servicing of the Additional
Collateral, including, without limitation, the perfection, continuation, partial
release, release, termination, realization upon, substitution, foreclosure,
sale, or any other matter with respect to the Additional Collateral, or the
enforcement of the Additional Collateral Servicing Agreement.
Section 9.31. Indemnification; Third-Party Claims.
The Master Servicer agrees to indemnify the Depositor and the Trustee,
and hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses that the Depositor and the Trustee may sustain as a
result of the failure of the Master Servicer to perform its duties and master
service the Mortgage Loans in compliance with the terms of this Agreement. The
Depositor and the Trustee shall immediately notify the Master Servicer if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans entitling the Depositor and the Trustee to indemnification hereunder,
whereupon the Master Servicer shall assume the defense of any such claim and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC and Grantor Trust Administration.
(a) As set forth in the Preliminary Statement hereto, the Trustee shall
elect REMIC status in accordance with the REMIC Provisions with respect to each
of REMIC 1 and the Upper Tier REMIC. The Trustee shall make such elections on
Forms 1066 or other appropriate federal
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tax or information return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. For the purposes of such
elections, each of the REMIC 1 Regular Interests is hereby designated as a
regular interest in REMIC 1. Each of the REMIC Regular Interests is hereby
designated as a regular interest in the Upper Tier REMIC. The Class LT1-R
Interest is hereby designated as the sole residual interest in REMIC 1. The
Upper Tier REMIC Residual Interest is hereby designated as the sole residual
interest in the Upper Tier REMIC. The Class R Certificate evidences ownership of
the Class LT1-R Interest and the Upper Tier REMIC Residual Interest. It is the
intention of the parties hereto that the segregated pool of assets consisting of
any collections of Prepayment Penalty Amounts constitute a grantor trust for
federal income tax purposes. The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the Grantor Trust Assets and declares that
it holds and will hold such assets in trust for the exclusive use and benefit of
all present and future Holders of the Class P Certificates. The rights of
Holders of the Class P Certificates to receive distributions from the proceeds
of the Grantor Trust Assets and all ownership interests of such Holders in and
to such distributions, shall be as set forth in this Agreement.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) is the "Latest
Possible Maturity Date".
(c) The Trustee shall pay any and all tax related expenses (not
including taxes) of each REMIC and Grantor Trust, including but not limited to
any professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMICs or Grantor Trust that involve
the Internal Revenue Service or state tax authorities, but only to the extent
that (i) such expenses are ordinary or routine expenses, including expenses of a
routine audit but not expenses of litigation (except as described in (ii)); or
(ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Trustee in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Trustee shall be entitled to reimbursement from the Certificate Account of
the expenses to the extent (x) provided in clause (i) above and (y) such
expenses are "unanticipated expenses" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii).
(d) The Trustee shall prepare, sign and file, all of each REMIC's
federal and state tax and information returns as such REMIC's direct
representative. The Trustee shall prepare, sign and file all of the tax and
information returns in respect of each Grantor Trust. The Trustee shall comply
with such requirement by filing Form 1041. The expenses of preparing and filing
such returns shall be borne by the Trustee. If any Disqualified Organization
acquires any Ownership Interest in a Residual Certificate, then the Trustee will
upon request provide to the Internal Revenue Service, and to the persons
specified in Sections 860E(e)(3) and (6) of the Code, such information as
required in Section 860D(a)(6)(B) of the Code needed to compute the tax imposed
under Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations. The expenses of providing such information shall be
borne by such persons specified in Sections 860E(e)(3) and (6) of the Code.
(e) The Trustee or its designee shall perform on behalf of each REMIC
and Grantor Trust all reporting and other tax compliance duties that are the
responsibility of such REMIC or Grantor Trust under the Code, the REMIC
Provisions, or other compliance
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guidance issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Trustee shall provide (i) to the
Treasury or other governmental authority such information as is necessary for
the application of any tax relating to the transfer of a Residual Certificate to
any disqualified person or organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC Provisions.
(f) The Trustee, the Master Servicer and the Holders of Certificates
shall take any action or cause each REMIC to take any action necessary to create
or maintain the status of such REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status. Neither
the Trustee, the Master Servicer nor the Holder of any Residual Certificate
shall take any action, cause any REMIC to take any action or fail to take (or
fail to cause to be taken) any action that, under the REMIC Provisions, if taken
or not taken, as the case may be, could (i) endanger the status of such REMIC as
a REMIC or (ii) result in the imposition of a tax upon such REMIC (including but
not limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth on Section 860G(d)
of the Code) (either such event, an "Adverse REMIC Event") unless the Trustee
and the Master Servicer have received an Opinion of Counsel (at the expense of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a tax.
In addition, prior to taking any action with respect to any REMIC or the assets
therein, or causing such REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of a Residual
Certificate will consult with the Trustee and the Master Servicer, or their
respective designees, in writing, with respect to whether such action could
cause an Adverse REMIC Event to occur with respect to such REMIC, and no such
Person shall take any such action or cause such REMIC to take any such action as
to which the Trustee or the Master Servicer has advised it in writing that an
Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the Residual
Certificate in such REMIC or, if no such amounts are available, out of other
amounts held in the Collection Account, and shall reduce amounts otherwise
payable to holders of regular interests in such REMIC, as the case may be.
(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each REMIC on a calendar year and on an
accrual basis.
(i) No additional contributions of assets shall be made to any
REMIC, except as expressly provided in this Agreement with respect to Qualified
Substitute Mortgage Loans.
(j) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
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(k) Upon the request of any Rating Agency, the Trustee shall deliver
to such Rating Agency an Officer's Certificate stating the Trustee's compliance
with the provisions of this Section 10.01.
(l) It is intended that the rights of the Holders of the Subordinate
LIBOR Certificates to receive payments in respect of Subordinate Floating Rate
Certificate Shortfalls and Unpaid Subordinate Floating Rate Certificate
Shortfalls shall be treated as rights in respect of cap contracts written by the
Holders of the Class BX Certificates in favor of the Holders of the Subordinate
LIBOR Certificates and shall be accounted for as property separate and apart
from the REMIC Regular Interest represented by each of the Subordinate LIBOR
Certificates. This provision is intended to comply with the requirements of
Treasury Regulations Section 1.860G-2(i) for the treatment of property rights
coupled with regular interests to be separately respected and shall be
interpreted consistently with such regulation. The Holders of the Subordinate
LIBOR Certificates (other than the Class B6 Certificates) agree, by their
acceptance of such Certificates, that they will take tax reporting positions
that allocate no more than a nominal value to the right to receive payments in
respect of Subordinate Floating Rate Certificate Shortfalls and Unpaid
Subordinate Floating Rate Certificate Shortfalls. The Holders of the Class BX
Certificates agree, by their acceptance of such Certificates, to take tax
reporting positions consistent with allocations by the Holders of the
Subordinate LIBOR Certificates (other than the Class B6 Certificates) of no more
than a nominal value to the right to receive payments in respect of Subordinate
Floating Rate Certificate Shortfalls and Unpaid Subordinate Floating Rate
Certificate Shortfalls. For information reporting purposes, it will be assumed
that such rights (other than such rights of the Holders of the Class B6
Certificates) have no value. Each payment made to the Subordinate LIBOR
Certificates in respect of Subordinate Floating Rate Certificate Shortfalls and
Unpaid Subordinate Floating Rate Certificate Shortfalls shall be treated for
federal income tax purposes as having been distributed to the Class BX
Certificates in respect of one or more of the REMIC BX Components and then paid
by the Holders of the Class BX Certificates to the Holders of the Subordinate
LIBOR Certificates. Each Holder or beneficial owner of a Subordinate LIBOR
Certificate or Class BX Certificate, by virtue of its acquisition of such
Certificate or a beneficial interest in such Certificate, agrees to adopt tax
reporting positions consistent with the characterization of payments made to the
Subordinate LIBOR Certificates in respect of Subordinate Floating Rate
Certificate Shortfalls and Unpaid Subordinate Floating Rate Certificate
Shortfalls as payments in respect of interest rate cap agreements written by the
Holders of the Class BX Certificates. The parties hereto intend that the REMIC
Regular Interests represented by each of the Class BX Certificates, together
with the related obligations to make payments to the Subordinate LIBOR
Certificates shall be treated as a grantor trust under the Code and the
provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall (i) furnish to the Holders of
the Class BX Certificates information regarding their share of the items of
income, gain, loss and deduction of such grantor trust and (ii) file or cause to
be filed with the Internal Revenue Service Form 1041 (together with any
necessary attachments) or such other forms as may be applicable and (iii) comply
with such information reporting obligations with respect to payments from such
grantor trust as may be applicable under the Code or other applicable tax laws.
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Section 10.02. Prohibited Transactions and Activities.
Neither the Depositor, the Master Servicer nor the Trustee shall sell,
dispose of, or substitute for any of the Mortgage Loans, except in a disposition
pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the
Trust Fund, (iii) the termination of each REMIC pursuant to Article VII of this
Agreement, (iv) a substitution pursuant to Article II of this Agreement, or (v)
a repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in the
Certificate Account for gain, nor accept any contributions to any REMIC after
the Closing Date, unless it has received an Opinion of Counsel (at the expense
of the party causing such sale, disposition, or substitution) that such
disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of such REMIC as a REMIC or of the Certificates other than
the Residual Certificates as the regular interests therein, (b) affect the
distribution of interest or principal on the Certificates, (c) result in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement) or (d) cause such REMIC to be
subject to a tax on prohibited transactions or prohibited contributions pursuant
to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of
REMIC Status.
In the event that a REMIC fails to qualify as a REMIC, loses its status
as a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Trustee of its duties and obligations set forth
herein, the Trustee shall indemnify the Holder of the Residual Certificate
against any and all losses, claims, damages, liabilities or expenses ("Losses")
resulting from such negligence; provided, however, that the Trustee shall not be
liable for any such Losses attributable to the action or inaction of the Master
Servicer, the Depositor, or the Holder of such Residual Certificate, as
applicable, nor for any such Losses resulting from misinformation provided by
the Holder of such Residual Certificate on which the Trustee has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holder of such Residual Certificate now or hereafter existing at law or in
equity. Notwithstanding the foregoing, however, in no event shall the Trustee
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Trustee of its duties and obligations set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on the
Certificates).
Section 10.04. REO Property.
(a) Notwithstanding any other provision of this Agreement, the
Master Servicer, acting on behalf of the Trustee hereunder, shall not (except to
the extent provided in the applicable Servicing Agreement) permit any Servicer
to hold, rent, lease, or otherwise earn income on behalf of any REMIC with
respect to any REO Property which might cause such REO Property to fail to
qualify as "foreclosure" property within the meaning of section 860G(a)(8) of
the Code or result in the receipt by any REMIC of any "income from non-permitted
assets" within the meaning of section 860F(a)(2) of the Code or any "net income
from foreclosure property" which is subject to tax under the REMIC Provisions
unless the Master Servicer has
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advised, or has caused the applicable Servicer to advise, the Trustee in writing
to the effect that, under the REMIC Provisions, such action would not adversely
affect the status of any REMIC as a REMIC and any income generated for such
REMIC by the REO Property would not result in the imposition of a tax upon such
REMIC.
(b) The Master Servicer shall make, or shall cause the applicable
Servicer to make, reasonable efforts to sell any REO Property for its fair
market value. In any event, however, the Master Servicer shall, or shall cause
the applicable Servicer to, dispose of any REO Property within three years from
the end of the calendar year of its acquisition by the Trust Fund unless the
Trustee or Master Servicer has received a grant of extension from the Internal
Revenue Service to the effect that, under the REMIC Provisions and any relevant
proposed legislation and under applicable state law, the applicable REMIC may
hold REO Property for a longer period without adversely affecting the REMIC
status of such REMIC or causing the imposition of a Federal or state tax upon
such REMIC. If such an extension has been received, then (a) (i) if the Trustee
has received such extension, the Trustee shall provide a copy of such extension
to the Master Servicer and (ii) if the Master Servicer has received such
extension, then the Master Servicer shall provide a copy of such extension to
the Trustee and (b) the Trustee, or the Master Servicer, acting on its behalf
hereunder, shall, or shall cause the applicable Servicer to, continue to attempt
to sell the REO Property for its fair market value for such period longer than
three years as such extension permits (the "Extended Period"). If the Trustee or
Master Servicer has not received such an extension and the Trustee, or the
Master Servicer acting on behalf of the Trustee hereunder, or the applicable
Servicer is unable to sell the REO Property within 33 months after its
acquisition by the Trust Fund or if the Trustee or Master Servicer has received
such an extension, and the Trustee, or the Master Servicer acting on behalf of
the Trustee hereunder, is unable to sell the REO Property within the period
ending three months before the close of the Extended Period, the Master Servicer
shall, or shall cause the applicable Servicer to, before the end of the three
year period or the Extended Period, as applicable, (i) purchase such REO
Property at a price equal to the REO Property's fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Master
Servicer) in an auction reasonably designed to produce a fair price prior to the
expiration of the three-year period or the Extended Period, as the case may be.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02. Entire Agreement.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof
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control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof.
Section 11.03. Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Master Servicer and the Trustee, without notice to or the consent
of any of the Holders, (i) to cure any ambiguity, (ii) to cause the provisions
herein to conform to or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust Fund or this Agreement in any
Offering Document; or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement or
(iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code and the REMIC
Provisions. No such amendment effected pursuant to the preceding sentence shall,
as evidenced by an Opinion of Counsel, adversely affect the status of any REMIC
created pursuant to this Agreement, nor shall such amendment effected pursuant
to clause (iii) of such sentence adversely affect in any material respect the
interests of any Holder. Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel (at the expense of the party requesting such amendment) to
the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material respect any
Holder, if the Trustee receives written confirmation from each Rating Agency
that such amendment will not cause such Rating Agency to reduce, qualify or
withdraw the then current rating assigned to the Certificates (and any Opinion
of Counsel requested by the Trustee in connection with any such amendment may
rely expressly on such confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of not less than 66 2/3% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment shall be made unless the Trustee
receives an Opinion of Counsel, at the expense of the party requesting the
change, that such change will not adversely affect the status of any REMIC as a
REMIC or cause a tax to be imposed on such REMIC; and provided further, that no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed on
any Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required to
consent to any such amendment without the consent of the Holders of 100% of the
Class Principal Amount of each Class of Certificates affected thereby. For
purposes of this paragraph, references to "Holder" or "Holders" shall be deemed
to include, in the case of any Class of Book-Entry Certificates, the related
Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
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(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to any amendment of any Servicing
Agreement except pursuant to the standards provided in this Section with respect
to amendment of this Agreement.
Section 11.04. Voting Rights.
Except to the extent that the consent of all affected Certificateholders
is required pursuant to this Agreement, with respect to any provision of this
Agreement requiring the consent of Certificateholders representing specified
percentages of aggregate outstanding Certificate Principal Amount, Certificates
owned by the Depositor, the Master Servicer, the Trustee or any Servicer or
Affiliates thereof are not to be counted so long as such Certificates are owned
by the Depositor, the Master Servicer, the Trustee or any Servicer or Affiliates
thereof.
Section 11.05. Provision of Information.
(a) For so long as any of the Certificates of any Series or Class
are "restricted securities" within the meaning of Rule 144(a)(3) under the Act,
each of the Depositor and the Trustee agree to cooperate with each other to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such Certificateholder, upon the request of such
Certificateholder or prospective purchaser, any information required to be
provided to such holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the Act. Any reasonable, out-of-pocket expenses
incurred by the Trustee in providing such information shall be reimbursed by the
Depositor.
(b) The Trustee will make available to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, (i) a copy (excluding exhibits) of any report
on Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 6.20(c) and (ii) a copy of any other document incorporated
by reference in the Prospectus to the extent such document is in the possession
of the Trustee. Any reasonable out-of-pocket expenses incurred by the Trustee in
providing copies of such documents shall be reimbursed by the Depositor.
(c) On each Distribution Date, the Trustee shall make available to
the Depositor a copy of the report delivered to Certificateholders pursuant to
Section 4.03.
Section 11.06. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO
CONFLICT OF LAWS
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PRINCIPLES APPLIED IN NEW YORK (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW).
Section 11.07. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given when delivered to such party at the
relevant address, facsimile number or electronic mail address set forth below
(or at such other address, facsimile number or electronic mail address as such
party may designate from time to time by written notice in accordance with this
Section 11.07): received by (a) in the case of the Depositor, Structured Asset
Securities Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇, (b) in the case of the Trustee, JPMorgan Chase Bank, N.A.,
4 New York Plaza, 6th Floor, New York, New York 10004, Attention: Institutional
Trust Services/Global Debt, SARM 2005-2) and (c) in the case of the Master
Servicer, Aurora Loan Services LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Mail Stop Code 3195; Attention: Master Servicing or as to each
party such other address as may hereafter be furnished by such party to the
other parties in writing. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at the address of
such Holder as shown in the Certificate Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice.
Section 11.08. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
Section 11.10. Headings Not To Affect Interpretation.
The headings contained in this Agreement are for convenience of
reference only, and they shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders
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of the Certificates, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement, except to the extent specified in Section 11.14.
Section 11.12. Special Notices to the Rating Agencies.
(a) The Depositor shall give prompt notice to the Rating Agencies of
the occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
11.03;
(ii) any Assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in
Section 6.14;
(iv) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(v) the appointment of any successor to any Master Servicer
pursuant to Section 6.14; and
(vi) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight courier,
as follows:
If to Moody's, to:
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to S&P, to:
Standard & Poor's
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(c) The Trustee shall provide or make available to the Rating
Agencies reports prepared pursuant to Section 4.03. In addition, the Trustee
shall, at the expense of the Trust Fund, make available to each Rating Agency
such information as such Rating Agency may reasonably request regarding the
Certificates or the Trust Fund, to the extent that such information is
reasonably available to the Trustee.
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Section 11.13. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Section 11.14. Transfer of Servicing.
The Seller agrees that it shall provide written notice to the Trustee
and the Master Servicer thirty days prior to any transfer or assignment by the
Seller of its rights under any Servicing Agreement or of the servicing
thereunder or delegation of its rights or duties thereunder or any portion
thereof to any Person other than the initial Servicer under such Servicing
Agreement; provided that the Seller shall not be required to provide prior
notice of any transfer of servicing that occurs within three months following
the Closing Date to an entity that is a Servicer on the Closing Date. In
addition, the ability of the Seller to transfer or assign its rights and
delegate its duties under a Servicing Agreement or to transfer the servicing
thereunder to a successor servicer shall be subject to the following conditions:
(i) Such successor servicer must be qualified to service
loans for FNMA or FHLMC;
(ii) Such successor servicer must satisfy the seller/servicer
eligibility standards in the applicable Servicing Agreement, exclusive
of any experience in mortgage loan origination, and must be reasonably
acceptable to the Master Servicer, whose approval shall not be
unreasonably withheld;
(iii) Such successor servicer must execute and deliver to the
Trustee and the Master Servicer an agreement, in form and substance
reasonably satisfactory to the Trustee and the Master Servicer, that
contains an assumption by such successor servicer of the due and
punctual performance and observance of each covenant and condition to be
performed and observed by the applicable Servicer under the applicable
Servicing Agreement or, in the case of a transfer of servicing to a
party that is already a Servicer pursuant to this Agreement, an
agreement to add the related Mortgage Loans to the Servicing Agreement
already in effect with such Servicer;
(iv) If the successor servicer is not a Servicer of Mortgage
Loans at the time of such transfer, there must be delivered to the
Trustee a letter from each Rating Agency to the effect that such
transfer of servicing will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Certificates;
(v) The Seller shall, at its cost and expense, take such
steps, or cause the terminated Servicer to take such steps, as may be
necessary or appropriate to effectuate and evidence the transfer of the
servicing of the Mortgage Loans to such successor servicer, including,
but not limited to, the following: (A) to the extent required by the
terms of the Mortgage Loans and by applicable federal and state laws and
regulations, the Seller shall cause the prior Servicer to timely mail to
each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the
successor servicer; (B) prior to the effective date of such transfer of
servicing, the Seller shall cause the prior Servicer to transmit to any
related insurer notification of such transfer of servicing; (C) on or
prior to the effective date of such
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transfer of servicing, the Seller shall cause the prior Servicer to
deliver to the successor servicer all Mortgage Loan Documents and any
related records or materials; (D) on or prior to the effective date of
such transfer of servicing, the Seller shall cause the prior Servicer to
transfer to the successor servicer, or, if such transfer occurs after a
Remittance Date but before the next succeeding Master Servicer
Remittance Date, to the Master Servicer, all funds held by the
applicable Servicer in respect of the Mortgage Loans; (E) on or prior to
the effective date of such transfer of servicing, the Seller shall cause
the prior Servicer to, after the effective date of the transfer of
servicing to the successor servicer, continue to forward to such
successor servicer, within one Business Day of receipt, the amount of
any payments or other recoveries received by the prior Servicer, and to
notify the successor servicer of the source and proper application of
each such payment or recovery; and (F) the Seller shall cause the prior
Servicer to, after the effective date of transfer of servicing to the
successor servicer, continue to cooperate with the successor servicer to
facilitate such transfer in such manner and to such extent as the
successor servicer may reasonably request.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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IN WITNESS WHEREOF, the Depositor, the Trustee and the Master Servicer
have caused their names to be signed hereto by their respective officers
hereunto duly authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By:
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
AURORA LOAN SERVICES LLC,
as Master Servicer
By:
-------------------------------
Name: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
Solely for purposes of Section 11.14,
accepted and agreed to by:
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
EXHIBIT A
FORMS OF CERTIFICATES
[INTENTIONALLY OMITTED]
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF INITIAL CERTIFICATION
______________
Date
JPMorgan Chase Bank, N.A.
Institutional Trust Services/Global Debt
4 New York Plaza, 6th Floor
New York, New York 10004
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aurora Loan Services LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement (the "Trust Agreement"), dated as of January 1,
2005 among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services LLC, as Master Servicer and
JPMorgan Chase Bank, N.A., as Trustee, with respect to
Structured Adjustable Rate Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2005-2
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Trust Agreement, subject to
review of the contents thereof, the undersigned, as Custodian on behalf of the
Trustee, hereby certifies that it (or its custodian) has received the documents
listed in Section 2.01(b) of the Trust Agreement for each Mortgage File
pertaining to each Mortgage Loan listed on Schedule A, to the Trust Agreement,
subject to any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Trust
Agreement. This Certificate is subject in all respects to the terms of Section
2.02 of the Trust Agreement and the Trust Agreement sections cross-referenced
therein.
[Custodian], on behalf of
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:
-----------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF INTERIM CERTIFICATION
______________
Date
JPMorgan Chase Bank, N.A.
Institutional Trust Services/Global Debt
4 New York Plaza, 6th Floor
New York, New York 10004
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aurora Loan Services LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement (the "Trust Agreement"), dated as of January 1,
2005 among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services LLC, as Master Servicer and
JPMorgan Chase Bank, N.A., as Trustee, with respect to
Structured Adjustable Rate Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2005-2
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on Schedule I hereto) it (or its custodian) has
received the applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed on
Schedule I hereto, it has reviewed the documents identified above and has
determined that each such document appears regular on its face and appears to
relate to the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is qualified
in all respects by the terms of said Trust Agreement including, but not limited
to, Section 2.02(b).
[Custodian], on behalf of
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:
-----------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF FINAL CERTIFICATION
______________
Date
JPMorgan Chase Bank, N.A.
Institutional Trust Services/Global Debt
4 New York Plaza, 6th Floor
New York, New York 10004
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aurora Loan Services LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement (the "Trust Agreement"), dated as of January 1,
2005 among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services LLC, as Master Servicer and
JPMorgan Chase Bank, N.A., as Trustee, with respect to
Structured Adjustable Rate Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2005-2
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on Schedule I hereto) it (or its custodian) has
received the applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed on
Schedule I hereto, it has reviewed the documents listed above and has determined
that each such document appears to be complete and, based on an examination of
such documents, the information set forth in the Mortgage Loan Schedule is
correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is qualified
in all respects by the terms of said Trust Agreement.
[Custodian], on behalf of
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:
-----------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF ENDORSEMENT
Pay to the order of JPMorgan Chase Bank, N.A., as trustee (the
"Trustee") under the Trust Agreement dated as of January 1, 2005, among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services LLC,
as Master Servicer and JPMorgan Chase Bank, N.A., as Trustee relating to
Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2005-2, without recourse.
--------------------------------
[current signatory on note]
By:
-----------------------------
Name:
Title:
B-4-1
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
______________
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of January 1, 2005 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services LLC,
as Master Servicer and JPMorgan Chase Bank, N.A., as Trustee (the "Trust
Agreement"), the undersigned Master Servicer hereby requests a release of the
Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Master Servicer hereby certifies that
all amounts received in connection with the loan have been or will be
credited to the Collection Account or the Certificate Account (whichever
is applicable) pursuant to the Trust Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Master Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to
you along with the related Mortgage File pursuant to the Trust
Agreement.)
4. Mortgage Loan repurchased. (The Master Servicer hereby certifies that
the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust
Agreement.)
5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has
C-1
been paid in full, or repurchased or substituted for a Qualifying Substitute
Mortgage Loan (in which case the Mortgage File will be retained by us
permanently) and except if the Mortgage Loan is being foreclosed (in which case
the Mortgage File will be returned when no longer required by us for such
purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Trust Agreement.
--------------------------------
[Name of Master Servicer]
By:
-----------------------------
Name:
Title: Servicing Officer
C-2
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and
says:
That he [she] is [title of officer] ________________________ of [name of
Purchaser] _________________________________________ (the "Purchaser"), a
_______________________ [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he [she] makes this affidavit.
1. That the Purchaser's Taxpayer Identification Number is ______________.
2. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as
amended (the "Code") and will not be a "disqualified organization" as of
__________________ [date of transfer], and that the Purchaser is not
acquiring a Residual Certificate (as defined in the Agreement) for the
account of, or as agent (including a broker, nominee, or other
middleman) for, any person or entity from which it has not received an
affidavit substantially in the form of this affidavit.
3. That the Purchaser is not, and on __________________ [date of transfer]
will not be, an employee benefit plan or other arrangement subject to
Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), a plan subject to Section 4975 of the Code, or a plan
subject to any state, local, federal, non-U.S. or other law or
regulation substantively similar to the foregoing provisions of ERISA or
the Code (collectively, a "Plan"), and is not acquiring the Residual
Certificate for, on behalf of or with any assets of any such Plan.
4. That the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities
Corporation, JPMorgan Chase Bank, N.A., as Trustee and Aurora Loan
Services LLC, as Master Servicer, dated as of January 1, 2005, no
transfer of a Residual Certificate shall be permitted to be made to any
person unless the Depositor and the Trustee have received a certificate
from such transferee containing the representations in paragraphs 2, 3
and 4 hereof.
D-1-1
5. That the Purchaser does not hold REMIC residual securities as nominee to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a "Book-Entry Nominee").
6. That the Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to
be paid with respect to such Residual Certificate, and that the
Purchaser has provided financial statements or other financial
information requested by the transferor in connection with the transfer
of the Residual Certificate in order to permit the transferor to assess
the financial capability of the Purchaser to pay such taxes.
7. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that
the requirements set forth in paragraph 2, paragraph 5 or paragraph 9
hereof are not satisfied or that the Purchaser has reason to believe
does not satisfy the requirements set forth in paragraph 6 hereof, and
(ii) without obtaining from the prospective Purchaser an affidavit
substantially in this form and providing to the Trustee a written
statement substantially in the form of Exhibit D-2 to the Agreement.
8. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any
cash flows generated by the interest and that it intends to pay taxes
associated with holding such Residual Certificate as they become due.
9. That the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S. Person
that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the
transferor and the Trustee with an effective Internal Revenue Service
Form W-8 ECI (Certificate of Foreign Person's Claim for Exemption From
Withholding on Income Effectively Connected with the Conduct of a Trade
or Business in the United States) or successor form at the time and in
the manner required by the Code. "Non-U.S. Person" means any person
other than (i) a citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a
partnership for tax purposes) organized in the United States or under
the laws of the United States or of any state thereof, including, for
this purpose, the District of Columbia (unless provided otherwise by
future Treasury regulations); (iv) an estate whose income is includible
in gross income for United States income tax purposes regardless of its
source; (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and
one or more U.S. Persons have authority to control all substantial
decisions of the trust or; (vi) and, to the extent provided in Treasury
regulations, certain trusts in existence prior to August 20, 1996 that
are treated as United States persons prior to such date and elect to
continue to be treated as United States persons.
D-1-2
10. That the Purchaser agrees to such amendments of the Trust Agreement as
may be required to further effectuate the restrictions on transfer of
any Residual Certificate to such a "disqualified organization," an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 6 and paragraph 9 hereof.
11. That the Purchaser consents to the designation of the Trustee as its
agent to act as "tax matters person" of the Trust Fund pursuant to the
Trust Agreement.
Terms used in this transfer affidavit which are not otherwise defined
herein have the respective meanings assigned thereto in the Trust Agreement.
D-1-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[title of officer] this _____ day of __________, 20__.
--------------------------------
[name of Purchaser]
By:
-----------------------------
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
________________________________
COUNTY OF_______________________
STATE OF________________________
My commission expires the _____ day of __________, 20__.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
______________
Date
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2005-2
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate. In addition, the Transferor has conducted a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
--------------------------------
Name:
Title:
D-2-1
EXHIBIT E
SERVICING AGREEMENTS
[INTENTIONALLY OMITTED]
E-1
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2005-2
Reference is hereby made to the Trust Agreement (the "Trust
Agreement"), dated as of January 1, 2005 among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services LLC, as Master Servicer and
JPMorgan Chase Bank, N.A., as Trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Trust Agreement.
This letter relates to $_________ initial Certificate Principal
Amount of Class Certificates which are held in the form of Definitive
Certificates registered in the name of (the "Transferor"). The Transferor has
requested a transfer of such Definitive Certificates for Definitive Certificates
of such Class registered in the name of [insert name of transferee].
In connection with such request, and in respect of such
Certificates, the Transferor hereby certifies that such Certificates are being
transferred in accordance with (i) the transfer restrictions set forth in the
Trust Agreement and the Certificates and (ii) Rule 144A under the Securities Act
to a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer", which purchaser
is aware that the sale to it is being made in reliance upon Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Placement Agent and the Depositor.
--------------------------------
[Name of Transferor]
By:
-----------------------------
Name:
Title:
Dated: __________________, ________
F-1
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
______________
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2005-2 (the "Privately Offered Certificates") of Structured
Asset Securities Corporation (the "Depositor") which are held in the form of
Definitive Certificates, we confirm that:
1. We understand that the Privately Offered Certificates have not been, and
will not be, registered under the Securities Act of 1933, as amended
(the "Securities Act"), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we
should sell any Privately Offered Certificates within two years of the
later of the date of original issuance of the Privately Offered
Certificates or the last day on which such Privately Offered
Certificates are owned by the Depositor or any affiliate of the
Depositor (which includes the Placement Agent) we will do so only (A) to
the Depositor, (B) to "qualified institutional buyers" (within the
meaning of Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act ("QIBs"), (C) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act, or (D)
to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that
is not a QIB (an "Institutional Accredited Investor") which, prior to
such transfer, delivers to the Trustee under the Trust Agreement (the
"Trust Agreement"), dated as of January 1, 2005 among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master Servicer and JPMorgan Chase Bank, N.A., as Trustee, a signed
letter in the form of this letter; and we further agree, in the
capacities stated above, to provide to any person purchasing any of the
Privately Offered Certificates from us a notice advising such purchaser
that resales of the Privately Offered Certificates are restricted as
stated herein.
2. We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor,
we will be required to furnish to the Trustee and the Depositor a
certification from such transferee in the form hereof to confirm that
the proposed sale is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing effect.
G-1
3. We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Privately Offered Certificates, and we and any account for which we are
acting are each able to bear the economic risk of such investment.
4. We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion.
5. We have received such information as we deem necessary in order to make
our investment decision.
6. If we are acquiring ERISA-Restricted Certificates, we are not a Plan and
we are not acquiring the ERISA-Restricted Certificates for, on behalf of
or with any assets of a Plan, except as may be permitted pursuant to
Section 3.03(d) of the Trust Agreement.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
--------------------------------
[Purchaser]
By
------------------------------
Name:
Title:
G-2
EXHIBIT H
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is the ______________________ of (the "Investor"), a
[corporation duly organized] and existing under the laws of __________,
on behalf of which he makes this affidavit.
2. The Investor (A) is not, and on ___________ [date of transfer] will not
be, an employee benefit plan or other arrangement subject to Title I of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a plan subject to any state, local,
federal, non-U.S. or other law or regulation substantively similar to
the foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a "Plan"), and is not acquiring the Certificate for, on
behalf of or with any assets of any such Plan, (B) if the Certificate
has been the subject of an ERISA-Qualifying Underwriting, is an
insurance company that is acquiring the Certificate with assets of an
"insurance company general account," as defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60, and the
acquisition and holding of the Certificate are covered and exempt under
Sections I and III of PTCE 95-60, or (C) solely in the case of a
Definitive Certificate, herewith delivers to the Trustee and the
Depositor an Opinion of Counsel satisfactory to the Trustee and the
Depositor, and upon which the Trustee, the Master Servicer and the
Depositor shall be entitled to rely, to the effect that the acquisition
and holding of such Certificate by the Investor will not constitute or
result in any nonexempt prohibited transaction under Title I of ERISA or
Section 4975 of the Code, or a violation of Similar Law, and will not
subject the Trustee, the Depositor, the Master Servicer, the Certificate
Registrar, or any Servicer to any obligation in addition to those
undertaken by such entities in the Trust Agreement, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Trustee, the
Master Servicer, the Certificate Registrar, any Servicer or the
Depositor.
3. The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities
Corporation, as Depositor, JPMorgan Chase Bank, N.A., as Trustee, and
Aurora Loan Services LLC, as Master Servicer, dated as of January 1,
2005, no transfer of the ERISA-Restricted Certificates shall be
permitted to be made to any person unless the Depositor and Trustee have
received a certificate from such transferee in the form hereof.
H-1
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 20__.
--------------------------------
[Investor]
By:
-----------------------------
Name:
Title:
ATTEST:
-------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named ___________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the _________________ of the Investor, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this _____ day of ___________ 20___.
_______________________________
NOTARY PUBLIC
My commission expires the
____ day of __________, 20__.
H-2
EXHIBIT I
MONTHLY REMITTANCE ADVICE
[INTENTIONALLY OMITTED]
I-1
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
[INTENTIONALLY OMITTED]
J-1
EXHIBIT K
CUSTODIAL AGREEMENTS
[INTENTIONALLY OMITTED]
K-1
EXHIBIT L-1
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO REGULATION S GLOBAL SECURITY
(Transfers pursuant to Section 3.03(h)(B)
of the Agreement)
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage
Loan Trust Mortgage Pass-Through Certificates, Series
2005-2
Reference is hereby made to the Trust Agreement (the "Agreement") among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services LLC,
as Master Servicer and JPMorgan Chase Bank, N.A., as Trustee, dated as of
January 1, 2005. Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This letter relates to U.S. $________________aggregate principal amount
of Securities which are held in the form of a Restricted Global Security with
DTC in the name of [name of transferor]_________________(the "Transferor") to
effect the transfer of the Securities in exchange for an equivalent beneficial
interest in a Regulation S Global Security.
In connection with such request, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904 of
Regulation S, and that:
a. the offer of the Securities was not made to a person in
the United States;
b. at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee was
outside the United States;
c. no directed selling efforts have been made in
contravention of the requirements of Rule 903 or 904 of
Regulation S, as applicable;
d. the transaction is not part of a plan or scheme to evade
the registration requirements of the United States Securities
Act of 1933, as amended; and
e. the transferee is not a U.S. person (as defined in
Regulation S).
L-1-1
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
--------------------------------
[Name of Transferor]
By:
-----------------------------
Name:
Title:
Date: ________________,___
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL SECURITY
TO RESTRICTED GLOBAL SECURITY
(Transfers pursuant to Section 3.03(h)(C)
of the Agreement)
Re: Structured Adjustable Rate Mortgage Loan Trust Mortgage
Pass-Through Certificates, Series 2005-2
Reference is hereby made to the Trust Agreement (the "Agreement") among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services LLC,
as Master Servicer and JPMorgan Chase Bank, N.A., as Trustee, dated as of
January 1, 2005. Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This letter relates to U.S. $________________aggregate principal amount
of Securities which are held in the form of a Regulations S Global Security in
the name of [name of transferor] _________________(the "Transferor") to effect
the transfer of the Securities in exchange for an equivalent beneficial interest
in a Restricted Global Security.
In connection with such request, and in respect of such Securities, the
Transferor does hereby certify that such Securities are being transferred in
accordance with (i) the transfer restrictions set forth in the Agreement and the
Securities and (ii) Rule 144A under the United States Securities Act of 1933, as
amended, to a transferee that the Transferor reasonably believes is purchasing
the Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
--------------------------------
[Name of Transferor]
By:
-----------------------------
Name:
Title:
Date: ________________,___
L-2-1
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED TO
THE DEPOSITOR AND THE MASTER SERVICER BY THE TRUSTEE
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aurora Loan Services LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Structured Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2005-2
Reference is made to the Trust Agreement, dated as of January 1, 2005 (the
"Trust Agreement"), by and among JPMorgan Chase Bank, N.A., as trustee (the
"Trustee"), Aurora Loan Services, Inc., as master servicer (the "Master
Servicer"), and Structured Asset Securities Corporation, as depositor (the
"Depositor"). The Trustee hereby certifies to the Depositor and the Master
Servicer, and its respective officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
(i) The Trustee has reviewed the annual report on Form 10-K for the fiscal
year [[ ]], and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that annual
report, relating to the above referenced trust;
(ii) Based solely upon the information provided to us by the Master Servicer,
the information set forth in the reports referenced in (i) above does
not contain any untrue statement of material fact; and
(iii) Based on my knowledge, the distribution information required to be
provided by the Trustee under the Trust Agreement is included in these
reports.
Date:
JPMorgan Chase Bank, N.A., as Trustee
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
M-1
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
Sch.B-1