Exhibit 4.1
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.
Depositor
[NAME OF SERVICER],
Servicer
and
[NAME OF TRUSTEE],
Trustee
FORM OF POOLING AND SERVICING AGREEMENT
Dated as of [________] [__], 20[__]
▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series 20[__-___]
Asset-Backed Pass-Through Certificates
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS......................................................4
SECTION 1.01 Defined Terms...............................................4
SECTION 1.02 Allocation of Certain Interest Shortfalls..................53
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES....................................................53
SECTION 2.01 Conveyance of the Mortgage Loans...........................53
SECTION 2.02 Acceptance of REMIC I by Trustee...........................56
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by the
Responsible Party and the Seller...........................57
SECTION 2.04 Reserved...................................................60
SECTION 2.05 Representations, Warranties and Covenants of the
Servicer...................................................60
SECTION 2.06 Issuance of the REMIC I Regular Interests and the
Class R-I Interest.........................................62
SECTION 2.07 Conveyance of the REMIC I Regular Interests;
Acceptance of REMIC II by the Trustee......................63
SECTION 2.08 Issuance of Class R Certificates...........................63
ARTICLE III ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS..............63
SECTION 3.01 Servicer to Act as Servicer................................63
SECTION 3.02 Sub-Servicing Agreements Between Servicer and
Sub-Servicers..............................................65
SECTION 3.03 Successor Sub-Servicers....................................66
SECTION 3.04 Liability of the Servicer..................................66
SECTION 3.05 No Contractual Relationship Between Sub-Servicers, the
Trustee or the Certificateholders..........................67
SECTION 3.06 Assumption or Termination of Sub-Servicing Agreements
by the Trustee.............................................67
SECTION 3.07 Collection of Certain Mortgage Loan Payments...............68
SECTION 3.08 Sub-Servicing Accounts.....................................68
SECTION 3.09 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.........................................68
SECTION 3.10 Custodial Account and Certificate Account..................69
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 3.11 Withdrawals from the Custodial Account and Certificate
Account....................................................72
SECTION 3.12 Investment of Funds in the Custodial Account and the
Certificate Account........................................73
SECTION 3.13 [Reserved].................................................74
SECTION 3.14 Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage............................74
SECTION 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.................................................76
SECTION 3.16 Realization Upon Defaulted Mortgage Loans..................77
SECTION 3.17 Trustee to Cooperate; Release of Mortgage Files............79
SECTION 3.18 Servicing Compensation.....................................80
SECTION 3.19 Reports to the Trustee and Others; Custodial Account
Statements.................................................80
SECTION 3.20 Statement as to Compliance.................................81
SECTION 3.21 Independent Public Accountants' Servicing Report...........81
SECTION 3.22 Access to Certain Documentation............................81
SECTION 3.23 Title, Management and Disposition of REO Property..........82
SECTION 3.24 Obligations of the Servicer in Respect of Prepayment
Interest Shortfalls........................................85
SECTION 3.25 Obligations of the Servicer in Respect of Mortgage
Rates and Monthly Payments.................................85
SECTION 3.26 Advance Facility...........................................85
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS..................................86
SECTION 4.01 Distributions..............................................86
SECTION 4.02 Statements to Certificateholders...........................93
SECTION 4.03 Remittance Reports; Advances...............................97
SECTION 4.04 Allocation of Realized Losses..............................98
SECTION 4.05 Compliance with Withholding Requirements..................101
SECTION 4.06 Exchange Commission; Additional Information...............101
SECTION 4.07 The Swap Agreement........................................102
SECTION 4.08 Tax Treatment of Swap Payments and Swap Termination
Payments..................................................106
-ii-
TABLE OF CONTENTS
(continued)
PAGE
----
ARTICLE V THE CERTIFICATES...............................................106
SECTION 5.01 The Certificates..........................................106
SECTION 5.02 Registration of Transfer and Exchange of Certificates.....108
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.........114
SECTION 5.04 Persons Deemed Owners.....................................114
SECTION 5.05 Certain Available Information.............................114
ARTICLE VI THE DEPOSITOR AND THE SERVICER.................................115
SECTION 6.01 Respective Liabilities of the Depositor and the
Servicer...............................................115
SECTION 6.02 Merger or Consolidation of the Depositor or the
Servicer...............................................115
SECTION 6.03 Limitation on Liability of the Depositor, the Servicer
and Others.............................................115
SECTION 6.04 Limitation on Resignation of the Servicer.................116
SECTION 6.05 Rights of the Depositor in Respect of the Servicer........117
ARTICLE VII DEFAULT........................................................117
SECTION 7.01 Servicer Events of Default................................117
SECTION 7.02 Trustee to Act; Appointment of Successor..................119
SECTION 7.03 Notification to Certificateholders........................120
SECTION 7.04 Waiver of Servicer Events of Default......................121
ARTICLE VIII CONCERNING THE TRUSTEE.........................................121
SECTION 8.01 Duties of Trustee.........................................121
SECTION 8.02 Certain Matters Affecting the Trustee.....................122
SECTION 8.03 Trustee Not Liable for Certificates or Mortgage Loans.....124
SECTION 8.04 Trustee May Own Certificates..............................124
SECTION 8.05 Trustee's Fees and Expenses...............................124
SECTION 8.06 Eligibility Requirements for Trustee......................125
SECTION 8.07 Resignation and Removal of the Trustee....................125
SECTION 8.08 Successor Trustee.........................................126
SECTION 8.09 Merger or Consolidation of Trustee........................126
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.............126
SECTION 8.11 Trustee to Execute Swap Agreement.........................127
-iii-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 8.12 Appointment of Office or Agency...........................128
SECTION 8.13 Representations and Warranties of the Trustee.............128
ARTICLE IX TERMINATION....................................................128
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans............................................128
SECTION 9.02 Additional Termination Requirements.......................130
ARTICLE X REMIC PROVISIONS...............................................131
SECTION 10.01 REMIC Administration......................................131
SECTION 10.02 Prohibited Transactions and Activities....................134
SECTION 10.03 Servicer and Trustee Indemnification......................134
ARTICLE XI COMPLIANCE WITH REGULATION AB..................................134
SECTION 11.01 Intent of the Parties; Reasonableness.....................134
SECTION 11.02 Additional Representations and Warranties of the
Trustee................................................135
SECTION 11.03 Information to Be Provided by the Trustee.................135
SECTION 11.04 Report on Assessment of Compliance and Attestation........136
SECTION 11.05 Indemnification; Remedies.................................136
ARTICLE XII MISCELLANEOUS PROVISIONS.......................................137
SECTION 12.01 Amendment.................................................137
SECTION 12.02 Recordation of Agreement; Counterparts....................139
SECTION 12.03 Limitation on Rights of Certificateholders................139
SECTION 12.04 Governing Law.............................................140
SECTION 12.05 Notices...................................................140
SECTION 12.06 Severability of Provisions................................140
SECTION 12.07 Notice to Rating Agencies.................................140
SECTION 12.08 Article and Section References............................141
SECTION 12.09 Grant of Security Interest................................141
SECTION 12.10 Intention of Parties......................................142
SECTION 12.11 Assignment................................................143
SECTION 12.12 Inspection and Audit Rights...............................143
SECTION 12.13 Certificates Nonassessable and Fully Paid.................143
-iv-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 12.14 Third Party Beneficiaries.................................143
SECTION 12.15 Perfection Representations................................143
SECTION 12.16 Notice to Holder of Class CE Certificate..................143
ARTICLE XIII RIGHTS OF THE CLASS CE CERTIFICATEHOLDER.......................144
SECTION 13.01 Reports and Notices.......................................144
SECTION 13.02 Class CE Certificateholder's Directions With Respect
to Defaulted Mortgage Loans............................145
-v-
Exhibits
-----------
Exhibit A-1 Form of Class A Certificates
Exhibit A-2 Form of Class M Certificates
Exhibit A-3 Form of Class CE Certificate
Exhibit A-4 Form of Class P Certificate
Exhibit A-5 Form of Class R Certificate
Exhibit B [Reserved]
Exhibit C-1 Form of Trustee's Initial Certification
Exhibit C-2 Form of Trustee's Final Certification
Exhibit D Form of Mortgage Loan Purchase Agreement
Exhibit E Request for Release
Exhibit F-1 Form of Transferor Representation Letter and Form of Transferee
Representation Letter in Connection with Transfer of the Private
Certificates Pursuant to Rule 144A Under the 1933 Act
Exhibit F-2 Form of Transfer Affidavit and Agreement and Form of Transferor
Affidavit in Connection with Transfer of Residual Certificates
Exhibit G Form of Certification with respect to ERISA and the Code
Exhibit H Form of Lost Note Affidavit
Exhibit I-1 Form of 10-K Certificate
Exhibit I-2 Form of Certification to be Provided to Servicer by the Trustee
Exhibit J-1 Form of Servicer Certification
Exhibit J-2 Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit K-1 Form of Swap Agreement
Exhibit K-2 Schedule of Swap Agreement Notional Balances
Exhibit L Form of Report Pursuant to Section 13.01
Schedule 1 Mortgage Loan Schedule
Schedule 2 Prepayment Charge Schedule
Schedule 3 Perfection Representations, Warranties and Covenants
-vi-
This Pooling and Servicing Agreement, is dated and effective as of
[________] [__], 20[__], among STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. as
Depositor, [NAME OF SERVICER] as Servicer and [NAME OF TRUSTEE] as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple classes, which in the aggregate will evidence the entire
beneficial ownership interest in each REMIC (as defined herein) created
hereunder. The Trust Fund (as defined herein) will consist of a segregated pool
of assets comprised of the Mortgage Loans and certain other related assets
subject to this Agreement.
REMIC I
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the Mortgage Loans and certain other related assets (other
than any Servicer Prepayment Charge Payment Amounts, the Swap Account and the
Swap Agreement) subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I."
The Class R-I Interest will be the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the REMIC I Remittance Rate, the initial
Uncertificated Balance and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the
REMIC I Regular Interests (as defined herein). None of the REMIC I Regular
Interests will be certificated.
REMIC I INITIAL LATEST POSSIBLE
DESIGNATION REMITTANCE RATE UNCERTIFICATED BALANCE MATURITY DATE(1)
----------- --------------- ---------------------- ----------------
[I-LTAA] [Variable (2)] [_______] [_______]
[I-LTA1] [Variable (2)] [_______] [_______]
[I-LTA2] [Variable (2)] [_______] [_______]
[I-LTA3] [Variable (2)] [_______] [_______]
[I-LTA4] [Variable (2)] [_______] [_______]
[I-LTA5] [Variable (2)] [_______] [_______]
[I-LTA6] [Variable (2)] [_______] [_______]
[I-LTM1] [Variable (2)] [_______] [_______]
[I-LTM2] [Variable (2)] [_______] [_______]
[I-LTM3] [Variable (2)] [_______] [_______]
[I-LTM4] [Variable (2)] [_______] [_______]
[I-LTM5] [Variable (2)] [_______] [_______]
[I-LTM6] [Variable (2)] [_______] [_______]
[I-LTM7] [Variable (2)] [_______] [_______]
[I-LTM8] [Variable (2)] [_______] [_______]
[I-LTM9] [Variable (2)] [_______] [_______]
[I-LTM10] [Variable (2)] [_______] [_______]
REMIC I INITIAL LATEST POSSIBLE
DESIGNATION REMITTANCE RATE UNCERTIFICATED BALANCE MATURITY DATE(1)
----------- --------------- ---------------------- ----------------
[I-LTM11] [Variable (2)] [_______] [_______]
[I-LTM12] [Variable (2)] [_______] [_______]
[I-LTM13] [Variable (2)] [_______] [_______]
[I-LTZZ] [Variable (2)] [_______] [_______]
[I-LTP] [Variable (2)] [_______] [_______]
----------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Remittance Rate"
herein.
2
REMIC II
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
II." The Class R-II Interest will evidence the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions under federal income
tax law. The following table irrevocably sets forth the designation, the
Pass-Through Rate, the initial aggregate Certificate Principal Balance and, for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for the indicated Classes of Certificates.
INITIAL AGGREGATE
CERTIFICATE PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION PASS-THROUGH RATE BALANCE DATE(1)
--------------- ----------------- --------------------- ------------------------
[Class A-1(2)] [Variable(2)] $[_______] [_______]
[Class A-2(2)] [Variable(2)] $[_______] [_______]
[Class A-3(2)] [Variable(2)] $[_______] [_______]
[Class A-4(2)] [Variable(2)] $[_______] [_______]
[Class A-5(2)] [Variable(2)] $[_______] [_______]
[Class A-6(2)] [Variable(2)] $[_______] [_______]
[Class M-1(2)] [Variable(2)] $[_______] [_______]
[Class M-2(2)] [Variable(2)] $[_______] [_______]
[Class M-3(2)] [Variable(2)] $[_______] [_______]
[Class M-4(2)] [Variable(2)] $[_______] [_______]
[Class M-5(2)] [Variable(2)] $[_______] [_______]
[Class M-6(2)] [Variable(2)] $[_______] [_______]
[Class M-7(2)] [Variable(2)] $[_______] [_______]
[Class M-8(2)] [Variable(2)] $[_______] [_______]
[Class M-9(2)] [Variable(2)] $[_______] [_______]
[Class M-10(2)] [Variable(2)] $[_______] [_______]
[Class M-11(2)] [Variable(2)] $[_______] [_______]
[Class M-12(2)] [Variable(2)] $[_______] [_______]
[Class M-13(2)] [Variable(2)] $[_______] [_______]
[Class CE(3)] [Variable(4)] $[_______] [_______]
[Class P] [N/A(5)] $[_______] [_______]
----------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
Mortgage Loans with the latest maturity date has been designated as the
"latest possible maturity date" for each Class of Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
The Class A and Class M Certificates represent ownership of REMIC II
Regular Interests, together with certain rights to payments to be made from
amounts received under the Swap Agreement which payments are treated for
federal income tax purposes as being made outside of REMIC II by the holder
of the Class CE Certificates, as the owner of the Swap Agreement.
(3) The Class CE Certificates will be comprised of two REMIC II Regular
Interests, a principal only regular interest designated REMIC II Regular
Interest CE-PO and an interest only regular interest designated REMIC II
Regular Interest CE-IO, each of which will be entitled to distributions as
set forth herein.
(4) The Class CE Certificates will accrue interest at its variable Pass-Through
Rate on the Notional Amount of the Class CE-IO outstanding from time to
time which notional amount shall equal the aggregate Uncertificated Balance
of the
3
REMIC I Regular Interests. The Class CE Certificates will not accrue
interest on its Certificate Principal Balance. The rights of the Holder of
the Class CE Certificates to payments from the Swap Agreement shall be
outside and apart from its rights under the REMIC II Regular Interests
CE-IO and CE-PO.
(5) The Class P Certificates will not accrue interest.
As of the Cut-off Date, the Mortgage Loans had an aggregate Stated
Principal Balance equal to $[__________].
In consideration of the mutual agreements herein contained, the Depositor,
the Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. Whenever used in this Agreement, including,
without limitation, in the Preliminary Statement hereto, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations
described herein shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
"Accepted Servicing Practices": The servicing standards set forth in
Section 3.01.
"Accrued Certificate Interest": With respect to any Class A Certificate,
Mezzanine Certificate and the Class CE Certificates and each Distribution Date,
interest accrued during the related Interest Accrual Period at the Pass-Through
Rate for such Certificate for such Distribution Date on the Certificate
Principal Balance, in the case of the Class A Certificates and the Mezzanine
Certificates, or on the Notional Amount, in the case of the Class CE
Certificates, of such Certificate immediately prior to such Distribution Date.
The Class P Certificates are not entitled to distributions in respect of
interest and, accordingly, will not accrue interest. All distributions of
interest on the Class A Certificates and the Mezzanine Certificates will be
calculated on the basis of a 360-day year and the actual number of days in the
applicable Interest Accrual Period. All distributions of interest on the Class
CE Certificates will be based on a 360-day year consisting of twelve 30-day
months. Accrued Certificate Interest with respect to each Distribution Date, as
to any Class A Certificate, Mezzanine Certificate or the Class CE Certificates,
shall be reduced by an amount equal to the portion allocable to such Certificate
pursuant to Section 1.02 hereof of the sum of (a) the aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date to the extent not covered
by payments pursuant to Section 3.24 and (b) the aggregate amount of any Relief
Act Interest Shortfall, if any, for such Distribution Date. In addition, Accrued
Certificate Interest with respect to each Distribution Date, as to the Class CE
Certificates, shall be reduced by an amount equal to the portion allocable to
the Class CE Certificates of Realized Losses, if any, pursuant to Section 4.04
hereof.
"Adjustable-Rate Mortgage Loan": Each of the Mortgage Loans identified on
the Mortgage Loan Schedule as having a Mortgage Rate that is subject to
adjustment.
"Adjustment Date": With respect to each Adjustable-Rate Mortgage Loan, the
first day of the month in which the Mortgage Rate of such Mortgage Loan changes
pursuant to the related
4
Mortgage Note. The first Adjustment Date following the Cut-off Date as to each
Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan or REO Property, any advance made by the
Servicer in respect of any Distribution Date pursuant to Section 4.03.
"Advance Facility": As defined in Section 3.26(a).
"Advance Facility Trustee": As defined in Section 3.26(b).
"Advancing Person": As defined in Section 3.26(a) hereof.
"Affected Party": As defined in the Swap Agreement.
"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.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Allocated Realized Loss Amount": With respect to any Distribution Date and
any Class of Class A Certificates or Mezzanine Certificates, the sum of (i) any
Realized Losses allocated to such Class of Certificates on such Distribution
Date and (ii) the amount of any Allocated Realized Loss Amount for such Class of
Certificates remaining unpaid from the previous Distribution Date minus the
amount of the increase in the related Certificate Principal Balance due to the
receipt of Subsequent Recoveries as provided in Section 4.01.
"Assignment": An assignment of Mortgage, notice of transfer or equivalent
instrument, in recordable form (excepting therefrom, if applicable, the mortgage
recordation information which has not been required pursuant to Section 2.01
hereof or returned by the applicable recorder's office), which is sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect of record the sale of the Mortgage, which assignment, notice
of transfer or equivalent instrument may be in the form of one or more blanket
assignments covering Mortgages secured by Mortgaged Properties located in the
same county, if permitted by law.
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (1) the sum of (a) the aggregate of the amounts on deposit in
the Custodial Account and Certificate Account as of the close of business on the
related Determination Date, (b) the aggregate of any amounts received in respect
of an REO Property withdrawn from any REO Account and deposited in the
Certificate Account for such Distribution Date pursuant to Section 3.23, (c) the
aggregate of any amounts deposited in the Certificate Account by the Servicer in
respect of Prepayment Interest Shortfalls for such Distribution Date pursuant to
Section 3.24,
5
(d) the aggregate of any Advances made by the Servicer for such Distribution
Date pursuant to Section 4.03 and (e) the aggregate of any Advances made by the
Trustee as successor Servicer or any other successor Servicer for such
Distribution Date pursuant to Section 7.02, reduced (to not less than zero), by
(2) the portion of the amount described in clause (1)(a) above that represents
(i) Monthly Payments on the Mortgage Loans received from a Mortgagor on or prior
to the Determination Date but due during any Due Period subsequent to the
related Due Period, (ii) Principal Prepayments on the Mortgage Loans received
after the related Prepayment Period (together with any interest payments
received with such Principal Prepayments to the extent they represent the
payment of interest accrued on the Mortgage Loans during a period subsequent to
the related Prepayment Period) (other than Prepayment Charges), (iii)
Liquidation Proceeds and Insurance Proceeds received in respect of the Mortgage
Loans after the related Prepayment Period, (iv) amounts reimbursable or payable
to the Depositor, the Servicer, the Trustee, the Seller or any Sub-Servicer
pursuant to Section 3.11, Section 3.12, Section 8.05 or otherwise payable in
respect of Extraordinary Trust Fund Expenses, (v) the Trustee Fee payable from
the Certificate Account pursuant to Section 8.05, (vi) amounts deposited in the
Custodial Account or the Certificate Account in error, (vii) the amount of any
Prepayment Charges collected by the Servicer in connection with the Principal
Prepayment of any of the Mortgage Loans or any Servicer Prepayment Charge
Payment Amount and (viii) any Net Swap Payment owed to the Swap Counterparty and
Swap Termination Payments owed to the Swap Counterparty not due to a Swap
Counterparty Trigger Event for such Distribution Date.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a Realized Loss
resulting from a Deficient Valuation or Debt Service Reduction.
"Bloomberg": As defined in Section 4.02.
"Book-Entry Certificate": The Class A Certificates and the Mezzanine
Certificates for so long as the Certificates of such Class shall be registered
in the name of the Depository or its nominee.
"Book-Entry Custodian": The custodian appointed pursuant to Section 5.01.
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking or savings and loan institutions in the State of California, the State
of New York or in the city in which the Corporate Trust Office of the Trustee is
located, are authorized or obligated by law or executive order to be closed.
"Cash-Out Refinancing": A Refinanced Mortgage Loan the proceeds of which
are more than a nominal amount in excess of the principal balance of any
existing first mortgage or subordinate mortgage on the related Mortgaged
Property and any closing costs related to such Refinance Mortgage Loan.
"Certificate": Any one of the ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series
20[__-___] Asset-Backed Pass-Through Certificates, [Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class
A-3, Class A-4, Class A-5,
6
Class A-6, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class M-9, Class M-10, Class M-11, Class M-12, Class
M-13], Class CE, Class P and Class R issued under this Agreement.
"Certificate Account": The trust account or accounts created and maintained
by the Trustee pursuant to Section 3.10(b), which shall be entitled "[Name of
Trustee], as Trustee, in trust for the registered holders of ▇▇▇▇▇▇▇▇▇▇ Mortgage
Loan Trust, Series 20[__-___] Asset-Backed Pass-Through Certificates." The
Certificate Account must be an Eligible Account.
"Certificate Factor": With respect to any Class of Regular Certificates as
of any Distribution Date, a fraction, expressed as a decimal carried to six
places, the numerator of which is the aggregate Certificate Principal Balance
(or the Notional Amount, in the case of the Class CE Certificates) of such Class
of Certificates on such Distribution Date (after giving effect to any
distributions of principal and in the case of the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates, the allocations of
Realized Losses in reduction of the Certificate Principal Balance (or the
Notional Amount, in the case of the Class CE Certificates) of such Class of
Certificates to be made on such Distribution Date), and the denominator of which
is the initial aggregate Certificate Principal Balance (or the Notional Amount,
in the case of the Class CE Certificates) of such Class of Certificates as of
the Closing Date.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, except that a Disqualified Organization
or a Non-United States Person shall not be a Holder of a Residual Certificate
for any purpose hereof and, solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or the Servicer or any Affiliate thereof shall be deemed not to be
outstanding and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent has been obtained, except as otherwise
provided in Section 12.01. The Trustee may conclusively rely upon a certificate
of the Depositor or the Servicer in determining whether a Certificate is held by
an Affiliate thereof. All references herein to "Holders" or "Certificateholders"
shall reflect the rights of Certificate Owners as they may indirectly exercise
such rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trustee shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
"Certificate Principal Balance": With respect to each Class A Certificate,
Mezzanine Certificate or Class P Certificate as of any date of determination,
the Certificate Principal Balance of such Certificate on the Distribution Date
immediately prior to such date of determination plus any Subsequent Recoveries
added to the Certificate Principal Balance of such Certificate pursuant to
Section 4.01, minus all distributions allocable to principal made thereon and,
in the case of the Class A Certificates and the Mezzanine Certificates, Realized
Losses
7
allocated thereto on such immediately prior Distribution Date (or, in the case
of any date of determination up to and including the first Distribution Date,
the initial Certificate Principal Balance of such Certificate, as stated on the
face thereof). With respect to each Class CE Certificates as of any date of
determination, an amount equal to the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Uncertificated
Balance of the REMIC I Regular Interests over (B) the then aggregate Certificate
Principal Balance of the Class A Certificates, the Mezzanine Certificates and
the Class P Certificates then outstanding.
"Certificate Register": The register maintained pursuant to Section 5.02.
"Class": Collectively, all of the Certificates bearing the same class
designation.
["Class A-1 Certificates": Any one of the Class A-1 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class A-2 Certificates": Any one of the Class A-2 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class A-3 Certificates": Any one of the Class A-3 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class A-4 Certificates": Any one of the Class A-4 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class A-5 Certificates": Any one of the Class A-5 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class A-6 Certificates": Any one of the Class A-6 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.]
"Class A Certificates": Collectively, the [Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-5 Certificates and the Class A-6] Certificates.
8
"Class A Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the aggregate Certificate Principal Balance of the Class
A Certificates immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) the applicable Subordination Percentage and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period over the Overcollateralization Floor Amount.
"Class CE Certificate": Any one of the Class CE Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-3 and evidencing a Regular Interest in REMIC II for purposes
of the REMIC Provisions together with certain rights to payments under the Swap
Agreement.
["Class M-1 Certificate": Any one of the Class M-1 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-1 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date) and (ii)
the Certificate Principal Balance of the Class M-1 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
the applicable Subordination Percentage and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period over the
Overcollateralization Floor Amount.
"Class M-2 Certificate": Any one of the Class M-2 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-2 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date) and (iii) the Certificate Principal Balance of the Class
M-2 Certificates immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) the applicable Subordination Percentage and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period over the Overcollateralization Floor Amount.
9
"Class M-3 Certificate": Any one of the Class M-3 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-3 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date) and (iv) the
Certificate Principal Balance of the Class M-3 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) the
applicable Subordination Percentage and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period over the
Overcollateralization Floor Amount.
"Class M-4 Certificate": Any one of the Class M-4 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-4 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (v) the Certificate Principal Balance of the Class M-4 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) the applicable Subordination Percentage and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period and (B) the excess, if any, of the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period over the
Overcollateralization Floor Amount.
"Class M-5 Certificate": Any one of the Class M-5 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
10
"Class M-5 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date) and (vi) the Certificate
Principal Balance of the Class M-5 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) the applicable
Subordination Percentage and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans as of
the last day of the related Due Period over the Overcollateralization Floor
Amount.
"Class M-6 Certificate": Any one of the Class M-6 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-6 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal Balance of the Class M-6 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) the applicable Subordination Percentage and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period and (B) the excess, if any, of the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period over the
Overcollateralization Floor Amount.
"Class M-7 Certificate": Any one of the Class M-7 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and
11
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account to the
extent described herein.
"Class M-7 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date) and (viii) the Certificate
Principal Balance of the Class M-7 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) the applicable
Subordination Percentage and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans as of
the last day of the related Due Period over the Overcollateralization Floor
Amount.
"Class M-8 Certificate": Any one of the Class M-8 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-8 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after
12
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date) and (ix) the Certificate Principal Balance of
the Class M-8 Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) the applicable Subordination Percentage and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period and (B) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period over the Overcollateralization Floor Amount.
"Class M-9 Certificate": Any one of the Class M-9 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-9 Principal Distribution Amount": With respect to any Distribution
Date, the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date) and (x) the Certificate Principal
Balance of the Class M-9 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) the applicable Subordination
Percentage and (ii) the aggregate Stated Principal Balance of the Mortgage Loans
as of the last day of the related Due Period and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period over the Overcollateralization Floor Amount.
"Class M-10 Certificate": Any one of the Class M-10 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-10 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates
13
(after taking into account the distribution of the Class A Principal
Distribution Amount on such Distribution Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date) and (xi) the Certificate Principal Balance of the Class M-10 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) the applicable Subordination Percentage and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period and (B) the excess, if any, of the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period over the
Overcollateralization Floor Amount.
"Class M-11 Certificate": Any one of the Class M-11 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-11 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such
14
Distribution Date), (viii) the Certificate Principal Balance of the Class M-7
Certificates (after taking into account the distribution of the Class M-7
Principal Distribution Amount on such Distribution Date), (ix) the Certificate
Principal Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (x) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date), (xi) the Certificate Principal
Balance of the Class M-10 Certificates (after taking into account the
distribution of the Class M-10 Principal Distribution Amount on such
Distribution Date) and (xii) the Certificate Principal Balance of the Class M-11
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) the applicable Subordination Percentage and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period over the Overcollateralization Floor Amount.
"Class M-12 Certificate": Any one of the Class M-12 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-12 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (x) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date), (xi) the Certificate Principal
Balance of the Class M-10 Certificates (after taking into account the
distribution of the Class M-10 Principal Distribution Amount on such
Distribution Date), (xii) the Certificate Principal Balance of the Class M-11
Certificates (after taking into account the distribution of the Class M-11
Principal Distribution Amount on such Distribution Date) and (xiii) the
Certificate Principal Balance of the Class M-12 Certificates
15
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) the applicable Subordination Percentage and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period and (B) the excess, if any, of the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period over the
Overcollateralization Floor Amount.
"Class M-13 Certificate": Any one of the Class M-13 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC II for
purposes of the REMIC Provisions and (ii) the right to receive payments from the
Swap Account to the extent described herein.
"Class M-13 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (x) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date), (xi) the Certificate Principal
Balance of the Class M-10 Certificates (after taking into account the
distribution of the Class M-10 Principal Distribution Amount on such
Distribution Date), (xii) the Certificate Principal Balance of the Class M-11
Certificates (after taking into account the distribution of the Class M-11
Principal Distribution Amount on such Distribution Date), (xiii) the Certificate
Principal Balance of the Class M-12 Certificates (after taking into account the
distribution of the Class M-12 Principal Distribution Amount on such
Distribution Date) and (xiv) the Certificate Principal Balance of the Class M-13
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) the applicable Subordination Percentage and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period over the Overcollateralization Floor Amount.]
16
"Class P Certificate": Any one of the Class P Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-4 and evidencing a Regular Interest in REMIC II for purposes
of the REMIC Provisions.
"Class Principal Distribution Amount": The Class A Principal Distribution
Amount, [Class M-1 Principal Distribution Amount, Class M-2 Principal
Distribution Amount, Class M-3 Principal Distribution Amount, Class M-4
Principal Distribution Amount, Class M-5 Principal Distribution Amount, Class
M-6 Principal Distribution Amount, Class M-7 Principal Distribution Amount,
Class M-8 Principal Distribution Amount, Class M-9 Principal Distribution
Amount, Class M-10 Principal Distribution Amount, Class M-11 Principal
Distribution Amount, Class M-12 Principal Distribution Amount or Class M-13]
Principal Distribution Amount.
"Class R Certificate": Any one of the Class R Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-5 and evidencing the ownership of the Class R-I Interest and
the Class R-II Interest.
"Class R-I Interest": The uncertificated Residual Interest in REMIC I.
"Class R-II Interest": The uncertificated Residual Interest in REMIC II.
"Closing Date": [________ __, 20__].
"Code": The Internal Revenue Code of 1986, as amended.
"Commission": The Securities and Exchange Commission.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered.
"Corresponding Certificate": With respect to each REMIC I Regular Interest
set forth below, the Regular Certificate set forth in the table below:
REMIC I REGULAR INTEREST CERTIFICATE
------------------------ ------------
[I-LTA1] [Class A-1]
[I-LTA2] [Class A-2]
[I-LTA3] [Class A-3]
[I-LTA4] [Class A-4]
[I-LTA5] [Class A-5]
[I-LTA6] [Class A-6]
[I-LTM1] [Class M-1]
[I-LTM2] [Class M-2]
[I-LTM3] [Class M-3]
[I-LTM4] [Class M-4]
[I-LTM5] [Class M-5]
[I-LTM6] [Class M-6]
[I-LTM7] [Class M-7]
[I-LTM8] [Class M-8]
17
REMIC I REGULAR INTEREST CERTIFICATE
------------------------ ------------
[I-LTM9] [Class M-9]
[I-LTM10] [Class M-10]
[I-LTM11] [Class M-11]
[I-LTM12] [Class M-12]
[I-LTM13] [Class M-13]
[I-LTP] [Class P]
"Credit Enhancement Percentage": For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of the aggregate
Certificate Principal Balance of the Mezzanine Certificates and the Class CE
Certificates, calculated after taking into account payments of principal on the
Mortgage Loans and distribution of the Principal Distribution Amount to the
Holders of the Certificates then entitled to distributions of principal on such
Distribution Date, and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period.
"Custodial Account": The account or accounts created and maintained, or
caused to be created and maintained, by the Servicer pursuant to Section
3.10(a), which shall be entitled "[Name of Servicer], as Servicer for [Name of
Trustee], as Trustee, in trust for the registered holders of ▇▇▇▇▇▇▇▇▇▇ Mortgage
Loan Trust, Series 20[__-____], Asset-Backed Pass-Through Certificates." The
Custodial Account must be an Eligible Account.
"Cut-off Date": With respect to each Original Mortgage Loan, [________ 1,
20__]. With respect to all Qualified Substitute Mortgage Loans, their respective
dates of substitution. References herein to the "Cut-off Date," when used with
respect to more than one Mortgage Loan, shall be to the respective Cut-off Dates
for each such Mortgage Loan.
"Debt Service Reduction": With respect to any Mortgage Loan, a reduction in
the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
"Defaulting Party": As defined in the Swap Agreement.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding Stated Principal Balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced by a
Qualified Substitute Mortgage Loan.
"Delinquency Percentage": As of the last day of the related Due Period, the
percentage equivalent of a fraction, the numerator of which is the aggregate
Stated Principal Balance of the Rolling Three-Month Delinquency Average of the
Mortgage Loans plus the Stated Principal
18
Balance of the Mortgage Loans that, as of the last day of the previous calendar
month, are in foreclosure, have been converted to REO Properties or have been
discharged by reason of bankruptcy, and the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties as
of the last day of the previous calendar month; provided, however, that any
Mortgage Loan purchased by the Servicer pursuant to Section 3.16(c) shall not be
included in either the numerator or the denominator for purposes of calculating
the Delinquency Percentage.
"Depositor": Stanwich Asset Acceptance Company, L.L.C., a Delaware limited
liability company, or its successor in interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository, for purposes of
registering those Certificates that are to be Book-Entry Certificates, is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act.
"Depository Institution": Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations (or,
in the case of a depository institution that is the principal subsidiary of a
holding company, such holding company has unsecured commercial paper or other
short-term unsecured debt obligations) that are rated at least P-1 by ▇▇▇▇▇'▇,
F-1 by Fitch (if rated by Fitch) and A-1+ by S&P.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to each Distribution Date, the 15th day
of the calendar month in which such Distribution Date occurs or, if such 15th
day is not a Business Day, the Business Day immediately preceding such 15th day.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by REMIC I other than through an
Independent Contractor; provided, however, that the Trustee (or the Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, makes
payment on or otherwise discharges tax or insurance obligations, or makes
decisions as to repairs or capital expenditures with respect to such REO
Property.
19
"Disqualified Organization": Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, including, if not otherwise
included, any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for
▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) any foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code, (v) an "electing large partnership" and (vi) any other Person as set
forth in an Opinion of Counsel delivered to the Trustee and the Depositor to the
effect that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause any Trust REMIC or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Residual Certificate to such
Person. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
"Distribution Date": The 25th day of any month, or if such 25th day is not
a Business Day, the Business Day immediately following such 25th day, commencing
in [_______, 20__].
"Due Date": With respect to each Mortgage Loan and any Distribution Date,
the first day of the calendar month in which such Distribution Date occurs on
which the Monthly Payment for such Mortgage Loan was due (or, in the case of any
Mortgage Loan under terms of which the Monthly Payment for such Mortgage Loan
was due on a day other than the first day of the calendar month in which such
Distribution Date occurs, the day during the related Due Period on which such
Monthly Payment was due), in each case exclusive of any days of grace.
"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 of such
Distribution Date.
"▇▇▇▇▇": As defined in Section 4.06.
"Eligible Account": Any of (i) an account or accounts maintained with a
Depository Institution, (ii) an account or accounts the deposits in which are
fully insured by the FDIC or (iii) a segregated non-interest bearing trust
account or accounts maintained with the corporate trust department of a federal
depository institution or state-chartered depository institution subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulation Section 9.10(b), which, in either case, has corporate
trust powers, acting in its fiduciary capacity.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
20
"Excess Overcollateralized Amount": With respect to the Class A
Certificates and the Mezzanine Certificates and any Distribution Date, the
excess, if any, of (i) the Overcollateralization Amount for such Distribution
Date (calculated for this purpose only after assuming that 100% of the Principal
Remittance Amount on such Distribution Date has been distributed) over (ii) the
Overcollateralization Target Amount for such Distribution Date.
"Exchange Act": As defined in Section 4.06.
"Expense Adjusted Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property) and any Distribution Date, a per annum rate of interest
equal to the then applicable Mortgage Rate thereon as of the first day of the
related Due Period minus the sum of (i) the Trustee Fee Rate and (ii) the
Servicing Fee Rate.
"Extraordinary Trust Fund Expense": Any amounts reimbursable to the Trustee
or any director, officer, employee or agent of the Trustee from the Trust Fund
pursuant to Section 8.05 or Section 10.01(c) and any amounts payable from the
Certificate Account in respect of taxes pursuant to Section 10.01(g)(iii) and
any costs of the Trustee for the recording of the Assignments pursuant to
Section 2.01 (to the extent the Seller is unable to pay such costs).
"▇▇▇▇▇▇ ▇▇▇": ▇▇▇▇▇▇ ▇▇▇, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor thereto.
"Final Recovery Determination": With respect to any defaulted Mortgage Loan
or any REO Property (other than a Mortgage Loan or REO Property purchased by the
Responsible Party, the Depositor or the Servicer pursuant to or as contemplated
by Section 2.03, Section 3.16(c) or Section 9.01), a determination made by the
Servicer that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Servicer, in its reasonable good faith judgment, expects to
be finally recoverable in respect thereof have been so recovered. The Servicer
shall maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
"Fitch": Fitch Ratings, or its successor in interest.
"Fixed Swap Payment": With respect to any Distribution Date on or prior to
the Distribution Date in [_________ 20__], an amount equal to the product of (x)
a fixed rate equal to [_____]% per annum, (y) the Swap Agreement Notional
Balance for that Distribution Date and (z)(i) with respect to the initial
Distribution Date, a fraction, the numerator of which is 52 and the denominator
of which is 360 and (ii) with respect to each Distribution Date thereafter, a
fraction, the numerator of which is 30 and the denominator of which is 360.
"Floating Swap Payment": With respect to any Distribution Date on or prior
to the Distribution Date in [________ 20__], an amount equal to the product of
(x) Swap LIBOR as determined pursuant to the Swap Agreement, (y) the Swap
Agreement Notional Balance for that Distribution Date and (z) a fraction, the
numerator of which is equal to the number of days in the
21
related calculation period as provided in the Swap Agreement and the denominator
of which is 360.
"Fixed-Rate Mortgage Loan": Each of the Mortgage Loans identified on the
Mortgage Loan Schedule as having a fixed Mortgage Rate.
"Formula Rate": For any Distribution Date and the Class A Certificates and
the Mezzanine Certificates, One-Month LIBOR plus the related Margin.
"▇▇▇▇▇▇▇ Mac": ▇▇▇▇▇▇▇ Mac, 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.
"Gross Margin": With respect to each Adjustable-Rate Mortgage Loan, the
fixed percentage set forth in the related Mortgage Note that is added to the
Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note used to determine the Mortgage Rate for such Adjustable-Rate
Mortgage Loan.
"Highest Priority": As of any date of determination, the Class of Mezzanine
Certificates then outstanding with a Certificate Principal Balance greater than
zero, with the highest priority for payments pursuant to Section 4.01, in the
following order: [Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7, Class M-8, Class M-9, Class M-10, Class M-11, Class M-12 and
Class M-13] Certificates.
"Indenture": An indenture relating to the issuance of notes secured by the
Class CE Certificates, the Class P Certificates and/or the Class R Certificates
(or any portion thereof).
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, the Servicer, the Seller
and their respective Affiliates, (ii) does not have any direct financial
interest in or any material indirect financial interest in the Depositor, the
Servicer, the Seller or any Affiliate thereof, and (iii) is not connected with
the Depositor, the Servicer, the Seller or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions; provided, however, that a Person shall not fail to be
Independent of the Depositor, the Servicer, the Seller or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, the Servicer, the Seller or any Affiliate
thereof, as the case may be.
"Independent Contractor": Either (i) any Person (other than the Servicer)
that would be an "independent contractor" with respect to REMIC I within the
meaning of Section 856(d)(3) of the Code if REMIC I were a real estate
investment trust (except that the ownership tests set forth in that section
shall be considered to be met by any Person that owns, directly or indirectly,
35% or more of any Class of Certificates), so long as REMIC I does not receive
or derive any income from such Person and provided that the relationship between
such Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or (ii) any other Person (including the
Servicer) if the Trustee has received an Opinion of Counsel to the effect that
the taking of any action in respect of any REO Property by such Person, subject
to any
22
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code), or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Index": With respect to each Adjustable-Rate Mortgage Loan and each
related Adjustment Date, the index specified in the related Mortgage Note.
"Insurance Proceeds": Proceeds of any title policy, hazard policy or other
insurance policy covering a Mortgage Loan, to the extent such proceeds are not
to be applied to the restoration of the related Mortgaged Property or released
to the Mortgagor in accordance with the procedures that the Servicer would
follow in servicing mortgage loans held for its own account, subject to the
terms and conditions of the related Mortgage Note and Mortgage.
"Interest Accrual Period": With respect to any Distribution Date and the
Class A Certificates and the Mezzanine Certificates, the period commencing on
the Distribution Date of the month immediately preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date,
commencing on the Closing Date) and ending on the day preceding such
Distribution Date. With respect to any Distribution Date and the Class CE
Certificates and the REMIC I Regular Interests, the one-month period ending on
the last day of the calendar month preceding the month in which such
Distribution Date occurs.
"Interest Carry Forward Amount": With respect to any Distribution Date and
the Class A Certificates or the Mezzanine Certificates, the sum of (i) the
amount, if any, by which (a) the Interest Distribution Amount for such Class of
Certificates as of the immediately preceding Distribution Date exceeded (b) the
actual amount distributed on such Class of Certificates in respect of interest
on such immediately preceding Distribution Date, (ii) the amount of any Interest
Carry Forward Amount for such Class of Certificates remaining unpaid from the
previous Distribution Date and (iii) accrued interest on the sum of (i) and (ii)
above calculated at the related Pass-Through Rate for the most recently ended
Interest Accrual Period.
"Interest Determination Date": With respect to the Class A Certificates,
the Mezzanine Certificates, [REMIC I Regular Interest I-LTA1, REMIC I Regular
Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular Interest
I-LTA4, REMIC I Regular Interest I-LTA5, REMIC I Regular Interest I-LTA6, REMIC
I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC I Regular
Interest I-LTM10, REMIC I Regular Interest I-LTM11, REMIC I Regular Interest
I-LTM12 and REMIC I Regular Interest I-LTM13] and any Interest Accrual Period
therefor, the second London Business Day preceding the commencement of such
Interest Accrual Period.
23
"Interest Distribution Amount": With respect to any Distribution Date and
the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates, the aggregate Accrued Certificate Interest on the Certificates of
such Class for such Distribution Date.
"Interest Remittance Amount": For any Distribution Date, that portion of
the Available Distribution Amount for the related Distribution Date that
represents interest received or advanced on the Mortgage Loans.
"Investment Account": As defined in Section 3.12.
"Late Collections": With respect to any Mortgage Loan and any Due Period,
all amounts received subsequent to the Determination Date immediately following
such Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent for
such Due Period and not previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from REMIC I, by reason of its being purchased, sold or replaced
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or Section 9.01.
With respect to any REO Property, either of the following events: (i) a Final
Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from REMIC I by reason of its being purchased pursuant to
Section 9.01.
"Liquidation Proceeds": The amount (other than Insurance Proceeds or
amounts received in respect of the rental of any REO Property prior to REO
Disposition) received by the Servicer in connection with (i) the taking of all
or a part of a Mortgaged Property by exercise of the power of eminent domain or
condemnation, (ii) the liquidation of a defaulted Mortgage Loan through a
trustee's sale, foreclosure sale or otherwise, or (iii) the repurchase,
substitution or sale of a Mortgage Loan or an REO Property pursuant to or as
contemplated by Section 2.03, Section 3.16(c), Section 3.23 or Section 9.01.
"Loan-to-Value Ratio": As of any date of determination, the fraction,
expressed as a percentage, the numerator of which is the principal balance of
the related Mortgage Loan at such date and the denominator of which is the Value
of the related Mortgaged Property.
"London Business Day": Any day on which banks in the City of London and New
York are open and conducting transactions in United States dollars.
"Margin": With respect to each class of the Class A Certificates and
Mezzanine Certificates and, for purposes of the Marker Rate and the Maximum
I-LTZZ Uncertificated Interest Deferral Amount, the specified REMIC I Regular
Interest, as follows:
24
Class REMIC I Regular Interest Margin
------ ------------------------ ---------------------
(1) (%) (2) (%)
--------- ---------
[A-1] [I-LTA1] [_______] [_______]
[A-2] [I-LTA2] [_______] [_______]
[A-3] [I-LTA3] [_______] [_______]
[A-4] [I-LTA4] [_______] [_______]
[A-5] [I-LTA5] [_______] [_______]
[A-6] [I-LTA6] [_______] [_______]
[M-1] [I-LTM1] [_______] [_______]
[M-2] [I-LTM2] [_______] [_______]
[M-3] [I-LTM3] [_______] [_______]
[M-4] [I-LTM4] [_______] [_______]
[M-5] [I-LTM5] [_______] [_______]
[M-6] [I-LTM6] [_______] [_______]
[M-7] [I-LTM7] [_______] [_______]
[M-8] [I-LTM8] [_______] [_______]
[M-9] [I-LTM9] [_______] [_______]
[M-10] [I-LTM10] [_______] [_______]
[M-11] [I-LTM11] [_______] [_______]
[M-12] [I-LTM12] [_______] [_______]
[M-13] [I-LTM13] [_______] [_______]
----------
(1) For each Interest Accrual Period for each Distribution Date on or prior to
the Optional Termination Date.
(2) For each Interest Accrual Period thereafter.
"Marker Rate": With respect to the Class CE Certificates or the REMIC II
Regular Interest CE-IO and any Distribution Date, a per annum rate equal to two
(2) multiplied by the weighted average of the REMIC I Remittance Rates for the
REMIC I Regular Interests (other than REMIC I Regular Interest I-LTP and REMIC I
Regular Interest I-LTAA), with the rate on each such REMIC I Regular Interest
(other than REMIC I Regular Interest I-LTZZ) subject to a cap equal to the
Pass-Through Rate for the related Corresponding Certificate and with the rate on
REMIC I Regular Interest I-LTZZ subject to a cap of zero, in each case for
purposes of this calculation; provided, however, each cap shall be multiplied by
a fraction, the numerator of which is the actual number of days elapsed in the
related Interest Accrual Period and the denominator of which is 30.
"Maximum I-LTZZ Uncertificated Interest Deferral Amount": With respect to
any Distribution Date, the excess of (i) accrued interest at the REMIC I
Remittance Rate applicable to REMIC I Regular Interest I-LTZZ for such
Distribution Date on a balance equal to the Uncertificated Balance of REMIC I
Regular Interest I-LTZZ minus the REMIC I Overcollateralized Amount, in each
case for such Distribution Date, over (ii) Uncertificated Interest on REMIC I
Regular Interest [I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular
Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I Regular Interest
I-LTA5, REMIC I Regular Interest I-LTA6, REMIC I Regular Interest I-LTM1, REMIC
I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest I-LTM8, REMIC
I Regular Interest I-LTM9, REMIC I Regular Interest I-LTM10, REMIC I Regular
Interest I-LTM11, REMIC I Regular
25
Interest I-LTM12 and REMIC I Regular Interest I-LTM13] for such Distribution
Date, with the rate on each such REMIC I Regular Interest subject to a cap equal
to the lesser of (i) One-Month LIBOR plus the related Margin for the related
Corresponding Certificate and (ii) the Net WAC Pass-Through Rate for the related
Corresponding Certificate; provided, however, each cap shall be multiplied by a
fraction, the numerator of which is the actual number of days elapsed in the
related Interest Accrual Period and the denominator of which is 30.
"Maximum Mortgage Rate": With respect to each Adjustable-Rate Mortgage
Loan, the percentage set forth in the related Mortgage Note as the maximum
Mortgage Rate thereunder.
"Mezzanine Certificates": Collectively, the [Class M-1 Certificates, the
Class M-2 Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class M-7
Certificates, the Class M-8 Certificates, the Class M-9 Certificates, the Class
M-10 Certificates, the Class M-11 Certificates, Class M-12 Certificates and
Class M-13 Certificates].
"Minimum Mortgage Rate": With respect to each Adjustable-Rate Mortgage
Loan, the percentage set forth in the related Mortgage Note as the minimum
Mortgage Rate thereunder.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
Servicer pursuant to Section 3.07 and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when due.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or its successor in interest.
"Mortgage": With respect to each Mortgage Note, the mortgage, deed of trust
or other instrument creating a first lien or second lien on, or first or second
priority security interest in, a Mortgaged Property securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned to the Trustee
and delivered to the Trustee pursuant to Section 2.01 or Section 2.03(b) of this
Agreement, as held from time to time as a part of the Trust Fund, the Mortgage
Loans so held being identified in the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The agreement among the Seller, the
Responsible Party and the Depositor, regarding the sale of the Mortgage Loans by
the Seller to the Depositor, substantially in the form of Exhibit D annexed
hereto.
26
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in REMIC I on such date, attached hereto as Schedule 1. The Mortgage
Loan Schedule shall set forth the following information with respect to each
Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the state and zip code of the Mortgaged Property;
(iii) a code indicating whether the Mortgaged Property is
owner-occupied;
(iv) the type of Residential Dwelling constituting the Mortgaged
Property;
(v) the original months to maturity;
(vi) the stated remaining months to maturity from the Cut-off Date
based on the original amortization schedule;
(vii) the Loan-to-Value Ratio at origination;
(viii) the Mortgage Rate in effect immediately following the Cut-off
Date;
(ix) (A) the date on which the first Monthly Payment was due on the
Mortgage Loan and (B) if such date is not consistent with the Due Date
currently in effect, such Due Date;
(x) the stated maturity date;
(xi) the amount of the Monthly Payment at origination;
(xii) the amount of the Monthly Payment due on the first Due Date
after the Cut-off Date;
(xiii) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance;
(xiv) the original principal amount of the Mortgage Loan;
(xv) the Stated Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date;
(xvi) with respect to each Adjustable-Rate Mortgage Loan, the
Adjustment Dates, the Gross Margin, the Maximum Mortgage Rate, the Minimum
Mortgage Rate, the Periodic Rate Cap, the maximum first Adjustment Date
Mortgage Rate adjustment, the first Adjustment Date immediately following
the origination date and the rounding code (i.e., nearest 0.125%, next
highest 0.125%);
(xvii) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash-Out Refinancing);
27
(xviii) the Mortgage Rate at origination;
(xix) a code indicating the documentation program (i.e., Full
Documentation, Limited Documentation, Stated Income Documentation);
(xx) the risk grade;
(xxi) the Value of the Mortgaged Property;
(xxii) the sale price of the Mortgaged Property, if applicable;
(xxiii) the actual unpaid principal balance of the Mortgage Loan as of
the Cut-off Date;
(xxiv) the type and term of the related Prepayment Charge;
(xxv) the program code; and
(xxvi) the total amount of points and fees charged such Mortgage Loan.
The Mortgage Loan Schedule shall set forth the following information with
respect to the Mortgage Loans in the aggregate as of the Cut-off Date:
(1) the number of Mortgage Loans;
(2) the current Stated Principal Balance of the Mortgage Loans;
(3) the weighted average Mortgage Rate of the Mortgage Loans and
(4) weighted average maturity of the Mortgage Loans.
The Mortgage Loan Schedule shall be amended from time to time by the
Depositor in accordance with the provisions of this Agreement. With respect to
any Qualified Substitute Mortgage Loan, the Cut-off Date shall refer to the
related Cut-off Date for such Mortgage Loan, determined in accordance with the
definition of Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on Schedule 1 and
existing from time to time thereafter, and any REO Properties acquired in
respect thereof.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan from time to time in accordance
with the provisions of the related Mortgage Note, which rate (i) with respect to
each Fixed-Rate Mortgage Loan shall remain constant at the rate set forth in the
Mortgage Loan Schedule as the Mortgage Rate in effect immediately following the
Cut-off Date and (ii) with respect to the Adjustable-Rate Mortgage Loans, (A) as
of any date of determination until the first Adjustment Date following
28
the Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as
the Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date equal to the sum, rounded as provided in the Mortgage
Note, of the Index, as most recently available as of a date prior to the
Adjustment Date as set forth in the related Mortgage Note, plus the related
Gross Margin; provided that the Mortgage Rate on such Adjustable-Rate Mortgage
Loan on any Adjustment Date shall never be more than the lesser of (i) the sum
of the Mortgage Rate in effect immediately prior to the Adjustment Date plus the
related Periodic Rate Cap, if any, and (ii) the related Maximum Mortgage Rate,
and shall never be less than the greater of (i) the Mortgage Rate in effect
immediately prior to the Adjustment Date less the Periodic Rate Cap, if any, and
(ii) the related Minimum Mortgage Rate. With respect to each Mortgage Loan that
becomes an REO Property, as of any date of determination, the annual rate
determined in accordance with the immediately preceding sentence as of the date
such Mortgage Loan became an REO Property.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple estate in a parcel of
land improved by a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"Net Monthly Excess Cashflow": With respect to any Distribution Date, the
sum of (i) any Overcollateralization Reduction Amount and (ii) the excess of (x)
the Available Distribution Amount for such Distribution Date over (y) the sum
for such Distribution Date of (A) the Senior Interest Distribution Amount
distributable to the holders of the Class A Certificates, (B) the Interest
Distribution Amount distributable to the holders of the Mezzanine Certificates
and (C) the Principal Remittance Amount.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the related REO
Property) as of any date of determination, a per annum rate of interest equal to
the then applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate.
"Net Swap Payment": With respect to each Distribution Date, the net payment
required to be made pursuant to the terms of the Swap Agreement by either the
Swap Counterparty or the Trustee, on behalf of the Trust, which net payment
shall not take into account any Swap Termination Payment.
"Net WAC Pass-Through Rate": With respect to the Class A Certificates and
the Mezzanine Certificates and any Distribution Date, a rate per annum (adjusted
for the actual number of days in the related Interest Accrual Period) equal to
the excess, if any, of (a) the weighted average of the Expense Adjusted Mortgage
Rates of the Mortgage Loans, weighted on the basis of the respective Stated
Principal Balances of the Mortgage Loans as of the first day of the related Due
Period, over (b) the Net Swap Payment owed to the Swap Counterparty or Swap
Termination Payment owed to the Swap Counterparty not due to a Swap Counterparty
Trigger Event, if any, expressed as a percentage, equal to a fraction, the
numerator of which is equal to such Net Swap Payment owed to the Swap
Counterparty or Swap Termination Payment owed to
29
the Swap Counterparty not due to a Swap Counterparty Trigger Event and the
denominator of which is equal to the Stated Principal Balance of the Mortgage
Loans, multiplied by 12. For federal income tax purposes, however, clause (a)
above shall be the equivalent of that which is provided in such clause expressed
as a per annum rate equal to the weighted average of the REMIC I Remittance
Rates on the REMIC I Regular Interests, weighted on the basis of the
Uncertificated Balance of each such REMIC I Regular Interests.
"Net WAC Rate Carryover Amount": With respect to any Class of the Class A
Certificates and the Mezzanine Certificates and any Distribution Date, the sum
of (A) the positive excess of (i) the amount of interest that would have accrued
on such Class of Certificates for such Distribution Date had the Pass-Through
Rate been calculated at the related Formula Rate over (ii) the amount of
interest accrued on such Class of Certificates at the Net WAC Pass-Through Rate
for such Distribution Date and (B) the related Net WAC Rate Carryover Amount for
the previous Distribution Date not previously distributed, together with
interest thereon at a rate equal to the related Formula Rate for such Class of
Certificates for such Distribution Date.
"New Lease": Any lease of REO Property entered into on behalf of REMIC I,
including any lease renewed or extended on behalf of REMIC I, if REMIC I has the
right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Advance previously made or proposed to be
made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Servicer, will not or, in the case of a proposed
Advance, would not be ultimately recoverable from related Late Collections,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Servicer, will not or, in the case of a
proposed Servicing Advance, would not be ultimately recoverable from related
Late Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage
Loan or REO Property as provided herein.
"Non-United States Person": Any Person other than a United States Person.
"Notional Amount": With respect to the Class CE Certificates and any
Distribution Date, the aggregate Uncertificated Balance of the REMIC I Regular
Interests for such Distribution Date.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a vice president (however
denominated), and by the Treasurer, the Secretary, or one of the assistant
treasurers or assistant secretaries of the Servicer, the Seller or the
Depositor, as applicable.
"One-Month LIBOR": With respect to the Class A Certificates, the Mezzanine
Certificates and for purposes of the Marker Rate and Maximum I-LTZZ
Uncertificated Interest Deferral Amount, REMIC I Regular Interest [I-LTA1, REMIC
I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest [I-LTA4, REMIC I Regular
30
Interest I-LTA5, REMIC I Regular Interest I-LTA6, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC
I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular
Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest
I-LTM8, REMIC I Regular Interest I-LTM9, REMIC I Regular Interest I-LTM10, REMIC
I Regular Interest I-LTM11, REMIC I Regular Interest I-LTM12 and REMIC I Regular
Interest I-LTM13] and any Interest Accrual Period therefor, the rate determined
by the Trustee on the related Interest Determination Date on the basis of the
offered rate for one-month U.S. dollar deposits, as such rate appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on such Interest Determination
Date; provided that if such rate does not appear on Telerate Page 3750, the rate
for such date will be determined on the basis of the offered rates of the
Reference Banks for one-month U.S. dollar deposits, as of 11:00 a.m. (London
time) on such Interest Determination Date. In such event, the Trustee will
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If on such Interest Determination Date, two or more
Reference Banks provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16%). If on
such Interest Determination Date, fewer than two Reference Banks provide such
offered quotations, One-Month LIBOR for the related Interest Accrual Period
shall be the higher of (i) LIBOR as determined on the previous Interest
Determination Date and (ii) the Reserve Interest Rate. Notwithstanding the
foregoing, if, under the priorities described above, LIBOR for an Interest
Determination Date would be based on LIBOR for the previous Interest
Determination Date for the third consecutive Interest Determination Date, the
Trustee, after consultation with the Depositor, shall select an alternative
comparable index (over which the Trustee has no control), used for determining
one-month Eurodollar lending rates that is calculated and published (or
otherwise made available) by an independent party.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor or the Servicer, acceptable to
the Trustee, if such opinion is delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of any Trust REMIC as a
REMIC or (b) compliance with the REMIC Provisions must be an opinion of
Independent counsel.
"Original Mortgage Loan": Any of the Mortgage Loans included in REMIC I as
of the Closing Date.
"Originator": [______________________], a California state-chartered
industrial bank, or its successor in interest.
"Overcollateralization Amount": With respect to any Distribution Date, the
excess, if any, of (a) the aggregate Stated Principal Balances of the Mortgage
Loans and REO Properties as of the last day of the related Due Period over (b)
the sum of the aggregate Certificate Principal Balance of the Class A
Certificates, the Mezzanine Certificates and the Class P Certificates.
"Overcollateralization Deficiency Amount": With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralization Target Amount
applicable to such Distribution Date over (b) the Overcollateralization Amount
applicable to such Distribution Date (calculated
31
for this purpose only after assuming that 100% of the Principal Remittance
Amount on such Distribution Date has been distributed).
"Overcollateralization Floor Amount": With respect to any Distribution
Date, the amount equal to 0.50% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
"Overcollateralization Increase Amount": With respect to any Distribution
Date, the lesser of (a) the Overcollateralization Deficiency Amount as of such
Distribution Date (calculated for this purpose only after assuming that 100% of
the Principal Remittance Amount on such Distribution Date has been distributed)
and (b) the sum of (i) Accrued Certificate Interest payable on the Class CE
Certificates on such Distribution Date as reduced by Realized Losses allocated
thereto with respect to such Distribution Date pursuant to Section 4.04. and
(ii) Net Swap Payments made by the Swap Counterparty pursuant to Section
4.07(c)(C).
"Overcollateralization Reduction Amount": With respect to any Distribution
Date, an amount equal to the lesser of (a) the Principal Remittance Amount on
such Distribution Date and (b) the Excess Overcollateralized Amount.
"Overcollateralization Target Amount": With respect to any Distribution
Date, (i) prior to the Stepdown Date, an amount equal to [_____]% of the
aggregate outstanding Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date, (ii) on or after the Stepdown Date provided a Trigger Event is not
in effect, the greater of (x) [_____]% of the then current aggregate outstanding
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period and (y) the Overcollateralization Floor Amount, or (iii) on or after
the Stepdown Date and if a Trigger Event is in effect, the Overcollateralization
Target Amount for the immediately preceding Distribution Date. Notwithstanding
the foregoing, on and after any Distribution Date following the reduction of the
aggregate Certificate Principal Balance of the Class A Certificates and the
Mezzanine Certificates to zero, the Overcollateralization Target Amount shall be
zero.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, the lesser of (x) the related
Formula Rate for such Distribution Date and (y) the Net WAC Pass-Through Rate
for such Distribution Date. With respect to the Class CE Certificates and any
Distribution Date, (i) a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is (x) the interest on the Uncertificated
Balance of each REMIC I Regular Interest described in clause (y) below computed
at a rate equal to the related REMIC I Remittance Rate minus the Marker Rate and
the denominator of which is (y) the aggregate Uncertificated Balance of REMIC I
Regular Interest [I-LTAA, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇,
I-LTM1, I-LTM2, I-LTM3, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇, I-LTM10,
I-LTM11, I-LTM12,
32
I-LTM13] and I-LTZZ and (ii) 100% of the interest on REMIC I Regular Interest
I-LTP, expressed as a per annum rate.
"Percentage Interest": With respect to any Class of Certificates (other
than the Residual Certificates), the undivided percentage ownership in such
Class evidenced by such Certificate, expressed as a percentage, the numerator of
which is the initial Certificate Principal Balance or Notional Amount
represented by such Certificate and the denominator of which is the aggregate
initial Certificate Principal Balance or initial Notional Amount of all of the
Certificates of such Class. The Class A Certificates and the Class M-1
Certificates are issuable only in minimum Percentage Interests corresponding to
minimum initial Certificate Principal Balances of $25,000 and integral multiples
of $1.00 in excess thereof. The Mezzanine Certificates (other than the Class M-1
Certificates) are issuable only in minimum Percentage Interests corresponding to
minimum initial Certificate Principal Balances of $250,000 and integral
multiples of $1 in excess thereof. The Class P Certificates are issuable only in
Percentage Interests corresponding to initial Certificate Principal Balances of
$20 and integral multiples thereof. The Class CE Certificates are issuable only
in minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $100,000 and integral multiples of $1.00 in excess
thereof; provided, however, that a single Certificate of each such Class of
Certificates may be issued having a Percentage Interest corresponding to the
remainder of the aggregate initial Certificate Principal Balance or Notional
Amount of such Class or to an otherwise authorized denomination for such Class
plus such remainder. With respect to any Residual Certificate, the undivided
percentage ownership in such Class evidenced by such Certificate, as set forth
on the face of such Certificate. The Residual Certificates are issuable in
Percentage Interests of 20% and multiples thereof.
"Perfection Representations": The representations, warranties and covenants
set forth in Schedule 3 attached hereto.
"Periodic Rate Cap": With respect to each Adjustable-Rate Mortgage Loan and
any Adjustment Date therefor, the fixed percentage set forth in the related
Mortgage Note, which is the maximum amount by which the Mortgage Rate for such
Mortgage Loan may increase or decrease (without regard to the Maximum Mortgage
Rate or the Minimum Mortgage Rate) on such Adjustment Date from the Mortgage
Rate in effect immediately prior to such Adjustment Date.
"Permitted Investments": Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued or managed by the Depositor, the Servicer, the Trustee or any of
their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances issued by, any Depository Institution;
33
(iii) repurchase obligations with respect to any security described in
clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America or any state thereof and that are rated by each Rating Agency that
rates such securities in its highest long-term unsecured rating categories
at the time of such investment or contractual commitment providing for such
investment;
(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 30 days after the date of acquisition thereof)
that is rated by each Rating Agency that rates such securities in its
highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including those managed or advised
by the Trustee or its Affiliates, that have been rated "AAA" by Fitch (if
rated by Fitch) and "AAAm" or "AAAm-G" by S&P and "Aaa" by Moody's; and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing securities having ratings equivalent to its
highest initial rating of the Class A Certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
"Permitted Transferee": Any Transferee of a Residual Certificate other than
a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Plan": Any "employee benefit plan" as defined in Section 3(3) of ERISA
that is subject to Title I of ERISA, any "plan" as defined in Section 4975(e)(1)
of the Code that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing.
"Prepayment Assumption": As defined in the Prospectus Supplement.
"Prepayment Charge": With respect to any Prepayment Period, any prepayment
premium, penalty or charge payable by a Mortgagor in connection with any
Principal Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note (other than any Servicer Prepayment Charge Payment Amount).
34
"Prepayment Charge Schedule": As of any date, the list of Prepayment
Charges included in the Trust Fund on such date, attached hereto as Schedule 2
(including the prepayment charge summary attached thereto). The Prepayment
Charge Schedule shall set forth the following information with respect to each
Prepayment Charge:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the date on which the first Monthly Payment was due on the
related Mortgage Loan;
(iv) the term of the related Prepayment Charge;
(v) the original Stated Principal Balance of the related Mortgage
Loan; and
(vi) remaining prepayment term in months.
"Prepayment Interest Shortfall": With respect to any Principal Prepayments
in full on the Mortgage Loans and any Distribution Date, any interest shortfall
resulting from Principal Prepayments occurring between the first day of the
related Prepayment Period and the last day of the prior calendar month. The
obligations of the Servicer in respect of any Prepayment Interest Shortfall are
set forth in Section 3.24.
"Prepayment Period": With respect to any Distribution Date [and Principal
Prepayments in full, the period beginning on the 16th day of] the calendar month
immediately preceding the month in which the Distribution Date occurs [to the
15th day of the then current calendar month; with respect to Principal
Prepayments in part, the preceding calendar month.]
"Principal Distribution Amount": With respect to any Distribution Date, an
amount, not less than zero, equal to the sum of:
(i) the principal portion of each Monthly Payment on the Mortgage
Loans due during the related Due Period, received on or prior to the
related Determination Date or Advanced on or prior to the related
Determination Date;
(ii) the Stated Principal Balance of any Mortgage Loan that was
purchased during the related Prepayment Period pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01 and the
amount of any shortfall deposited in the Custodial Account in connection
with the substitution of a Deleted Mortgage Loan pursuant to Section 2.03
during the related Prepayment Period;
(iii) the principal portion of all other unscheduled collections
(including, without limitation, Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds, Subsequent Recoveries and REO Principal Amortization)
received during the related Prepayment Period, net of any portion thereof
that represents a recovery of principal for
35
which an Advance was made by the Servicer pursuant to Section 4.03 in
respect of a preceding Distribution Date; and
(iv) the amount of any Overcollateralization Increase Amount for such
Distribution Date; minus
(v) the amount of any Overcollateralization Reduction Amount for such
Distribution Date; and
(vi) any Net Swap Payment owed to the Swap Counterparty or Swap
Termination Payment owed to the Swap Counterparty not due to a Swap
Counterparty Trigger Event to the extent not previously paid from interest
or principal collections on the Mortgage Loans.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any Due Date in any month or months subsequent to the
month of prepayment.
"Principal Remittance Amount": With respect to any Distribution Date, the
sum of the amounts set forth in (i) through (iii) of the definition of Principal
Distribution Amount.
"Private Certificates": As defined in Section 5.02(b).
"Prospectus Supplement": The Prospectus Supplement, dated [________ __,
20__], relating to the public offering of the Class A Certificates and the
Mezzanine Certificates (other than the [Class M-10 Certificates, Class M-11
Certificates, Class M-12 Certificates and Class M-13 Certificates]).
"PTCE": A Prohibited Transaction Class Exemption issued by the United
States Department of Labor which provides that exemptive relief is available to
any party to any transaction which satisfies the conditions of the exemption.
"Purchase Price": With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 9.01, and as confirmed by a certification from a Servicing Officer to
the Trustee, an amount equal to the sum of (i) 100% of the Stated Principal
Balance thereof as of the date of purchase (or such other price as provided in
Section 9.01), (ii) in the case of (x) a Mortgage Loan, accrued interest on such
Stated Principal Balance at the applicable Net Mortgage Rate in effect from time
to time from the Due Date as to which interest was last covered by a payment by
the Mortgagor or an Advance by the Servicer, which payment or Advance had as of
the date of purchase been distributed pursuant to Section 4.01, through the end
of the calendar month in which the purchase is to be effected plus and (y) an
REO Property, the sum of (1) accrued interest on such Stated Principal Balance
at the applicable Net Mortgage Rate in effect from time to time from the Due
Date as to which interest was last covered by a payment by the Mortgagor or an
Advance by the Servicer through the end of the calendar month immediately
preceding the calendar month in which such REO Property was acquired, plus (2)
REO Imputed Interest for
36
such REO Property for each calendar month commencing with the calendar month in
which such REO Property was acquired and ending with the calendar month in which
such purchase is to be effected, net of the total of all net rental income,
Insurance Proceeds, Liquidation Proceeds and Advances that as of the date of
purchase had been distributed as or to cover REO Imputed Interest pursuant to
Section 4.01, (iii) any unreimbursed Servicing Advances and Advances (including
Nonrecoverable Advances and Nonrecoverable Servicing Advances) and any unpaid
Servicing Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Custodial Account in respect of such Mortgage Loan
or REO Property pursuant to Section 3.11(a)(ix) and Section 3.16(b), and (v) in
the case of a Mortgage Loan required to be purchased pursuant to Section 2.03,
expenses reasonably incurred or to be incurred by the Servicer or the Trustee in
respect of the breach or defect giving rise to the purchase obligation including
any costs and damages incurred by the Trust Fund in connection with any
violation by such loan of any predatory or abusive lending law.
"Qualified Correspondent": Any Person from which the Servicer purchased
Mortgage Loans, provided that the following conditions are satisfied: [(i) such
Mortgage Loans were originated pursuant to an agreement between the Servicer and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Servicer, in accordance with underwriting
guidelines designated by the Servicer ("Designated Guidelines") or guidelines
that do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans were in fact underwritten as described in clause (i) above and were
acquired by the Servicer within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Servicer in origination of mortgage loans of the same type as the
Mortgage Loans for the Servicer's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Servicer on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Servicer; and (iv) the Servicer employed, at the time
such Mortgage Loans were acquired by the Servicer, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Servicer].
"Qualified Substitute Mortgage Loan": A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on the
date of such substitution, (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) have a Mortgage Rate not less than
(and not more than one percentage point in excess of) the Mortgage Rate of the
Deleted Mortgage Loan, (iii) with respect to any Adjustable-Rate Mortgage Loan,
have a Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the
Deleted Mortgage Loan, (iv) with respect to any Adjustable-Rate Mortgage Loan,
have a Minimum Mortgage Rate not less than the Minimum Mortgage Rate of the
Deleted Mortgage Loan, (v) with respect to any Adjustable-Rate Mortgage Loan,
have a Gross Margin equal to the Gross Margin of the Deleted Mortgage Loan, (vi)
with respect to any Adjustable-Rate Mortgage Loan, have a next Adjustment Date
not more than two
37
months later than the next Adjustment Date on the Deleted Mortgage Loan, (vii)
have a remaining term to maturity not greater than (and not more than one year
less than) that of the Deleted Mortgage Loan, (viii) have the same Due Date as
the Due Date on the Deleted Mortgage Loan, (ix) have a Loan-to-Value Ratio as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of the
Deleted Mortgage Loan as of such date, (x) have a risk grading determined by the
Originator at least equal to the risk grading assigned on the Deleted Mortgage
Loan and (xi) conform to each representation and warranty set forth in Section 6
of the Mortgage Loan Purchase Agreement applicable to the Deleted Mortgage Loan.
In the event that one or more mortgage loans are substituted for one or more
Deleted Mortgage Loans, the amounts described in clause (i) hereof shall be
determined on the basis of aggregate principal balances, the Mortgage Rates
described in clause (ii) hereof shall be determined on the basis of weighted
average Mortgage Rates, the terms described in clause (vii) hereof shall be
determined on the basis of weighted average remaining term to maturity, the
Loan-to-Value Ratios described in clause (ix) hereof shall be satisfied as to
each such mortgage loan, the risk gradings described in clause (x) hereof shall
be satisfied as to each such mortgage loan and, except to the extent otherwise
provided in this sentence, the representations and warranties described in
clause (xi) hereof must be satisfied as to each Qualified Substitute Mortgage
Loan or in the aggregate, as the case may be.
"Rate/Term Refinancing": A Refinanced Mortgage Loan, the proceeds of which
are not more than a nominal amount in excess of the existing first mortgage loan
and any subordinate mortgage loan on the related Mortgaged Property and related
closing costs, and were used exclusively (except for such nominal amount) to
satisfy the then existing first mortgage loan and any subordinate mortgage loan
of the Mortgagor on the related Mortgaged Property and to pay related closing
costs.
"Rating Agency or Rating Agencies": Fitch, ▇▇▇▇▇'▇ and S&P or their
successors. If such agencies or their successors are no longer in existence,
"Rating Agencies" shall be such nationally recognized statistical rating
agencies, or other comparable Persons, designated by the Depositor, notice of
which designation shall be given to the Trustee and the Servicer.
"Realized Loss": With respect to each Mortgage Loan as to which a Final
Recovery Determination has been made, an amount (not less than zero) equal to
(i) the unpaid principal balance of such Mortgage Loan as of the commencement of
the calendar month in which the Final Recovery Determination was made, plus (ii)
accrued interest from the Due Date as to which interest was last paid by the
Mortgagor through the end of the calendar month in which such Final Recovery
Determination was made, calculated in the case of each calendar month during
such period (A) at an annual rate equal to the annual rate at which interest was
then accruing on such Mortgage Loan and (B) on a principal amount equal to the
Stated Principal Balance of such Mortgage Loan as of the close of business on
the Distribution Date during such calendar month, plus (iii) any amounts
previously withdrawn from the Custodial Account in respect of such Mortgage Loan
pursuant to Section 3.11(a)(ix) and Section 3.16(b), minus (iv) the proceeds, if
any, received in respect of such Mortgage Loan during the calendar month in
which such Final Recovery Determination was made, net of amounts that are
payable therefrom to the Servicer with respect to such Mortgage Loan pursuant to
Section 3.11(a)(iii).
38
With respect to any REO Property as to which a Final Recovery Determination
has been made, an amount (not less than zero) equal to (i) the unpaid principal
balance of the related Mortgage Loan as of the date of acquisition of such REO
Property on behalf of REMIC I, plus (ii) accrued interest from the Due Date as
to which interest was last paid by the Mortgagor in respect of the related
Mortgage Loan through the end of the calendar month immediately preceding the
calendar month in which such REO Property was acquired, calculated in the case
of each calendar month during such period (A) at an annual rate equal to the
annual rate at which interest was then accruing on the related Mortgage Loan and
(B) on a principal amount equal to the Stated Principal Balance of the related
Mortgage Loan as of the close of business on the Distribution Date during such
calendar month, plus (iii) REO Imputed Interest for such REO Property for each
calendar month commencing with the calendar month in which such REO Property was
acquired and ending with the calendar month in which such Final Recovery
Determination was made, plus (iv) any amounts previously withdrawn from the
Custodial Account in respect of the related Mortgage Loan pursuant to Section
3.11(a)(ix) and Section 3.16(b), minus (v) the aggregate of all Advances and
Servicing Advances (in the case of Servicing Advances, without duplication of
amounts netted out of the rental income, Insurance Proceeds and Liquidation
Proceeds described in clause (vi) below) made by the Servicer in respect of such
REO Property or the related Mortgage Loan for which the Servicer has been or, in
connection with such Final Recovery Determination, will be reimbursed pursuant
to Section 3.23 out of rental income, Insurance Proceeds and Liquidation
Proceeds received in respect of such REO Property, minus (vi) the total of all
net rental income, Insurance Proceeds and Liquidation Proceeds received in
respect of such REO Property that has been, or in connection with such Final
Recovery Determination, will be transferred to the Certificate Account pursuant
to Section 3.23.
With respect to each Mortgage Loan which has become the subject of a
Deficient Valuation, the difference between the principal balance of the
Mortgage Loan outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient Valuation.
With respect to each Mortgage Loan which has become the subject of a Debt
Service Reduction, the portion, if any, of the reduction in each affected
Monthly Payment attributable to a reduction in the Mortgage Rate imposed by a
court of competent jurisdiction. Each such Realized Loss shall be deemed to have
been incurred on the Due Date for each affected Monthly Payment.
If the Servicer receives Subsequent Recoveries with respect to any Mortgage
Loan, the amount of the Realized Loss with respect to that Mortgage Loan will be
reduced to the extent such recoveries are applied to principal distributions on
any Distribution Date.
Realized Losses allocated to the Class CE Certificates shall be allocated
first to the REMIC II Regular Interest CE-IO in reduction of the accrued but
unpaid interest thereon until such accrued and unpaid interest shall have been
reduced to zero and then to the REMIC II Regular Interest CE-PO in reduction of
the Principal Balance thereof.
39
"Record Date": With respect to each Distribution Date and any Book-Entry
Certificate, the Business Day immediately preceding such Distribution Date. With
respect to each Distribution Date and any other Certificates, including any
Definitive Certificates, the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs, except in the case
of the first Record Date which shall be the Closing Date.
"Reference Banks": Deutsche Bank AG, Barclays' Bank PLC, The Tokyo
Mitsubishi Bank and National Westminster Bank PLC and their successors in
interest; provided, however, that if any of the foregoing banks are not suitable
to serve as a Reference Bank, then any leading banks selected by the Trustee,
after consultation with the Depositor, which are engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (i) with an
established place of business in London and (ii) not controlling, under the
control of or under common control with the Depositor or any Affiliate thereof.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
"Regular Certificate": Any Class A Certificate, Mezzanine Certificate,
Class CE Certificate or Class P Certificate.
"Regular Interest": A "regular interest" in a REMIC within the meaning of
Section 860G(a)(1) of the Code.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
"Relief Act": The Servicemembers Civil Relief Act.
"Relief Act Interest Shortfall": With respect to any Distribution Date and
any Mortgage Loan, any reduction in the amount of interest collectible on such
Mortgage Loan for the most recently ended calendar month as a result of the
application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto (exclusive of the
Swap Account and the Swap Agreement, each of which is not an asset of any
REMIC), constituting the primary trust created hereby and to be administered
hereunder, with respect to which a REMIC election is to be made, consisting of:
(i) such Mortgage Loans and Prepayment Charges related thereto as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof; (ii)
any REO Property, together with all collections thereon and proceeds thereof;
(iii) the Trustee's rights with respect to the Mortgage Loans under all
insurance policies required to be maintained pursuant to
40
this Agreement and any proceeds thereof; (iv) the Depositor's rights under the
Mortgage Loan Purchase Agreement (including any security interest created
thereby); and (v) the Custodial Account (other than any amounts representing any
Servicer Prepayment Charge Payment Amount), the Certificate Account (other than
any amounts representing any Servicer Prepayment Charge Payment Amount) and any
REO Account, and such assets that are deposited therein from time to time and
any investments thereof, together with any and all income, proceeds and payments
with respect thereto. Notwithstanding the foregoing, however, REMIC I
specifically excludes all payments and other collections of principal and
interest due on the Mortgage Loans on or before the Cut-off Date, all Prepayment
Charges payable in connection with Principal Prepayments on the Mortgage Loans
made before the Cut-off Date.
"REMIC I Interest Loss Allocation Amount": With respect to any Distribution
Date, an amount equal to (a) the product of (i) the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties then outstanding and (ii) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTAA minus the Marker
Rate, divided by (b) 12.
"REMIC I Overcollateralized Amount": With respect to any date of
determination, (i) 1% of the aggregate Uncertificated Balance of the REMIC I
Regular Interests (other than REMIC I Regular Interest I-LTP) minus (ii) the
aggregate Uncertificated Balance of REMIC I Regular Interest [I-LTA1, REMIC I
Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTA4, REMIC I Regular Interest I-LTA5, REMIC I Regular Interest
I-LTA6, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest
I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC
I Regular Interest I-LTM10, REMIC I Regular Interest I-LTM11, REMIC I Regular
Interest I-LTM12 and REMIC I Regular Interest I-LTM13], in each case as of such
date of determination.
"REMIC I Principal Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to the product of (i) the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties then outstanding and
(ii) 1 minus a fraction, the numerator of which is two times the aggregate
Uncertificated Balance of REMIC I Regular Interest [I-LTA1, REMIC I Regular
Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular Interest
I-LTA4, REMIC I Regular Interest I-LTA5, REMIC I Regular Interest I-LTA6, REMIC
I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC I Regular
Interest I-LTM10 and REMIC I Regular Interest I-LTM11 and the denominator of
which is the aggregate Uncertificated Balance of REMIC I Regular Interest
I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC
I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC I Regular
Interest I-LTM10, REMIC I Regular Interest I-LTM11, REMIC I Regular Interest
I-LTM12, REMIC I Regular Interest I-LTM13 and REMIC I Regular Interest I-LTZZ].
41
"REMIC I Regular Interest": Any of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a "regular
interest" in REMIC I. Each REMIC I Regular Interest shall accrue interest at the
related REMIC I Remittance Rate in effect from time to time or shall otherwise
be entitled to interest as set forth herein, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Balance as set forth in the
Preliminary Statement hereto. The REMIC I Regular Interests are as follows:
REMIC I Regular Interest [I-LTAA, REMIC I Regular Interest I-LTA1, REMIC I
Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTA4, REMIC I Regular Interest I-LTA5, REMIC I Regular Interest
I-LTA6, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest
I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC
I Regular Interest I-LTM10, REMIC I Regular Interest I-LTM11, REMIC I Regular
Interest I-LTM12, REMIC I Regular Interest I-LTM13, REMIC I Regular Interest
I-LTZZ and REMIC I Regular Interest I-LTP].
"REMIC I Remittance Rate": With respect to each REMIC I Regular Interest
and any Distribution Date, the weighted average of the Expense Adjusted Mortgage
Rates of the Mortgage Loans, weighted based on their Stated Principal Balances
as of the first day of the related Due Period.
"REMIC I Required Overcollateralized Amount": 1% of the
Overcollateralization Target Amount.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests conveyed in trust to the Trustee, for the benefit of the Class
A Certificates, the Mezzanine Certificates, the Class CE Certificates, the Class
P Certificates and the Class R-II Interest and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
"REMIC II Regular Interests": Any Regular Interest issued by REMIC II, the
ownership of which is evidenced by a Class A Certificate, Class M Certificate or
Class CE Certificate.
"REMIC II Regular Interest CE-IO": A separate non-certificated regular
interest of REMIC II designated as a REMIC II Regular Interest. REMIC II Regular
Interest CE-IO shall have no entitlement to principal and shall be entitled to
distributions of interest subject to the terms and conditions hereof, in an
aggregate amount equal to interest distributable with respect to the Class CE
Certificates pursuant to the terms and conditions hereof.
"REMIC II Regular Interest CE-PO": A separate non-certificated regular
interest of REMIC II designated as a REMIC II Regular Interest. REMIC II Regular
Interest CE-PO shall have no entitlement to interest and shall be entitled to
distributions of principal subject to the terms and conditions hereof, in an
aggregate amount equal to principal distributable with respect to the Class CE
Certificates pursuant to the terms and conditions hereof.
42
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of the Code, and related provisions, and proposed, temporary and final
regulations and published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time.
"Remittance Report": A report in form and substance acceptable to the
Trustee on an electronic data file or tape prepared by the Servicer pursuant to
Section 4.03 with such additions, deletions and modifications as agreed to by
the Trustee and the Servicer.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code as being included in
the term "rents from real property."
"REO Account": The account or accounts maintained, or caused to be
maintained, by the Servicer in respect of an REO Property pursuant to Section
3.23.
"REO Disposition": The sale or other disposition of an REO Property on
behalf of REMIC I.
"REO Imputed Interest": As to any REO Property, for any calendar month
during which such REO Property was at any time part of REMIC I, one month's
interest at the applicable Net Mortgage Rate on the Stated Principal Balance of
such REO Property (or, in the case of the first such calendar month, of the
related Mortgage Loan, if appropriate) as of the close of business on the
Distribution Date in such calendar month.
"REO Principal Amortization": With respect to any REO Property, for any
calendar month, the excess, if any, of (a) the aggregate of all amounts received
in respect of such REO Property during such calendar month, whether in the form
of rental income, sale proceeds (including, without limitation, that portion of
the Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 9.01 that is allocable to such REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.23(c) in respect of the proper operation, management and
maintenance of such REO Property or (ii) payable or reimbursable to the Servicer
pursuant to Section 3.23(d) for unpaid Servicing Fees in respect of the related
Mortgage Loan and unreimbursed Servicing Advances and Advances in respect of
such REO Property or the related Mortgage Loan, over (b) the REO Imputed
Interest in respect of such REO Property for such calendar month.
"REO Property": A Mortgaged Property acquired by the Servicer on behalf of
REMIC I through foreclosure or deed-in-lieu of foreclosure, as described in
Section 3.23.
"Request for Release": A release signed by a Servicing Officer, in the form
of Exhibit E attached hereto.
"Reserve Interest Rate": With respect to any Interest Determination Date,
the rate per annum that the Trustee determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of 1/16%) of
the one-month U.S. dollar lending rates which New York City banks selected by
the Trustee, after consultation with the Depositor, are
43
quoting on the relevant Interest Determination Date to the principal London
offices of leading banks in the London interbank market or (ii) in the event
that the Trustee can determine no such arithmetic mean, the lowest one-month
U.S. dollar lending rate which New York City banks selected by the Trustee,
after consultation with the Depositor, are quoting on such Interest
Determination Date to leading European banks.
"Residential Dwelling": Any one of the following: (i) an attached, detached
or semi-detached one-family dwelling, (ii) an attached, detached or
semi-detached two-to four-family dwelling, (iii) a one-family dwelling unit in a
▇▇▇▇▇▇ ▇▇▇ eligible condominium project, or (iv) an attached, detached or
semi-detached one-family dwelling in a planned unit development, none of which
is a co-operative or mobile home (as defined in ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, Section
5402(6)).
"Residual Certificates": The Class R Certificates.
"Residual Interest": The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee, any vice
president, managing director, director, any assistant vice president, the
Secretary, any assistant secretary, the Treasurer, any assistant treasurer, any
associate, any trust officer or assistant trust officer or any other officer of
the Trustee having direct responsibility over this Agreement or otherwise
engaged in performing functions similar to those performed by any of the above
designated officers and, with respect to a particular matter, to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Responsible Party": [Name of Responsible Party], a California
state-chartered industrial bank, or its successor in interest, in its capacity
as responsible party under the Mortgage Loan Purchase Agreement.
"Rolling Three-Month Delinquency Average": With respect to any Distribution
Date, the average aggregate Stated Principal Balance of the Mortgage Loans
delinquent 60 days or more for each of the three (or one and two, in the case of
the Distribution Dates in [_______ 20__] and [_______ 20__], respectively)
immediately preceding months.
"S&P": Standard & Poor's Ratings Services, a division of the ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or its successor in interest.
"Securitization Transaction": Any transaction involving either (1) a sale
or other transfer of some or all of the Mortgage Loans directly or indirectly to
an issuing entity in connection with an issuance of publicly offered or
privately placed, rated or unrated mortgage-backed securities or (2) an issuance
of publicly offered or privately placed, rated or unrated securities, the
payments on which are determined primarily by reference to one or more
portfolios of residential mortgage loans consisting, in whole or in part, of
some or all of the Mortgage Loans.
"Seller": ▇▇▇▇▇▇▇▇▇▇ Securities, LP, a Delaware limited partnership, or its
successor in interest, in its capacity as seller under the Mortgage Loan
Purchase Agreement.
44
"Senior Interest Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (i) the Interest Distribution Amount for
such Distribution Date for the Class A Certificates and (ii) the Interest Carry
Forward Amount, if any, for such Distribution Date for the Class A Certificates.
"Servicer": [Name of Servicer], a California state-chartered industrial
bank, or any successor servicer appointed as herein provided, in its capacity as
Servicer hereunder.
"Servicer Certification": A written certification covering servicing of the
Mortgage Loans by the Servicer and signed by an officer of the Servicer that
complies with (i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended from time to time,
and (ii) the February 21, 2003 Statement by the Staff of the Division of
Corporation Finance of the Securities and Exchange Commission Regarding
Compliance by Asset-Backed Issuers with Exchange Act Rules 13a-14 and 15d-14, as
in effect from time to time; provided that if, after the Closing Date (a) the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 is amended, (b) the Statement referred to in clause
(ii) is modified or superceded by any subsequent statement, rule or regulation
of the Securities and Exchange Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published by the
Securities and Exchange Commission from time to time pursuant to the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, which in any such case affects the form or substance
of the required certification and results in the required certification being,
in the reasonable judgment of the Servicer, materially more onerous than the
form of the required certification as of the Closing Date, the Servicer
Certification shall be as agreed to by the Servicer, the Depositor and the
Seller following a negotiation in good faith to determine how to comply with any
such new requirements.
"Servicer Event of Default": One or more of the events described in Section
7.01.
"Servicer Information": As defined in Section 11.07(a)(i).
"Servicer Prepayment Charge Payment Amount": The amounts payable by the
Servicer in respect of any waived Prepayment Charges pursuant to Section 3.01.
"Servicer Remittance Date": With respect to any Distribution Date, by 3:00
p.m. New York time on the Business Day preceding the related Distribution Date.
"Servicer Termination Test": The Servicer Termination Test will be failed
with respect to any Distribution Date if the aggregate amount of Realized Losses
incurred since the Cut-off Date through the last day of the related Due Period
(reduced by the aggregate amount of Subsequent Recoveries received from the
Cut-off Date through the last day of the related Due Period) divided by
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date
exceeds the applicable percentages set forth below with respect to such
Distribution Date:
PAYMENT DATE OCCURRING IN PERCENTAGE
---------------------------- -----------
[__________] through [_____] [_____]%
[__________] through [_____] [_____]%
[__________] through [_____] [_____]%
[__________] and thereafter [_____]%
45
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.09.
"Servicing Advances": The reasonable "out-of-pocket" costs and expenses
(including legal fees) incurred by the Servicer in connection with a default,
delinquency or other unanticipated event by the Servicer in the performance of
its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of a Mortgaged Property,
(ii) any enforcement or judicial proceedings, including but not limited to
foreclosures and litigation, in respect of a particular Mortgage Loan, (iii) the
management (including reasonable fees in connection therewith) and liquidation
of any REO Property and (iv) the performance of its obligations under Section
3.01, Section 3.09, Section 3.14, Section 3.16 and Section 3.23. The Servicer
shall not be required to make any Nonrecoverable Servicing Advances.
"Servicing Criteria": The "servicing criteria" set forth in Item 112(d) of
Regulation AB, as such may be amended from time to time.
"Servicing Fee": With respect to each Mortgage Loan and for any calendar
month, an amount equal to the Servicing Fee Rate accrued for one month (or in
the event of any payment of interest which accompanies a Principal Prepayment in
full made by the Mortgagor during such calendar month, interest for the number
of days covered by such payment of interest) on the same principal amount on
which interest on such Mortgage Loan accrues for such calendar month, calculated
on the basis of a 360-day year consisting of twelve 30-day months. A portion of
such Servicing Fee may be retained by any Sub-Servicer as its servicing
compensation.
"Servicing Fee Rate": [___]% per annum.
"Servicing Officer": Any officer of the Servicer involved in, or
responsible for, the administration and servicing of Mortgage Loans, whose name
and specimen signature appear on a list of Servicing Officers furnished by the
Servicer to the Trustee and the Depositor on the Closing Date, as such list may
from time to time be amended.
"Servicing Transfer Costs": Shall mean all reasonable costs and expenses
incurred by the Trustee in connection with the transfer of servicing from a
predecessor servicer, including, without limitation, any reasonable 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 (or any successor servicer appointed pursuant to
Section 7.02) to service the Mortgage Loans properly and effectively.
"Single Certificate": With respect to any Class of Certificates (other than
the Class P Certificates and the Residual Certificates), a hypothetical
Certificate of such Class evidencing a Percentage Interest for such Class
corresponding to an initial Certificate Principal Balance of $1,000. With
respect to the Class P Certificates and the Residual Certificates, a
hypothetical Certificate of such Class evidencing a 100% Percentage Interest in
such Class.
46
"Startup Day": With respect to each Trust REMIC, the day designated as such
pursuant to Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan: (a) as of
any date of determination up to but not including the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the principal balance of such Mortgage Loan as of the
Cut-off Date, as shown on the Mortgage Loan Schedule, minus the sum of (i) the
principal portion of each Monthly Payment due on a Due Date subsequent to the
Cut-off Date, to the extent received from the Mortgagor or advanced by the
Servicer and distributed pursuant to Section 4.01 on or before such date of
determination, (ii) all Principal Prepayments received after the Cut-off Date,
to the extent distributed pursuant to Section 4.01 on or before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds applied by
the Servicer as recoveries of principal in accordance with the provisions of
Section 3.16, to the extent distributed pursuant to Section 4.01 on or before
such date of determination, and (iv) any Realized Loss incurred with respect
thereto as a result of a Deficient Valuation made during or prior to the
Prepayment Period for the most recent Distribution Date coinciding with or
preceding such date of determination; and (b) as of any date of determination
coinciding with or subsequent to the Distribution Date on which the proceeds, if
any, of a Liquidation Event with respect to such Mortgage Loan would be
distributed, zero. With respect to any REO Property: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of REMIC I, minus the sum of (i) if such REO Property was
acquired before the Distribution Date in any calendar month, the principal
portion of the Monthly Payment due on the Due Date in the calendar month of
acquisition, to the extent advanced by the Servicer and distributed pursuant to
Section 4.01 on or before such date of determination, and (ii) the aggregate
amount of REO Principal Amortization in respect of such REO Property for all
previously ended calendar months, to the extent distributed pursuant to Section
4.01 on or before such date of determination; and (b) as of any date of
determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such REO Property
would be distributed, zero.
"Static Pool Information": Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
"Stepdown Date": The later to occur of (a) the Distribution Date occurring
in [_______ __, 20__] and (b) the first Distribution Date on which the Credit
Enhancement Percentage (calculated for this purpose only prior to any
distribution of the Principal Distribution Amount to the Certificates then
entitled to distributions of principal on such Distribution Date) is equal to or
greater than [_____]%.
"Subcontractor": Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions
47
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under
the direction or authority of the Servicer or a Sub-Servicer.
"Subordination Percentage": With respect to each class of Class A and Class
M Certificates, the applicable approximate percentage set forth in the table
below.
CLASS PERCENTAGE CLASS PERCENTAGE
----- ---------- ------ ----------
[A] [_____]% [M-7] [_____]%
[M-1] [_____]% [M-8] [_____]%
[M-2] [_____]% [M-9] [_____]%
[M-3] [_____]% [M-10] [_____]%
[M-4] [_____]% [M-11] [_____]%
[M-5] [_____]% [M-12] [_____]%
[M-6] [_____]% [M-13] [_____]%
"Sub-Servicer": Any Person with which the Servicer has entered into a
Sub-Servicing Agreement and which meets the qualifications of a Sub-Servicer
pursuant to Section 3.02.
"Sub-Servicing Account": As defined in Section 3.08.
"Sub-Servicing Agreement": The written contract between the Servicer and a
Sub-Servicer relating to servicing and administration of certain Mortgage Loans
as provided in Section 3.02.
"Subsequent Recoveries": As of any Distribution Date, unexpected amounts
received by the Servicer (net of any related expenses permitted to be reimbursed
to the Servicer) specifically related to a Mortgage Loan that was the subject of
a liquidation or an REO Disposition prior to the related Prepayment Period that
resulted in a Realized Loss. If Subsequent Recoveries are received, they will be
included as part of the Principal Remittance Amount for the following
Distribution Date. In addition, after giving effect to all distributions on a
Distribution Date, the amount of such Subsequent Recoveries will increase the
Certificate Principal Balance first, of the Class A Certificates then
outstanding, if a Realized Loss had been allocated to the Class A Certificates,
on a pro rata basis by the amount of such Subsequent Recoveries, and second, of
the class of Mezzanine Certificates then outstanding with the highest
distribution priority to which a Realized Loss was allocated. Thereafter, such
class of Class A and Class M Certificates will accrue interest on the increased
Certificate Principal Balance.
"Substitution Shortfall Amount": As defined in Section 2.03(b).
"Swap Account": The separate non-interest bearing trust account created and
maintained by the Trustee.
"Swap Agreement": The initial interest rate swap agreement and any
replacement swap agreement between the Swap Counterparty and the Trustee, on
behalf of the Trust, which agreement provides for Net Swap Payments and Swap
Termination Payments to be paid, as provided therein, together with any
schedules, confirmations or other agreements relating thereto, attached hereto
as Exhibit K-1.
48
"Swap Agreement Notional Balance": As to the Swap Agreement and each
Floating Rate Payer Payment Date (as defined in the Swap Agreement), the amount
set forth on Exhibit K-2 hereto for such Floating Rate Payer Payment Date.
"Swap Counterparty": The swap counterparty under any Swap Agreement either
(a) entitled to receive payments from the Trustee from amounts payable by the
Trust Fund under this Agreement or (b) required to make payments to the Trustee
for payment to the Trust Fund, in either case pursuant to the terms of the Swap
Agreement, and any successor in interest or assign. Initially, the Swap
Counterparty shall be Swiss Re Financial Corporation.
"Swap LIBOR": LIBOR as determined pursuant to the Swap Agreement.
"Swap Counterparty Trigger Event": With respect to any Distribution Date,
(i) an "Event of Default" under the Swap Agreement with respect to which the
Swap Counterparty is a Defaulting Party, (ii) a "Termination Event" under the
Swap Agreement with respect to which the Swap Counterparty is the sole Affected
Party, or (iii) an "Additional Termination Event" under the Swap Agreement with
respect to which the Swap Counterparty is the sole Affected Party.
"Swap Replacement Proceeds" means any amounts received from a replacement
Swap Counterparty in consideration for entering into a replacement Swap
Agreement for a terminated Swap Agreement.
"Swap Termination Payment": Upon the designation of an "Early Termination
Date" as defined in the Swap Agreement, the payment to be made by the Trustee on
behalf of the Trust to the Swap Counterparty from payments from the Trust Fund,
or by the Swap Counterparty to the Trustee for payment to the Trust Fund, as
applicable, pursuant to the terms of the Swap Agreement.
"Swap Termination Payment Account" means a single, segregated non-interest
bearing trust account held in the name of the Trustee, which shall be designated
as the "Swap Termination Payment Account" which shall be held in trust for the
benefit of the Class A and Mezzanine Certificates established pursuant to
Section 4.07(g) of this Agreement.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of the Trust Fund due to the classification of portions thereof as
REMICs under the REMIC Provisions, together with any and all other information
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Telerate Page 3750": The display designated as page "3750" on the Dow
▇▇▇▇▇ Telerate Capital Markets Report (or such other page as may replace page
3750 on that report for the purpose of displaying London interbank offered rates
of major banks).
49
"Termination Price": As defined in Section 9.01.
"Terminator": As defined in Section 9.01.
"Third-Party Originator": Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Servicer.
"Transaction Party": As defined in Section 11.02.
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
"Trigger Event": A Trigger Event is in effect on any Distribution Date on
or after the Stepdown Date if:
(a) the Delinquency Percentage exceeds [__]% of the then current
Credit Enhancement Percentage for the prior Distribution Date; or
(b) the aggregate amount of Realized Losses incurred since the Cut-off
Date through the last day of the related Due Period (reduced by the
aggregate amount of Subsequent Recoveries received since the Cut-off Date
through the last day of the related Due Period) divided by aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date exceeds the
applicable percentages set forth below with respect to such Distribution
Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
--------------------------------- ----------
[__________] through [__________] [_____]%
[__________] through [__________] [_____]%
[__________] through [__________] [_____]%
[__________] and thereafter [_____]%
"Trust Fund": Collectively, all of the assets of each Trust REMIC and the
other assets conveyed by the Depositor to the Trustee pursuant to Section 2.01.
"Trust REMIC": Any of REMIC I or REMIC II.
"Trustee": [Name of Trustee], a national banking association, or its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee Information": As defined in Section 11.05.
50
"Trustee Fee": The amount payable to the Trustee on each Distribution Date
pursuant to Section 8.05 as compensation for all services rendered by it in the
execution of the trust hereby created and in the exercise and performance of any
of the powers and duties of the Trustee hereunder, which amount shall equal the
Trustee Fee Rate accrued for one month on the aggregate Stated Principal Balance
of the Mortgage Loans and any REO Properties as of the first day of the related
Due Period (or, in the case of the initial Distribution Date, as of the Cut-off
Date), calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"Trustee Fee Rate": [____]% per annum.
"Uncertificated Balance": The amount of any REMIC I Regular Interest
outstanding as of any date of determination. As of the Closing Date, the
Uncertificated Balance of each REMIC I Regular Interest shall equal the amount
set forth in the Preliminary Statement hereto as its initial uncertificated
balance. On each Distribution Date, the Uncertificated Balance of each REMIC I
Regular Interest shall be reduced by all distributions of principal made on such
REMIC I Regular Interest on such Distribution Date pursuant to Section 4.01 and,
if and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 4.04. The
Uncertificated Balance of REMIC I Regular Interest I-LTZZ shall be increased by
interest deferrals as provided in Section 4.01(a)(1)(i)(A). The Uncertificated
Balance of each REMIC I Regular Interest shall never be less than zero.
"Uncertificated Interest": With respect to any REMIC I Regular Interest for
any Distribution Date, one month's interest at the REMIC I Remittance Rate
applicable to such REMIC I Regular Interest for such Distribution Date, accrued
on the Uncertificated Balance thereof immediately prior to such Distribution
Date. Uncertificated Interest in respect of any REMIC I Regular Interest shall
accrue on the basis of a 360-day year consisting of twelve 30-day months.
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
I Regular Interest, shall be reduced by an amount equal to the sum of (a) the
aggregate Prepayment Interest Shortfall, if any, for such Distribution Date to
the extent not covered by payments pursuant to Section 3.24 and (b) the
aggregate amount of any Relief Act Interest Shortfall, if any allocated, in each
case, to such REMIC I Regular Interest pursuant to Section 1.02. In addition,
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
I Regular Interest shall be reduced by Realized Losses, if any, allocated to
such REMIC I Regular Interest pursuant to Section 1.02 and Section 4.04.
"Underwriters' Exemption": An individual exemption issued by the United
States Department of Labor, Prohibited Transaction Exemption [_____], as
amended, to [Name of Underwriter], for specific offerings in which [Name of
Underwriter] or any person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with [Name of
Underwriter] is an underwriter, placement agent or a manager or co-manager of
the underwriting syndicate or selling group where the trust and the offered
certificates meet specified conditions. The Underwriters' Exemption, as amended,
provides a partial exemption for transactions involving certificates
representing a beneficial interest in a trust and entitling the holder to
pass-through payments of principal, interest and/or other payments with respect
to the trust's assets.
51
"Uninsured Cause": Any cause of damage to a Mortgaged Property such that
the complete restoration of such property is not fully reimbursable by the
hazard insurance policies required to be maintained pursuant to Section 3.14.
"United States Person": A citizen or resident of the United States, a
corporation, partnership (or other entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States, any state thereof, or the District
of Columbia (except in the case of a partnership, to the extent provided in
Treasury regulations) provided that, for purposes solely of the restrictions on
the transfer of Class R Certificates, no partnership or other entity treated as
a partnership for United States federal income tax purposes shall be treated as
a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, or an estate the income of
which from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trust. The term "United States"
shall have the meaning set forth in Section 7701 of the Code or successor
provisions.
"Value": With respect to any Mortgaged Property, the lesser of (i) the
lesser of (a) the value thereof as determined by an appraisal made for the
Originator of the Mortgage Loan at the time of origination of the Mortgage Loan
and (b) the value thereof as determined by a review appraisal conducted by the
Originator in accordance with the Originator's underwriting guidelines, and (ii)
the purchase price paid for the related Mortgaged Property by the Mortgagor with
the proceeds of the Mortgage Loan; provided, however, (A) in the case of a
Refinanced Mortgage Loan, such value of the Mortgaged Property is based solely
upon the lesser of (1) the value determined by an appraisal made for the
Originator of such Refinanced Mortgage Loan at the time of origination of such
Refinanced Mortgage Loan and (2) the value thereof as determined by a review
appraisal conducted by the Originator in accordance with the Originator's
underwriting guidelines, and (B) in the case of a Mortgage Loan originated in
connection with a "lease-option purchase," such value of the Mortgaged Property
is based on the lower of the value determined by an appraisal made for the
Originator of such Mortgage Loan at the time of origination or the sale price of
such Mortgaged Property if the "lease option purchase price" was set less than
12 months prior to origination, and is based on the value determined by an
appraisal made for the Originator of such Mortgage Loan at the time of
origination if the "lease option purchase price" was set 12 months or more prior
to origination.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. With respect to any date of
determination, 98% of all Voting Rights will be allocated among the holders of
the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates in proportion to the then outstanding Certificate Principal
Balances of their respective Certificates, 1% of all Voting Rights will be
allocated to the holders of the Class P Certificates and 1% of all Voting Rights
will be allocated among the holders of the Residual Certificates. The Voting
Rights allocated to each Class of Certificate shall be allocated among
52
Holders of each such Class in accordance with their respective Percentage
Interests as of the most recent Record Date.
SECTION 1.02 Allocation of Certain Interest Shortfalls. For purposes of
calculating the amount of Accrued Certificate Interest and the amount of the
Interest Distribution Amount for the Class A Certificates, the Mezzanine
Certificates and the Class CE Certificates for any Distribution Date, (1) the
aggregate amount of any Prepayment Interest Shortfalls (to the extent not
covered by payments by the Servicer pursuant to Section 3.24) and any Relief Act
Interest Shortfall incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to the Class CE Certificates based
on, and to the extent of, one month's interest at the then applicable
Pass-Through Rate on the Notional Amount of the Class CE Certificates and,
thereafter, among the Class A Certificates and the Mezzanine Certificates on a
pro rata basis based on, and to the extent of, one month's interest at the then
applicable respective Pass-Through Rate on the respective Certificate Principal
Balance of each such Certificate and (2) the aggregate amount of any Realized
Losses incurred for any Distribution Date shall be allocated to the Class CE
Certificates based on, and to the extent of, one month's interest at the then
applicable Pass-Through Rate on the Notional Amount of the Class CE
Certificates.
For purposes of calculating the amount of Uncertificated Interest for the
REMIC I Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among REMIC I Regular Interest [I-LTAA, REMIC I Regular Interest
I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC
I Regular Interest I-LTA4, REMIC I Regular Interest I-LTA5, REMIC I Regular
Interest I-LTA6, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC
I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular
Interest I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I Regular Interest
I-LTM9, REMIC I Regular Interest I-LTM10, REMIC I Regular Interest I-LTM11,
REMIC I Regular Interest I-LTM12, REMIC I Regular Interest I-LTM13] and REMIC I
Regular Interest I-LTZZ pro rata based on, and to the extent of, one month's
interest at the then applicable respective Pass-Through Rate on the respective
Uncertificated Balance of each such REMIC I Regular Interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of the Mortgage Loans. On the Closing Date, the
Depositor will transfer, assign, set over and otherwise convey to the Trustee
without recourse, for the benefit of the Certificateholders, all the right,
title and interest of the Depositor, including any security interest therein for
the benefit of the Depositor, in and to the Mortgage Loans identified on the
Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan
Purchase Agreement, and all other assets included or to be included in REMIC I.
Such assignment includes all interest and principal received by the Depositor or
the Servicer on or with respect to
53
the Mortgage Loans (other than payments of principal and interest due on such
Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers
to the Trustee an executed copy of the Mortgage Loan Purchase Agreement. In
addition, on the Closing Date, the Trustee is hereby directed to enter into the
Swap Agreement on behalf of the Trust Fund with the Swap Counterparty.
In connection with such transfer and assignment, the Depositor shall
deliver to and deposit with the Trustee the following documents or instruments
with respect to each Mortgage Loan so transferred and assigned (in each case, a
"Mortgage File"):
(i) the original Mortgage Note, endorsed in blank or in the following
form "Pay to the order of [Name of Trustee], as Trustee under the
applicable agreement, without recourse," with all prior and intervening
endorsements showing a complete chain of endorsement from the originator to
the Person so endorsing to the Trustee;
(ii) the original Mortgage with evidence of recording thereon, and the
original recorded power of attorney, if the Mortgage was executed pursuant
to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment in blank ([only if the related Mortgage
Loan is not a loan registered on the MERS System]);
(iv) the original recorded Assignment or Assignments showing a
complete chain of assignment from the originator to the Person assigning
the Mortgage to the Trustee as contemplated by the immediately preceding
clause (iii);
(v) the original or copies of each assumption, modification or
substitution agreement, if any; and
(vi) the original lender's title insurance policy or, if the original
title policy has not been issued, the irrevocable commitment to issue the
same.
With respect to a maximum of approximately 2.0% of the Original Mortgage
Loans by outstanding Stated Principal Balance of the Original Mortgage Loans as
of the Cut-off Date, if any original Mortgage Note referred to in Section
2.01(i) above cannot be located, the obligations of the Depositor to deliver
such documents shall be deemed to be satisfied upon delivery to the Trustee of a
photocopy of such Mortgage Note, if available, with a lost note affidavit
substantially in the form of Exhibit H attached hereto. If any of the original
Mortgage Notes for which a lost note affidavit was delivered to the Trustee is
subsequently located, such original Mortgage Note shall be delivered to the
Trustee within three Business Days.
If any of the documents referred to in Sections 2.01(ii), (iii) or (iv)
above has, as of the Closing Date, been submitted for recording but either (x)
has not been returned from the applicable public recording office or (y) has
been lost or such public recording office has retained the original of such
document, the obligations of the Depositor to deliver such documents shall be
deemed to be satisfied upon (1) delivery to the Trustee of a copy of each such
document certified by the Originator in the case of (x) above or the applicable
public recording
54
office in the case of (y) above to be a true and complete copy of the original
that was submitted for recording and (2) if such copy is certified by the
Originator, delivery to the Trustee promptly upon receipt thereof of either the
original or a copy of such document certified by the applicable public recording
office to be a true and complete copy of the original. Notice shall be provided
to the Trustee and the Rating Agencies by the Depositor if delivery pursuant to
clause (2) above will be made more than 180 days after the Closing Date. If the
original lender's title insurance policy was not delivered pursuant to Section
2.01(vi) above, the Depositor shall deliver or cause to be delivered to the
Trustee, promptly after receipt thereof, the original lender's title insurance
policy. The Depositor shall deliver or cause to be delivered to the Trustee
promptly upon receipt thereof any other original documents constituting a part
of a Mortgage File received with respect to any Mortgage Loan, including, but
not limited to, any original documents evidencing an assumption or modification
of any Mortgage Loan.
The Trustee shall enforce the obligations of the Seller under the Mortgage
Loan Purchase Agreement to promptly (within sixty Business Days following the
later of the Closing Date and the date of receipt by the Trustee of the
recording information for a Mortgage, but in no event later than ninety days
following the Closing Date) submit or cause to be submitted for recording, at
the expense of the Responsible Party and at no expense to the Trust Fund, the
Trustee or the Depositor, in the appropriate public office for real property
records, each Assignment referred to in Sections 2.01(iii) and (iv) above and
the Depositor shall execute each original Assignment or cause each original
Assignment to be executed in the following form: "[Name of Trustee], as Trustee
under the applicable agreement." In the event that any such Assignment is lost
or returned unrecorded because of a defect therein, the Seller shall promptly
prepare or cause to be prepared (at the expense of the Responsible Party) a
substitute Assignment or cure or cause to be cured such defect, as the case may
be, and thereafter cause each such Assignment to be duly recorded. If the
Responsible Party is unable to pay the cost of recording the Assignments, such
expense will be paid by the Trustee and shall be reimbursable to the Trustee as
an Extraordinary Trust Fund Expense. Notwithstanding the foregoing, the Trustee
shall not be responsible for determining whether any Assignment delivered by the
Depositor hereunder is in recordable form.
Notwithstanding the foregoing, however, for administrative convenience and
facilitation of servicing and to reduce closing costs, the Assignments shall not
be required to be submitted for recording (except with respect to any Mortgage
Loan located in Maryland) unless the Trustee or the Depositor receives written
notice that failure to record would result in a withdrawal or a downgrading by
any Rating Agency of the rating on any Class of Certificates; provided, however,
the Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement to submit or cause to be submitted each Assignment ([only if
the related Mortgage Loan is not a loan registered on the MERS System]) for
recording in the manner described above, at no expense to the Trust Fund or the
Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of
Certificates entitled to at least 25% of the Voting Rights, (ii) the occurrence
of a Servicer Event of Default, (iii) the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Servicer, (iv) the occurrence of a servicing
transfer as described in Section 7.02 hereof, (v) with respect to any one
Assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating
to the Mortgagor under the related Mortgage and (vi) any Mortgage Loan that is
90 days or more delinquent. Upon receipt of written notice by the Trustee
55
from the Servicer that recording of the Assignments is required pursuant to one
or more of the conditions set forth in the preceding sentence, the Depositor
shall be required to deliver such Assignments or shall cause such Assignments to
be delivered within 30 days following receipt of such notice.
All original documents relating to the Mortgage Loans that are not
delivered to the Trustee are and shall be held by or on behalf of the Seller,
the Depositor or the Servicer, as the case may be, in trust for the benefit of
the Trustee on behalf of the Certificateholders. In the event that any such
original document is required pursuant to the terms of this Section 2.01 to be a
part of a Mortgage File, such document shall be delivered promptly to the
Trustee. Any such original document delivered to or held by the Depositor that
is not required pursuant to the terms of this Section to be a part of a Mortgage
File, shall be delivered promptly to the Servicer.
The parties hereto understand and agree that it is not intended that any
Mortgage Loans be included in the Trust that are (a) "high cost" loans under the
Home Ownership and Equity Protection Act of 1994 or (b) "high cost,"
"threshold," "covered" or "predatory" loans under any other applicable federal,
state or local law (including without limitation any regulation or ordinance)
(or a similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees).
SECTION 2.02 Acceptance of REMIC I by Trustee. The Trustee, acknowledges
receipt, subject to the provisions of Section 2.01 above and subject to any
exceptions noted on the exception report described in the next paragraph below,
of the documents referred to in Section 2.01 (other than such documents
described in Section 2.01(v)) and all other assets included in the definition of
"REMIC I" under clauses (i), (iii), (iv) and (v) (to the extent of amounts
attributable thereto deposited into the Certificate Account) and declares that
it holds and will hold such documents and the other documents delivered to it
constituting a Mortgage File, and that it holds or will hold all such assets and
such other assets included in the definition of "REMIC I" in trust for the
exclusive use and benefit of all present and future Certificateholders.
The Trustee agrees, for the benefit of the Certificateholders, to review
each Mortgage File on or before the Closing Date and to certify in substantially
the form attached hereto as Exhibit C-1 that, as to each Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto as
not being covered by such certification), (i) all documents constituting part of
such Mortgage File (other than such documents described in Section 2.01(v))
required to be delivered to it pursuant to this Agreement are in its possession,
(ii) such documents have been reviewed by it and appear regular on their face
and relate to such Mortgage Loan and (iii) based on its examination and only as
to the foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items (i), (ii), (x), (xi) and (xiv) of the definition of
"Mortgage Loan Schedule" accurately reflects information set forth in the
Mortgage File. It is herein acknowledged that, in conducting such review, the
Trustee was under no duty or obligation (i) to inspect, review or examine any
such documents, instruments, certificates or other papers to determine whether
they are genuine, enforceable, valid, legally binding, effective or appropriate
for the represented purpose or whether they have actually been recorded or are
in recordable
56
form or that they are other than what they purport to be on their face, (ii) to
determine whether any Mortgage File should include any of the documents
specified in clause (v) of Section 2.01 or (iii) to determine the perfection or
priority of any security interest in any such documents or instruments.
Notwithstanding the foregoing, in conducting the review described in this
Section 2.02, the Trustee shall not be responsible for determining (i) if an
Assignment is sufficient under the laws of the jurisdiction wherein the related
Mortgaged Property is located to reflect of record the sale of the Mortgage or
(ii) if a Mortgage creates a first or second lien on, or first or second
priority security interest in, a Mortgaged Property.
Prior to the first anniversary date of this Agreement, the Trustee shall
deliver to the Depositor and the Servicer a final certification in the form
annexed hereto as Exhibit C-2 evidencing the completeness of the Mortgage Files,
with any applicable exceptions noted thereon, and the Servicer shall forward a
copy thereof to any Sub-Servicer.
If in the process of reviewing the Mortgage Files and making or preparing,
as the case may be, the certifications referred to above, the Trustee finds any
document or documents constituting a part of a Mortgage File to be missing or
defective in any material respect, at the conclusion of its review the Trustee
shall so notify the Depositor and the Servicer. In addition, upon the discovery
by the Depositor, the Servicer or the Trustee of a breach of any of the
representations and warranties made by either the Responsible Party or the
Seller in the related Mortgage Loan Purchase Agreement in respect of any
Mortgage Loan which materially adversely affects such Mortgage Loan or the
interests of the Certificateholders in such Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties.
The Trustee shall, at the written request and expense of any
Certificateholder, provide a written report to such Certificateholder of all
Mortgage Files released to the Servicer for servicing purposes.
The Depositor and the Trustee intend that the assignment and transfer
herein contemplated is absolute and constitutes a sale of the Mortgage Loans,
the related Mortgage Notes and the related documents, conveying good title
thereto free and clear of any liens and encumbrances, from the Depositor to the
Trustee in trust for the benefit of the Certificateholders and that such
property not be part of the Depositor's estate or property of the Depositor in
the event of any insolvency by the Depositor. In the event that such conveyance
is deemed to be, or to be made as security for, a loan, the parties intend that
the Depositor shall be deemed to have granted and does hereby grant to the
Trustee a first priority perfected security interest in all of the Depositor's
right, title and interest in and to the Mortgage Loans, the related Mortgage
Notes and the related documents, and that this Agreement shall constitute a
security agreement under applicable law.
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by the
Responsible Party and the Seller. (a) Upon discovery or receipt of notice of any
materially defective document in, or that a document is missing from, a Mortgage
File or of the breach by the Responsible Party or the Seller of any
representation, warranty or covenant under the Mortgage Loan Purchase Agreement
in respect of any Mortgage Loan that materially adversely affects the value of
such Mortgage Loan or the interest therein of the Certificateholders, the
Trustee shall promptly notify
57
the Seller, the Responsible Party and the Servicer of such defect, missing
document or breach and request that the Responsible Party or the Seller, as
applicable, deliver such missing document or cure such defect or breach within
60 days from the date the Responsible Party or the Seller, as applicable, was
notified of such missing document, defect or breach, and if the Responsible
Party or the Seller, as applicable, does not deliver such missing document or
cure such defect or breach in all material respects during such period, the
Trustee shall enforce the obligations of the Responsible Party or the Seller, as
applicable, under the Mortgage Loan Purchase Agreement to repurchase such
Mortgage Loan from REMIC I at the Purchase Price within 90 days after the date
on which the Responsible Party or the Seller, as applicable, was notified
(subject to Section 2.03(c)) of such missing document, defect or breach, if and
to the extent that the Responsible Party or the Seller, as applicable, is
obligated to do so under the Mortgage Loan Purchase Agreement. The Purchase
Price for the repurchased Mortgage Loan shall be remitted to the Servicer for
deposit in the Custodial Account and the Trustee, upon receipt of written
certification from the Servicer of such deposit, shall release to the
Responsible Party or the Seller, as applicable, the related Mortgage File and
the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as the Responsible Party or the
Seller, as applicable, shall furnish to it and as shall be necessary to vest in
the Responsible Party or the Seller, as applicable, any Mortgage Loan released
pursuant hereto. The Trustee shall not have any further responsibility with
regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as
provided above, if so provided in the Mortgage Loan Purchase Agreement, the
Responsible Party or the Seller, as applicable, may cause such Mortgage Loan to
be removed from REMIC I (in which case it shall become a Deleted Mortgage Loan)
and substitute one or more Qualified Substitute Mortgage Loans in the manner and
subject to the limitations set forth in Section 2.03(b); provided, however, the
Responsible Party may not substitute a Qualified Substitute Mortgage Loan for
any Deleted Mortgage Loan that violates any predatory or abusive lending law. It
is understood and agreed that the obligation of the Responsible Party and the
Seller to cure or to repurchase (or to substitute for) any Mortgage Loan as to
which a document is missing, a material defect in a constituent document exists
or as to which such a breach has occurred and is continuing shall constitute the
sole remedy respecting such omission, defect or breach available to the Trustee
and the Certificateholders.
(b) Any substitution of Qualified Substitute Mortgage Loans for Deleted
Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the
date which is two years after the Startup Day for REMIC I.
As to any Deleted Mortgage Loan for which the Responsible Party or the
Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or
Loans, such substitution shall be effected by the Responsible Party or the
Seller, as applicable, delivering to the Trustee, for such Qualified Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the
Trustee, and such other documents and agreements, with all necessary
endorsements thereon, as are required by Section 2.01, together with an
Officers' Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution Shortfall
Amount (as described below), if any, in connection with such substitution. The
Trustee shall acknowledge receipt for such Qualified Substitute Mortgage Loan or
Loans and, within ten Business Days thereafter, shall review such documents as
specified in Section
58
2.02 and deliver to the Depositor and the Servicer, with respect to such
Qualified Substitute Mortgage Loan or Loans, a certification substantially in
the form attached hereto as Exhibit C-1, with any applicable exceptions noted
thereon. Within one year of the date of substitution, the Trustee shall deliver
to the Depositor and the Servicer a certification substantially in the form of
Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or
Loans, with any applicable exceptions noted thereon. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution are
not part of REMIC I and will be retained by the Responsible Party or the Seller,
as applicable. For the month of substitution, distributions to
Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage
Loan on or before the Due Date in the month of substitution, and the Responsible
Party or the Seller, as applicable, shall thereafter be entitled to retain all
amounts subsequently received in respect of such Deleted Mortgage Loan. The
Depositor shall give or cause to be given written notice to the
Certificateholders that such substitution has taken place, shall amend the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from
the terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be
subject in all respects to the terms of this Agreement and the Mortgage Loan
Purchase Agreement, including, all applicable representations and warranties
thereof included in the Mortgage Loan Purchase Agreement.
For any month in which the Responsible Party or the Seller, as applicable,
substitutes one or more Qualified Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Servicer will determine the amount (the
"Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price
of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such
Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of
the date of substitution, together with one month's interest on such Stated
Principal Balance at the applicable Net Mortgage Rate, plus all outstanding
Advances and Servicing Advances (including Nonrecoverable Advances and
Nonrecoverable Servicing Advances) related thereto. On the date of such
substitution, the Responsible Party or the Seller, as applicable, will deliver
or cause to be delivered to the Servicer for deposit in the Custodial Account an
amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon
receipt of the related Qualified Substitute Mortgage Loan or Loans and
certification by the Servicer of such deposit, shall release to the Responsible
Party or the Seller, as applicable, the related Mortgage File or Files and the
Trustee shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, the Responsible Party or the Seller, as applicable,
shall deliver to it and as shall be necessary to vest therein any Deleted
Mortgage Loan released pursuant hereto.
In addition, the Responsible Party or the Seller, as applicable, shall
obtain at its own expense and deliver to the Trustee an Opinion of Counsel to
the effect that such substitution will not cause (a) any federal tax to be
imposed on any Trust REMIC, including without limitation, any federal tax
imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code, or
(b) any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
59
(c) Upon discovery by the Depositor, the Servicer or the Trustee that any
Mortgage Loan does not constitute a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code, the party discovering such fact shall within two
Business Days give written notice thereof to the other parties. In connection
therewith, the Responsible Party shall repurchase or, subject to the limitations
set forth in Section 2.03(b), substitute one or more Qualified Substitute
Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of
discovery or receipt of such notice with respect to such affected Mortgage Loan.
Such repurchase or substitution shall be made by (i) the Responsible Party or
the Seller, as the case may be, if the affected Mortgage Loan's status as a
non-qualified mortgage is or results from a breach of any representation,
warranty or covenant made by the Responsible Party or the Seller, as the case
may be, under the Mortgage Loan Purchase Agreement, or (ii) the Depositor, if
the affected Mortgage Loan's status as a non-qualified mortgage is a breach of
no representation or warranty. Any such repurchase or substitution shall be made
in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey
to the Responsible Party the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty.
SECTION 2.04 Reserved.
SECTION 2.05 Representations, Warranties and Covenants of the Servicer. The
Servicer hereby represents, warrants and covenants to the Trustee, for the
benefit of the Certificateholders and to the Depositor that as of the Closing
Date or as of such date specifically provided herein:
(i) The Servicer is a state-chartered industrial bank duly organized
and validly existing under the laws of the State of California and is duly
authorized and qualified to transact any and all business contemplated by
this Agreement to be conducted by the Servicer in any state in which a
Mortgaged Property is located or is otherwise not required under applicable
law to effect such qualification and, in any event, is in compliance with
the doing business laws of any such State, to the extent necessary to
ensure its ability to enforce each Mortgage Loan and to service the
Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Servicer has the full power and authority to service each
Mortgage Loan which the Servicer is required to service hereunder and to
execute, deliver and perform, and to enter into and consummate, all
transactions contemplated by this Agreement. The Servicer has duly
authorized the execution, delivery and performance of this Agreement, has
duly executed and delivered this Agreement, and this Agreement, assuming
due authorization, execution and delivery by the Depositor and the Trustee,
constitutes a legal, valid and binding obligation of the Servicer,
enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity;
(iii) The execution and delivery of this Agreement by the Servicer,
the servicing of the Mortgage Loans by the Servicer hereunder, the
consummation by the
60
Servicer of any other of the transactions herein contemplated, and the
fulfillment of or compliance with the terms hereof are in the ordinary
course of business of the Servicer and will not (A) result in a breach of
any term or provision of the charter or by-laws of the Servicer or (B)
conflict with, result in a breach, violation or acceleration of, or result
in a default under, the terms of any other material agreement or instrument
to which the Servicer is a party or by which it may be bound, or any
statute, order or regulation applicable to the Servicer of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Servicer; and the Servicer is not a party to, bound
by, or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects or, to the Servicer's knowledge, would in the future
materially and adversely affect, (x) the ability of the Servicer to perform
its obligations under this Agreement or (y) the business, operations,
financial condition, properties or assets of the Servicer taken as a whole;
(iv) The Servicer is a HUD-approved non-supervised mortgagee pursuant
to Section 203 and Section 211 of the National Housing Act, and no event
has occurred, including but not limited to a change in insurance coverage,
that would make the Servicer unable to comply with HUD eligibility
requirements or which would require notification to HUD;
(v) The Servicer does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant made by it
and contained in this Agreement;
(vi) No litigation is pending against the Servicer that would
materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of the Servicer to service the Mortgage
Loans or to perform any of its other obligations hereunder in accordance
with the terms hereof;
(vii) There are no actions or proceedings against, or investigations
known to it of, the Servicer before any court, administrative or other
tribunal (A) that is likely to prohibit its entering into this Agreement,
(B) seeking to prevent the consummation of the transactions contemplated by
this Agreement or (C) that is likely to prohibit or materially and
adversely affect the performance by the Servicer of its obligations under,
or validity or enforceability of, this Agreement;
(viii) No consent, approval, authorization or order of or registration
or filing with or notice to any court or governmental agency or body is
required for the execution, delivery and performance by the Servicer of, or
compliance by the Servicer with, this Agreement or the consummation by it
of the transactions contemplated by this Agreement, except for such
consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date;
61
(ix) The Servicer will not waive any Prepayment Charge unless it is
waived in accordance with the standard set forth in Section 3.01;
(x) The Servicer has fully furnished and will continue to fully
furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian and Trans Union Credit Information Company or their successors on
a monthly basis; and
(xi) No information, certificate of an officer, statement furnished or
to be furnished in writing or report delivered to the Depositor, any
Affiliate of the Depositor or the Trustee by the Servicer will, to the
knowledge of the Servicer, contain any untrue statement of a material fact.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the Mortgage
Files to the Trustee and shall inure to the benefit of the Trustee, the
Depositor and the Certificateholders. Upon discovery by any of the Depositor,
the Servicer or the Trustee of a breach of any of the foregoing representations,
warranties and covenants which materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice (but in no event later
than two Business Days following such discovery) to the Trustee. Subject to
Section 7.01, unless such breach shall not be susceptible of cure within 90
days, the obligation of the Servicer set forth in this Section 2.05 to cure
breaches shall constitute the sole remedy against the Servicer available to the
Certificateholders, the Depositor and the Trustee on behalf of the
Certificateholders respecting a breach of the representations, warranties and
covenants contained in this Section 2.05. Notwithstanding the foregoing, within
90 days of the earlier of discovery by the Servicer or receipt of notice by the
Servicer of the breach of the representation or covenant of the Servicer set
forth in Section 2.05(ix) above, which breach materially and adversely affects
the interests of the Holders of the Class P Certificates in any Prepayment
Charge, the Servicer shall pay the amount of such waived Prepayment Charge, for
the benefit of the Holders of the Class P Certificates, by depositing such
amount into the Custodial Account.
SECTION 2.06 Issuance of the REMIC I Regular Interests and the Class R-I
Interest. The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it of the Mortgage Files, subject to the provisions of
Section 2.01 and Section 2.02, together with the assignment to it of all other
assets included in REMIC I, the receipt of which is hereby acknowledged.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor executed by an officer
of the Depositor, has executed, authenticated and delivered to or upon the order
of the Depositor, the Class R Certificates (in respect of the Class R-I
Interest) in authorized denominations. The interests evidenced by the Class R-I
Interest, together with the REMIC I Regular Interests, constitute the entire
beneficial ownership interest in REMIC I. The rights of the Class R-I Interest
and REMIC II (as holder of the REMIC I Regular Interest) to receive
distributions from the proceeds of REMIC I in respect of the Class R-I Interest
and the REMIC I Regular Interests, and all
62
ownership interests evidenced or constituted by the Class R-I Interest and the
REMIC I Regular Interests, shall be as set forth in this Agreement.
SECTION 2.07 Conveyance of the REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee. The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey to
the Trustee, without recourse all the right, title and interest of the Depositor
in and to the REMIC I Regular Interests for the benefit of the Class R-II
Interest and REMIC II (as holder of the REMIC I Regular Interests). The Trustee
acknowledges receipt of the REMIC I Regular Interests and declares that it holds
and will hold the same in trust for the exclusive use and benefit of all present
and future holders of the Class R-II Interest and REMIC II (as holder of the
REMIC I Regular Interests). The rights of the holders of the Class R-II Interest
and REMIC II (as holder of the REMIC I Regular Interests) to receive
distributions from the proceeds of REMIC II in respect of the Class R-II
Interest and REMIC II Regular Interests, respectively, and all ownership
interests evidenced or constituted by the Class R-II Interest and the REMIC II
Regular Interests, shall be as set forth in this Agreement.
SECTION 2.08 Issuance of Class R Certificates. The Trustee acknowledges the
assignment to it of the REMIC Regular Interests and, concurrently therewith and
in exchange therefor, pursuant to the written request of the Depositor executed
by an officer of the Depositor, the Trustee has executed, authenticated and
delivered to or upon the order of the Depositor, the Class R Certificates in
authorized denominations.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01 Servicer to Act as Servicer. The Servicer shall service and
administer the Mortgage Loans on behalf of the Trust Fund and in the best
interests of and for the benefit of the Certificateholders (as determined by the
Servicer in its reasonable judgment) in accordance with the terms of this
Agreement and the respective Mortgage Loans and, to the extent consistent with
such terms, in the same manner in which it services and administers similar
mortgage loans for its own portfolio, and in accordance with customary and usual
standards of practice of mortgage lenders and loan servicers administering
similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any Sub-Servicer or any
Affiliate of the Servicer or any Sub-Servicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer
or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make Advances or Servicing
Advances; or
(iv) the Servicer's or any Sub-Servicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
63
To the extent consistent with the foregoing, the Servicer (a) shall seek to
maximize the timely and complete recovery of principal and interest on the
Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a
Prepayment Charge only under the following circumstances: (i) such waiver is
standard and customary in servicing similar Mortgage Loans and (ii) such waiver
would, in the reasonable judgment of the Servicer, maximize recovery of total
proceeds taking into account the value of such Prepayment Charge and the related
Mortgage Loan and, if such waiver is made in connection with a refinancing of
the related Mortgage Loan, such refinancing is related to a default or a
reasonably foreseeable default or (iii) collection of the related Prepayment
Charge would violate applicable law. If a Prepayment Charge is waived as
permitted by meeting both of the standards described in clauses (i) and (ii)
above, then the Servicer is required to pay the amount of such waived Prepayment
Charge, for the benefit of the Holders of the Class P Certificates, by
depositing such amount into the Custodial Account together with and at the time
that the amount prepaid on the related Mortgage Loan is required to be deposited
into the Custodial Account. Notwithstanding any other provisions of this
Agreement, any payments made by the Servicer in respect of any waived Prepayment
Charges pursuant to clauses (i) and (ii) shall be deemed to be paid outside of
the Trust Fund.
Subject only to the above-described servicing standards and the terms of
this Agreement and of the respective Mortgage Loans, the Servicer shall have
full power and authority, acting alone or through Sub-Servicers as provided in
Section 3.02, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, the Servicer in its own name
or in the name of a Sub-Servicer is hereby authorized and empowered by the
Trustee when the Servicer believes it appropriate in its best judgment, for the
benefit of the Certificateholders, in accordance with the servicing standards
set forth above, to execute and deliver, on behalf of the Trust Fund, the
Certificateholders and the Trustee or any of them, and upon written notice to
the Trustee, 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 the Mortgaged Properties and to institute
foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert
the ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and Certificateholders. The Servicer shall
service and administer the Mortgage Loans in accordance with applicable state
and federal law and shall provide to the Mortgagors any reports required to be
provided to them thereby. The Servicer shall also comply in the performance of
this Agreement with all reasonable rules and requirements of each insurer under
any standard hazard insurance policy. Subject to Section 3.17, the Trustee shall
execute, at the written request of the Servicer, and furnish to the Servicer and
any Sub-Servicer any special or limited powers of attorney and other documents
necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out
their servicing and administrative duties hereunder and the Trustee shall not be
liable for the actions of the Servicer or any Sub-Servicers under such powers of
attorney.
Subject to Section 3.09 hereof, in accordance with the standards of the
preceding paragraph, the Servicer shall advance or cause to be advanced funds as
necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
Any cost
64
incurred by the Servicer or by Sub-Servicers in effecting the timely payment of
taxes and assessments on a Mortgaged Property shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit.
Notwithstanding anything in this Agreement to the contrary, the Servicer
may not make any future advances with respect to a Mortgage Loan (except as
provided in Section 4.03) and the Servicer shall not (i) permit any modification
with respect to any Mortgage Loan that would change the Mortgage Rate, reduce or
increase the principal balance (except for reductions resulting from actual
payments of principal) or change the final maturity date on such Mortgage Loan
(unless, as provided in Section 3.07, the Mortgagor is in default with respect
to the Mortgage Loan or such default is, in the judgment of the Servicer,
reasonably foreseeable) or (ii) permit any modification, waiver or amendment of
any term of any Mortgage Loan that would both (A) effect an exchange or
reissuance of such Mortgage Loan under Section 1001 of the Code (or Treasury
regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to
qualify as a REMIC under the Code or the imposition of any tax on "prohibited
transactions" or "contributions after the startup date" under the REMIC
Provisions.
The Servicer may delegate its responsibilities under this Agreement;
provided, however, that no such delegation shall release the Servicer from the
responsibilities or liabilities arising under this Agreement.
SECTION 3.02 Sub-Servicing Agreements Between Servicer and Sub-Servicers.
(a) Subject to Section 13.01(d), the Servicer may enter into Sub-Servicing
Agreements with Sub-Servicers for the servicing and administration of the
Mortgage Loans; provided, however, that such agreements would not result in a
withdrawal or a downgrading by any Rating Agency of the rating on any Class of
Certificates. The Trustee is hereby authorized to acknowledge, at the request of
the Servicer, any Sub-Servicing Agreement that, based on an Officers'
Certificate of the Servicer delivered to the Trustee (upon which the Trustee can
conclusively rely), meets the requirements applicable to Sub-Servicing
Agreements set forth in this Agreement and that is otherwise permitted under
this Agreement.
Each Sub-Servicer shall be authorized to transact business in the state or
states where the related Mortgaged Properties it is to service are situated, if
and to the extent required by applicable law to enable the Sub-Servicer to
perform its obligations hereunder and under the Sub-Servicing Agreement. Each
Sub-Servicing Agreement must impose on the Sub-Servicer requirements conforming
to the provisions set forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Agreement. The Servicer will
examine each Sub-Servicing Agreement and will be familiar with the terms
thereof. The terms of any Sub-Servicing Agreement will not be inconsistent with
any of the provisions of this Agreement. The Servicer and the Sub-Servicers may
enter into and make amendments to the Sub-Servicing Agreements or enter into
different forms of Sub-Servicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of this Agreement, and that no such amendment or different form shall
be made or entered into which could be reasonably expected to be materially
adverse to the interests of the Certificateholders without the consent of the
Holders of Certificates entitled to at least 66% of
65
the Voting Rights; provided, further, that the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights shall not be required
(i) to cure any ambiguity or defect in a Sub-Servicing Agreement, (ii) to
correct, modify or supplement any provisions of a Sub-Servicing Agreement, or
(iii) to make any other provisions with respect to matters or questions arising
under a Sub-Servicing Agreement, which, in each case, shall not be inconsistent
with the provisions of this Agreement. Any variation without the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Sub-Servicing Accounts, or credits and charges to the
Sub-Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee, upon its request, copies of all Sub-Servicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(b) As part of its servicing activities hereunder, the Servicer, for the
benefit of the Trustee and the Certificateholders, shall enforce the obligations
of each Sub-Servicer under the related Sub-Servicing Agreement, including,
without limitation, any obligation of a Sub-Servicer to make advances in respect
of delinquent payments as required by a Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-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 Servicer, in its good faith business judgment, would require were it
the owner of the related Mortgage Loans. The Servicer shall pay the costs of
enforcing the obligations of a Sub-Servicer at its own expense, and shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all amounts due
in respect of the related Mortgage Loans, or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
SECTION 3.03 Successor Sub-Servicers. The Servicer shall be entitled to
terminate any Sub-Servicing Agreement and the rights and obligations of any
Sub-Servicer pursuant to any Sub-Servicing Agreement in accordance with the
terms and conditions of such Sub-Servicing Agreement. In the event of
termination of any Sub-Servicer, all servicing obligations of such Sub-Servicer
shall be assumed simultaneously by the Servicer without any act or deed on the
part of such Sub-Servicer or the Servicer, and the Servicer either shall service
directly the related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 3.02.
Any Sub-Servicing Agreement shall include the provision that such agreement
may be immediately terminated by the Trustee without fee, in accordance with the
terms of this Agreement, in the event that the Servicer (or the Trustee, if it
is then acting as Servicer) shall, for any reason, no longer be the Servicer
(including termination due to a Servicer Event of Default).
SECTION 3.04 Liability of the Servicer. Notwithstanding any Sub-Servicing
Agreement or the provisions of this Agreement relating to agreements or
arrangements between the Servicer and a Sub-Servicer or reference to actions
taken through a Sub-Servicer or otherwise, the Servicer shall remain obligated
and primarily liable to the Trustee and the
66
Certificateholders for the servicing and administering of the Mortgage Loans in
accordance with the provisions of Section 3.01 without diminution of such
obligation or liability by virtue of such Sub-Servicing Agreements or
arrangements or by virtue of indemnification from the Sub-Servicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans. The Servicer shall be
entitled to enter into any agreement with a Sub-Servicer for indemnification of
the Servicer by such Sub-Servicer and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
SECTION 3.05 No Contractual Relationship Between Sub-Servicers, the Trustee
or the Certificateholders. Any Sub-Servicing Agreement that may be entered into
and any other transactions or services relating to the Mortgage Loans involving
a Sub-Servicer in its capacity as such shall be deemed to be between the
Sub-Servicer and the Servicer alone, and the Trustee and the Certificateholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the Sub-Servicer except as
set forth in Section 3.06. The Servicer shall be solely liable for all fees owed
by it to any Sub-Servicer, irrespective of whether the Servicer's compensation
pursuant to this Agreement is sufficient to pay such fees. The foregoing
provision shall not in any way limit a Sub-Servicer's obligation to cure an
omission or defect.
SECTION 3.06 Assumption or Termination of Sub-Servicing Agreements by the
Trustee. In the event the Servicer shall for any reason no longer be the
Servicer (including by reason of the occurrence of a Servicer Event of Default),
the Trustee, its designee or other successor Servicer shall thereupon assume all
of the rights and obligations of the Servicer under each Sub-Servicing Agreement
that the Servicer may have entered into, unless the Trustee, such designee or
other successor Servicer elects to terminate any Sub-Servicing Agreement in
accordance with its terms as provided in Section 3.03. Upon such assumption, the
Trustee, its designee or the successor Servicer for the Trustee appointed
pursuant to Section 7.02 shall be deemed, subject to Section 3.03, to have
assumed all of the Servicer's interest therein and to have replaced the Servicer
as a party to each Sub-Servicing Agreement to the same extent as if each
Sub-Servicing Agreement had been assigned to the assuming party, except that (i)
the Servicer shall not thereby be relieved of any liability or obligations under
any Sub-Servicing Agreement that arose before it ceased to be the Servicer and
(ii) none of the Trustee, its designee or any successor Servicer shall be deemed
to have assumed any liability or obligation of the Servicer that arose before it
ceased to be the Servicer.
The Servicer at its expense shall, upon request of the Trustee, deliver to
the assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of each Sub-Servicing
Agreement to the assuming party.
The Servicing Fee payable to the Trustee as successor Servicer or other
successor Servicer shall be payable from payments received on the Mortgage Loans
in the amount and in the manner set forth in this Agreement.
67
SECTION 3.07 Collection of Certain Mortgage Loan Payments. The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans, and shall, to the extent such procedures
shall be consistent with this Agreement and the terms and provisions of any
applicable insurance policies, follow such collection procedures as it would
follow with respect to mortgage loans comparable to the Mortgage Loans and held
for its own account. Consistent with the foregoing, the Servicer may in its
discretion (i) waive any late payment charge or, if applicable, any penalty
interest, or (ii) extend the due dates for the Monthly Payments due on a
Mortgage Note for a period of not greater than 180 days; provided, however, that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause (ii)
above, the Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.03 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangement. Notwithstanding the foregoing, in the event that any Mortgage Loan
is in default or, in the judgment of the Servicer, such default is reasonably
foreseeable, the Servicer, consistent with the standards set forth in Section
3.01, may also waive, modify or vary any term of such Mortgage Loan (including
modifications that would change the Mortgage Rate, forgive the payment of
principal or interest or extend the final maturity date of such Mortgage Loan),
accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of such Mortgage Loan (such payment, a
"Short Pay-off"), or consent to the postponement of strict compliance with any
such term or otherwise grant indulgence to any Mortgagor.
SECTION 3.08 Sub-Servicing Accounts. In those cases where a Sub-Servicer is
servicing a Mortgage Loan pursuant to a Sub-Servicing Agreement, the
Sub-Servicer will be required to establish and maintain one or more accounts
(collectively, the "Sub-Servicing Account"). The Sub-Servicing Account shall be
an Eligible Account and shall comply with all requirements of this Agreement
relating to the Custodial Account. The Sub-Servicer shall deposit in the
clearing account in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Sub-Servicer's
receipt thereof, all proceeds of Mortgage Loans received by the Sub-Servicer
less its servicing compensation to the extent permitted by the Sub-Servicing
Agreement, and shall thereafter deposit such amounts in the Sub-Servicing
Account, in no event more than two Business Days after the receipt of such
amounts. The Sub-Servicer shall thereafter deposit such proceeds in the
Custodial Account or remit such proceeds to the Servicer for deposit in the
Custodial Account not later than two Business Days after the deposit of such
amounts in the Sub-Servicing Account. For purposes of this Agreement, the
Servicer shall be deemed to have received payments on the Mortgage Loans when
the Sub-Servicer receives such payments.
SECTION 3.09 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts. The Servicer shall establish and maintain, or cause to be established
and maintained, one or more accounts (the "Servicing Accounts"), into which all
collections from the Mortgagors (or related advances from Sub-Servicers) for the
payment of taxes, assessments, hazard insurance premiums and comparable items
for the account of the Mortgagors ("Escrow Payments") shall be deposited and
retained. Servicing Accounts shall be Eligible Accounts. The Servicer shall
68
deposit in the clearing account in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Servicer's receipt thereof, all Escrow Payments collected on account of the
Mortgage Loans and shall thereafter deposit such Escrow Payments in the
Servicing Accounts, in no event more than two Business Days after the receipt of
such Escrow Payments, all Escrow Payments collected on account of the Mortgage
Loans for the purpose of effecting the payment of any such items as required
under the terms of this Agreement. Withdrawals of amounts from a Servicing
Account may be made only to (i) effect payment of taxes, assessments, hazard
insurance premiums, and comparable items in a manner and at a time that assures
that the lien priority of the Mortgage is not jeopardized (or, with respect to
the payment of taxes, in a manner and at a time that avoids the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien); (ii) reimburse the Servicer (or a Sub-Servicer to the extent provided in
the related Sub-Servicing Agreement) out of related collections for any advances
made pursuant to Section 3.01 (with respect to taxes and assessments) and
Section 3.14 (with respect to hazard insurance); (iii) refund to Mortgagors any
sums as may be determined to be overages; (iv) pay interest, if required and as
described below, to Mortgagors on balances in the Servicing Account; or (v)
clear and terminate the Servicing Account at the termination of the Servicer's
obligations and responsibilities in respect of the Mortgage Loans under this
Agreement in accordance with Article IX. As part of its servicing duties, the
Servicer or Sub-Servicers shall pay to the Mortgagors interest on funds in the
Servicing Accounts, to the extent required by law and, to the extent that
interest earned on funds in the Servicing Accounts is insufficient, to pay such
interest from its or their own funds, without any reimbursement therefor.
SECTION 3.10 Custodial Account and Certificate Account. (a) On behalf of
the Trust Fund, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (such account or accounts, the
"Custodial Account"), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deposit or
cause to be deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage loan
servicing activities on a daily basis, and in no event more than one Business
Day after the Servicer's receipt thereof, and shall thereafter deposit in the
Custodial Account, in no event more than two Business Days after the Servicer's
receipt thereof, as and when received or as otherwise required hereunder, the
following payments and collections received or made by it subsequent to the
Cut-off Date (other than in respect of principal or interest on the related
Mortgage Loans due on or before the Cut-off Date), or payments (other than
Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related Servicing
Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds, Liquidation Proceeds (other than
proceeds collected in respect of any particular REO Property and amounts
paid in connection with
69
a purchase of Mortgage Loans and REO Properties pursuant to Section 9.01)
and Subsequent Recoveries;
(iv) any amounts required to be deposited pursuant to Section 3.12 in
connection with any losses realized on Permitted Investments with respect
to funds held in the Custodial Account;
(v) any amounts required to be deposited by the Servicer pursuant to
the second paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with Section 2.03, Section 3.16 or Section 9.01;
(vii) all amounts required to be deposited in connection with
shortfalls in principal amount of Qualified Substitute Mortgage Loans
pursuant to Section 2.03; and
(viii) all Prepayment Charges collected by the Servicer in connection
with the Principal Prepayment of any of the Mortgage Loans.
The foregoing requirements for deposit in the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges, modification
or assumption fees, or insufficient funds charges need not be deposited by the
Servicer in the Custodial Account and may be retained by the Servicer as
additional compensation. In the event the Servicer shall deposit in the
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Custodial Account, any provision herein to
the contrary notwithstanding.
(b) On behalf of the Trust Fund, the Trustee shall establish and maintain
one or more accounts (such account or accounts, the "Certificate Account"), held
in trust for the benefit of the Trustee, the Trust Fund and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deliver to
the Trustee in immediately available funds for deposit in the Certificate
Account by 3:00 p.m. New York time (i) on the Servicer Remittance Date, that
portion of the Available Distribution Amount (calculated without regard to the
references in clause (2) of the definition thereof to amounts that may be
withdrawn from the Certificate Account) for the related Distribution Date then
on deposit in the Custodial Account and the amount of all Prepayment Charges
collected by the Servicer in connection with the Principal Prepayment of any of
the Mortgage Loans then on deposit in the Custodial Account and the amount of
any funds reimbursable to an Advancing Person pursuant to Section 3.26 and (ii)
on each Business Day as of the commencement of which the balance on deposit in
the Custodial Account exceeds $75,000 following any withdrawals pursuant to the
next succeeding sentence, the amount of such excess, but only if the Custodial
Account constitutes an Eligible Account solely pursuant to clause (ii) of the
definition of "Eligible Account." If the balance on deposit in the Custodial
Account exceeds $75,000 as of the commencement of business on any Business Day
and the Custodial Account constitutes an Eligible Account solely pursuant to
clause (ii) of the definition of "Eligible Account," the Servicer shall, by 3:00
p.m. New York time on such Business Day, withdraw from the Custodial Account any
and all amounts payable or reimbursable to the Depositor, the
70
Servicer, the Trustee, the Responsible Party, the Seller or any Sub-Servicer
pursuant to Section 3.11 and shall pay such amounts to the Persons entitled
thereto.
(c) All amounts owed by the Swap Counterparty under the Swap Agreement to
the Trustee for the benefit of the Certificateholders will be determined as
required under the Swap Agreement.
(d) Funds in the Custodial Account and the Certificate Account may be
invested in Permitted Investments in accordance with the provisions set forth in
Section 3.12. The Servicer shall give notice to the Trustee of the location of
the Custodial Account maintained by it when established and prior to any change
thereof. The Trustee shall give notice to the Servicer and the Depositor of the
location of the Certificate Account when established and prior to any change
thereof.
(e) Funds held in the Custodial Account at any time may be delivered by the
Servicer to the Trustee for deposit in an account (which may be the Certificate
Account and must satisfy the standards for the Certificate Account as set forth
in the definition thereof) and for all purposes of this Agreement shall be
deemed to be a part of the Custodial Account (and in such event, the Servicer
shall provide the Trustee with written instructions regarding the investment of
such funds); provided, however, that the Trustee shall have the sole authority
to withdraw any funds held pursuant to this subsection (d). In the event the
Servicer shall deliver to the Trustee for deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time request in
writing that the Trustee withdraw such amount from the Certificate Account and
remit to it any such amount, any provision herein to the contrary
notwithstanding. In no event shall the Trustee incur liability as a result of
withdrawals from the Certificate Account at the direction of the Servicer in
accordance with the immediately preceding sentence. In addition, the Servicer
shall deliver to the Trustee from time to time for deposit, and the Trustee
shall so deposit, in the Certificate Account:
(i) any Advances, as required pursuant to Section 4.03;
(ii) any amounts required to be deposited pursuant to Section 3.23(d)
or (f) in connection with any REO Property;
(iii) any amounts to be paid in connection with a purchase of Mortgage
Loans and REO Properties pursuant to Section 9.01; and
(iv) any amounts required to be deposited pursuant to Section 3.24 in
connection with any Prepayment Interest Shortfall.
(f) The Servicer shall deposit in the Custodial Account any amounts
required to be deposited pursuant to Section 3.12(b) in connection with losses
realized on Permitted Investments with respect to funds held in the Custodial
Account (and the Certificate Account to the extent that funds therein are deemed
to be part of the Custodial Account).
71
SECTION 3.11 Withdrawals from the Custodial Account and Certificate
Account. (a) The Servicer shall, from time to time, make withdrawals from the
Custodial Account for any of the following purposes or as described in Section
4.03:
(i) to remit to the Trustee for deposit in the Certificate Account the
amounts required to be so remitted pursuant to Section 3.10(b) or permitted
to be so remitted pursuant to the first sentence of Section 3.10(e);
(ii) subject to Section 3.16(d), to reimburse the Servicer for
Advances, but only to the extent of amounts received which represent Late
Collections (net of the related Servicing Fees) of Monthly Payments on
Mortgage Loans with respect to which such Advances were made in accordance
with the provisions of Section 4.03;
(iii) subject to Section 3.16(d), to pay the Servicer or any
Sub-Servicer, as applicable, (a) any unpaid Servicing Fees, (b) any
unreimbursed Servicing Advances with respect to each Mortgage Loan, but
only to the extent of any Late Collections, Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received with respect to such Mortgage
Loan and (c) any Nonrecoverable Servicing Advances with respect to the
final liquidation of a Mortgage Loan, but only to the extent that Late
Collections, Liquidation Proceeds, Insurance Proceeds and Subsequent
Recoveries received with respect to such Mortgage Loan are insufficient to
reimburse the Servicer or any Sub-Servicer for Servicing Advances;
(iv) to pay to the Servicer as servicing compensation (in addition to
the Servicing Fee) on the Servicer Remittance Date any interest or
investment income earned on funds deposited in the Custodial Account;
(v) to pay to the Servicer, the Depositor, the Responsible Party or
the Seller, as the case may be, with respect to each Mortgage Loan that has
previously been purchased or replaced pursuant to Section 2.03 or Section
3.16(c) all amounts received thereon subsequent to the date of purchase or
substitution, as the case may be;
(vi) to reimburse the Servicer for any Advance previously made which
the Servicer has determined to be a Nonrecoverable Advance in accordance
with the provisions of Section 4.03;
(vii) to reimburse the Servicer or the Depositor for expenses incurred
by or reimbursable to the Servicer or the Depositor, as the case may be,
pursuant to Section 3.02(b) and Section 6.03;
(viii) to reimburse the Servicer or Trustee for expenses reasonably
incurred in connection with any breach or defect giving rise to the
purchase obligation under Section 2.03 of this Agreement, including any
expenses arising out of the enforcement of the purchase obligation;
72
(ix) to pay, or to reimburse the Servicer for Servicing Advances in
respect of, expenses incurred in connection with any Mortgage Loan pursuant
to Section 3.16(b); and
(x) to clear and terminate the Custodial Account pursuant to Section
9.01.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Custodial Account, to the extent held by or on behalf of it, pursuant to
subclauses (ii), (iii), (iv), (v), (vi), (viii) and (ix) above. The Servicer
shall provide written notification to the Trustee, on or prior to the next
succeeding Servicer Remittance Date, upon making any withdrawals from the
Custodial Account pursuant to subclauses (vi) and (vii) above; provided that an
Officers' Certificate in the form described under Section 4.03(d) shall suffice
for such written notification to the Trustee in respect of clause (vi) hereof.
(b) The Trustee shall, from time to time, make withdrawals from the
Certificate Account, for any of the following purposes, without priority:
(i) to make distributions to Certificateholders in accordance with
Section 4.01;
(ii) to pay to itself amounts to which it is entitled pursuant to
Section 8.05 or for Extraordinary Trust Fund Expenses;
(iii) to reimburse itself pursuant to Section 7.02;
(iv) to pay any amounts in respect of taxes pursuant to Section
10.01(g)(iii);
(v) to pay to an Advancing Person reimbursements for Advances and/or
Servicing Advances pursuant to Section 3.26; and
(vi) to clear and terminate the Certificate Account pursuant to
Section 9.01.
SECTION 3.12 Investment of Funds in the Custodial Account and the
Certificate Account. (a) The Servicer may direct any depository institution
maintaining the Custodial Account (for purposes of this Section 3.12, an
"Investment Account") to invest the funds in such Investment Account in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if a Person other than the Trustee is the
obligor thereon, and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
Trustee is the obligor thereon. Amounts in the Certificate Account shall be held
uninvested. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee for the benefit of the Certificateholders. The
Trustee shall be entitled to sole possession (except with respect to investment
direction of funds held in the Custodial Account and any income and gain
realized thereon) over each such investment, and any certificate or other
73
instrument evidencing any such investment shall be delivered directly to the
Trustee or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trustee or its nominee. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the party with investment discretion
over such Investment Account shall:
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by a Responsible Officer of the Trustee that such Permitted
Investment would not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds deposited in
the Custodial Account and any REO Account held by or on behalf of the Servicer,
shall be for the benefit of the Servicer and shall be subject to its withdrawal
in accordance with Section 3.11 or Section 3.23, as applicable. The Servicer
shall deposit in the Custodial Account or any REO Account, as applicable, the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of such
loss.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment (of which a Responsible Officer of the Trustee obtains actual
knowledge), the Trustee may and, subject to Section 8.01 and Section 8.02(v),
upon the request of the Holders of Certificates representing more than 50% of
the Voting Rights allocated to any Class of Certificates, shall take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
(d) The Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee's economic self-interest
for (i) serving as investment adviser, administrator, shareholder servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments and (ii) effecting or using Affiliates to effect transactions in
certain Permitted Investments. Such compensation shall not be considered an
amount that is reimbursable or payable to the Trustee pursuant to Section 3.11
or 3.12 or otherwise payable in respect of Extraordinary Trust Fund Expenses.
SECTION 3.13 [Reserved].
SECTION 3.14 Maintenance of Hazard Insurance and Errors and Omissions and
Fidelity Coverage. (a) The Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the related Mortgaged
Property in an amount which is at least equal
74
to the lesser of the current principal balance of such Mortgage Loan and the
amount necessary to fully compensate for any damage or loss to the improvements
that are a part of such property on a replacement cost basis, in each case in an
amount not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance policy. The
Servicer shall also cause to be maintained fire insurance with extended coverage
on each REO Property in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding principal balance of the related Mortgage Loan
at the time it became an REO Property, plus accrued interest at the Mortgage
Rate and related Servicing Advances. The Servicer will comply in the performance
of this Agreement with all reasonable rules and requirements of each insurer
under any such hazard policies. Any amounts to be collected by the Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or amounts to be released
to the Mortgagor in accordance with the procedures that the Servicer would
follow in servicing loans held for its own account, subject to the terms and
conditions of the related Mortgage and Mortgage Note) shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 3.11, if received
in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal
pursuant to Section 3.23, if received in respect of an REO Property. Any cost
incurred by the Servicer in maintaining any such insurance shall not, for the
purpose of calculating distributions to Certificateholders, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. If the Mortgaged
Property or REO Property is at any time in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards and flood insurance has been made available, the Servicer will cause to
be maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the unpaid principal balance of
the related Mortgage Loan and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
In the event that the Servicer shall obtain and maintain a blanket policy
with an insurer having a General Policy Rating of [B] or better in Best's Key
Rating Guide (or such other rating that is comparable to such rating) insuring
against hazard losses on all of the Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations as set forth in the first two sentences
of this Section 3.14, it being understood and agreed that such policy may
contain a deductible clause, in which case the Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property or REO
Property a policy complying with the first two sentences of this Section 3.14,
and there shall have been one or more losses which would have been covered by
such policy, deposit to the Custodial Account from its own funds the amount not
otherwise payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket policy in a timely
fashion in accordance with the terms of such policy.
75
(b) The Servicer shall keep in force during the term of this Agreement a
policy or policies of insurance covering errors and omissions for failure in the
performance of the Servicer's obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements of
the FDIC. The Servicer shall also maintain a fidelity bond in the form and
amount that would meet the requirements of the FDIC. The Servicer shall be
deemed to have complied with this provision if an Affiliate of the Servicer has
such errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days prior written notice to the
Trustee. The Servicer shall also cause each Sub-Servicer to maintain a policy of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
SECTION 3.15 Enforcement of Due-On-Sale Clauses; Assumption Agreements. The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise its
rights to accelerate the maturity of such Mortgage Loan under the "due-on-sale"
clause, if any, applicable thereto; provided, however, that the Servicer shall
not be required to take such action if in its sole business judgment the
Servicer believes it is not in the best interests of the Trust Fund and shall
not exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause, or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into an assumption and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. The Servicer is also authorized to
enter into a substitution of liability agreement with such person, pursuant to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note,
provided that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Originator and has a credit risk
rating at least equal to that of the original Mortgagor. In connection with any
assumption or substitution, the Servicer shall apply the Originator's
underwriting standards and follow such practices and procedures as shall be
normal and usual in its general mortgage servicing activities and as it applies
to other mortgage loans owned solely by it. The Servicer shall not take or enter
into any assumption and modification agreement, however, unless (to the extent
practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy. Any fee collected by the Servicer in respect of an assumption,
modification or substitution of liability agreement shall be retained by the
Servicer as additional servicing compensation. In connection with any such
assumption, no material term of the Mortgage Note (including but not limited to
the related Mortgage Rate and the amount of the Monthly Payment) may be amended
or modified, except as otherwise required pursuant to the terms thereof. The
Servicer shall notify the Trustee that any such substitution, modification or
assumption agreement has been completed by forwarding to the Trustee the
executed original of such substitution, modification or assumption agreement,
which document shall be added to the related Mortgage File and shall, for all
purposes, be
76
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatever. For purposes of this Section 3.15, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
SECTION 3.16 Realization Upon Defaulted Mortgage Loans. (a) The Servicer
shall exercise its discretion, consistent with customary servicing procedures
and the terms of this Agreement, with respect to the enforcement and servicing
of defaulted Mortgage Loans in such manner as will maximize the receipt of
principal and interest with respect thereto, including, but not limited to, the
modification of such Mortgage Loan, or foreclosure upon the related Mortgaged
Property and disposition thereof.
In furtherance of the foregoing, the Servicer shall use its best efforts,
consistent with Accepted Servicing Practices, to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07. The Servicer shall be responsible for all costs and expenses
incurred by it in any such proceedings; provided, however, that such costs and
expenses will be recoverable as Servicing Advances by the Servicer as
contemplated in Section 3.11 and Section 3.23. The foregoing is subject to the
provision that, in any case in which Mortgaged Property shall have suffered
damage from an Uninsured Cause, the Servicer shall not be required to expend its
own funds toward the restoration of such property unless it shall determine in
its discretion that such restoration will increase the proceeds of liquidation
of the related Mortgage Loan after reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section 3.16 or any
other provision of this Agreement, with respect to any Mortgage Loan as to which
the Servicer has received actual notice of, or has actual knowledge of, the
presence of any toxic or hazardous substance on the related Mortgaged Property,
the Servicer shall not, on behalf of the Trust Fund either (i) obtain title to
such Mortgaged Property as a result of or in lieu of foreclosure or otherwise,
or (ii) otherwise acquire possession of, or take any other action with respect
to, such Mortgaged Property, if, as a result of any such action, the Trustee,
the Trust Fund or the Certificateholders would be considered to hold title to,
to be a "mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined, based
on its reasonable judgment and a report prepared by an Independent Person who
regularly conducts environmental audits using customary industry standards,
that:
77
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to bring
the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous substances,
hazardous materials, hazardous wastes, or petroleum-based materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any federal, state or local law or
regulation, or that if any such materials are present for which such action
could be required, that it would be in the best economic interest of the
Trust Fund to take such actions with respect to the affected Mortgaged
Property.
The cost of the environmental audit report contemplated by this Section
3.16 shall be advanced by the Servicer, subject to the Servicer's right to be
reimbursed therefor from the Custodial Account as provided in Section
3.11(a)(ix), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Custodial Account received in
respect of the affected Mortgage Loan or other Mortgage Loans.
If the Servicer determines, as described above, that it is in the best
economic interest of the Trust Fund to take such actions as are necessary to
bring any such Mortgaged Property into compliance with applicable environmental
laws, or to take such action with respect to the containment, clean-up or
remediation of hazardous substances, hazardous materials, hazardous wastes or
petroleum-based materials affecting any such Mortgaged Property, then the
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund; provided that any amounts disbursed by the Servicer pursuant
to this Section 3.16(b) shall constitute Servicing Advances, subject to Section
4.03(d). The cost of any such compliance, containment, cleanup or remediation
shall be advanced by the Servicer, subject to the Servicer's right to be
reimbursed therefor from the Custodial Account as provided in Section
3.11(a)(iii) and (a)(ix), such right of reimbursement being prior to the rights
of Certificateholders to receive any amount in the Custodial Account received in
respect of the affected Mortgage Loan or other Mortgage Loans.
(c) The Servicer may at its option purchase from REMIC I any Mortgage Loan
or related REO Property that is 90 days or more delinquent, which the Servicer
determines in good faith will otherwise become subject to foreclosure
proceedings (evidence of such determination to be delivered in writing to the
Trustee, in form and substance satisfactory to the Trustee prior to purchase),
at a price equal to the Purchase Price; provided, however, that the Servicer
shall purchase any such Mortgage Loans or related REO Properties on the basis of
delinquency, purchasing the most delinquent Mortgage Loans or related REO
Properties first. The Purchase Price for any Mortgage Loan or related REO
Property purchased hereunder shall be deposited in the Custodial Account, and
the Trustee, upon receipt of written certification from the Servicer of such
deposit, shall release or cause to be released to the Servicer the related
Mortgage File and the Trustee shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Servicer shall
furnish and as shall be necessary to vest in the Servicer title to any Mortgage
Loan or related REO Property released pursuant hereto.
78
(d) Proceeds received in connection with any Final Recovery Determination,
as well as any recovery resulting from a partial collection of Insurance
Proceeds, Liquidation Proceeds or Subsequent Recoveries, in respect of any
Mortgage Loan, will be applied in the following order of priority: first, to
reimburse the Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances and Advances, pursuant to Section 3.11(a)(ii) or (a)(iii);
second, to accrued and unpaid interest on the Mortgage Loan, to the date of the
Final Recovery Determination, or to the Due Date prior to the Distribution Date
on which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the amount
of such recovery will be allocated by the Servicer as follows: first, to unpaid
Servicing Fees; and second, to the balance of the interest then due and owing.
The portion of the recovery so allocated to unpaid Servicing Fees shall be
reimbursed to the Servicer or any Sub-Servicer pursuant to Section 3.11(a)(iii).
SECTION 3.17 Trustee to Cooperate; Release of Mortgage Files. (a) Upon the
payment in full of any Mortgage Loan, or upon the receipt by the Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer shall immediately notify or cause to be notified the
Trustee by a certification in the form of Exhibit E (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the Custodial
Account pursuant to Section 3.10 have been or will be so deposited) of a
Servicing Officer and shall request delivery to it of the Mortgage File. Upon
receipt of such certification and request, the Trustee shall promptly release
the related Mortgage File to the Servicer at no cost to the Trustee or the Trust
Fund. No expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the Custodial Account or the
Certificate Account.
(b) From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan, including, for this purpose, collection under any
insurance policy relating to the Mortgage Loans, the Trustee shall, upon any
request made by or on behalf of the Servicer and delivery to the Trustee of a
Request for Release in the form of Exhibit E, release the related Mortgage File
to the Servicer, and the Trustee shall, at the direction of the Servicer,
execute such documents as shall be necessary to the prosecution of any such
proceedings. Such Request for Release shall obligate the Servicer to return each
and every document previously requested from the Mortgage File to the Trustee
when the need therefor by the Servicer no longer exists, unless (i) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the Custodial Account or (ii) the Mortgage File or
such document has been delivered 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 Servicer has delivered, or caused to be
delivered, to the Trustee an additional Request for Release certifying as to
such liquidation or action or proceedings. Upon the request of the Trustee, the
Servicer shall provide notice to the Trustee of 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. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
79
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Custodial Account have been so deposited, or
that such Mortgage Loan has become an REO Property, any outstanding Requests for
Release with respect to such Mortgage Loan shall be released by the Trustee to
the Servicer or its designee.
(c) Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Servicer or the Sub-Servicer, as the case may be, any
court pleadings, requests for trustee's sale or other documents necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
SECTION 3.18 Servicing Compensation. As compensation for the activities of
the Servicer hereunder, the Servicer shall be entitled to the Servicing Fee with
respect to each Mortgage Loan payable solely from payments of interest in
respect of such Mortgage Loan, subject to Section 3.24. In addition, the
Servicer shall be entitled to recover unpaid Servicing Fees out of Insurance
Proceeds, Liquidation Proceeds or Subsequent Recoveries to the extent permitted
by Section 3.11(a)(iii) and out of amounts derived from the operation and sale
of an REO Property to the extent permitted by Section 3.23. Except as provided
in Sections 3.26, the right to receive the Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the
Servicer's responsibilities and obligations under this Agreement; provided,
however, that the Servicer may pay from the Servicing Fee any amounts due to a
Sub-Servicer pursuant to a Sub-Servicing Agreement entered into under Section
3.02.
Additional servicing compensation in the form of assumption fees, late
payment charges, insufficient funds charges or otherwise (subject to Section
3.24 and other than Prepayment Charges) shall be retained by the Servicer only
to the extent such fees or charges are received by the Servicer. The Servicer
shall also be entitled pursuant to Section 3.11(a)(iv) to withdraw from the
Custodial Account and pursuant to Section 3.23(b) to withdraw from any REO
Account, as additional servicing compensation, interest or other income earned
on deposits therein, subject to Section 3.12 and Section 3.24. The Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including premiums for the insurance required by
Section 3.14, to the extent such premiums are not paid by the related Mortgagors
or by a Sub-Servicer, servicing compensation of each Sub-Servicer, and to the
extent provided herein in Section 8.05, the expenses of the Trustee) and shall
not be entitled to reimbursement therefor except as specifically provided
herein.
SECTION 3.19 Reports to the Trustee and Others; Custodial Account
Statements. Not later than twenty days after each Distribution Date, the
Servicer shall forward to the Trustee (upon the Trustee's request) and the
Depositor the most current available bank statement for the Custodial Account.
Copies of such statement shall be provided by the Trustee to any
80
Certificateholder and to any Person identified to the Trustee as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party, provided such statement is delivered by the Servicer to the Trustee.
SECTION 3.20 Statement as to Compliance. Not later than March 1 of each
calendar year commencing in 2007, the Servicer will deliver to the Trustee and
the Depositor a servicer compliance certificate, signed by an authorized officer
of the Servicer, as described in Item 1123 of Regulation AB, to the effect that
(i) a review of the activities of the Servicer during the preceding calendar
year and of performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such calendar year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. Copies of any such statement shall be
provided by the Trustee to any Certificateholder and to any Person identified to
the Trustee as a prospective transferee of a Certificate, upon request at the
expense of the requesting party, provided such statement is delivered by the
Servicer to the Trustee.
The Servicer shall use commercially reasonable efforts to obtain from all
other parties participating in the servicing function any additional
certifications required under Item 1123 of Regulation AB to the extent required
to be included in a Report on Form 10-K; provided, however, that a failure to
obtain such certifications shall not be a breach of the Servicer's duties
hereunder if any such party fails to deliver such a certification.
SECTION 3.21 Independent Public Accountants' Servicing Report. Not later
than March 1 of each calendar year commencing in 2007, the Servicer, at its
expense, shall cause a nationally recognized firm of independent certified
public accountants to furnish to the Servicer, the attestation required under
Item 1122(b) of Regulation AB. In rendering such statement the firm may rely, as
to matters relating to the direct servicing of residential mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those Sub-Servicers. Immediately upon receipt of such report, the Servicer
shall, at its own expense, furnish a copy of such report to the Depositor,
Trustee and each Rating Agency. Copies of such statement shall be provided by
the Trustee to any Certificateholder upon request, provided that such statement
is delivered by the Servicer to the Trustee.
SECTION 3.22 Access to Certain Documentation. The Servicer shall provide to
the Office of Thrift Supervision, the FDIC, and any other federal or state
banking or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to the documentation in the
Servicer's possession regarding the Mortgage Loans required by applicable laws
and regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer designated by it. In addition, access to the documentation in the
Servicer's possession regarding the Mortgage Loans will be provided to any
Certificateholder or Certificate Owner, the Trustee and to any Person identified
to the Servicer as a prospective transferee of a Certificate; provided, however,
that providing access to such Person will not violate any applicable laws, upon
reasonable
81
request during normal business hours at the offices of the Servicer designated
by it at the expense of the Person requesting such access.
SECTION 3.23 Title, Management and Disposition of REO Property. (a) The
deed or certificate of sale of any REO Property shall be taken in the name of
the Trustee, or its nominee, on behalf of the Trust Fund and for the benefit of
the Certificateholders. The Servicer, on behalf of REMIC I, shall either sell
any REO Property prior to the end of the third taxable year after REMIC I
acquires ownership of such REO Property for purposes of Section 860G(a)(8) of
the Code or request from the Internal Revenue Service, no later than 60 days
before the day on which the three-year grace period would otherwise expire, an
extension of the three-year grace period, unless the Servicer shall have
delivered to the Trustee an Opinion of Counsel, addressed to the Trustee and the
Depositor, to the effect that the holding by REMIC I of such REO Property
subsequent to three years after its acquisition will not result in the
imposition on any Trust REMIC of taxes on "prohibited transactions" thereof, as
defined in Section 860F of the Code, or cause any Trust REMIC to fail to qualify
as a REMIC under Federal law at any time that any Certificates are outstanding.
The Servicer shall manage, conserve, protect and operate each REO Property for
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner which does not 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 Trust REMIC of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code, or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions.
(b) The Servicer shall segregate and hold all funds collected and received
in connection with the operation of any REO Property separate and apart from its
own funds and general assets and shall establish and maintain, or cause to be
established and maintained, with respect to REO Properties, an account held in
trust for the Trustee for the benefit of the Certificateholders (the "REO
Account"), which shall be an Eligible Account. The Servicer shall be permitted
to allow the Custodial Account to serve as the REO Account, subject to separate
ledgers for each REO Property. The Servicer shall be entitled to retain or
withdraw any interest income paid on funds deposited in the REO Account.
(c) The Servicer shall have the sole discretion to determine whether an
immediate sale of an REO Property or continued management of such REO Property
is in the best interests of the Certificateholders. In furtherance of the
foregoing, the Servicer shall have full power and authority, subject only to the
specific requirements and prohibitions of this Agreement, to do any and all
things in connection with any REO Property as are consistent with the manner in
which the Servicer manages and operates similar property owned by the Servicer
or any of its Affiliates, all on such terms and for such period as the Servicer
deems to be in the best interests of Certificateholders. In connection
therewith, the Servicer shall deposit, or cause to be deposited in the clearing
account in which it customarily deposits payments and collections on mortgage
loans in connection with its mortgage loan servicing activities on a daily
basis, and in no event more than one Business Day after the Servicer's receipt
thereof, and shall thereafter deposit in the REO Account, in no event more than
two Business Days after the Servicer's receipt thereof, all revenues received by
it with respect to an REO Property and shall withdraw
82
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO Property.
To the extent that amounts on deposit in the REO Account with respect to an
REO Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if, the
Servicer would make such advances if the Servicer owned the REO Property and if
in the Servicer's judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Notwithstanding the foregoing, the Servicer shall not and the Trustee shall
not knowingly authorize the Servicer to:
(i) authorize the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) authorize any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize any construction on any REO Property, other than the
completion of a building or other improvement thereon, and then only if
more than ten percent of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) authorize any Person to Directly Operate any REO Property on any
date more than 90 days after its date of acquisition by the Trust Fund;
unless, in any such case, the Servicer has obtained an Opinion of Counsel,
provided to the Servicer and the Trustee, to the effect that such action will
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code at any time that it is held by
REMIC I, in which case the Servicer may take such actions as are specified in
such Opinion of Counsel.
The Servicer may contract with any Independent Contractor for the operation
and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
83
(ii) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above and remit all related revenues (net
of such costs and expenses) to the Servicer as soon as practicable, but in
no event later than thirty days following the receipt thereof by such
Independent Contractor;
(iii) none of the provisions of this Section 3.23(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Servicer of any of its duties and
obligations to the Trustee on behalf of the Certificateholders with respect
to the operation and management of any such REO Property; and
(iv) the Servicer shall be obligated with respect thereto to the same
extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Servicer by such Independent
Contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. The Servicer shall be solely liable for all fees owed by
it to any such Independent Contractor, irrespective of whether the Servicer's
compensation pursuant to Section 3.18 is sufficient to pay such fees; provided,
however, that to the extent that any payments made by such Independent
Contractor would constitute Servicing Advances if made by the Servicer, such
amounts shall be reimbursable as Servicing Advances made by the Servicer.
(d) In addition to the withdrawals permitted under Section 3.23(c), the
Servicer may from time to time make withdrawals from the REO Account for any REO
Property: (i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect
of the related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer
for unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, the
Servicer shall withdraw from each REO Account maintained by it and deposit into
the Certificate Account in accordance with Section 3.10(e)(ii), for distribution
on the related Distribution Date in accordance with Section 4.01, the income
from the related REO Property received during the prior calendar month, net of
any withdrawals made pursuant to Section 3.23(c) or this Section 3.23(d).
(e) Subject to the time constraints set forth in Section 3.23(a), each REO
Disposition shall be carried out by the Servicer at such price and upon such
terms and conditions as the Servicer shall deem necessary or advisable, as shall
be normal and usual in its Accepted Servicing Practices.
(f) The proceeds from the REO Disposition, net of any amount required by
law to be remitted to the Mortgagor under the related Mortgage Loan and net of
any payment or reimbursement to the Servicer or any Sub-Servicer as provided
above, shall be deposited in the
84
Certificate Account in accordance with Section 3.10(e)(ii) on the Servicer
Remittance Date in the month following the receipt thereof for distribution on
the related Distribution Date in accordance with Section 4.01. Any REO
Disposition shall be for cash only (unless changes in the REMIC Provisions made
subsequent to the Startup Day allow a sale for other consideration).
(g) The Servicer shall file information returns with respect to the receipt
of mortgage interest received in a trade or business, reports of foreclosures
and abandonments of any Mortgaged Property and cancellation of indebtedness
income with respect to any Mortgaged Property as required by Sections 6050H,
6050J and 6050P of the Code, respectively. Such reports shall be in form and
substance sufficient to meet the reporting requirements imposed by such Sections
6050H, 6050J and 6050P of the Code.
SECTION 3.24 Obligations of the Servicer in Respect of Prepayment Interest
Shortfalls. The Servicer shall deliver to the Trustee for deposit into the
Certificate Account by 1:00 p.m. New York time on the Servicer Remittance Date
from its own funds an amount equal to the lesser of (i) the aggregate of the
Prepayment Interest Shortfalls for the related Distribution Date resulting from
full Principal Prepayments during the related Prepayment Period and (ii) the
aggregate Servicing Fee for the related Prepayment Period. Any amounts paid by
the Servicer pursuant to this Section 3.24 shall not be reimbursed by any Trust
REMIC or the Trust Fund.
SECTION 3.25 Obligations of the Servicer in Respect of Mortgage Rates and
Monthly Payments. In the event that a shortfall in any collection on or
liability with respect to any Mortgage Loan results from or is attributable to
adjustments to Mortgage Rates, Monthly Payments or Stated Principal Balances
that were made by the Servicer in a manner not consistent with the terms of the
related Mortgage Note applicable laws, regulations and rulings and this
Agreement, the Servicer, upon discovery or receipt of notice thereof, shall
immediately deliver to the Trustee for deposit in the Certificate Account from
its own funds the amount of any such shortfall and shall indemnify and hold
harmless the Trust Fund, the Trustee, the Depositor and any successor Servicer
in respect of any such liability. Such indemnities shall survive the termination
or discharge of this Agreement. Notwithstanding the foregoing, this Section 3.25
shall not limit the ability of the Servicer to seek recovery of any such amounts
from the related Mortgagor under the terms of the related Mortgage Note, as
permitted by law.
SECTION 3.26 Advance Facility. (a) The Servicer is hereby authorized to
enter into a financing or other facility (any such arrangement an "Advance
Facility") with any Person which provides that such Person (an "Advancing
Person") may fund Advances and/or Servicing Advances to the Trust Fund under
this Agreement, although no such facility shall reduce or otherwise affect the
Servicer's obligation to fund such Advances and/or Servicing Advances. If the
Servicer enters into such an Advance Facility pursuant to this Section 3.26,
upon reasonable request of the Advancing Person, the Trustee shall execute a
letter of acknowledgment, confirming its receipt of notice of the existence of
such Advance Facility. If the Trustee enters into such an Advance Facility
pursuant to this Section 3.26, the Servicer shall also be a party to such
Advance Facility. To the extent that an Advancing Person funds any Advance or
any Servicing Advance and the Servicer provides the Trustee with an Officers'
Certificate that such Advancing Person is entitled to reimbursement, such
Advancing Person shall be entitled to receive reimbursement pursuant to this
Agreement for such amount to the extent provided in
85
Section 3.26(b). Such Officers' Certificate must specify the amount of the
reimbursement, the Section of this Agreement that permits the applicable Advance
or Servicing Advance to be reimbursed and the section(s) of the Advance Facility
that entitle the Advancing Person to request reimbursement from the Trustee,
rather than the Servicer or proof of an Event of Default under the Advance
Facility. The Trustee shall have no duty or liability with respect to any
calculation of any reimbursement to be paid to an Advancing Person and shall be
entitled to rely without independent investigation on the Advancing Person's
notice provided pursuant to this Section 3.26. The Trustee shall have no
responsibility to track or monitor the administration of the Advance Facility.
An Advancing Person whose obligations hereunder are limited to the funding of
Advances and/or Servicing Advances shall not be required to meet the
qualifications of the Servicer or a Sub-Servicer pursuant to Section 3.02 hereof
and will not be deemed to be a Sub-Servicer under this Agreement.
(b) If an advancing facility is entered into, then the Servicer shall not
be permitted to reimburse itself therefor under Section 3.11(a)(ii), Section
3.11(a)(iii) and Section 3.11(a)(vi) prior to the remittance to the Trust Fund,
but instead the Servicer shall remit such amounts in accordance with the
documentation establishing the Advance Facility to such Advancing Person or to a
trustee, agent or custodian (an "Advance Facility Trustee") designated by such
Advancing Person. The Trustee is hereby authorized to pay to the Advancing
Person, reimbursements for Advances and Servicing Advances from the Certificate
Account to the same extent the Servicer would have been permitted to reimburse
itself for such Advances and/or Servicing Advances in accordance with Section
3.11(a)(ii), Section 3.11(a)(iii) and Section 3.11(a)(vi), as the case may be,
had the Servicer itself funded such Advance or Servicing Advance. The Trustee is
hereby authorized to pay directly to the Advancing Person such portion of the
Servicing Fee as the parties to any advancing facility agree in writing.
(c) All Advances and Servicing Advances made pursuant to the terms of this
Agreement shall be deemed made and shall be reimbursed on a "first in-first out"
(FIFO) basis.
(d) Any amendment to this Section 3.26 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an Advance
Facility as described generally in this Section 3.26, including amendments to
add provisions relating to a successor Servicer, may be entered into by the
Trustee and the Servicer without the consent of any Certificateholder,
notwithstanding anything to the contrary in this Agreement; provided, however,
such amendment shall otherwise comply with Section 12.01 hereof. All costs and
expenses (including attorneys' fees) of each party hereto related to such
amendment shall be borne by the Servicer without reimbursement from the Trust
Fund.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions. (a) (1) On each Distribution Date, the
following amounts, in the following order of priority, shall be distributed by
REMIC I to REMIC II on account of the REMIC I Regular Interests or withdrawn
from the Certificate Account and distributed to the holders of the Class R-I
Interest, as the case may be:
86
(i) first, to Holders of REMIC I Regular Interest [I-LTAA, REMIC
I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I
Regular Interest I-LTA5, REMIC I Regular Interest I-LTA6, REMIC I
Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I
Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I
Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I
Regular Interest I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I
Regular Interest I-LTM9, REMIC I Regular Interest I-LTM10, REMIC I
Regular Interest I-LTM11, REMIC I Regular Interest I-LTM12, REMIC I
Regular Interest I-LTM13] and REMIC I Regular Interest I-LTZZ, in an
amount equal to (A) the Uncertificated Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates. Amounts payable as Uncertificated
Interest in respect of REMIC I Regular Interest I-LTZZ shall be
reduced when the sum of the REMIC I Overcollateralized Amount is less
than the REMIC I Required Overcollateralized Amount, by the lesser of
(x) the amount of such difference and (y) the Maximum I-LTZZ
Uncertificated Interest Deferral Amount and such amounts will be
payable to the Holders of REMIC I Regular Interest [I-LTA1, REMIC I
Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I
Regular Interest I-LTA4, REMIC I Regular Interest I-LTA5, REMIC I
Regular Interest I-LTA6, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I
Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I
Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I
Regular Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC
Regular Interest I-LTM10, REMIC I Regular Interest I-LTM11, REMIC I
Regular Interest I-LTM12 and REMIC I Regular Interest I-LTM13] in the
same proportion as the Overcollateralization Increase Amount is
allocated to the Corresponding Certificates and the Uncertificated
Balance of REMIC I Regular Interest I-LTZZ shall be increased by such
amount;
(ii) second, to the Holders of REMIC I Regular Interests, in an
amount equal to the remainder of the Available Distribution Amount for
such Distribution Date after the distributions made pursuant to clause
(i) above, allocated as follows:
(a) 98.00% of such remainder (less the amount payable in
clause (e) below), to the Holders of REMIC I Regular Interest
I-LTAA, until the Uncertificated Balance of such REMIC I Regular
Interest is reduced to zero;
2% of such remainder, first to the Holders of REMIC I
Regular Interest [I-LTA1, REMIC I Regular Interest I-LTA2, REMIC
I Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC
I Regular Interest I-LTA5, REMIC I Regular Interest I-LTA6, REMIC
I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC
I Regular
87
Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular
Interest I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I Regular
Interest I-LTM9, REMIC Regular Interest I-LTM10, REMIC I Regular
Interest I-LTM11, REMIC I Regular Interest I-LTM12 and REMIC I
Regular Interest I-LTM13], 1.00% of and in the same proportion as
principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Balances of such REMIC I
Regular Interests are reduced to zero; and second, to the Holders
of REMIC I Regular Interest I-LTZZ, (less the amount payable in
clause (c) below), until the Uncertificated Balance of such REMIC
I Regular Interest is reduced to zero; then
(b) to the Holders of REMIC I Regular Interest I-LTP, on the
Distribution Date immediately following the expiration of the
latest Prepayment Charge as identified on the Prepayment Charge
Schedule or any Distribution Date thereafter until $100 has been
distributed pursuant to this clause; and
(c) any remaining amount to the Holders of the Class R
Certificates (as Holder of the Class R-I Interest);
provided, however, that 98.00% and 2.00% of any principal payments that are
attributable to an Overcollateralization Reduction Amount shall be allocated to
Holders of REMIC I Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ,
respectively.
(2) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account an amount equal to the Interest Remittance Amount and
distribute to the Certificateholders the following amounts, in the
following order of priority:
(i) to the Holders of each Class of the Class A Certificates, on
a pro rata basis based on the entitlement of each such Class, an
amount equal to the Senior Interest Distribution Amount allocable to
such Class of the Class A Certificates; and
(ii) sequentially, to the Holders of the Class [M-1 Certificates,
Class M-2 Certificates, Class M-3 Certificates, Class M-4
Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates,
Class M-10 Certificates, Class M-11 Certificates, Class M-12
Certificates and Class M-13] Certificates, in that order, an amount
equal to the Interest Distribution Amount allocable to each such
Class.
(3) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account an amount equal to the Principal Distribution Amount
and distribute to the Certificateholders the following amounts, in the
following order of priority:
88
(A) On each Distribution Date (a) prior to the Stepdown Date or (b) on
which a Trigger Event is in effect, the Principal Distribution Amount shall
be distributed in the following order of priority:
(i) to the Holders of the Class A Certificates as follows:
(a) first, to the Class A-1 Certificates, until the
Certificate Principal Balance of the Class A-1 Certificates has
been reduced to zero;
(b) second, concurrently, to the Class [A-2 Certificates,
Class A-3 Certificates and Class A-4 ]Certificates (on a pro rata
basis based on the Certificate Principal Balance of the Class
[A-4 Certificates and the aggregate Certificate Principal Balance
of the Class A-2] Certificates and the Class A-3 Certificates) as
follows:
o to the Class [A-4] Certificates, until the Certificate
Principal Balance of such class is reduced to zero;
o sequentially, to the Class [A-2 Certificates and Class
A-3] Certificates, in that order, in each case until
the Certificate Principal Balance of each such class is
reduced to zero;
(c) third, sequentially, to the Holders of the Class [A-5
Certificates and the Class A-6 ]Certificates, in that order, in
each case until the Certificate Principal Balance of each such
class is reduced to zero; and
(ii) sequentially, to the holders of the Class [M-1 Certificates,
Class M-2 Certificates, Class M-3 Certificates, Class M-4
Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates,
Class M-10 Certificates, Class M-11 Certificates, Class M-12
Certificates and Class M-13] Certificates, in that order, until the
Certificate Principal Balance of each such Class has been reduced to
zero.
(B) On each Distribution Date (a) on or after the Stepdown Date and
(b) on which a Trigger Event is not in effect, the Principal Distribution
Amount shall be distributed in the following order of priority:
(i) to the Holders of the Class A Certificates, up to an amount
equal to the Class A Principal Distribution Amount, as follows:
(a) first, to the Class A-1 Certificates, until the
Certificate Principal Balance of the Class A-1 Certificates has
been reduced to zero;
(b) second, concurrently, to the [Class A-2 Certificates,
Class A-3 Certificates and Class A-4] Certificates (on a pro rata
basis based on the Certificate Principal Balance of the Class
[A-4 Certificates and the
89
aggregate Certificate Principal Balance of the Class A-2
Certificates and the Class A-3] Certificates) as follows:
o to the Class [A-4] Certificates, until the Certificate
Principal Balance of such class is reduced to zero;
o sequentially, to the Class [A-2 Certificates and Class
A-3] Certificates, in that order, in each case until
the Certificate Principal Balance of each such class is
reduced to zero;
(c) third, sequentially, to the Holders of the Class [A-5
Certificates and the Class A-6] Certificates, in that order, in
each case until the Certificate Principal Balance of each such
class is reduced to zero; and
(ii) sequentially, to the Holders of the Class [M-1 Certificates,
Class M-2 Certificates, Class M-3 Certificates, Class M-4
Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates,
Class M-10 Certificates, Class M-11 Certificates, Class M-12
Certificates and Class M-13] Certificates, in that order, up to an
amount equal to the related Class M Principal Distribution Amount
until the Certificate Principal Balances of each such class has been
reduced to zero.
(4) On each Distribution Date, the Net Monthly Excess Cashflow shall
be distributed by the Trustee as follows, in each case to the extent not
covered by amounts from the Swap Agreement:
(i) to the Holders of the Class or Classes of Certificates then
entitled to receive distributions in respect of principal, as part of
the Principal Distribution Amount in an amount equal to the
Overcollateralization Increase Amount for the Certificates, applied to
reduce the Certificate Principal Balance of such Certificates until
the aggregate Certificate Principal Balance of such Certificates is
reduced to zero;
(ii) sequentially, to the Holders of the Class [M-1, Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class M-4, Class M-5, Class M-6 Certificates, Class M-7
Certificates, Class M-8 Certificates, Class M-9 Certificates, Class
M-10 Certificates, Class M-11 Certificates, Class M-12 Certificates
and Class M-13] Certificates, in that order, in each case, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(iii) on a pro rata basis to the Class [A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates,
Class A-5 Certificates and Class A-6] Certificates, and sequentially
to the Class [M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class
M-6 Certificates, Class M-7 Certificates, Class M-8 Certificates,
Class M-9 Certificates, Class M-10 Certificates, Class M-11
90
Certificates, Class M-12 Certificates and Class M-13] Certificates, in
that order, in each case up to the related Allocated Realized Loss
Amount related to each such Class of Certificates for such
Distribution Date;
(iv) to the Holders of the Class A Certificates and the Mezzanine
Certificates, any related unpaid Net WAC Rate Carryover Amount
distributed to the Class A Certificates, on a pro rata basis based on
the remaining Net WAC Rate Carryover Amount for each such Class and
then to the Class of Mezzanine Certificates with the next Highest
Priority;
(v) to pay any Swap Termination Payments owed to the Swap
Counterparty due to a Swap Counterparty Trigger Event;
(vi) to the Holders of the Class CE Certificates, (a) the
Interest Distribution Amount and any Overcollateralization Reduction
Amount for such Distribution Date and (b) on any Distribution Date on
which the aggregate Certificate Principal Balance of the Class A
Certificates and the Mezzanine Certificates have been reduced to zero,
any remaining amounts in reduction of the Certificate Principal
Balance of the Class CE Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; and
(vii) to the Holders of the Class R Certificates, any remaining
amounts; provided that if such Distribution Date is the Distribution
Date immediately following the expiration of the latest Prepayment
Charge term on a Mortgage Loan as identified on the Mortgage Loan
Schedule or any Distribution Date thereafter, then any such remaining
amounts will be distributed first, to the Holders of the Class P
Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and second, to the Holders of the Class R
Certificates.]
(b) On each Distribution Date, the Trustee shall withdraw any amounts then
on deposit in the Certificate Account that represent Prepayment Charges
collected by the Servicer, during the related Prepayment Period in connection
with the Principal Prepayment of any of the Mortgage Loans or any Servicer
Prepayment Charge Payment Amount and shall distribute such amounts to the
Holders of the Class P Certificates. Such distributions shall not be applied to
reduce the Certificate Principal Balance of the Class P Certificates.
Following the foregoing distributions, an amount equal to the amount of
Subsequent Recoveries shall be applied to increase the Certificate Principal
Balance of the Class of Certificates with the Highest Priority up to the extent
of such Realized Losses previously allocated to that Class of Certificates
pursuant to Section 4.04. An amount equal to the amount of any remaining
Subsequent Recoveries shall be applied to increase the Certificate Principal
Balance of the Class of Certificates with the next Highest Priority, up to the
amount of such Realized Losses previously allocated to that Class of
Certificates pursuant to Section 4.04. Holders of such Certificates will not be
entitled to any distribution in respect of interest on the amount of such
increases for any Interest Accrual Period preceding the Distribution Date on
91
which such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(c) All distributions made with respect to each Class of Certificates on
each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Payments in respect of each Class of Certificates on each Distribution Date
shall be made to the Holders of the respective Class of record on the related
Record Date (except as otherwise provided in Section 4.01(e) or Section 9.01
respecting the final distribution on such Class), based on the aggregate
Percentage Interest represented by their respective Certificates, and shall be
made by wire transfer of immediately available funds to the account of any such
Holder at a bank or other entity having appropriate facilities therefor, if such
Holder shall (i) own Certificates having denominations aggregating at least
$1,000,000 and (ii) have so notified the Trustee in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date, or otherwise by check mailed by first class mail to the address of such
Holder appearing in the Certificate Register. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee maintained for such
purpose pursuant to Section 8.12 or such other location specified in the notice
to Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate shall be paid to
the Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Depositor
or the Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(d) The rights of the Certificateholders to receive distributions in
respect of the Certificates, and all interests of the Certificateholders in such
distributions, shall be as set forth in this Agreement. None of the Holders of
any Class of Certificates, the Trustee or the Servicer shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(e) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Trustee shall, no later than
three (3) days before the related Distribution Date (to the extent that an
accurate Remittance Report is received in a timely manner by the Trustee), mail
to each Holder on such date of such Class of Certificates a notice to the effect
that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date
but only upon presentation and surrender of such Certificates at the
office of the Trustee therein specified, and
92
(ii) no interest shall accrue on such Certificates from and after
the end of the related Interest Accrual Period.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or Holders
to tender their Certificates shall, on such date, be set aside and held in trust
by the Trustee and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 4.01(e) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee shall, directly or through an agent, mail a final
notice to the remaining non-tendering Certificateholders concerning surrender of
their Certificates and shall continue to hold any remaining funds for the
benefit of non-tendering Certificateholders. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets held in trust for such Certificateholders. If within
one year after the final notice any such Certificates shall not have been
surrendered for cancellation, the Trustee shall pay to [Name of Underwriter], as
representative for the underwriters, in accordance with its wiring instructions,
all such amounts, and all rights of non-tendering Certificateholders in or to
such amounts shall thereupon cease. No interest shall accrue or be payable to
any Certificateholder on any amount held in trust by the Trustee as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(e). Any such amounts held
in trust by the Trustee shall be held in an Eligible Account and shall be held
uninvested.
(f) Notwithstanding anything to the contrary herein, (i) in no event shall
the Certificate Principal Balance of a Class A Certificate or a Mezzanine
Certificate be reduced more than once in respect of any particular amount
allocated to such Certificate in respect of Realized Losses pursuant to Section
4.04 and (ii) in no event shall the Uncertificated Balance of a REMIC I Regular
Interest be reduced more than once in respect of any particular amount both (a)
allocated to such REMIC I Regular Interest in respect of Realized Losses
pursuant to Section 4.04 and (b) distributed on such REMIC I Regular Interest in
reduction of the Uncertificated Balance thereof pursuant to this Section 4.01.
SECTION 4.02 Statements to Certificateholders. On each Distribution Date,
the Trustee shall prepare and make available via its website to each Holder of
the Regular Certificates, a statement as to the distributions made on such
Distribution Date setting forth:
(i) applicable Record Date and Determination Date for calculating such
distribution;
(ii) the aggregate amount of payments received and the sources thereof
for distributions, fees and expenses;
(iii) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to principal;
93
(iv) the amount of the distribution made on such Distribution Date to
the Holders of the Class P Certificates allocable to Prepayment Charges;
(v) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to interest;
(vi) [the amount of any fees or expenses paid, and the identity of the
party receiving such fees or expenses, including the aggregate Servicing
Fee received by the Servicer during the related Due Period and such other
customary information as the Trustee deems necessary or desirable, or which
a Certificateholder reasonably requests, to enable Certificateholders to
prepare their tax returns;
(vii) [the amount of Net Monthly Excess Cashflow or and the
disposition of such Net Monthly Excess Cashflow;]
(viii) [the amount and nature of any Net Swap Payments];
(ix) [the balance of the reserve fund, if any, at the opening of
business and the close of business on such Distribution Date];
(x) the aggregate amount, terms and general purpose of Advances made
or reimbursed for such Distribution Date;
(xi) any material breaches of mortgage loan representations or
warranties or covenants in this Agreement;
(xii) any material modifications, extensions or waivers to the terms
of the Mortgage Loans during the related Due Period or that have
cumulatively become material over time;
(xiii) information regarding any new issuance of asset-backed
securities backed by the same asset pool or any pool asset changes;]
(xiv) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Properties at the close of business on such Distribution Date;
(xv) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the related Due Date;
(xvi) delinquency and loss information relating to the Mortgage Loans,
including the number and aggregate unpaid principal balance of Mortgage
Loans (a) delinquent 30 to 59 days, (b) delinquent 60 to 89 days, (c)
delinquent 90 or more days, in each case, as of the last day of the
preceding calendar month, (d) as to which foreclosure proceedings have been
commenced and (e) with respect to which the related Mortgagor has filed for
protection under applicable bankruptcy laws, with respect to whom
94
bankruptcy proceedings are pending or with respect to whom bankruptcy
protection is in force;
(xvii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number of such Mortgage Loan,
the unpaid principal balance and the Stated Principal Balance of such
Mortgage Loan as of the date it became an REO Property;
(xviii) the book value of any REO Property as of the close of business
on the last Business Day of the calendar month preceding the Distribution
Date;
(xix) the aggregate amount of Principal Prepayments made during the
related Prepayment Period;
(xx) the aggregate amount of Realized Losses incurred during the
related Prepayment Period (or, in the case of Bankruptcy Losses allocable
to interest, during the related Due Period), separately identifying whether
such Realized Losses constituted Bankruptcy Losses and the aggregate amount
of Realized Losses incurred since the Closing Date and the aggregate amount
of Subsequent Recoveries received during the related Prepayment Period and
the cumulative amount of Subsequent Recoveries received since the Closing
Date;
(xxi) the aggregate amount of Extraordinary Trust Fund Expenses
withdrawn from the Custodial Account or the Certificate Account for such
Distribution Date;
(xxii) the aggregate Certificate Principal Balance and Notional
Amount, as applicable, of each Class of Certificates, after giving effect
to the distributions, and allocations of Realized Losses, made on such
Distribution Date, separately identifying any reduction thereof due to
allocations of Realized Losses;
(xxiii) the Certificate Factor for each such Class of Certificates
applicable to such Distribution Date;
(xxiv) the Interest Distribution Amount in respect of the Class A
Certificates, the Mezzanine Certificates and the Class CE Certificates for
such Distribution Date and the Interest Carry Forward Amount, if any, with
respect to the Class A Certificates and the Mezzanine Certificates on such
Distribution Date, and in the case of the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates, separately
identifying any reduction thereof due to allocations of Realized Losses,
Prepayment Interest Shortfalls and Relief Act Interest Shortfalls;
(xxv) the aggregate amount of any Prepayment Interest Shortfall for
such Distribution Date, to the extent not covered by payments by the
Servicer pursuant to Section 3.24;
(xxvi) the aggregate amount of Relief Act Interest Shortfalls for such
Distribution Date;
95
(xxvii) the Overcollateralization Target Amount and the Credit
Enhancement Percentage for such Distribution Date;
(xxviii) the Overcollateralization Increase Amount, if any, for such
Distribution Date;
(xxix) the Overcollateralization Reduction Amount, if any, for such
Distribution Date;
(xxx) the respective Pass-Through Rates applicable to the Class A
Certificates, the Mezzanine Certificates, the Class CE Certificates for
such Distribution Date and the Pass-Through Rate applicable to the Class A
Certificates and the Mezzanine Certificates for the immediately succeeding
Distribution Date;
(xxxi) the Net WAC Rate Carryover Amount for the Class A Certificates
and the Mezzanine Certificates, if any, for such Distribution Date and the
amount remaining unpaid after reimbursements therefor on such Distribution
Date;
(xxxii) whether a Trigger Event is in effect; and
(xxxiii) the amount of any Net Swap Payment payable to the Trustee on
behalf of the Trust, any Net Swap Payment payable to the Swap Counterparty,
any Swap Termination Payment payable to the Trustee on behalf of the Trust
and any Swap Termination Payment payable to the Swap Counterparty.
The Trustee shall make such statement (and, at its option, any additional
files containing the same information in an alternative format) available each
month to Certificateholders, the Servicer and the Rating Agencies via the
Trustee's internet website. The Trustee's internet website shall initially be
located at ▇▇▇▇▇://▇▇▇.[_______].com/invr and assistance in using the website
can be obtained by calling the Trustee's investor relations desk at
1-800-[___-___]. Parties that are unable to use the above distribution options
are entitled to have a paper copy mailed to them via first class mail by calling
the investor relations 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.
In the case of information furnished pursuant to subclauses (iii), (iv) and
(v) above, the amounts shall be expressed as a dollar amount per Single
Certificate of the relevant Class.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Regular Certificate a statement containing the information set
forth in subclauses (iii), (iv) and (v) above, aggregated for such calendar year
or applicable portion thereof during which such person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time are in
force.
96
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Residual Certificate a statement setting forth the amount, if
any, actually distributed with respect to the Residual Certificates, as
appropriate, aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder.
The Trustee shall, upon request, furnish to each Certificateholder, during
the term of this Agreement, such periodic, special, or other reports or
information, whether or not provided for herein, as shall be reasonable with
respect to the Certificateholder, or otherwise with respect to the purposes of
this Agreement, all such reports or information to be provided at the expense of
the Certificateholder in accordance with such reasonable and explicit
instructions and directions as the Certificateholder may provide. For purposes
of this Section 4.02, the Trustee's duties are limited to the extent that the
Trustee receives timely reports as required from the Servicer.
On each Distribution Date the Trustee shall provide Bloomberg Financial
Markets, L.P. ("Bloomberg") CUSIP level factors for each class of Certificates
as of such Distribution Date, using a format and media mutually acceptable to
the Trustee and Bloomberg.
SECTION 4.03 Remittance Reports; Advances. (a) On the [third] Business Day
following each Determination Date, the Servicer shall deliver to the Trustee by
telecopy (or by such other means as the Servicer or the Trustee may agree from
time to time) a Remittance Report with respect to the related Distribution Date.
On the same date, the Servicer shall electronically transmit to the Trustee (in
a format acceptable to the Trustee), a data file containing the information set
forth in such Remittance Report with respect to the related Distribution Date or
if electronic transmission is not available, the Servicer shall forward to the
Trustee by overnight mail a computer readable magnetic tape. Such Remittance
Report will include (i) the amount of Advances to be made by the Servicer in
respect of the related Distribution Date, the aggregate amount of Advances
outstanding after giving effect to such Advances, and the aggregate amount of
Nonrecoverable Advances in respect of such Distribution Date and (ii) such other
information with respect to the Mortgage Loans as the Trustee may reasonably
require to perform the calculations necessary to make the distributions
contemplated by Section 4.01 and to prepare the statements to Certificateholders
contemplated by Section 4.02. The Trustee shall not be responsible to recompute,
recalculate or verify any information provided to it by the Servicer.
(b) The amount of Advances to be made by the Servicer for any Distribution
Date shall equal, subject to Section 4.03(d), the sum of, (i) the aggregate
amount of Monthly Payments (with each interest portion thereof net of the
related Servicing Fee), due on the related Due Date in respect of the Mortgage
Loans, which Monthly Payments were delinquent as of the close of business on the
related Determination Date and (ii) with respect to each REO Property, which REO
Property was acquired during or prior to the related Prepayment Period and as to
which REO Property an REO Disposition did not occur during the related
Prepayment Period, an amount equal to the excess, if any, of the REO Imputed
Interest on such REO Property for the most recently ended calendar month, over
the net income from such REO Property transferred to the Certificate Account
pursuant to Section 3.23 for distribution on such Distribution Date; provided,
however, that the Servicer shall not be required to make Advances with respect
to
97
Relief Act Interest Shortfalls or Prepayment Interest Shortfalls in excess of
their respective obligations under Section 3.24.
By 1:00 p.m. New York time on the Servicer Remittance Date, the Servicer
shall remit in immediately available funds to the Trustee for deposit in the
Certificate Account an amount equal to the aggregate amount of Advances, if any,
to be made in respect of the Mortgage Loans and REO Properties for the related
Distribution Date either (i) from its own funds or (ii) from the Custodial
Account, to the extent of funds held therein for future distribution (in which
case it will cause to be made an appropriate entry in the records of the
Custodial Account that amounts held for future distribution have been, as
permitted by this Section 4.03, used by the Servicer in discharge of any such
Advance) or (iii) in the form of any combination of (i) and (ii) aggregating the
total amount of Advances to be made by the Servicer with respect to the Mortgage
Loans and REO Properties. Any amounts held for future distribution and so used
shall be appropriately reflected in the Servicer's records and replaced by the
Servicer by deposit in the Custodial Account on or before any future Servicer
Remittance Date to the extent that the Available Distribution Amount for the
related Distribution Date (determined without regard to Advances to be made on
the Servicer Remittance Date) shall be less than the total amount that would be
distributed to the Classes of Certificateholders pursuant to Section 4.01 on
such Distribution Date if such amounts held for future distributions had not
been so used to make Advances. The Trustee will provide notice to the Servicer
by telecopy by the close of business on the Business Day prior to the
Distribution Date in the event that the amount remitted by the Servicer to the
Trustee on such date is less than the amount required to be remitted by the
Servicer as set forth in the Remittance Report for the related Distribution
Date.
(c) The obligation of the Servicer to make such Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any Mortgage Loan or REO Property, shall continue until a
Final Recovery Determination in connection therewith or the removal thereof from
the Trust Fund pursuant to any applicable provision of this Agreement, except as
otherwise provided in this Section.
(d) Notwithstanding anything herein to the contrary, no Advance or
Servicing Advance shall be required to be made hereunder by the Servicer if such
Advance or Servicing Advance would, if made, constitute a Nonrecoverable Advance
or Nonrecoverable Servicing Advance, respectively. The determination by the
Servicer that it has made a Nonrecoverable Advance or a Nonrecoverable Servicing
Advance or that any proposed Advance or Servicing Advance, if made, would
constitute a Nonrecoverable Advance or Nonrecoverable Servicing Advance,
respectively, shall be evidenced by a certification of a Servicing Officer
delivered to the Depositor and the Trustee.
SECTION 4.04 Allocation of Realized Losses. (a) Prior to each Determination
Date, the Servicer shall determine as to each Mortgage Loan and REO Property:
(i) the total amount of Realized Losses, if any, incurred in connection with any
Final Recovery Determinations made during the related Prepayment Period; (ii)
whether and the extent to which such Realized Losses constituted Bankruptcy
Losses; and (iii) the respective portions of such Realized Losses allocable to
interest and allocable to principal. Prior to each Determination Date, the
Servicer shall also determine as to each Mortgage Loan: (i) the total amount of
Realized Losses, if any,
98
incurred in connection with any Deficient Valuations made during the related
Prepayment Period; and (ii) the total amount of Realized Losses, if any,
incurred in connection with Debt Service Reductions in respect of Monthly
Payments due during the related Due Period. The information described in the two
preceding sentences that is to be supplied by the Servicer shall be evidenced by
an Officers' Certificate delivered to the Trustee by the Servicer prior to the
Determination Date immediately following the end of (i) in the case of
Bankruptcy Losses allocable to interest, the Due Period during which any such
Realized Loss was incurred, and (ii) in the case of all other Realized Losses,
the Prepayment Period during which any such Realized Loss was incurred.
(b) All Realized Losses on the Mortgage Loans shall be covered or allocated
by the Trustee on each Distribution Date as follows: first, by any amounts
available from the Swap Agreement for such Distribution Date pursuant to Section
4.07; second, to Net Monthly Excess Cash Flow; third, to the Accrued Certificate
Interest for the Class CE Certificates for the related Interest Accrual Period;
fourth, to the Class CE Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; fifth, to the Class [M-13 Certificates, until
the Certificate Principal Balance thereof is reduced to zero; sixth, to the
Class M-12 Certificates, until the Certificate Principal Balance thereof is
reduced to zero; seventh, to the Class M-11 Certificates, until the Certificate
Principal Balance thereof is reduced to zero; eighth, to the Class M-10
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; ninth, to the Class M-9 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; tenth, to the Class M-8 Certificates
until the Certificate Principal Balance thereof has been reduced to zero;
eleventh, to the Class M-7 Certificates until the Certificate Principal Balance
thereof has been reduced to zero; twelfth, to the Class M-6 Certificates until
the Certificate Principal Balance thereof has been reduced to zero; thirteenth,
to the Class M-5 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; fourteenth, to the Class M-4 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fifteenth, to
the Class M-3 Certificates, until the Certificate Principal Balance thereof has
been reduced to zero, sixteenth, to the Class M-2 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero, seventeenth, to
the Class M-1] Certificates, until the Certificate Principal Balance thereof has
been reduced to zero, and eighteenth, concurrently, to the Class [A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates and Class A-6] Certificates on a pro rata
basis based on the Certificate Principal Balance of each such Class of
Certificates, until their respective Certificate Principal Balances have been
reduced to zero.
All Realized Losses to be allocated to the Certificate Principal Balances
of all Classes on any Distribution Date shall be so allocated after the actual
distributions to be made on such date as provided above. All references above to
the Certificate Principal Balance of any Class of Certificates shall be to the
Certificate Principal Balance of such Class immediately prior to the relevant
Distribution Date, before reduction thereof by any Realized Losses, in each case
to be allocated to such Class of Certificates, on such Distribution Date.
Any allocation of Realized Losses to a Class A Certificate or Mezzanine
Certificate on any Distribution Date shall be made by reducing the Certificate
Principal Balance thereof by the amount so allocated and any allocation of
Realized Losses to a Class CE Certificates shall be
99
made by reducing the amount otherwise payable in respect thereof pursuant to
Section 4.01(a)(4)(vi). No allocations of any Realized Losses shall be made to
the Certificate Principal Balances of the Class P Certificates.
As used herein, an allocation of a Realized Loss on a "pro rata basis"
among two or more specified Classes of Certificates means an allocation on a pro
rata basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such Distribution
Date. All Realized Losses and all other losses allocated to a Class of
Certificates hereunder will be allocated among the Certificates of such Class in
proportion to the Percentage Interests evidenced thereby.
(c) [All Realized Losses on the Mortgage Loans shall be allocated by the
Trustee on each Distribution Date to the following REMIC I Regular Interests in
the specified percentages, as follows: first, to Uncertificated Interest payable
to the REMIC I Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ up to
an aggregate amount equal to the REMIC I Interest Loss Allocation Amount, 98%
and 2%, respectively; second, to the Uncertificated Balances of the REMIC I
Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ up to an aggregate
amount equal to the REMIC I Principal Loss Allocation Amount, 98% and 2%,
respectively; third, to the Uncertificated Balances of REMIC I Regular Interest
I-LTAA, REMIC I Regular Interest I-LTM13 and REMIC I Regular Interest I-LTZZ,
98%, 1% and 1%, respectively, until the Uncertificated Balance of REMIC I
Regular Interest I-LTM13 has been reduced to zero; fourth, to the Uncertificated
Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM12
and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC I Regular Interest I-LTM12 has been reduced to
zero, fifth to the Uncertificated Balances of REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTM11 and REMIC I Regular Interest I-LTZZ, 98%, 1%
and 1%, respectively, until the Uncertificated Balance of REMIC I Regular
Interest I-LTM11 has been reduced to zero; sixth, to the Uncertificated Balances
of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM10 and REMIC I
Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM10 has been reduced to zero; seventh,
to the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I
Regular Interest I-LTM9 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM9 has been reduced to zero; eighth, to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM8 and REMIC I Regular
Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC I Regular Interest I-LTM8 has been reduced to zero; ninth, to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM7 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM7 has been reduced to zero; tenth to the Uncertificated Balances of REMIC I
Regular Interest I-LTAA, REMIC I Regular Interest I-LTM6 and REMIC I Regular
Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC I Regular Interest I-LTM6 has been reduced to zero; eleventh to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM5 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM5 has been reduced to zero; twelfth to
100
the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM4 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM4 has been reduced to zero; thirteenth, to the Uncertificated Balances of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM3 and REMIC I
Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM3 has been reduced to zero; fourteenth,
to the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I
Regular Interest I-LTM2 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM2 has been reduced to zero; fifteenth, to the Uncertificated Balances of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM1 and REMIC I
Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM1 has been reduced to zero; and
sixteenth, concurrently, to the Uncertificated Balances of REMIC I Regular
Interest I-LTAA, REMIC I Regular ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇,
▇-▇▇▇▇, ▇-▇▇▇▇ on a pro rata basis, and REMIC I Regular Interest I-LTZZ, 98%, 1%
and 1%, respectively, until their respective Uncertificated Balance of REMIC I
Regular Interest has been reduced to zero.]
SECTION 4.05 Compliance with Withholding Requirements. Notwithstanding any
other provision of this Agreement, the Trustee shall comply with all federal
withholding requirements respecting payments to Certificateholders of interest
or original issue discount that the Trustee reasonably believes are applicable
under the Code. The consent of Certificateholders shall not be required for such
withholding. In the event the Trustee does withhold any amount from interest or
original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Trustee shall indicate the
amount withheld to such Certificateholders.
SECTION 4.06 Exchange Commission; Additional Information. Within 15 days
after each Distribution Date, the Trustee shall, in accordance with applicable
law, file with the Commission via the Electronic Data Gathering and Retrieval
System ("▇▇▇▇▇"), a Form 8-K (or other comparable Form containing the same or
comparable information or other information mutually agreed upon) with a copy of
the statement to the Certificateholders for such Distribution Date as an exhibit
thereto. Prior to January 30 in each year, the Trustee shall, in accordance with
applicable law, file a Form 15 Suspension Notice with respect to the Trust Fund,
if applicable. Prior to (i) March 1, 20[__] and (ii) unless and until a Form 15
Suspension Notice shall have been filed, prior to March 1 of each year
thereafter, each Servicer (as defined in Section 11.03(c))shall provide the
Trustee and the Depositor with a Servicer Certification, substantially in the
form attached hereto as Exhibit I-1 which shall be signed by the senior officer
of the Servicer in charge of securitization, together with a copy of the annual
independent accountant's servicing report and annual statement of compliance to
be delivered pursuant to this Agreement and each Sub-Servicer, in each case,
required to be delivered pursuant to the related Sub-Servicing Agreement, and,
if applicable, the annual independent accountant's servicing report and annual
statement of compliance to be delivered by the Servicer pursuant to Sections
11.04 and 11.05. In addition, the Trustee shall sign a certification (in the
form attached hereto as Exhibit I-2) for the benefit of the Servicer and its
officers, directors and Affiliates regarding certain aspects of the Servicer
Certification (the "Trustee Certification") (provided, however, that the Trustee
shall not undertake an analysis of the accountant's report attached as an
exhibit to
101
Form 10-K). Prior to (i) March 31, 20[__] and (ii) unless and until a Form 15
Suspension Notice shall have been filed, March 31 of each year thereafter, the
Trustee shall file a Form 10-K, in substance as required by applicable law or
applicable Security and Exchange Commission staff's interpretations. Such Form
10-K shall include the Servicer Certification and other documentation provided
by the Servicer pursuant to the second preceding sentence. The Depositor hereby
grants to the Trustee a limited power of attorney to execute each Form 8-K and
file such Forms 8-K and 10-K 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 and (ii) the
termination of the Trust Fund. Notwithstanding anything herein to the contrary,
the Servicer, and not the Trustee, shall be responsible for executing each Form
10-K filed on behalf of the Trust. 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, the
Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file
all necessary reports with the Commission. If they are not so timely delivered,
the Trustee shall file an amended Form 10-K including such documents as exhibits
reasonably promptly after they are delivered to the Trustee. The Trustee shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct. The Trustee shall have no responsibility to file any items
other than those specified in this Section 4.06; provided, however, the Trustee
and the Servicer will cooperate with the Depositor in connection with any
additional filings with respect to the Trust Fund as the Depositor deems
necessary under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Copies of all reports filed by the Trustee under the Exchange Act shall
be sent to the Depositor.
SECTION 4.07 The Swap Agreement. (a) On the Closing Date, the Trustee shall
(i) establish and maintain in its name, in trust for the benefit of Class A and
Mezzanine Certificates, the Swap Account and (ii) for the benefit of the Class A
and Mezzanine Certificates, cause the Trust to enter into the initial Swap
Agreement. Subject to the requirements of this Section 4.07, the Trustee, on
behalf of the Trust, may as directed in accordance with this Section from time
to time enter into one or more replacement Swap Agreements in the event that the
initial Swap Agreement and any replacement Swap Agreement is terminated due to
any "Termination Event" or "Event of Default" (each as defined in the related
Swap Agreement) prior to its scheduled expiration and in accordance with the
terms of such Swap Agreement. Other than any replacement Swap Agreement entered
into pursuant to this Section 4.07(a), the Trustee, on behalf of the Trust,
shall not enter into any additional Swap Agreements.
(b) The Trustee shall deposit in the Swap Account all payments that are
payable to the Trust Fund under the Swap Agreement. Net Swap Payments and Swap
Termination Payments (other than Swap Termination Payments resulting from a Swap
Counterparty Trigger Event) payable by the Trustee to the Swap Counterparty
pursuant to the Swap Agreement shall be excluded from the Available Distribution
Amount and payable to the Swap Counterparty prior to any distributions to the
Certificateholders. On each Distribution Date, such amounts will be remitted by
the Trustee to the Swap Account for payment to the Swap Counterparty, first to
make any Net Swap Payment owed to the Swap Counterparty pursuant to the Swap
Agreement for such Distribution Date, and second to make any Swap Termination
Payment (not due to a
102
Swap Counterparty Trigger Event) owed to the Swap Counterparty pursuant to the
Swap Agreement for such Distribution Date. For federal income tax purposes, such
amounts paid to the Swap Account on each Distribution Date shall be deemed paid
to the Swap Account in respect of REMIC II Regular Interest CE-IO to the extent
of the amount distributable on such REMIC II Regular Interest on such
Distribution Date. Any Swap Termination Payment triggered by a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap Agreement will
be subordinated to distributions to the Holders of the Class A and Mezzanine
Certificates and shall be paid as set forth under Section 4.01(a)(4)(v).
(c) Net Swap Payments payable by the Swap Counterparty to the Trustee on
behalf of the Trust Fund pursuant to the Swap Agreement will be deposited by the
Trustee into the Swap Account. On each Distribution Date, to the extent
required, the Trustee shall withdraw such amounts from the Swap Account to
distribute to the Certificates in the following order of priority:
(A) first, to the Holders of the Class A Certificates, to pay accrued
and unpaid interest to the extent unpaid from interest collections, but
only to the extent of the interest portion of Realized Losses or Prepayment
Interest Shortfalls (not covered by payments by the Servicer pursuant to
Section 3.24) allocated to such Certificates on such Distribution Date, on
a pro rata basis, based on the amount of such Prepayment Interest
Shortfalls previously allocated thereto that remain unreimbursed;
(B) second, to the Holders of the Mezzanine Certificates, in their
order of payment priority, to pay accrued and unpaid interest to the extent
unpaid from interest collections, but only to the extent of the interest
portion of Realized Losses or Prepayment Interest Shortfalls (not covered
by payments by the Servicer pursuant to Section 3.24) allocated to such
Certificates on such Distribution Date;
(C) third, to the Holders of the Class A and Mezzanine Certificates
then entitled to receive distributions in respect of principal, in an
amount equal to the Overcollateralization Increase Amount, distributed as
part of the Principal Distribution Amount, but only to the extent of the
principal portion of Realized Losses for such Distribution Date;
(D) fourth, to the Holders of the Class A and Mezzanine Certificates,
in order of priority, the principal portion of any Allocated Realized Loss
Amount previously allocated thereto that remains unreimbursed;
(E) fifth, to the Holders of the Class A Certificates, on a pro rata
basis, based on the amount of Net WAC Rate Carryover Amounts previously
allocated thereto that remain unreimbursed, and then to the Mezzanine
Certificates, in their order of payment priority, the amount of any Net WAC
Rate Carryover Amounts remaining unpaid as of that Distribution Date;
(F) sixth, to the Holders of the Class CE Certificates any balance
remaining.
103
(d) Subject to Sections 8.01 and 8.02 hereof, the Trustee agrees to comply
with the terms of the Swap Agreement and to enforce the terms and provisions
thereof against the Swap Counterparty at the written direction of the Holders of
Class A and Mezzanine Certificates entitled to at least 51% of the Voting Rights
of such Classes of Certificates, or if the Trustee does not receive such
direction from such Certificateholders, then at the written direction of the
Class CE Certificateholders.
(e) The Swap Account and the Swap Termination Payment Account shall each be
an Eligible Account. Amounts held in the Swap Account and the Swap Termination
Payment Account from time to time shall continue to constitute assets of the
Trust Fund, but not of any REMIC, until released from the Swap Account and the
Swap Termination Payment Account pursuant to this Section 4.07. Each of the Swap
Account and the Swap Termination Payment Account constitutes an "outside reserve
fund" within the meaning of Treasury Regulation Section 1.860G-2(h) and is not
an asset of any REMIC. The Class CE Certificateholder shall be the owner of the
Swap Account and the Swap Termination Payment Account. The Trustee shall keep
records that accurately reflect the funds on deposit in the Swap Account and the
Swap Termination Payment Account. The Trustee shall, at the direction of the
Servicer, invest amounts on deposit in the Swap Account and the Swap Termination
Payment Account in Permitted Investments. In the absence of written direction to
the Trustee from the Servicer, all funds in the Swap Account and the Swap
Termination Payment Account shall remain uninvested.
(f) The Trustee shall treat the holders of each Class of Certificates
(other than the Class CE Certificates and Class R Certificates) as having
entered into a notional principal contract with the holders of the Class CE
Certificates. Pursuant to each such notional principal contract, all holders of
Certificates (other than the Class CE Certificates and Class R Certificates)
shall be treated as having agreed to pay, on each Distribution Date, to the
holder of the Class CE Certificates an aggregate amount equal to the excess, if
any, of (i) the amount payable on such Distribution Date on the REMIC II Regular
Interest corresponding to such Class of Certificates over (ii) the amount
payable on such Class of Certificates on such Distribution Date (such excess, a
"Class IO Distribution Amount"). In addition, pursuant to such notional
principal contract, the holder of the Class CE Certificates shall be treated as
having agreed to pay the related Net WAC Rate Carryover Amounts to the holders
of the Certificates (other than the Class CE Certificates and Class R
Certificates) in accordance with the terms of this Agreement. Any payments to
the Certificates from amounts deemed received in respect of this notional
principal contract shall not be payments with respect to a "regular interest" in
a REMIC within the meaning of Code Section 860G(a)(1). However, any payment from
the Certificates (other than the Class CE Certificates and Class R Certificates)
of a Class IO Distribution Amount shall be treated for tax purposes as having
been received by the holders of such Certificates in respect of the REMIC II
Regular Interest corresponding to such Class of Certificates and as having been
paid by such holders to the Swap Account pursuant to the notional principal
contract. Thus, each Certificate (other than the Class CE Certificates and Class
R Certificates) shall be treated as representing not only ownership of regular
interests in REMIC II, but also ownership of an interest in, and obligations
with respect to, a notional principal contract.
104
(g) In the event of any early termination of any Swap Agreement, (i) the
Trustee shall establish and maintain in its name, in trust for the benefit of
the Class A and Mezzanine Certificates, the Swap Termination Payment Account
(the "Swap Termination Payment Account") over which the Trustee shall have
exclusive control and the sole right of withdrawal, and in which no Person other
than the Trustee, the Holders of the Class A and Mezzanine Certificates and the
Holders of the Class CE Certificates shall have any legal or beneficial
interest, (ii) any Swap Termination Payments received by the Trustee from the
Swap Counterparty will be remitted to the Swap Termination Payment Account and
(iii) any Swap Replacement Proceeds received from a replacement Swap
Counterparty will be remitted directly to the terminated Swap Counterparty;
provided, that any such remittance to a terminated Swap Counterparty shall not
exceed the amounts, if any, owed to such terminated Swap Counterparty under the
terminated Swap Agreement; provided, further that the terminated Swap
Counterparty shall only receive Swap Replacement Proceeds if all Swap
Termination Payments due from the terminated Swap Counterparty to the Trustee
have been paid in full and if such amounts have not been paid in full then the
amount of Swap Replacement Proceeds necessary to make up any deficiency shall be
remitted to the Swap Termination Payment Account.
(h) The Trustee shall promptly, following the early termination of any Swap
Agreement due to an "Event of Default" or "Termination Event" (each as defined
in the initial Swap Agreement), in accordance with the terms of such Swap
Agreement and at the written direction of the Holders of the Class A and
Mezzanine Certificates entitled to at least 51% of the Voting Rights of such
Classes of Certificates, or, if the Trustee does not receive such direction from
such Certificateholders, then at the written direction of the Class CE
Certificateholders, enter into a replacement Swap Agreement to the extent
possible and practicable through application of funds available in the Swap
Termination Payment Account unless entering into such Replacement Swap Agreement
would result in a downgrading of any Class A or Mezzanine Certificates by either
Rating Agency.
(i) To the extent that (i) the funds available in the Swap Termination
Payment Account exceed the costs of entering into a replacement Swap Agreement
or (ii) the Trustee, at the written direction of the Holders of the Class A and
Mezzanine Certificates entitled to at least 51% of the Voting Rights of such
Classes of Certificates, or, if the Trustee does not receive such direction from
such Certificateholders, then at the written direction of the Class CE
Certificateholders, determines not to replace the terminated Swap Agreement and
such failure to replace the terminated Swap Agreement shall not result in a
downgrading of any of the Class A or Mezzanine Certificates by either Rating
Agency, as evidenced by a letter from each Rating Agency, then on each
Distribution Date after the creation of a Swap Termination Payment Account,
(assuming that the full amount of any Swap Termination Payment (if any) due to
the terminated Swap Counterparty has been paid) the funds therein shall be
transferred to the Swap Account to cover any shortfalls in the amounts payable
under clauses (A) through (E) under clause (c) above, provided that in no event
will the amount withdrawn from the Swap Termination Payment Account and
deposited into the Swap Account on such Distribution Date exceed the amount of
Net Swap Payments that would have been required to be paid on such Distribution
Date under the terminated Swap Agreement had there been no termination of such
Swap Agreement. Any amounts remaining in the Swap Termination Payment Account
after the scheduled termination date of the terminated Swap Agreement (assuming
that the full amount of
105
any Swap Termination Payment (if any) due to the terminated Swap Counterparty
has been paid) shall be distributed to the Holders of the Class CE Certificates.
SECTION 4.08 Tax Treatment of Swap Payments and Swap Termination Payments.
(a) For federal income tax purposes, each holder of a Class A Certificate or a
Mezzanine Certificate is deemed to own an undivided beneficial ownership
interest in a REMIC regular interest and the right to receive payments from the
Swap Account in respect of the Net WAC Rate Carryover Amount, or the obligation
to make payments to the Swap Account. For federal income tax purposes, the
Trustee will account for payments to each Class A and Mezzanine Certificates as
follows: each Class A and Mezzanine Certificate will be treated as receiving
their entire payment from REMIC II (regardless of any obligation under the Swap
Agreement to pay any Swap Termination Payment or any Net Swap Payment) and
subsequently paying their portion of any Swap Termination Payment or Net Swap
Payment in respect of each such Class' obligation under the Swap Agreement. In
the event that any such Class is resecuritized in a REMIC, the obligation under
the Swap Agreement to pay any such Swap Termination Payment or any Net Swap
Payment, will be made by one or more of the REMIC Regular Interests issued by
the resecuritization REMIC subsequent to such REMIC Regular Interest receiving
its full payment from any such Class A or Mezzanine Certificate.
Resecuritization of any Class A or Mezzanine Certificate in a REMIC will be
permissible only if the Trustee hereunder is the trustee in such
resecuritization.
(b) The REMIC regular interest corresponding to a Class A or Mezzanine
Certificate will be entitled to receive interest and principal payments at the
times and in the amounts equal to those made on the certificate to which it
corresponds, except that (i) the maximum interest rate of that REMIC regular
interest will equal the Net WAC Pass-Through Rate computed for this purpose by
limiting the base calculation amount of the Swap Agreement to the aggregate
principal balance of the Mortgage Loans and (ii) any Swap Termination Payment
will be treated as being payable solely from Net Monthly Excess Cash Flow. As a
result of the foregoing, the amount of distributions and taxable income on the
REMIC regular interest corresponding to a Class A or Mezzanine Certificate may
exceed the actual amount of distributions on the Class A or Mezzanine
Certificate.
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates. (a) The Certificates in the aggregate will
represent the entire beneficial ownership interest in the Mortgage Loans and all
other assets included in REMIC I.
The Certificates will be substantially in the forms annexed hereto as
Exhibits A-1 and A-2. The Certificates of each Class will be issuable in
registered form only, in denominations of authorized Percentage Interests as
described in the definition thereof. Each Certificate will share ratably in all
rights of the related Class.
106
Upon original issue, the Certificates shall be executed, authenticated and
delivered by the Trustee to or upon the written order of the Depositor. The
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee by an authorized signatory. Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Trustee shall bind the Trustee notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates. 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 herein
executed by the Trustee by manual signature, and such certificate of
authentication 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.
(b) The Class A Certificates and the Mezzanine Certificates shall initially
be issued as one or more Certificates held by the Book-Entry Custodian or, if
appointed to hold such Certificates as provided below, the Depository and
registered in the name of the Depository or its nominee and, except as provided
below, registration of such Certificates may not be transferred by the Trustee
except to another Depository that agrees to hold such Certificates for the
respective Certificate Owners with Ownership Interests therein. The Certificate
Owners shall hold their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. The Trustee is hereby initially appointed as the
Book-Entry Custodian and hereby agrees to act as such in accordance herewith and
in accordance with the agreement that it has with the Depository authorizing it
to act as such. The Book-Entry Custodian may, and, if it is no longer qualified
to act as such, the Book-Entry Custodian shall, appoint, by a written instrument
delivered to the Depositor, the Servicer, the Trustee and, if the Trustee is not
the Book-Entry Custodian, the Trustee, any other transfer agent (including the
Depository or any successor Depository) to act as Book-Entry Custodian under
such conditions as the predecessor Book-Entry Custodian and the Depository or
any successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of any such appointment of other than the Depository. If the Trustee
resigns or is removed in accordance with the terms hereof, the successor Trustee
or, if it so elects, the Depository shall immediately succeed to its
predecessor's duties as Book-Entry Custodian. The Depositor shall have the right
to inspect, and to obtain copies of, any Certificates held as Book-Entry
Certificates by the Book-Entry Custodian.
The Trustee, the Servicer and the Depositor may for all purposes (including
the making of payments due on the respective Classes of Book-Entry Certificates)
deal with the Depository as the authorized representative of the Certificate
Owners with respect to the respective Classes of Book-Entry Certificates for the
purposes of exercising the rights of Certificateholders
107
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
If (i)(A) the Depositor advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository, and (B) the Depositor is unable to locate a qualified successor or
(ii) after the occurrence of a Servicer Event of Default, Certificate Owners
representing in the aggregate not less than 66% of the Ownership Interests of
the Book-Entry Certificates advise the Trustee through the Depository, in
writing, that the continuation of a book-entry system through the Depository is
no longer in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Book-Entry Custodian or the Depository, as applicable,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall cause the Definitive Certificates to be issued. Such
Definitive Certificates will be issued in minimum denominations of $25,000,
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $25,000 immediately prior to the issuance of
a Definitive Certificate shall be issued in a minimum denomination equal to the
amount represented by such Book-Entry Certificate. None of the Depositor, the
Servicer or the Trustee shall be liable for any delay in the 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 Depository shall be
deemed to be imposed upon and performed by the Trustee, to the extent applicable
with respect to such Definitive Certificates, and the Trustee shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder.
SECTION 5.02 Registration of Transfer and Exchange of Certificates. (a) The
Trustee shall cause to be kept at one of the offices or agencies to be appointed
by the Trustee in accordance with the provisions of Section 8.11, a Certificate
Register for the Certificates in which, subject to such reasonable regulations
as it may prescribe, the Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
(b) No transfer of any [Class M-10, Class M-11, Class M-12, Class M-13],
Class CE Certificate, Class P Certificate or Residual Certificate (the "Private
Certificates") shall be made unless that transfer is made pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "1933 Act"), and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. In the event that such a transfer of a Private
Certificate is to be made without registration or qualification (other than in
connection with (i) the initial transfer of any such Certificate by the
Depositor to an Affiliate of the Depositor, (ii) the transfer of any such Class
108
CE or Class P Certificate to the issuer under the Indenture or the indenture
trustee under the Indenture or (iii) a transfer of any such Class CE or Class P
Certificate from the issuer under the Indenture or the indenture trustee under
the Indenture to the Depositor or an Affiliate of the Depositor), the Trustee
shall require receipt of: (i) if such transfer is purportedly being made in
reliance upon Rule 144A under the 1933 Act, written certifications from the
Certificateholder desiring to effect the transfer and from such
Certificateholder's prospective transferee, substantially in the forms attached
hereto as Exhibit F-1; and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
(which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Servicer in its capacity as such or any
Sub-Servicer), together with copies of the written certification(s) of the
Certificateholder desiring to effect the transfer and/or such
Certificateholder's prospective transferee upon which such Opinion of Counsel is
based, if any. None of the Depositor or the Trustee is obligated to register or
qualify any such Certificates under the 1933 Act or any other securities laws or
to take any action not otherwise required under this Agreement to permit the
transfer of such Certificates without registration or qualification. Any
Certificateholder desiring to effect the transfer of any such Certificate shall,
and does hereby agree to, indemnify the Trustee, the Depositor and the Servicer
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Notwithstanding the foregoing, in the event of any such transfer of any
Ownership Interest in any Private Certificate that is a Book-Entry Certificate,
except with respect to the initial transfer of any such Ownership Interest by
the Depositor, such transfer shall be required to be made in reliance upon Rule
144A under the 1933 Act, and the transferee will be deemed to have made each of
the transferee representations and warranties set forth Exhibit F-1 hereto in
respect of such interest as if it was evidenced by a Definitive Certificate. The
Certificate Owner of any such Ownership Interest in any such Book-Entry
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Notwithstanding the foregoing, no certification or Opinion of Counsel
described in this Section 5.02(b) will be required in connection with the
transfer, on the Closing Date, of any Class R Certificate by the Depositor to an
"accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) (i) Until the swap agreement terminates in [________ 20__], no Class A
Certificate, [Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate, Class M-9
Certificate, Class M-10 Certificate, Class M-11 Certificate, Class M-12
Certificate or Class M-13] Certificate shall be purchased by or transferred to a
Plan and provisions (ii), (iii) and (iv) of this Section 5.02(c) shall not
apply.
(ii) No transfer of a Private Certificate (other than a [Class M-10
Certificate, Class M-11 Certificate, Class M-12 Certificate or Class M-13]
Certificate) or any interest therein shall be made to any Plan, any Person
acting, directly or indirectly, on behalf of
109
any such Plan or any Person acquiring such Private Certificates with "plan
assets" of a Plan (within the meaning of the Department of Labor regulation
promulgated at 29 C. F. R. Section 2510.3-101 ("Plan Assets")), as
certified by such transferee in the form of Exhibit G, unless the Trustee
is provided with an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Depositor, the Trustee and the Servicer to
the effect that the purchase or holding of such Private Certificates is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code (or comparable provisions of subsequent enactments) and
will not subject the Depositor, the Servicer, the Trustee or the Trust Fund
to any obligation or liability (including obligations or liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the
Depositor, the Servicer, the Trustee or the Trust Fund.
(iii) In the case of a Class A Certificate, [Class M-1 Certificate, Class
M-2 Certificate, Class M-3 Certificate, Class M-4 Certificate, Class M-5
Certificate, Class M-6 Certificate, Class M-7 Certificate, Class M-8
Certificate, Class M-9 Certificate, Class M-10 Certificate, Class M-11
Certificate, Class M-12 Certificate or Class M-13] Certificate, each beneficial
owner of such a Certificate or any interest therein shall be deemed to have
represented, by virtue of its acquisition or holding of such Certificate or any
interest therein, that either (A) it is not a Plan or a Plan investor, (B) it
has acquired and is holding such Certificate in reliance on the Underwriters'
Exemption, and that it understands that there are certain conditions to the
availability of the Underwriters' Exemption, including that such Certificate
must be rated, at the time of purchase, not lower than "BBB-" (or its
equivalent) by Fitch, S&P or ▇▇▇▇▇'▇ and the Certificates are so rated, that it
is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act of 1933, as amended, and that it will obtain a representation
from any transferee that such transferee is an accredited investor, or (C)(1) it
is an insurance company, (2) the source of funds used to acquire or hold such
Certificate or any interest therein is an "insurance company general account,"
as such term is defined in Prohibited Transaction Class Exemption ("PTCE")
95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
(iv) Neither a certification nor an Opinion of Counsel shall be required in
connection with (A) the initial transfer of any such Certificate by the
Depositor to an Affiliate of the Depositor, (B) the transfer of any such
Certificate to the issuer under the Indenture or the indenture trustee under the
Indenture or (C) a transfer of any such Certificate from the issuer under the
Indenture or the indenture trustee under the Indenture to the Depositor or an
Affiliate of the Depositor (in which case such transferee shall be deemed to
have represented that it is not purchasing with Plan Assets) and the Trustee
shall be entitled to conclusively rely upon a representation (which, upon the
request of the Trustee, shall be a written representation) from the Depositor of
the status of such transferee as an affiliate of the Depositor.
(v) If any Certificate or any interest therein is acquired or held in
violation of the provisions of this Section 5.02(c), the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any such
Certificate or any interest therein was effected in violation of the provisions
of this Section 5.02(c) shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust
110
Fund from and against any and all liabilities, claims, costs or expenses
incurred by those parties as a result of that acquisition or holding.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Residual Certificate, the Trustee shall require delivery to it, and
shall not register the Transfer of any Residual Certificate until its
receipt of, an affidavit and agreement (a "Transfer Affidavit and
Agreement," in the form attached hereto as Exhibit F-2) from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing
and warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted Transferee, that
for so long as it retains its Ownership Interest in a Residual Certificate,
it will endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if a Responsible Officer
of the Trustee who is assigned to this transaction has actual knowledge
that the proposed Transferee is not a Permitted Transferee, no Transfer of
an Ownership Interest in a Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (x) to require a Transfer Affidavit and
Agreement in the form attached hereto as Exhibit F-2 from any other Person
to whom such Person attempts to transfer its Ownership Interest in a
Residual Certificate and (y) not to transfer its Ownership Interest unless
it provides a Transferor Affidavit (in the form attached hereto as Exhibit
F-2) to the Trustee stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring
111
an Ownership Interest in a Residual Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf of, a "pass-through
interest holder."
(ii) The Trustee will register the Transfer of any Residual
Certificate only if it shall have received the Transfer Affidavit and
Agreement and all of such other documents as shall have been reasonably
required by the Trustee as a condition to such registration. In addition,
no Transfer of a Residual Certificate shall be made unless the Trustee
shall have received a representation letter from the Transferee of such
Certificate to the effect that such Transferee is a Permitted Transferee.
(iii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Permitted Transferee shall be restored, to
the extent permitted by law, to all rights as holder thereof retroactive to
the date of registration of such 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 5.02(d) or for making any payments due on such Certificate to the
holder thereof or for taking any other action with respect to such holder
under the provisions of this Agreement.
(B) If any purported Transferee shall become a holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d) and to
the extent that the retroactive restoration of the rights of the holder of
such Residual Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have the right,
but not the obligation, without notice to the holder or any prior holder of
such Residual Certificate, to sell such Residual Certificate to a purchaser
selected by the Trustee on such terms as the Trustee may choose. Such
purported Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the Trustee. Such
purchaser may be the Trustee itself or any Affiliate of the Trustee. The
proceeds of such sale, net of the commissions (which may include
commissions payable to the Trustee or its Affiliates), expenses and taxes
due, if any, will be remitted by the Trustee to such purported Transferee.
The terms and conditions of any sale under this clause (iii)(B) shall be
determined in the sole discretion of the Trustee, and the Trustee shall not
be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all information
necessary to compute any tax imposed (A) as a result of the Transfer of an
Ownership Interest in a Residual Certificate to any Person who is a
Disqualified Organization, including the information described in Treasury
regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the
"excess inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust
fund, partnership, trust estate or organization described in Section 1381
of the Code that holds an Ownership Interest in a Residual Certificate
having as among its record holders at any time any Person which is a
Disqualified Organization. Reasonable compensation for providing such
information may be accepted by the Trustee.
112
(v) The provisions of this Section 5.02(d) set forth prior to this
subsection (v) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee at the expense of the party
seeking to modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that
the modification, addition to or elimination of such provisions will not
cause such Rating Agency to downgrade its then-current ratings of any Class
of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee, to the effect that such modification of, addition to or
elimination of such provisions will not cause any Trust REMIC to cease to
qualify as a REMIC and will not cause any Trust REMIC to be subject to an
entity-level tax caused by the Transfer of any Residual Certificate to a
Person that is not a Permitted Transferee or a Person other than the
prospective transferee to be subject to a REMIC-tax caused by the Transfer
of a Residual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration
of transfer of any Certificate at any office or agency of the Trustee maintained
for such purpose pursuant to Section 8.12, the Trustee shall execute,
authenticate and deliver, in the name of the designated Transferee or
Transferees, one or more new Certificates of the same Class of a like aggregate
Percentage Interest.
(f) At the option of the Holder thereof, any Certificate may be exchanged
for other Certificates of the same Class with authorized denominations and a
like aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Trustee maintained for such purpose
pursuant to Section 8.12. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, authenticate and deliver, the Certificates
which the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Trustee) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing. In addition, with
respect to each Class R Certificate, the Holder thereof may exchange, in the
manner described above, such Class R Certificate for two separate Certificates,
each representing such Holder's respective Percentage Interest in the Class R-I
Interest and the Class R-II Interest, respectively, in each case that was
evidenced by the Class R Certificate being exchanged.
(g) No service charge to the Certificateholders shall be made for any
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
canceled and destroyed by the Trustee in accordance with its customary
procedures.
113
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (i) any
mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as may be required by it to save it harmless, then, in the absence of
actual knowledge by the Trustee that such Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute, authenticate and deliver in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and of like denomination and
Percentage Interest but bearing a number not contemporaneously outstanding. Upon
the issuance of any new Certificate under this Section, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Servicer, the
Trustee and any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Depositor, the Servicer, the Trustee or any agent of
any of them shall be affected by notice to the contrary.
SECTION 5.05 Certain Available Information. On or prior to the date of the
first sale of any Private Certificate to an Independent third party, the
Depositor shall provide to the Trustee a copy of any private placement
memorandum or other disclosure document used by the Depositor in connection with
the offer and sale of such Certificates. In addition, if any such private
placement memorandum or disclosure document is revised, amended or supplemented
at any time following the delivery thereof to the Trustee, the Depositor
promptly shall inform the Trustee of such event and shall deliver to the Trustee
a copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Trustee shall maintain at its Corporate Trust
Office and shall make available free of charge during normal business hours for
review by any Holder of a Certificate, a Certificate Owner or any Person
identified to the Trustee as a prospective transferee of a Certificate,
originals or copies of the following items: (i) in the case of a Holder, a
Certificate Owner or prospective transferee of a Private Certificate, the
related private placement memorandum or other disclosure document relating to
such Class of Certificates, in the form most recently provided to the Trustee;
and (ii) in all cases, (A) this Agreement and any amendments hereof entered into
pursuant to Section 12.01, (B) all monthly statements required to be delivered
to Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trustee since the Closing Date
pursuant to Section 10.01(h), (D) any and all Officers' Certificates delivered
to the Trustee by the Servicer since the Closing Date to evidence the Servicer's
determination that any Advance or Servicing Advance was, or if made, would be a
Nonrecoverable Advance or Nonrecoverable Servicing Advance, respectively, and
(E) any and all Officers' Certificates delivered to the Trustee by the Servicer
since the Closing Date pursuant
114
to Section 4.04(a). Copies and mailing of any and all of the foregoing items
will be available from the Trustee upon request at the expense of the Person
requesting the same.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01 Respective Liabilities of the Depositor and the Servicer. The
Depositor and the Servicer each shall be liable in accordance herewith only to
the extent of the obligations specifically imposed by this Agreement upon them
in their respective capacities as Depositor and Servicer and undertaken
hereunder by the Depositor and the Servicer herein.
SECTION 6.02 Merger or Consolidation of the Depositor or the Servicer.
Subject to the following paragraph, the Depositor will keep in full effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation. Subject to the following paragraph, the
Servicer will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation. The
Depositor and the Servicer each will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor or the Servicer may be merged or consolidated with or into
any Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Depositor or the Servicer shall be a party, or any Person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the Rating Agencies' ratings of the Class A Certificates and the Mezzanine
Certificates in effect immediately prior to such merger or consolidation will
not be qualified, reduced or withdrawn as a result thereof.
SECTION 6.03 Limitation on Liability of the Depositor, the Servicer and
Others. (a) None of the Depositor, the Servicer or any of the directors,
officers, employees or agents of the Depositor or the Servicer shall be under
any liability to the Trustee, Trust Fund 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 Depositor, the Servicer or any such person
against any breach of warranties, representations or covenants made herein, or
against any specific liability imposed on the Servicer pursuant hereto, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Depositor, the
Servicer and any director, officer, employee or agent of the Depositor or the
Servicer may rely in good faith on any document of any kind which, prima facie,
is properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Servicer and any director, officer, employee or
agent of the Depositor or the Servicer shall be indemnified by the Trust Fund
and
115
held harmless against any loss, liability or expense (including reasonable legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or related to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement or the Certificates, other than any loss, liability or expense
relating to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) or any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder. Neither the
Depositor nor the Servicer shall be under any obligation to appear in, prosecute
or defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, that the Depositor or the Servicer may in its discretion
undertake any such action which it may deem necessary or desirable with 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 Depositor or the
Servicer shall be entitled to be reimbursed therefor from the Custodial Account
as and to the extent provided in Section 3.11, any such right of reimbursement
being prior to the rights of the Certificateholders to receive any amount in the
Custodial Account. Nothing in this Subsection 6.03(a) shall affect the
Servicer's obligation to supervise, or to take such actions as are necessary to
ensure, the servicing and administration of the Mortgage Loans pursuant to
Subsection 3.01(a).
(b) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Servicer shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust might incur as a result of such course of
action by reason of the condition of the Mortgaged Properties but shall give
notice to the Trustee if it has notice of such potential liabilities.
SECTION 6.04 Limitation on Resignation of the Servicer. (a) The Servicer
shall not resign from the obligations and duties hereby imposed on it except
upon determination that its duties hereunder are no longer permissible under
applicable law or as provided in Section 6.04(c). Any such determination
pursuant to the preceding sentence permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect obtained at the
expense of the Servicer and delivered to the Trustee. No resignation of the
Servicer shall become effective until the Trustee or a successor servicer shall
have assumed the Servicer's responsibilities, duties, liabilities (other than
those liabilities arising prior to the appointment of such successor) and
obligations under this Agreement.
(b) Except as expressly provided herein, the 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 Servicer hereunder. The foregoing prohibition on assignment shall not
prohibit the Servicer from designating a Sub-Servicer as payee of any
indemnification amount payable to the Servicer hereunder; provided, however,
that as provided in Section 3.06 hereof, no Sub-Servicer shall be a third-party
beneficiary hereunder and the parties hereto shall not be required to recognize
any Sub-Servicer as an indemnitee under this Agreement.
116
SECTION 6.05 Rights of the Depositor in Respect of the Servicer. The
Servicer shall afford (and any Sub-Servicing Agreement shall provide that each
Sub-Servicer shall afford) the Depositor and the Trustee, upon reasonable
notice, during normal business hours, access to all records maintained by the
Servicer (and any such Sub-Servicer) in respect of the Servicer's rights and
obligations hereunder and access to officers of the Servicer (and those of any
such Sub-Servicer) responsible for such obligations. Upon request, the Servicer
shall furnish to the Depositor and the Trustee its (and any such Sub-Servicer's)
most recent financial statements and such other information relating to the
Servicer's capacity to perform its obligations under this Agreement as it
possesses (and that any such Sub-Servicer possesses). To the extent such
information is not otherwise available to the public, the Depositor and the
Trustee shall not disseminate any information obtained pursuant to the preceding
two sentences without the Servicer's written consent, except as required
pursuant to this Agreement or to the extent that it is appropriate to do so (i)
in working with legal counsel, auditors, taxing authorities or other
governmental agencies, (ii) pursuant to any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental authority
having jurisdiction over the Depositor and the Trustee or the Trust Fund, and in
any case, the Depositor or the Trustee, (iii) disclosure of any and all
information that is or becomes publicly known, or information obtained by the
Trustee from sources other than the Depositor or the Servicer, (iv) disclosure
as required pursuant to this Agreement or (v) disclosure of any and all
information(A) in any preliminary or final offering circular, registration
statement or contract or other document pertaining to the transactions
contemplated by the Agreement approved in advance by the Depositor or the
Servicer or (B) to any affiliate, independent or internal auditor, agent,
employee or attorney of the Trustee having a need to know the same, provided
that the Trustee advises such recipient of the confidential nature of the
information being disclosed, shall use its best efforts to assure the
confidentiality of any such disseminated non-public information. The Depositor
may, but is not obligated to, enforce the obligations of the Servicer under this
Agreement and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Servicer under this Agreement or
exercise the rights of the Servicer under this Agreement; provided that the
Servicer shall not be relieved of any of its obligations under this Agreement by
virtue of such performance by the Depositor or its designee. The Depositor shall
not have any responsibility or liability for any action or failure to act by the
Servicer and is not obligated to supervise the performance of the Servicer under
this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01 Servicer Events of Default. (a) "Servicer Event of Default,"
wherever used herein, means any one of the following events:
(i) any failure by the Servicer to remit to the Trustee for
distribution to the Certificateholders any payment (other than an Advance
required to be made from its own funds on any Servicer Remittance Date
pursuant to Section 4.03) required to be made under the terms of the
Certificates and this Agreement which continues unremedied for a period of
5 Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the Depositor
117
or the Trustee (in which case notice shall be provided by telecopy), or to
the Servicer, the Depositor and the Trustee by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(ii) any failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Servicer contained in this Agreement, or the breach by the
Servicer of any representation and warranty contained in Section 2.05,
which continues unremedied for a period of 30 days (or if such failure or
breach cannot be remedied within 30 days, then such remedy shall have been
commenced within 30 days and diligently pursued thereafter; provided,
however, that in no event shall such failure or breach be allowed to exist
for a period of greater than 90 days) or 15 days in the case of a failure
to pay the premium for any insurance policy required to be maintained under
this Agreement after the earlier of (i) the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Servicer by the Depositor or the Trustee, or to the Servicer, the
Depositor and the Trustee by the Holders of Certificates entitled to at
least 25% of the Voting Rights and (ii) actual knowledge of such failure by
a Servicing Officer; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceeding, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 90 days; or
(iv) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to it or of
or relating to all or substantially all of its property; or
(v) the 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) any failure by the Servicer of the Servicer Termination Test; or
(vii) any failure of the Servicer to make any Advance on any Servicer
Remittance Date required to be made from its own funds pursuant to Section
4.03 which continues unremedied until 12:00 p.m. New York time on the
Business Day immediately following the Servicer Remittance Date.
If a Servicer Event of Default described in clauses (i) through (vi) of
this Section shall occur, then, and in each and every such case, so long as such
Servicer Event of Default shall not have been remedied, the Trustee may, and at
the written direction of the Holders of Certificates
118
entitled to at least 66% of Voting Rights, the Trustee shall, by notice in
writing to the Servicer and to the Depositor, terminate all of the rights and
obligations of the Servicer in its capacity as Servicer under this Agreement, to
the extent permitted by law, in and to the Mortgage Loans and the proceeds
thereof. If a Servicer Event of Default described in clause (vii) hereof shall
occur, the Trustee shall, by notice in writing to the Servicer, terminate all of
the rights and obligations of the Servicer in its capacity as Servicer under
this Agreement in and to the Mortgage Loans and the proceeds thereof and the
Trustee as successor Servicer, or another successor servicer appointed in
accordance with Section 7.02, shall immediately make such Advance. On or after
the receipt by the Servicer of such written notice, all authority and power of
the Servicer under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section,
and, without limitation, the Trustee is hereby authorized and empowered, as
attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the
expense of the Servicer, any and all documents and other instruments and to do
or accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Servicer agrees promptly (and in any event no later than ten
Business Days subsequent to such notice) to provide the Trustee with all
documents and records requested by it to enable it to assume the Servicer's
functions under this Agreement, and to cooperate with the Trustee in effecting
the termination of the Servicer's responsibilities and rights under this
Agreement, including, without limitation, the transfer within one Business Day
to the Trustee for administration by it of all cash amounts which at the time
shall be or should have been credited by the Servicer to the Custodial Account
held by or on behalf of the Servicer, the Certificate Account or any REO Account
or Servicing Account held by or on behalf of the Servicer or thereafter be
received with respect to the Mortgage Loans or any REO Property serviced by the
Servicer (provided, however, that the Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of Advances, Servicing Advances
or otherwise, and shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination, with respect to events occurring prior to
such termination). For purposes of this Section 7.01, the Trustee shall not be
deemed to have knowledge of a Servicer Event of Default unless a Responsible
Officer of the Trustee assigned to and working in the Trustee's Corporate Trust
Office has actual knowledge thereof or unless written notice of any event which
is in fact such a Servicer Event of Default is received by the Trustee and such
notice references the Certificates, the Trust Fund or this Agreement.
SECTION 7.02 Trustee to Act; Appointment of Successor. (a) (1) On and after
the time the Servicer receives a notice of termination in accordance with
Section 12.05 hereof, the Trustee shall separately assume and become the
successor in all respects to the Servicer in its capacity as Servicer under this
Agreement and the transactions set forth or provided for herein, and all the
responsibilities, duties and liabilities relating thereto and arising thereafter
shall be assumed by the Trustee (except for any representations or warranties of
the Servicer under this Agreement, the responsibilities, duties and liabilities
contained in Section 2.05 and the obligation to deposit amounts in respect of
losses pursuant to Section 3.12) by the terms and provisions hereof including,
without limitation, the Servicer's obligations to make Advances pursuant to
Section 4.03; provided, however, that if the Trustee is prohibited by law or
regulation from obligating
119
itself to make advances regarding delinquent mortgage loans, then the Trustee
shall not be obligated to make Advances pursuant to Section 4.03; and provided
further, that any failure to perform such duties or responsibilities caused by
the Servicer's failure to provide information required by Section 7.01 shall not
be considered a default by the Trustee as successor to the Servicer hereunder.
As compensation therefor, the Trustee shall be entitled to the Servicing Fee and
all funds relating to the Mortgage Loans to which the Servicer would have been
entitled if it had continued to act hereunder. Notwithstanding the above and
subject to Section 7.02(a)(2) below, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act or if it is prohibited by law
from making advances regarding delinquent mortgage loans or if the Holders of
Certificates entitled to at least 66% of the Voting Rights so request in writing
to the Trustee promptly appoint or petition a court of competent jurisdiction to
appoint, a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved mortgage loan servicing
institution acceptable to each Rating Agency without qualification, withdrawal
or downgrading of the ratings then assigned to any of the Certificates and
having a net worth of not less than $10,000,000, as the successor to the
Servicer under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer under this Agreement.
All Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs (provided, that if the
Trustee is the predecessor Servicer by reason of this Section 7.02, such costs
shall be paid by the Servicer preceding the Trustee as successor servicer), and
if such predecessor or initial Servicer, as applicable, defaults in its
obligation to pay such costs, such costs shall be paid by the successor Servicer
or the Trustee (in which case the successor Servicer or the Trustee, as
applicable, shall be entitled to reimbursement therefor from the assets of the
Trust Fund).
(2) No appointment of a successor to the Servicer under this Agreement
shall be effective until the assumption by the successor of all of the
Servicer's responsibilities, duties and liabilities hereunder. In
connection with such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the Servicer as such hereunder. The Depositor, the Trustee and
such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. Pending appointment
of a successor to the Servicer under this Agreement, the Trustee shall act
in such capacity as hereinabove provided.
SECTION 7.03 Notification to Certificateholders. (a) Upon any termination
of the Servicer pursuant to Section 7.01 above or any appointment of a successor
to the Servicer pursuant to Section 7.02 above, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of 60 days after the occurrence of any event,
which constitutes or which, with notice or lapse of time or both, would
constitute a Servicer Event of Default or five days after a Responsible Officer
of the Trustee becomes aware of the occurrence of such an event, the Trustee
shall transmit by mail to all Holders of Certificates notice of each
120
such occurrence, unless such default or Servicer Event of Default shall have
been cured or waived.
SECTION 7.04 Waiver of Servicer Events of Default. Holders representing at
least 66% of the Voting Rights evidenced by all Classes of Certificates affected
by any default or Servicer Event of Default hereunder may waive such default or
Servicer Event of Default; provided, however, that a default or Servicer Event
of Default under clause (i) or (vii) of Section 7.01 may be waived only by all
of the Holders of the Regular Certificates. Upon any such waiver of a default or
Servicer Event of Default, such default or Servicer Event of Default shall cease
to exist and shall be deemed to have been remedied for every purpose hereunder.
No such waiver shall extend to any subsequent or other default or Servicer Event
of Default or impair any right consequent thereon except to the extent expressly
so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee. (a) The Trustee, prior to the occurrence of
a Servicer Event of Default and after the curing of all Servicer Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. During a Servicer Event
of Default (which has not 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. Any
permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement. If any such
instrument is found not to conform on its face to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected, and if the instrument is not
corrected to its satisfaction, will provide notice thereof to the
Certificateholders.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of a Servicer Event of Default, and after
the curing of all such Servicer Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of
121
the statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee that conform to the
requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon it, under this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any and
all federal, state and local taxes imposed on the Trust Fund or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a Trust REMIC after the Closing
Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or misconduct of the Trustee.
SECTION 8.02 Certain Matters Affecting the Trustee. (a) Except as otherwise
provided in Section 8.01:
(i) The Trustee may request and conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) The Trustee shall not be under any obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement or the Swap Agreement, unless such
Certificateholders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of a
Servicer Event of Default (which has not been cured or waived), to exercise
such of the rights and powers vested in it by this
122
Agreement, and to 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;
(iv) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(v) Prior to the occurrence of a Servicer Event of Default hereunder
and after the curing of all Servicer Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
the Holders of Certificates entitled to at least 25% of the Voting Rights;
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 such
Certificateholders, the Trustee may require indemnity reasonably
satisfactory to it against such expense or liability from such
Certificateholders as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or
attorneys appointed with due care by it hereunder;
(vii) The Trustee shall have no obligation to invest and reinvest any
cash held in the absence of timely and specific written investment
direction from the Servicer or the Depositor. In no event shall the Trustee
be liable for the selection of investments or for investment losses
incurred thereon. The Trustee shall have no liability in respect of losses
incurred as a result of the liquidation of any investment incurred as a
result of the liquidation of any investment prior to its stated maturity or
the failure of the Servicer or the Depositor to provide timely written
investment direction; and
(viii) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee shall obtain and verify certain information and
documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address and other identifying
information.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in the name of the Trustee for the
benefit of all the Holders of such Certificates, subject to the provisions of
this Agreement.
123
SECTION 8.03 Trustee Not Liable for Certificates or Mortgage Loans. The
recitals contained herein and in the Certificates (other than the signature of
the Trustee, the authentication of the Certificate Registrar on the
Certificates, the acknowledgments of the Trustee contained in Article II and the
representations and warranties of the Trustee in Section 8.13) shall be taken as
the statements of the Depositor and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations or warranties as to the
validity or sufficiency of this Agreement (other than as specifically set forth
with respect to such party in Section 8.13) or of the Certificates (other than
the signature of the Trustee and authentication of the Certificate Registrar on
the Certificates) or of any Mortgage Loan or related document or of MERS or the
MERS(R) System. The Trustee shall not be accountable for the use or application
by the Depositor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
or the Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Custodial Account by the Servicer, other than any funds held by or on
behalf of the Trustee in accordance with Section 3.10, subject to Section 8.01.
SECTION 8.04 Trustee May Own Certificates. The Trustee in its individual
capacity or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee.
SECTION 8.05 Trustee's Fees and Expenses. (a) The Trustee shall withdraw
from the Certificate Account on each Distribution Date and pay to itself the
Trustee Fee. The Trustee, or any director, officer, employee or agent of the
Trustee shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense (not including expenses, disbursements and advances
incurred or made by the Trustee including the compensation and the expenses and
disbursements of its agents and counsel, in the ordinary course of the Trustee's
performance in accordance with the provisions of this Agreement) incurred by the
Trustee in connection with any Servicer Event of Default (not including
expenses, disbursements and advances incurred or made by the Trustee in its
capacity as successor Servicer), default, claim or legal action or any pending
or threatened claim or legal action arising out of or in connection with the
acceptance or administration of its obligations and duties under this Agreement
or the Swap Agreement, other than any loss, liability or expense (i) resulting
from a breach of the Servicer's obligations and duties under this Agreement (for
which the Servicer indemnifies pursuant to Sections 8.05(b) and 10.03(b)), (ii)
for the expenses of preparing and filing Tax Returns pursuant to Section
10.01(d) or (iii) any loss, liability or expense incurred by reason of its
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of reckless disregard of its respective obligations and
duties hereunder. Any amounts payable to the Trustee, or any director, officer,
employee or agent of the Trustee in respect of the indemnification provided by
this paragraph (a), or pursuant to any other right of reimbursement from the
Trust Fund that the Trustee, or any director, officer, employee or agent of the
Trustee, may have hereunder in its capacity as such, may be withdrawn by the
Trustee from the Certificate Account at any time.
(b) The Servicer agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense (including reasonable legal fees and
disbursements of counsel) resulting from a breach of the Servicer's obligations
and duties under this Agreement or the Swap Agreement. Such indemnity shall
survive the termination or discharge of this Agreement
124
and the resignation or removal of the Trustee. Any payment hereunder made by the
Servicer to the Trustee shall be from the Servicer's own funds, without
reimbursement from the Trust Fund therefor.
The provisions of this Section 8.05 shall survive the termination of this
Agreement or the earlier resignation or removal of the Trustee.
SECTION 8.06 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation or an association (other than the Depositor,
the Seller, the Servicer or any Affiliate of the foregoing) 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 at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation or association publishes reports
of conditions 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 association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
SECTION 8.07 Resignation and Removal of the Trustee. The Trustee may at any
time resign and be discharged from the trust hereby created by giving written
notice thereof to the Depositor, the Servicer and the Certificateholders. Upon
receiving such notice of resignation of the Trustee, the Depositor shall
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. A copy of such instrument shall be delivered to
the Certificateholders, the Trustee and the Servicer by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation or removal, the
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Depositor may remove
the Trustee and appoint a successor trustee by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and the Servicer by the Depositor.
The Holders of Certificates entitled to at least 66% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Trustee so
125
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders and the Servicer by the
Depositor.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 8.08.
SECTION 8.08 Successor Trustee. Any successor trustee appointed as provided
in Section 8.07 shall execute, acknowledge and deliver to the Depositor and to
its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements, as well as all
moneys, held by it hereunder (other than any Mortgage Files at the time held by
a custodian, which custodian shall become the agent of any successor trustee
hereunder), and the Depositor and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee all
such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06 and the appointment of such successor
trustee shall not result in a downgrading of any Class of Certificates by either
Rating Agency, as evidenced by a letter from each Rating Agency.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Depositor.
SECTION 8.09 Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or association succeeding to the business of the Trustee shall be
the successor of the Trustee hereunder, provided such corporation or association
shall be eligible under the provisions of Section 8.06, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of REMIC I
or property securing the same may at the time be located, the Servicer and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-
126
trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of REMIC I, and to vest in such Person or
Persons, in such capacity, such title to REMIC I, or any part thereof, and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Servicer and the Trustee may consider
necessary or desirable. Any such co-trustee or separate trustee shall be subject
to the written approval of the Servicer. If the Servicer shall not have joined
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Servicer Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof. The Servicer shall be
responsible for the fees of any co-trustee or separate trustee appointed under
this Section 8.10.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to REMIC
I or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trust conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Depositor and the Servicer.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11 Trustee to Execute Swap Agreement. The Depositor hereby
directs the Trustee to execute, deliver and perform its obligations under the
Swap Agreement on the Closing Date and thereafter on behalf of the Holders of
the Class A Certificates and the Mezzanine Certificates. The Depositor, the
Servicer and the Holders of the Class A Certificates and the
127
Mezzanine Certificates by their acceptance of such Certificates acknowledge and
agree that the Trustee shall execute, deliver and perform its obligations under
the Swap Agreement and shall do so solely in its capacity as Trustee of the
Trust Fund and not in its individual capacity.
SECTION 8.12 Appointment of Office or Agency. The Trustee shall maintain an
office or agency in the United States where the Certificates may be surrendered
for registration of transfer or exchange, and presented for final distribution.
As of the Closing Date, the Trustee designates the office of its agent located
at DB Services Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Transfer Unit for such purposes. Notices and demands to or upon the
Trustee in respect of the Certificates and this Agreement may be delivered at
the Corporate Trust Office.
SECTION 8.13 Representations and Warranties of the Trustee. The Trustee
hereby represents and warrants, solely as to itself, to the Servicer and the
Depositor, as of the Closing Date, that:
(i) It is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by it, and the
performance and compliance with the terms of this Agreement by it, will not
violate its charter or bylaws.
(iii) It has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans. (a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Servicer and the
Trustee (other than the obligations of the Servicer to the Trustee pursuant to
Section 8.05 and of the Servicer to make remittances to the Trustee and the
Trustee to make payments in respect of the REMIC I Regular Interests and the
Classes of Certificates as hereinafter set forth) shall terminate upon payment
to the Certificateholders and the deposit of all amounts held by or on behalf of
the Trustee and required hereunder to be so paid or deposited on the
Distribution Date coinciding with or following the earlier to occur of (i) the
purchase by the Terminator (as defined below) of all Mortgage Loans and each REO
128
Property remaining in REMIC I and (ii) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; provided, however, that in no event shall the trust
created hereby continue beyond the earlier of (a) 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. ▇▇▇▇▇, living on the
date hereof and (b) the latest possible Maturity Date. Subject to Section 3.10
hereof, the purchase by the Terminator of all Mortgage Loans and each REO
Property remaining in REMIC I shall be at a price equal to the greater of (i)
the Stated Principal Balance of the Mortgage Loans and the appraised value of
any REO Properties (such appraisal to be conducted by an Independent appraiser
mutually agreed upon by the Terminator and, to the extent that the Class A
Certificates or a Class of Mezzanine Certificates will not receive all amounts
owed to it as a result of the termination, the Trustee, in their reasonable
discretion) and (ii) the fair market value of the Mortgage Loans and the REO
Properties (as determined by the Terminator and, to the extent that the Class A
Certificates or a Class of Mezzanine Certificates will not receive all amounts
owed to it as a result of the termination, the Trustee (it being understood and
agreed that any determination by the Trustee shall be made solely in reliance on
an appraisal by an Independent appraiser as provided above)), as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to the related Certificateholders pursuant to
Section 9.01(c), in each case plus accrued and unpaid interest thereon at the
weighted average of the Mortgage Rates through the end of the Due Period
preceding the final Distribution Date plus unreimbursed Servicing Advances, any
Swap Termination Payment payable to the Swap Counterparty then remaining unpaid
or which is due to the exercise of such option, Advances, any unpaid Servicing
Fees allocable to such Mortgage Loans and REO Properties and any accrued and
unpaid Net WAC Rate Carryover Amounts (the "Termination Price"); provided,
however, such option may only be exercised if the Termination Price is
sufficient to pay all interest accrued on, as well as amounts necessary to
retire the principal balance of, each class of notes issued pursuant to the
Indenture. If the determination of the fair market value of the Mortgage Loans
and REO Properties shall be required to be made by the Terminator and an
Independent appraiser as provided above, (A) such appraisal shall be obtained at
no expense to the Trustee and (B) the Trustee may conclusively rely on, and
shall be protected in relying on, such appraisal.
(b) The majority Holder of the Class CE Certificates shall have the right
(the party exercising such right, the "Terminator") to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I pursuant to clause (i)
of the preceding paragraph in the manner set forth in Section 9.01(c) below if
the aggregate Stated Principal Balance of the Mortgage Loans and each REO
Property remaining in the Trust Fund at the time of such election is reduced to
less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date. By acceptance of a Residual Certificate, the Holders of the
Residual Certificates agree, in connection with any termination hereunder, to
assign and transfer any amounts in excess of par, and to the extent received in
respect of such termination, to pay any such amounts to the Holders of the Class
CE Certificates.
(c) Notice of the liquidation of the Certificates shall be given promptly
by the Trustee by letter to Certificateholders mailed (a) in the event such
notice is given in connection with the purchase of the Mortgage Loans and each
REO Property by the Terminator, not earlier than the
129
10th day and not later than the 20th day of the month next preceding the month
of the final distribution on the related Certificates or (b) otherwise during
the month of such final distribution on or before the Determination Date in such
month, in each case specifying (i) the Distribution Date upon which the Trust
Fund will terminate and the final payment in respect of the REMIC I Regular
Interests, as applicable and the related Certificates will be made upon
presentation and surrender of the related Certificates at the office of the
Trustee therein designated, (ii) the amount of any such final payment, (iii)
that no interest shall accrue in respect of the REMIC I Regular Interests or the
related Certificates from and after the Interest Accrual Period relating to the
final Distribution Date therefor and (iv) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the related Certificates at the office of the
Trustee. In the event such notice is given in connection with the purchase of
all of the Mortgage Loans and each REO Property remaining in REMIC I by the
Terminator, the Terminator shall deliver to the Trustee for deposit in the
Certificate Account not later than the last Business Day of the month next
preceding the month of the final distribution on the related Certificates an
amount in immediately available funds equal to the above-described purchase
price. The Trustee shall remit to the Servicer from such funds deposited in the
Certificate Account (i) any amounts which the Servicer would be permitted to
withdraw and retain from the Custodial Account pursuant to Section 3.11 and (ii)
any other amounts otherwise payable by the Trustee to the Servicer from amounts
on deposit in the Certificate Account pursuant to the terms of this Agreement,
in each case prior to making any final distributions pursuant to Section
10.01(d) below. Upon certification to the Trustee by the Terminator of the
making of such final deposit, the Trustee shall promptly release to the
Terminator the Mortgage Files for the remaining Mortgage Loans, and the Trustee
shall execute all assignments, endorsements and other instruments necessary to
effectuate such transfer.
Immediately following the deposit of funds in trust hereunder in respect of
the Certificates, the Trust Fund shall terminate.
SECTION 9.02 Additional Termination Requirements. (a) In the event that the
Terminator purchases all the Mortgage Loans and each REO Property or the final
payment on or other liquidation of the last Mortgage Loan or REO Property
remaining in REMIC I pursuant to Section 9.01, the Trust Fund (or the applicable
Trust REMIC) shall be terminated in accordance with the following additional
requirements:
(i) The Trustee shall specify the first day in the 90-day liquidation
period in a statement attached to each Trust REMIC's final Tax Return
pursuant to Treasury regulation Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of the Code and
any regulations thereunder, as evidenced by an Opinion of Counsel obtained
at the expense of the Terminator;
(ii) During such 90-day liquidation period and, at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Terminator for cash; and
130
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Residual Certificates in
respect of the Class R-I Interest all cash on hand in the Trust Fund (other
than cash retained to meet claims), and the Trust Fund shall terminate at
that time.
(b) At the expense of the requesting Terminator (or, if the Trust Fund is
being terminated as a result of the occurrence of the event described in clause
(ii) of the first paragraph of Section 9.01, at the expense of the Depositor
without the right of reimbursement from the Trust Fund), the Terminator shall
prepare or cause to be prepared the documentation required in connection with
the adoption of a plan of liquidation of each Trust REMIC pursuant to this
Section 9.02.
(c) By their acceptance of Certificates, the Holders thereof hereby agree
to authorize the Trustee to specify the 90-day liquidation period for each Trust
REMIC, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE X
REMIC PROVISIONS
SECTION 10.01 REMIC Administration. (a) The Trustee shall elect to treat
each Trust REMIC as a REMIC under the Code and, if necessary, under applicable
state law. Each such election will be made by the Trustee on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of the REMIC election in respect of
REMIC I, the REMIC I Regular Interests shall be designated as the Regular
Interests in REMIC I and the Class R-I Interest shall be designated as the sole
class of Residual Interests in REMIC I. The Class A Certificates and the
Mezzanine Certificates shall be designated as the Regular Interests in REMIC II
and the Class R-II Interest shall be designated as the sole class of Residual
Interests in REMIC II. The Trustee shall not permit the creation of any
"interests" in any Trust REMIC (within the meaning of Section 860G of the Code)
other than the REMIC I Regular Interests and the interests represented by the
Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
Trust REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall be reimbursed for any and all expenses relating to
any tax audit of the Trust Fund (including, but not limited to, any professional
fees or any administrative or judicial proceedings with respect to each Trust
REMIC that involve the Internal Revenue Service or state tax authorities),
including the expense of obtaining any tax related Opinion of Counsel required
to be obtained hereunder. The Trustee, as agent for each Trust REMIC's tax
matters person shall (i) act on behalf of the Trust Fund in relation to any tax
matter or controversy involving any Trust REMIC and (ii) represent the Trust
Fund in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The holder of
the largest Percentage Interest of each Class of Residual Certificates shall
131
be designated, in the manner provided under Treasury regulations section
1.860F-4(d) and Treasury regulations section 301.6231(a)(7)-1, as the tax
matters person of the Trust REMICs created hereunder. By their acceptance
thereof, the holder of the largest Percentage Interest of the Residual
Certificates hereby agrees to irrevocably appoint the Trustee or an Affiliate as
its agent to perform all of the duties of the tax matters person for the Trust
Fund.
(d) The Trustee shall prepare, sign and file all of the Tax Returns
(including Form 8811, which must be filed within 30 days following the Closing
Date) in respect of each Trust REMIC created hereunder. The expenses of
preparing and filing such returns shall be borne by the Trustee without any
right of reimbursement therefor.
(e) The Trustee shall perform on behalf of each Trust REMIC all reporting
and other tax compliance duties that are the responsibility of such REMIC under
the Code, the REMIC Provisions or other compliance guidance issued by the
Internal Revenue Service or any state or local taxing authority. Among its other
duties, as required by the Code, the REMIC Provisions or other such compliance
guidance, the Trustee shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any Person who is not a
Permitted Transferee, (ii) to the Certificateholders such information or reports
as are required by the Code or the REMIC Provisions including reports relating
to interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service the
name, title, address and telephone number of the person who will serve as the
representative of each Trust REMIC. The Depositor shall provide or cause to be
provided to the Trustee, within ten (10) days after the Closing Date, all
information or data that the Trustee reasonably determines to be relevant for
tax purposes as to the valuations and issue prices of the Certificates,
including, without limitation, the price, yield, prepayment assumption and
projected cash flow of the Certificates.
(f) The Trustee shall take such action and shall cause each Trust REMIC
created hereunder to take such action as shall be necessary to create or
maintain the status thereof as a REMIC under the REMIC Provisions. The Trustee
shall not take any action or cause the Trust Fund to take any action or fail to
take (or fail to cause to be taken) any action that, under the REMIC Provisions,
if taken or not taken, as the case may be, could (i) endanger the status of each
Trust REMIC as a REMIC or (ii) result in the imposition of a tax upon the Trust
Fund (including but not limited to the tax on prohibited transactions as defined
in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, an "Adverse REMIC
Event") unless the Trustee has received an Opinion of Counsel, addressed to the
Trustee (at the expense of the party seeking to take such action but in no event
at the expense of the Trustee) to the effect that the contemplated action will
not, with respect to any Trust REMIC, endanger such status or result in the
imposition of such a tax, nor shall the Servicer take or fail to take any action
(whether or not authorized hereunder) as to which the Trustee has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action; provided that the Servicer
may conclusively rely on such Opinion of Counsel and shall incur no liability
for its action or failure to act in accordance with such Opinion of Counsel. In
addition, prior to taking any action with respect to any Trust REMIC or the
respective assets of each, or causing any
132
Trust REMIC to take any action, which is not contemplated under the terms of
this Agreement, the Servicer will consult with the Trustee or its designee, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to any Trust REMIC and the Servicer shall not take any
such action or cause any Trust REMIC to take any such action as to which the
Trustee has advised it in writing that an Adverse REMIC Event could occur;
provided that the Servicer may conclusively rely on such writing and shall incur
no liability for its action or failure to act in accordance with such writing.
The Trustee may consult with counsel to make such written advice, and the cost
of same shall be borne by the party seeking to take the action not permitted by
this Agreement, but in no event shall such cost be an expense of the Trustee. At
all times as may be required by the Code, the Trustee will ensure that
substantially all of the assets of REMIC I will consist of "qualified mortgages"
as defined in Section 860G(a)(3) of the Code and "permitted investments" as
defined in Section 860G(a)(5) of the Code, to the extent such obligations are
within the Trustee's control and not otherwise inconsistent with the terms of
this Agreement.
(g) In the event that any tax is imposed on "prohibited transactions" of
any Trust REMIC created hereunder as defined in Section 860F(a)(2) of the Code,
on the "net income from foreclosure property" of such REMIC as defined in
Section 860G(c) of the Code, on any contributions to any such REMIC after the
Startup Day therefor pursuant to Section 860G(d) of the Code, or any other tax
is imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Trustee pursuant to Section 10.03 hereof,
if such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article X, (ii) to the Servicer pursuant to Section 10.03
hereof, if such tax arises out of or results from a breach by the Servicer of
any of its obligations under Article III or this Article X, or (iii) in all
other cases, against amounts on deposit in the Certificate Account and shall be
paid by withdrawal therefrom.
(h) On or before April 15 of each calendar year, commencing April 15,
20[__], the Trustee shall deliver to each Rating Agency an Officer's Certificate
of the Trustee stating the Trustee's compliance with this Article X.
(i) The Trustee shall, for federal income tax purposes, maintain books and
records with respect to each Trust REMIC on a calendar year and on an accrual
basis.
(j) Following the Startup Day, neither the Servicer nor the Trustee shall
accept any contributions of assets to any Trust REMIC other than in connection
with any Qualified Substitute Mortgage Loan delivered in accordance with Section
2.03 unless it shall have received an Opinion of Counsel to the effect that the
inclusion of such assets in the Trust Fund will not cause any Trust REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding or
subject any Trust REMIC to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) Neither the Trustee nor the Servicer shall enter into any arrangement
by which any Trust REMIC will receive a fee or other compensation for services
nor knowingly permit any Trust REMIC to receive any income from assets other
than "qualified mortgages" as defined
133
in Section 860G(a)(3) of the Code or "permitted investments" as defined in
Section 860G(a)(5) of the Code.
SECTION 10.02 Prohibited Transactions and Activities. None of the
Depositor, the Servicer or the Trustee shall sell, dispose of or substitute for
any of the Mortgage Loans (except in connection with (i) the foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy
of REMIC I, (iii) the termination of REMIC I pursuant to Article IX of this
Agreement, (iv) a substitution pursuant to Article II of this Agreement or (v) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement), nor
acquire any assets for any Trust REMIC (other than REO Property acquired in
respect of a defaulted Mortgage Loan), nor sell or dispose of any investments in
the Custodial Account or the Certificate Account for gain, nor accept any
contributions to any Trust REMIC after the Closing Date (other than a Qualified
Substitute Mortgage Loan delivered in accordance with Section 2.03), unless it
has received an Opinion of Counsel, addressed to the Trustee (at the expense of
the party seeking to cause such sale, disposition, substitution, acquisition or
contribution but in no event at the expense of the Trustee) that such sale,
disposition, substitution, acquisition or contribution will not (a) affect
adversely the status of any Trust REMIC as a REMIC or (b) cause any Trust REMIC
to be subject to a tax on "prohibited transactions" or "contributions" pursuant
to the REMIC Provisions.
SECTION 10.03 Servicer and Trustee Indemnification. (a) The Trustee agrees
to indemnify the Trust Fund, the Depositor and the Servicer for any taxes and
costs including, without limitation, any reasonable attorneys' fees imposed on
or incurred by the Trust Fund, the Depositor or the Servicer as a result of a
breach of the Trustee's covenants set forth in this Article X.
(b) The Servicer agrees to indemnify the Trust Fund, the Depositor and the
Trustee for any taxes and costs including, without limitation, any reasonable
attorneys' fees imposed on or incurred by the Trust Fund, the Depositor or the
Trustee, as a result of a breach of the Servicer's covenants set forth in
Article III or this Article X.
ARTICLE XI
COMPLIANCE WITH REGULATION AB
SECTION 11.01 Intent of the Parties; Reasonableness. The Seller, the
Trustee, the Depositor and the Servicer acknowledge and agree that the purpose
of Article XI of this Agreement is to facilitate compliance by the Seller and
the Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Neither the Seller nor the Depositor shall
exercise its right to request delivery of information or other performance under
these provisions other than in good faith, or for purposes other than compliance
with the Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder. Each of the Depositor, the Seller, the Servicer and the
Trustee acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-
134
backed securities markets, advice of counsel, or otherwise, and agrees to comply
with requests made by the Seller or the Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations of
Regulation AB. Each of the Servicer and the Trustee shall cooperate fully with
the Seller to deliver to the Seller (including any of its assignees or
designees) and the Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination of
the Seller or the Depositor to permit the Seller or the Depositor to comply with
the provisions of Regulation AB, together with such disclosures relating to the
Servicer, the Trustee and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Seller or the Depositor to be necessary in
order to effect such compliance.
SECTION 11.02 Additional Representations and Warranties of the Trustee. (a)
The Trustee shall be deemed to represent to the Seller and to the Depositor, as
of the date on which information is first provided to the Seller or the
Depositor under Section 11.03 that, except as disclosed in writing to the Seller
or the Depositor prior to such date: (i) it is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other Securitization Transaction due to any act or
failure to act of the Trustee; (ii) it has not been terminated as trustee in a
securitization of mortgage loans, (iii) there are no aspects of it's financial
condition that could have a material adverse effect on its performance of its
trustee obligations under this Agreement or any other Securitization
Transaction; (iv) there are no material legal or governmental proceedings
pending (or known to be contemplated) against it; and (v) there are no
affiliations, relationships or transactions relating to the Trustee,with respect
to the Depositor or any sponsor, issuing entity, servicer, trustee, originator,
significant obligor, enhancement or support provider or other material
transaction party (as such terms are used in Regulation AB) relating to the
Securitization Transaction contemplated by the Agreement (the "Transaction
Parties").
(b) If so requested by the Seller or the Depositor on any date following
the date on which information is first provided to the Seller or the Depositor
under Section 11.03, the Trustee shall, within five Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this Section or, if any such representation and
warranty is not accurate as of the date of such request or such confirmation,
provide reasonably adequate disclosure of the pertinent facts, in writing, to
the requesting party.
SECTION 11.03 Information to Be Provided by the Trustee.
(a) If so requested by the Servicer or the Seller for the purpose of
satisfying its reporting obligation under the Exchange Act with respect to any
class of asset-backed securities, the Trustee shall (i) notify the Servicer and
the Seller in writing of (A) any material litigation or governmental proceedings
pending against the Trustee and (B) any affiliations or relationships that
develop following the Closing Date between the Trustee and any Transaction
Party, and (ii) provide to the Servicer and the Seller a description of such
proceedings, affiliations or relationships.
(b) In addition to such information as the Trustee is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the Servicer
or the Seller, the Trustee shall
135
provide such information [reasonably available to the Trustee] regarding the
performance or servicing of the Mortgage Loans as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121 of
Regulation AB.
SECTION 11.04 Report on Assessment of Compliance and Attestation. (a) On or
before March 1 of each calendar year, the Trustee shall:
(i) deliver to the Seller and the Depositor a report (in form and
substance reasonably satisfactory to the Seller and the Depositor)
regarding the Trustee's assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required under
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
Such report shall be addressed to the Seller and the Depositor and signed
by an authorized officer of the Trustee, and shall address each of the
Servicing Criteria specified on a certification substantially in the form
of Exhibit J-2 hereto;
(ii) deliver to the Seller and the Depositor a report of a registered
public accounting firm reasonably acceptable to the Seller and the
Depositor that attests to, and reports on, the assessment of compliance
made by the Trustee and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
SECTION 11.05 Indemnification; Remedies. (a) The Trustee shall indemnify
the Seller, each affiliate of the Seller, the Depositor, the Servicer, each
broker dealer acting as underwriter, placement agent or initial purchaser, each
Person who controls any of such parties (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing,
and shall hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material under this Article XI by or on behalf of the
Trustee (collectively, the "Trustee Information"), or (B) the omission or
alleged omission to state in the Trustee Information a material fact
required to be stated in the Trustee Information or necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to the
Trustee Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to whether
the Trustee Information or any portion thereof is presented together with
or separately from such other information;
(ii) any failure by the Trustee to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Article XI; or
136
(iii) any breach by the Trustee of a representation or warranty set
forth in Section 11.02(a) or in a writing furnished pursuant to Section
11.02(b).
(b) In the case of any failure of performance described in clause (ii) of
this Section, the Trustee shall promptly reimburse the Seller or the Depositor,
as applicable, for all costs reasonably incurred by each such party in order to
obtain the information, report, certification, accountants' letter or other
material not delivered as required by the Trustee.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment. This Agreement may be amended from time to time by
the Depositor, the Servicer and the Trustee without the consent of any of the
Certificateholders, (i) to cure any ambiguity or defect, (ii) to correct, modify
or supplement any provisions herein (including to give effect to the
expectations of Certificateholders), (iii) to amend the provisions of Section
4.06, (iv) to change the timing and/or nature of deposits into the Custodial
Account or the Certificate Account or to change the name in which the Custodial
Account is maintained, provided that (A) the Servicer Remittance Date shall in
no event be later than the related Distribution Date, (B) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Certificateholder and (C) such change shall not result in a
reduction of the rating assigned to any Class of Certificates below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date, as evidenced by a letter from each Rating Agency to such effect,
(v) to modify, eliminate or add to any of its provisions to such extent as shall
be necessary or desirable to maintain the qualification of any Trust REMIC
created hereunder as a Trust REMIC at all times that any Certificate is
outstanding or to avoid or minimize the risk of the imposition of any tax on the
Trust Fund pursuant to the Code that would be a claim against the Trust Fund,
provided that the Trustee has received an Opinion of Counsel to the effect that
(A) such action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax and (B) such action
will not adversely affect in any material respect the interests of any
Certificateholder, (vi) such amendment is made to conform the terms of this
Agreement to the terms described in the Prospectus dated [________] [__], 20[__]
together with the Prospectus Supplement dated [________] [__], 20[__], or (vii)
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement, provided that any such action pursuant to clauses (i), (ii), (iii),
(vi) or (vii), as evidenced by either (a) an Opinion of Counsel delivered to the
Trustee adversely affect in any material respect the interests of any
Certificateholder or (b) written notice to the Depositor, the Servicer and the
Trustee from the Rating Agencies that such action will not result in the
reduction or withdrawal of the rating of any outstanding Class of Certificates
with respect to which it is a Rating Agency). No amendment shall be deemed to
adversely affect in any material respect the interests of any Certificateholder
who shall have consented thereto, and no Opinion of Counsel or Rating Agency
confirmation shall be required to address the effect of any such amendment on
any such consenting Certificateholder. Notwithstanding the foregoing, neither an
Opinion of Counsel nor written notice to the Depositor, the Servicer and the
Trustee
137
from the Rating Agencies will be required in connection with an amendment to the
provisions of Section 4.06.
This Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates (as evidenced
by either (a) an Opinion of Counsel delivered to the Trustee or (b) written
notice to the Depositor, the Servicer and the Trustee from the Rating Agencies
that such action will not result in the reduction or withdrawal of the rating of
any outstanding Class of Certificates with respect to which it is a Rating
Agency) in a manner, other than as described in (i) or (iii) modify the consents
required by the immediately preceding clauses (i) and (ii) without the consent
of the Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 12.01, Certificates registered in the name of
the Depositor or the Servicer or any Affiliate thereof shall be entitled to
Voting Rights with respect to matters affecting such Certificates.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel to the effect that such amendment (i) will not
result in the imposition of any tax on any Trust REMIC pursuant to the REMIC
Provisions or cause any Trust REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding and (ii) is authorized or permitted
hereunder. Notwithstanding any of the other provisions of this Section 12.01,
none of the Depositor, the Servicer or the Trustee shall enter into any
amendment to Section 4.07 or Section 4.01(a)(4)(v) of this Agreement without the
prior written consent of the Swap Counterparty.
Promptly after the execution of any such amendment the Trustee shall
furnish a copy of such amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
The cost of any Opinion of Counsel to be delivered pursuant to this Section
12.01 shall be borne by the Person seeking the related amendment, but in no
event shall such Opinion of Counsel be an expense of the Trustee.
The Trustee may, but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
138
SECTION 12.02 Recordation of Agreement; Counterparts. To the extent
permitted by applicable law, this Agreement is subject to recordation in all
appropriate public offices for real property records in all of the counties or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere.
The Servicer shall effect such recordation at the Trust's expense upon the
request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
SECTION 12.03 Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representative or heirs to claim an accounting or to take any action or commence
any proceeding in any court for a petition or winding up of the Trust Fund, or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, the Holders
of Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates shall also have made written request to the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses, and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have neglected or refused to institute any such
action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions
139
of this Section 12.03, each and every Certificateholder, the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 12.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAWS).
SECTION 12.05 Notices. All directions, demands and notices hereunder shall
be in writing and shall be deemed to have been duly given when received if
personally delivered at or mailed by first class mail, postage prepaid, or by
express delivery service or delivered in any other manner specified herein, to
(a) in the case of the Depositor, Stanwich Asset Acceptance Company, L.L.C.,
Seven Greenwich Office Park, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: President, or such other address or telecopy number as may
hereafter be furnished to the Servicer and the Trustee in writing by the
Depositor, (b) in the case of the Servicer, [Name of Servicer, ______________,
________, ___________, Attention: _____________ (telecopy number: (___)
___-____)], or such other address or telecopy number as may hereafter be
furnished to the Trustee and the Depositor in writing by the Servicer and (c) in
the case of the Trustee, [Name of Trustee, _____________, _______, ________,
Attention: Trust Administration-[_____] (telecopy number: (__) ___-____)], or
such other address or telecopy number as may hereafter be furnished to the
Servicer, the and the Depositor in writing by the Trustee. Any notice required
or permitted to be given to a Certificateholder 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 when mailed, whether or
not the Certificateholder receives such notice. A copy of any notice required to
be telecopied hereunder also shall be mailed to the appropriate party in the
manner set forth above.
SECTION 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 12.07 Notice to Rating Agencies. The Trustee shall use its best
efforts promptly to provide notice to the Rating Agencies with respect to each
of the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
140
2. The occurrence of any Servicer Event of Default that has not been
cured or waived;
3. The resignation or termination of the Servicer or the Trustee;
4. The repurchase or substitution of Mortgage Loans pursuant to or as
contemplated by Section 2.03;
5. The final payment to the Holders of any Class of Certificates;
6. Any change in the location of the Custodial Account or the
Certificate Account; and
7. Any event that would result in the inability of the Trustee, as
successor servicer, to make advances regarding delinquent Mortgage Loans.
In addition, the Trustee shall make available to each Rating Agency copies
of each report to Certificateholders described in Section 4.02 and the Servicer
shall promptly furnish to each Rating Agency copies of the following:
1. Each annual statement as to compliance described in Section 3.20;
and
2. Each annual independent public accountants' servicing report
described in Section 3.21.
Any such notice pursuant to this Section 12.07 shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed by
first class mail, postage prepaid, or by express delivery service to Fitch
Ratings, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile number:
(▇▇▇) ▇▇▇-▇▇▇▇ and to Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such
other addresses as the Rating Agencies may designate in writing to the parties
hereto.
SECTION 12.08 Article and Section References. All article and section
references used in this Agreement, unless otherwise provided, are to articles
and sections in this Agreement.
SECTION 12.09 Grant of Security Interest. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans by the Depositor to the
Trustee, be, and be construed as, a sale of the Mortgage Loans by the Depositor
and not a pledge of the Mortgage Loans to secure a debt or other obligation of
the Depositor. However, in the event that, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the
Depositor, then, (a) it is the express intent of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor and (b) (1) this
Agreement shall also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the Uniform Commercial Code as in effect from time to time
in the State of New York; (2) the conveyance provided for in Section 2.01 hereof
shall be deemed to be a grant by the Depositor to the Trustee of a security
interest in all of the Depositor's right, title and interest in and to (i) such
Mortgage Loans and all amounts payable to
141
the holders of the Mortgage Loans in accordance with the terms thereof and all
proceeds of the conversion voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property and Prepayment Charges related thereto
as from time to time are subject to this Agreement, together with the Mortgage
Files relating thereto, and together with all collections thereon and proceeds
thereof; (ii) any REO Property, together with all collections thereon and
proceeds thereof; (iii) the Depositor's rights with respect to the Mortgage
Loans under all insurance policies required to be maintained pursuant to this
Agreement and any proceeds thereof; (iv) the Depositor's rights under the
Mortgage Loan Purchase Agreement (including any security interest created
thereby); (v) the Custodial Account (other than any amounts representing any
Servicer Prepayment Charge Payment Amount), the Certificate Account (other than
any amounts representing any Servicer Prepayment Charge Payment Amount) and any
REO Account, and such assets that are deposited therein from time to time and
any investments thereof, together with any and all income, proceeds and payments
with respect thereto; and (vi) the Swap Account and all amounts payable pursuant
to the Swap Agreement in accordance with the terms thereof; (3) the obligations
secured by such security agreement shall be deemed to be all of the Depositor's
obligations under this Agreement, including the obligation to provide to the
Certificateholders the benefits of this Agreement relating to the Mortgage Loans
and the Trust Fund and to provide the Swap Counterparty the benefit of Section
4.07 and 4.01(a)(4)(v); and (4) notifications to persons holding such property,
and acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee a
security interest in the Mortgage Loans and all other property described in
clause (2) of the preceding sentence, for the purpose of securing to the Trustee
the performance by the Depositor of the obligations described in clause (3) of
the preceding sentence. Notwithstanding the foregoing, the parties hereto intend
the conveyance pursuant to Section 2.01 to be a true, absolute and unconditional
sale of the Mortgage Loans and assets constituting the Trust Fund by the
Depositor to the Trustee.
SECTION 12.10 Intention of Parties. It is the express intent of the parties
hereto that the conveyance of the Mortgage Notes, Mortgages, assignments of
Mortgages, title insurance policies and any modifications, extensions and/or
assumption agreements and private mortgage insurance policies relating to the
Mortgage Loans by the Seller to the Depositor, and by the Depositor to the
Trustee be, and be construed as, an absolute sale thereof to the Depositor or
the Trustee, as applicable. It is, further, not the intention of the parties
that such conveyance be deemed a pledge thereof by the Seller to the Depositor,
or by the Depositor to the Trustee. However, in the event that, notwithstanding
the intent of the parties, such assets are held to be the property of the Seller
or the Depositor, as applicable, or if for any other reason the Mortgage Loan
Purchase Agreement or this Agreement is held or deemed to create a security
interest in such assets, then (i) the Mortgage Loan Purchase Agreement and this
Agreement shall each be deemed to be a security agreement within the meaning of
the Uniform Commercial Code of the State of New York and (ii) the conveyance
provided for in the Mortgage Loan Purchase Agreement from the Seller to the
Depositor, and the conveyance provided for in this Agreement from the Depositor
to the Trustee, shall be deemed to be an assignment and a grant by the Seller or
the Depositor, as applicable, for the benefit of the Certificateholders, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired.
142
The Depositor for the benefit of the Certificateholders shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
assets of the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement.
SECTION 12.11 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided pursuant to Section 6.02, this Agreement
may not be assigned by the Servicer or the Depositor.
SECTION 12.12 Inspection and Audit Rights. The Servicer agrees that, on
reasonable prior notice, it will permit any representative of the Depositor or
the Trustee during the Servicer's normal business hours, to examine all the
books of account, records, reports and other papers of the Servicer relating to
the Mortgage Loans, to make copies and extracts therefrom, to cause such books
to be audited by independent certified public accountants selected by the
Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to such Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Servicer hereby authorizes such
accountants to discuss with such representative such affairs, finances and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the Depositor
or the Trustee of any right under this Section 12.12 shall be borne by the party
requesting such inspection, subject to such party's right to reimbursement
hereunder (in the case of the Trustee, pursuant to Section 8.05 hereof).
SECTION 12.13 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 12.14 Third Party Beneficiaries. The Swap Counterparty is an
express third-party beneficiary of this Agreement, and shall have the right to
enforce the provisions of this Agreement
SECTION 12.15 Perfection Representations. The Perfection Representations
shall be a part of this Agreement for all purposes.
SECTION 12.16 Notice to Holder of Class CE Certificate. Upon actual
knowledge by a Servicing Officer of an event which constitutes a Servicer Event
of Default under Section 7.01 of this Agreement or give rise to an indemnity
claim under Sections 3.25, 8.05(b), 10.03(b) or 13.02(g) of this Agreement, such
Servicing Officer shall promptly (but in no event later than two Business Days
following such knowledge) provide written notice to the Holder of the Class CE
Certificate of such event.
143
ARTICLE XIII
RIGHTS OF THE CLASS CE CERTIFICATEHOLDER
SECTION 13.01 Reports and Notices. (a) In connection with the performance
of its duties under this Agreement relating to, among other things, the
collection of Mortgage Loans, the Servicer shall provide to the Class CE
Certificateholder the following notices and reports in a timely manner and using
the same methodology and calculations used in its standard servicing reports to
the Trustee. The Servicer shall send all such notices and reports to the Class
CE Certificateholder in electronic format unless otherwise specified herein or
agreed to in writing by the Class CE Certificateholder.
(i) The Servicer shall, within ten Business Days after each
Distribution Date, commencing in March 20[_], provide to the Class CE
Certificateholder a report of each Mortgage Loan in the Trust Fund,
indicating the information contained in Exhibit L for the Due Period
relating to such Distribution Date and to the extent such information is
reasonably available to the Servicer.
(ii) Within ten Business Days after each Distribution Date commencing
in March 20[__], the Servicer shall provide the Class CE Certificateholder
with a report listing each Mortgage Loan that has liquidated or paid off.
Such report shall specify, if applicable and to the extent the information
is reasonably available to the Servicer: (a) mortgage loan number; (b)
outstanding Stated Principal Balance of the mortgage loan upon its
liquidation; (c) Realized Loss or gain; (d) Liquidation Proceeds; (e)
payoff date; (f) Prepayment Charges collected.
(iii) Where applicable, the Servicer shall provide the Class CE
Certificateholder with copies of all primary mortgage insurance claims
filed, as well as the actual amount paid in respect of any claim. Copies of
any primary mortgage insurance claims will be provided to the Class CE
Certificateholder within ten Business Days of their filing with the
mortgage insurance company.
(iv) The Servicer shall provide the Class CE Certificateholder with a
copy of the monthly reporting to the Trustee, and of any notice submitted
to the Trustee regarding a loan modification. Such notice shall be provided
to the Class CE Certificateholder simultaneous with its delivery to the
Trustee.
(v) On a monthly basis, the Servicer shall provide the Class CE
Certificateholder with a delinquency report detailing at a minimum the
percentages of 30-day, 60-day and 90-day delinquencies in the Servicer's
total portfolio that move into foreclosure and the percentage of foreclosed
loans the Servicer's total portfolio that remain in foreclosure.
(b) The Servicer shall make its servicing personnel available during their
normal business hours to respond to reasonable inquiries, either orally or in
writing by facsimile transmission, express mail, or electronic mail, transmitted
by the Class CE Certificateholder in
144
connection with any Mortgage Loan identified in a report under subSection
13.01(a)(i) through (iv) which has been given to the Class CE Certificateholder;
provided that the Servicer shall only be required to provide information that is
reasonably accessible to its servicing personnel.
(c) If reasonably requested by the Class CE Certificateholder, the Servicer
shall make available to the Class CE Certificateholder access to the
underwriting files for defaulted Mortgage Loans, in original, photocopied or
imaged form, to the extent such files have been provided to the Servicer. The
Class CE Certificateholder agrees to protect the confidentiality of the
documents and information contained in underwriting files from all parties other
than the Depositor and Trustee, and agrees not to remove, ▇▇▇▇ or destroy any of
the documents contained therein.
(d) With respect to all Mortgage Loans which are serviced at any time by
the Servicer through a Sub-Servicer which has been approved by the Class CE
Certificateholder pursuant to the next succeeding sentence, the Servicer shall
be entitled to rely for all purposes hereunder, including for purposes of
fulfilling its reporting obligations under this Section 13.01, on the accuracy
and completeness of any information provided to it by the applicable
subservicer. The Servicer shall not allow any Mortgage Loan to be serviced by a
Sub-Servicer without the prior written consent of such Sub-Servicer by the Class
CE Certificateholder.
(e) The Servicer shall permit the Class CE Certificateholder to conduct an
on-site review and evaluation of the Servicer's operations as they relate to the
Mortgage Loans no more than annually, unless circumstances warrant special
review. Such review and evaluation will be conducted upon at least 30 days
written notice to the Servicer by the Class CE Certificateholder, and shall be
conducted at the Class CE Certificateholder's expense. The review is intended to
benefit the Servicer, as well as to assist the Class CE Certificateholder in
adjusting its monitoring approach to fit the default procedures in place. The
Class CE Certificateholder will conduct such review and evaluation during normal
business hours and use its best efforts to cause the least practicable
interruption to the Servicer's business. During the course of the on-site
evaluation, the Servicer will make available to the Class CE Certificateholder
access to the Servicer's policies and procedures regarding the management and
liquidation of defaulted Mortgage Loans. The written findings of such review and
evaluation will be presented to the Servicer for review and comment. Other than
a comfort letter to the Depositor summarizing the review and evaluation of the
Servicer, the Class CE Certificateholder will not divulge the written findings
of such review to any party without the prior written consent of the Servicer.
SECTION 13.02 Class CE Certificateholder's Directions With Respect to
Defaulted Mortgage Loans. (a) All parties to this Agreement acknowledge that the
Class CE Certificateholder's advice is made in the form of directions, and that
the Class CE Certificateholder has the right to direct the Servicer in
performing its duties under this Agreement. The Servicer must accept such
advice, subject to the duties of the Servicer set forth in this Agreement.
(b) The Class CE Certificateholder may provide the Servicer with advice
regarding the management of specific defaulted Mortgage Loans. Such advice may
be made in writing, in the form of electronic mail. The advice provided to the
Servicer may be based on observations
145
made in conjunction with the data provided pursuant to the Section 13.01 of this
Agreement, or in conjunction with the Class CE Certificateholder's periodic
review of the Servicer's operations. The advice may include comparable analysis
of the performance of the Mortgage Loans in the Trust Fund with similar mortgage
loans serviced by other mortgage loan servicers. Such advice also may take the
form of benchmark comparisons that identify and interpret the Servicer's
strengths and weaknesses relative to similar, unidentified servicers in the
industry.
(c) In all cases where the Class CE Certificateholder makes directions to
the Servicer, the Class CE Certificateholder will protect the confidentiality of
the Servicer and other servicers in the industry whose work is monitored by the
Class CE Certificateholder. Under no circumstances will the Class CE
Certificateholder divulge any materials confidential of the Servicer, whether a
party to this Agreement or not, or the details of any Servicer's proprietary
system or approaches.
(d) All advice offered to the Servicer by the Class CE Certificateholder
will be kept confidential by the Class CE Certificateholder, except as disclosed
as a finding in the Class CE Certificateholder's review and evaluation of the
Servicer, as discussed in Section 13.01(e), or in reports to the Depositor.
(e) The Servicer's obligations under this Article XIII shall terminate upon
the termination of the Trust Fund pursuant to Section 9.01.
(f) Neither the Servicer nor the Class CE Certificateholder nor any of
their respective directors, officers, employees or agents shall be under any
liability for any action taken or for refraining from the taking of any action
in good faith pursuant to this Article XIII or for errors in judgment; provided,
however, that this provision shall not protect the Servicer or the Class CE
Certificateholder or any such Person against any liability which would otherwise
be imposed by reason of willful malfeasance or bad faith. The Servicer and the
Class CE Certificateholder and any director, officer, employee or agent thereof
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.
(g) The Servicer or the Class CE Certificateholder, as applicable,
("Indemnitor") shall indemnify, defend and hold harmless the other
("Indemnitee") and its officers, directors, agents and employees from and
against all claims, losses, expenses, fees (including attorneys' and expert
witnesses' fees), costs and judgments involving the rights and obligations of
this Article XIII that may be asserted against Indemnitee (a) that result from
the acts or omissions of the Indemnitor (including, without limitation, any
advice or directions provided pursuant to this Section 13.02), or (b) result
from third party claims of intellectual property infringement.
(h) The Class CE Certificateholder agrees that all information supplied by
or on behalf of the Servicer shall be used by the Class CE Certificateholder
only for the benefit of the Certificateholders of the Trust Fund.
Notwithstanding anything to the contrary in this Agreement, the Class CE
Certificateholder shall be entitled to retain all records or other information
supplied to Class CE Certificateholder pursuant to this Agreement.
146
[Signatures follow]
147
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
STANWICH ASSET ACCEPTANCE COMPANY L.L.C.,
as Depositor
By:
-------------------------------------
Name:
Title:
[NAME OF SERVICER],
as Servicer
By:
-------------------------------------
Name:
Title:
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
S-1
STATE OF [______________])
)ss.:
COUNTY OF [_____________])
On the __ day of[________] 20[__], before me, a notary public in and for
said State, personally appeared [__________], known to me to be President of
Stanwich Asset Acceptance Company, L.L.C., one of the companies that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said limited liability company, and acknowledged to me that such
limited liability company executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________________________
Notary Public
[Notarial Seal]
S-2
STATE OF ____________________)
)ss.:
COUNTY OF ___________________)
On the __ day of [________] 20[__], before me, a notary public in and for
said State, personally appeared ________________________________, known to me to
be a ___________________ of [Name of Servicer], one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________________________
Notary Public
[Notarial Seal]
S-3
STATE OF __________________)
) ss.:
COUNTY OF _________________)
On the __ day of [________] 20[__], before me, a notary public in and for
said State, personally appeared _______________, known to me to be a
______________ and _______________, known to me to be a ______________ of [Name
of Trustee], one of the corporations that executed the within instrument, and
also known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________________________
Notary Public
[Notarial Seal]
S-4
EXHIBIT A-1
FORM OF CLASS A CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
Series 20[__-____]
Pass-Through Rate: Variable
Cut-off Date: [________ __, 20__]
Date of Pooling and Servicing Agreement: [________ __, 20__]
First Distribution Date: [________ __, 20__]
No. 1
Aggregate Certificate Principal Balance of the Class A-[_] Certificates as of
the Closing Date: [ _____________ ]
Denomination: [ _____________ ]
Servicer: [Name of Servicer]
Trustee: [Name of Trustee]
Closing Date: [________ __, 20__]
CUSIP: [ ________ ] [_] [_]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
A-1-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing,
first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold
by
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class A-[_] Certificates as of
the Closing Date) in that certain beneficial ownership interest evidenced by all
the Class A-[_] Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich
Asset Acceptance Company, L.L.C. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-[_] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
A-1-2
The Pass-Through Rate applicable to the calculation of interest
payable with respect to this Certificate on any Distribution Date shall equal a
rate per annum equal to the lesser of (i) the related Formula Rate for such
Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of Certificates
designated as Asset Backed Pass-Through Certificates of the Series specified on
the face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee, and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in the
Agreement, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each beneficial owner of this Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
such Certificate or interest therein, that either (A) it is not an "employee
benefit plan" as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that is subject to Title I of ERISA,
any "plan" as defined in Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), that is subject to Section 4975 of the Code or any entity
deemed to hold plan assets of any of the foregoing, (B) it has acquired and is
holding this Certificate in reliance on the underwriters' exemption, and that it
understands that there are certain conditions to the availability of the
underwriters' exemption, including that this Certificate must be rated, at the
A-1-3
time of purchase, not lower than "BBB-" (or its equivalent) by Fitch, S&P or
▇▇▇▇▇'▇ and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that such
transferee is an accredited investor, or (C)(1) it is an insurance company, (2)
the source of funds used to acquire or hold this Certificate or interest therein
is an "insurance company general account," as such term is defined in Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I
and III of PTCE 95-60 have been satisfied.
If this Certificate or any interest therein is acquired or held in
violation of the provisions of Section 5.02(c) of the Agreement, the next
preceding permitted beneficial owner will be treated as the beneficial owner of
this Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any this
Certificate or interest therein was effected in violation of the provisions of
Section 5.02(c) of the Agreement shall indemnify and hold harmless the
Depositor, the Servicer, the Trustee and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by those parties as a result
of that acquisition or holding.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by the Trustee and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
A-1-4
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [________ __, 20__]
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Signatory
A-1-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right if survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
---------------------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ___________________________________________________________,
account number___________, or, if mailed by check, to ________________________,
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS M CERTIFICATES
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
Series 20[__-____]
Pass-Through Rate: Variable
Cut-off Date: [________ __, 20__]
Date of Pooling and Servicing Agreement: [________ __, 20__]
First Distribution Date: [________ __, 20__]
No. 1
Aggregate Certificate Principal Balance of the Class M-[_] Certificates as of
the Closing Date: [ _____________ ]
Denomination: [ _____________ ]
Servicer: [Name of Servicer]
Trustee: [Name of Trustee]
Closing Date: [________ __, 20__]
CUSIP: [ ________ ] [_] [_]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
A-2-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing,
first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold
by
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class M-[_] Certificates as of
the Closing Date) in that certain beneficial ownership interest evidenced by all
the Class M-[_] Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich
Asset Acceptance Company, L.L.C. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-[_] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
A-2-2
The Pass-Through Rate applicable to the calculation of interest
payable with respect to this Certificate on any Distribution Date shall equal a
rate per annum equal to the lesser of (i) the related Formula Rate for such
Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of Certificates
designated as Asset Backed Pass-Through Certificates of the Series specified on
the face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in the
Agreement, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each beneficial owner of this Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
such Certificate or interest therein, that either (A) it is not an "employee
benefit plan" as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that is subject to Title I of ERISA,
any "plan" as defined in Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), that is subject to Section 4975 of the Code or any entity
deemed to hold plan assets of any of the foregoing, (B) it has acquired and is
holding this Certificate in reliance on the underwriters' exemption, and that it
understands that there are certain conditions to the availability of the
underwriters' exemption, including that this Certificate must be rated, at the
A-2-3
time of purchase, not lower than "BBB-" (or its equivalent) by Fitch, S&P or
▇▇▇▇▇'▇ and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that such
transferee is an accredited investor, or (C)(1) it is an insurance company, (2)
the source of funds used to acquire or hold this Certificate or interest therein
is an "insurance company general account," as such term is defined in Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I
and III of PTCE 95-60 have been satisfied.
If this Certificate or any interest therein is acquired or held in
violation of the provisions of Section 5.02(c) of the Agreement, the next
preceding permitted beneficial owner will be treated as the beneficial owner of
this Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any this
Certificate or interest therein was effected in violation of the provisions of
Section 5.02(c) of the Agreement shall indemnify and hold harmless the
Depositor, the Servicer, the Trustee and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by those parties as a result
of that acquisition or holding.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by the Trustee and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
A-2-4
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [________ __, 20__]
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Signatory
A-2-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right if survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
---------------------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address: __________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
--------------
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number___________, or, if mailed by check, to _________________________,
Applicable statements should be mailed to ______________________________________
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS CE CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, AND THE
MEZZANINE CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH
ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
Series: 20[__-___]
Pass-Through Rate: Variable
Cut-off Date: [________ __, 20__]
Date of Pooling and Servicing Agreement: [________ __, 20__]
First Distribution Date: [________ __, 20__]
No. 1
Aggregate Notional Amount of the Class
CE Certificates as of the Closing Date:
[ ______________ ]
Notional Amount: [ _____________ ]
Aggregate Certificate Principal Balance of the Class CE Certificates as of the
Closing Date: [ _____________ ]
Denomination: [ _____________ ]
Servicer: [Name of Servicer]
Trustee: [Name of Trustee]
Closing Date: [________ __, 20__]
A-3-1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
A-3-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing,
first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold
by
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that [Name of Trustee], as Indenture Trustee under the
Indenture, dated [_______ ___, 20___], relating to the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Trust
20[___-_______] Notes, is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class CE Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
CE Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class CE Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency
A-3-3
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trustee for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Asset Backed Pass-Through Certificates of the Series specified on
the face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in the
Agreement, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and an effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. In the
event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their
A-3-4
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor or the Trustee is obligated to register
or qualify the Class of Certificates specified on the face hereof under the 1933
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicer against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest therein shall be made
to any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), that is subject to
Title I of ERISA, any "plan" as defined in Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), that is subject to Section 4975 of the
Code or any entity deemed to hold plan assets of any of the foregoing (each, a
"Plan"), any Person acting, directly or indirectly, on behalf of any such Plan
or any Person acquiring this Certificate with "plan assets" of a Plan (within
the meaning of the Department of Labor regulation promulgated at 29 C. F. R.
Section 2510.3-101 ("Plan Assets")), as certified by such transferee in the form
of Exhibit G to the Agreement, unless the Trustee is provided with an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Depositor,
the Trustee and the Servicer to the effect that the purchase or holding of this
Certificate is permissible under applicable law, will not constitute or result
in any non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code (or comparable provisions of subsequent enactments) and will
not subject the Depositor, the Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Servicer,
the Trustee or the Trust Fund.
If this Certificate or any interest therein is acquired or held in
violation of the provisions of Section 5.02(c) of the Agreement, the next
preceding permitted beneficial owner will be treated as the beneficial owner of
this Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any this
Certificate or interest therein was effected in violation of the provisions of
Section 5.02(c) of the Agreement shall indemnify and hold harmless the
Depositor, the Servicer, the Trustee and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by those parties as a result
of that acquisition or holding.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
A-3-5
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by the Trustee and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [________ __, 20__]
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Signatory
A-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right if survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
---------------------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address: __________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
--------------
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-3-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number___________, or, if mailed by check, to _________________________,
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH
ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
Series: 20-[__-____]
Cut-off Date and date of Pooling and Servicing Agreement: [________ __, 20__]
First Distribution Date: [________ __, 20__]
No. 1
Aggregate Certificate Principal Balance of the Class P Certificates as of the
Closing Date: [ _____________ ]
Denomination: [ _____________ ]
Servicer: [Name of Servicer]
Trustee: [Name of Trustee]
Closing Date: [________ __, 20__]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
A-4-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing,
first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold
by
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that [Name of Trustee], as Indenture Trustee under the
Indenture, dated [________ __, 20__], relating to the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Trust
20[__-____] Notes, is the registered owner of a Percentage Interest (obtained by
dividing the denomination of this Certificate by the aggregate Certificate
Principal Balance of the Class P Certificates as of the Closing Date) in that
certain beneficial ownership interest evidenced by all the Class P Certificates
in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Stanwich Asset Acceptance Company,
L.L.C. (hereinafter called the "Depositor," which term includes any successor
entity under the Agreement), the Servicer and the Trustee, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class P Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
A-4-2
This Certificate is one of a duly authorized issue of Certificates
designated as Asset Backed Pass-Through Certificates of the Series specified on
the face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in the
Agreement, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and an effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. In the
event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. None of the Depositor or the Trustee is obligated to
A-4-3
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicer against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest therein shall be made
to any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), that is subject to
Title I of ERISA, any "plan" as defined in Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), that is subject to Section 4975 of the
Code or any entity deemed to hold plan assets of any of the foregoing (each, a
"Plan"), any Person acting, directly or indirectly, on behalf of any such Plan
or any Person acquiring this Certificate with "plan assets" of a Plan (within
the meaning of the Department of Labor regulation promulgated at 29 C. F. R.
Section 2510.3-101 ("Plan Assets")), as certified by such transferee in the form
of Exhibit G to the Agreement, unless the Trustee is provided with an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Depositor,
the Trustee and the Servicer to the effect that the purchase or holding of this
Certificate is permissible under applicable law, will not constitute or result
in any non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code (or comparable provisions of subsequent enactments) and will
not subject the Depositor, the Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Servicer,
the Trustee or the Trust Fund.
If this Certificate or any interest therein is acquired or held in
violation of the provisions of Section 5.02(c) of the Agreement, the next
preceding permitted beneficial owner will be treated as the beneficial owner of
this Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any this
Certificate or interest therein was effected in violation of the provisions of
Section 5.02(c) of the Agreement shall indemnify and hold harmless the
Depositor, the Servicer, the Trustee and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by those parties as a result
of that acquisition or holding.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
A-4-4
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by the Trustee and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [________ __, 20__]
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Signatory
A-4-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right if
survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
---------------------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address: __________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
--------------
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-4-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number___________, or, if mailed by check, to _________________________,
Applicable statements should be mailed to ______________________________________
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH
ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUSTEE
THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION
THEREOF, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT 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, (3) ANY ORGANIZATION DESCRIBED
IN SECTION 1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE
A-5-1
REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE
THE ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO
A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION,
SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY
ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(D) OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED
ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS
CERTIFICATE.
Series 20[__-____]
Cut-off Date and date of Pooling and Servicing Agreement: [________ __, 20__]
First Distribution Date: [________ __, 20__]
No.1
Aggregate Percentage Interest of the Class R Certificates as of the Closing
Date: 100.00%
Servicer: [Name of Servicer]
Trustee: [Name of Trustee]
Closing Date: [________ __, 20__]
A-5-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing,
first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold
by
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Greenwich Residual Venture, LLC is the registered
owner of a Percentage Interest (as specified above) in that certain beneficial
ownership interest evidenced by all the Certificates of the Class to which this
Certificate belongs created pursuant to a Pooling and Servicing Agreement, dated
as specified above (the "Agreement"), among Stanwich Asset Acceptance Company,
L.L.C. (hereinafter called the "Depositor," which term includes any successor
entity under the Agreement), the Servicer and the Trustee, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
A-5-3
This Certificate is one of a duly authorized issue of Certificates
designated as Asset Backed Pass-Through Certificates of the Series specified on
the face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in the
Agreement, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Trustee duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and an effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. In the
event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. None of the Depositor or the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or
A-5-4
any other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the Servicer
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of this Certificate or any interest therein shall be made
to any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), that is subject to
Title I of ERISA, any "plan" as defined in Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), that is subject to Section 4975 of the
Code or any entity deemed to hold plan assets of any of the foregoing (each, a
"Plan"), any Person acting, directly or indirectly, on behalf of any such Plan
or any Person acquiring this Certificate with "plan assets" of a Plan (within
the meaning of the Department of Labor regulation promulgated at 29 C. F. R.
Section 2510.3-101 ("Plan Assets")), as certified by such transferee in the form
of Exhibit G to the Agreement, unless the Trustee is provided with an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Depositor,
the Trustee and the Servicer to the effect that the purchase or holding of this
Certificate is permissible under applicable law, will not constitute or result
in any non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code (or comparable provisions of subsequent enactments) and will
not subject the Depositor, the Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Servicer,
the Trustee or the Trust Fund.
If this Certificate or any interest therein is acquired or held in
violation of the provisions of Section 5.02(c) of the Agreement, the next
preceding permitted beneficial owner will be treated as the beneficial owner of
this Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any this
Certificate or interest therein was effected in violation of the provisions of
Section 5.02(c) of the Agreement shall indemnify and hold harmless the
Depositor, the Servicer, the Trustee and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by those parties as a result
of that acquisition or holding.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Prior to registration of any transfer, sale or other disposition of
this Certificate, the proposed transferee shall provide to the Trustee (i) an
affidavit to the effect that such transferee is any Person other than a
Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R Certificates have been designated as a
residual interest in a REMIC, (B) it will include in
A-5-5
its income a pro rata share of the net income of the Trust Fund and that such
income may be an "excess inclusion," as defined in the Code, that, with certain
exceptions, cannot be offset by other losses or benefits from any tax exemption,
and (C) it expects to have the financial means to satisfy all of its tax
obligations including those relating to holding the Class R Certificates.
Notwithstanding the registration in the Certificate Register of any transfer,
sale or other disposition of this Certificate to a Disqualified Organization or
an agent (including a broker, nominee or middleman) of a Disqualified
Organization, such registration shall be deemed to be of no legal force or
effect whatsoever and such Person shall not be deemed to be a Certificateholder
for any purpose, including, but not limited to, the receipt of distributions in
respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have consented to the provisions of Section 5.02 of the Agreement and
to any amendment of the Agreement deemed necessary by counsel of the Depositor
to ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the Trust Fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the REMIC.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by the Trustee and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-5-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [________ __, 20__]
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Authorized Signatory
A-5-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right if survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
---------------------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address: __________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
--------------
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-5-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number___________, or, if mailed by check, to _________________________,
Applicable statements should be mailed to ______________________________________
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
A-5-9
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C-1
FORM OF TRUSTEE'S INITIAL CERTIFICATION
[________ __, 20__]
Stanwich Asset Acceptance Company, L.L.C.
Seven Greenwich Office Park
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Name of Trustee]
[_____________]
[_____________]
Re: Pooling and Servicing Agreement, dated as of [________ __,
20__], among Stanwich Asset Acceptance Company, L.L.C., as
Depositor, [Name of Servicer], as Servicer and [Name of
Trustee], as Trustee, ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series
20[__-____] Asset-Backed Pass-Through Certificates
Ladies and Gentlemen:
Attached is the Trustee's preliminary exceptions in accordance with
Section 2.02 of the referenced Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"). Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Pooling and Servicing Agreement.
As to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than any Mortgage Loan paid in full or any Mortgage Loan specifically identified
in the exception report annexed thereto as not being covered by such
certification), (i) all documents constituting part of such Mortgage File (other
than such documents described in Section 2.01(v) of the Pooling and Servicing
Agreement) required to be delivered to it pursuant to the Pooling and Servicing
Agreement are in its possession, (ii) such documents have been reviewed by it
and appear regular on their face and relate to such Mortgage Loan and (iii)
based on its examination and only as to the foregoing, the information set forth
in the Mortgage Loan Schedule that corresponds to items (i), (iii), (xi), (xii)
and (xv) of the definition of "Mortgage Loan Schedule" accurately reflects
information set forth in the Mortgage File.
The Trustee is under no duty or obligation (i) to inspect, review or
examine any such documents, instruments, certificates or other papers to
determine whether they are genuine, enforceable, valid, legally binding,
effective or appropriate for the represented purpose or whether they have
actually been recorded or are in recordable form or that they are other than
what they purport to be on their face, (ii) to determine whether any Mortgage
File should include any of the documents specified in clause (v) of Section 2.01
of the Pooling and Servicing Agreement or (iii) to determine the perfection or
priority of any security interest in any such documents or instruments.
C-1-1
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF TRUSTEE'S FINAL CERTIFICATION
[Date]
Stanwich Asset Acceptance Company, L.L.C.
Seven Greenwich Office Park
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Name of Servicer]
[______________]
[______________]
Re: Pooling and Servicing Agreement, dated as of [______ ___, 20__],
among Stanwich Asset Acceptance Company, L.L.C., as Depositor,
[Name of Servicer], as Servicer and [Name of Trustee] as Trustee,
▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series 20[___-_______]
Asset-Backed Pass-Through Certificates
Ladies and Gentlemen:
In accordance with Section 2.01 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as 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 the attachment hereto), it or a Custodian on its
behalf has received:
(i) the original Mortgage with evidence of recording thereon, and the
original recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording
thereon;
(ii) an original Assignment in blank;
(iii) the original lender's title insurance policy, together with all
endorsements or riders that were issued with or subsequent to the
issuance of such policy, insuring the Mortgage on the Mortgaged
Property represented therein as a fee interest vested in the
Mortgagor or in the event such original title policy is
unavailable, a written commitment or uniform binder or
preliminary report of title issued by the title insurance or
escrow company.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee is under no duty
or obligation (i) to inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine, enforceable,
valid, legally binding, effective or appropriate for the represented purpose or
whether they have actually been recorded or are in recordable form or that they
are
C-2-1
other than what they purport to be on their face, (ii) to determine whether any
Mortgage File should include any of the documents specified in clause (v) of
Section 2.01 of the Pooling and Servicing Agreement or (iii) to determine the
perfection or priority of any security interest in any such documents or
instruments.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
[NAME OF TRUSTEE], as Trustee
By:
-------------------------------
Name:
Title:
C-2-2
EXHIBIT D
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
D-1
EXHIBIT E
REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information
Name of Mortgagor: _______________________________
Master Servicer
Loan No.: _______________________________
Trustee/Custodian
Name: _______________________________
Address: _______________________________
_______________________________
Trustee/Custodian
Mortgage File No.:
Trustee
Name: _______________________________
Address: _______________________________
_______________________________
Depositor
Name: STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.
Address: _______________________________
_______________________________
Certificates: ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust,
Series 20[___-_______]
Asset-Backed Pass-Through
Certificates
The undersigned Servicer hereby acknowledges that it has received from
_______________________, as Trustee for the Holders of ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan
Trust, Series 20[___-_______] Asset-Backed Pass-Through Certificates the
documents referred to below (the "Documents"). All capitalized terms not
otherwise defined in this Request for Release
E-1
shall have the meanings given them in the Pooling and Servicing Agreement, dated
as of [_______ ___, 20___], among the Trustee, the Depositor and the Servicer
(the "Pooling and Servicing Agreement").
( ) Promissory Note dated _______________, 20__, in the original
principal sum of $__________, made by _____________________, payable to, or
endorsed to the order of, the Trustee.
( ) Mortgage recorded on _________________________ as instrument no.
____________________ in the County Recorder's Office of the County of
_________________, State of __________________ in book/reel/docket
_________________ of official records at page/image _____________.
( ) Deed of Trust recorded on ___________________ as instrument no.
________________ in the County Recorder's Office of the County of
_________________, State of ____________________ in book/reel/docket
_________________ of official records at page/image ______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded
on ___________________ as instrument no. _________ in the County Recorder's
Office of the County of _______________, State of _______________________ in
book/reel/docket ____________ of official records at page/image ____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the Documents in
trust for the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The Servicer shall not cause or permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Servicer assert or seek
to assert any claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The Servicer shall return each and every Document previously
requested from the Mortgage File to the Trustee when the need therefor no longer
exists, unless the Mortgage Loan relating to the Documents has been liquidated
and the proceeds thereof have been remitted to the Collection Account and except
as expressly provided in the Agreement.
E-2
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Servicer shall at all
times be earmarked for the account of the Trustee, and the Servicer shall keep
the Documents and any proceeds separate and distinct from all other property in
the Servicer's possession, custody or control.
Dated:
-------------
[NAME OF SERVICER]
By:
-------------------------------
Name:
Title:
E-3
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
[Date]
[Name of Trustee]
[_____________________]
[_____________________]
Attention: [_______]
Re: ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series 20[___-_______]
Asset-Backed Pass-Through Certificates, Class ___, representing a
___% Class Percentage Interest
Ladies and Gentlemen:
In connection with the transfer by ________________ (the "Transferor")
to ________________ (the "Transferee") of the captioned mortgage pass-through
certificates (the "Certificates"), the Transferor hereby certifies as follows:
Neither the Transferor nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, (e) has taken any other action, that (in the case of each of
subclauses (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933, as amended (the "1933 Act"), or
would render the disposition of any Certificate a violation of Section 5 of the
1933 Act or any state securities law or would require registration or
qualification pursuant thereto. The Transferor will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to any Certificate. The Transferor will not
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of that certain Pooling and Servicing Agreement, dated as of
[_______ ___, 20___], among Stanwich Asset Acceptance Company, L.L.C. as
Depositor, [Name of Servicer], as Servicer and [Name of Trustee], as Trustee
(the "Pooling and Servicing Agreement"), pursuant to which Pooling and Servicing
Agreement the Certificates were issued.
F-1-1
Capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
Very truly yours,
[Transferor]
By:
-------------------------------
Name:
Title:
F-1-2
FORM OF TRANSFEREE REPRESENTATION LETTER
[Date]
[Name of Trustee]
[____________________]
[____________________]
Attention: [____]
Re: ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series 20[___-_______]
Asset-Backed Pass-Through Certificates, Class ___, representing a
___% Percentage Interest
Ladies and Gentlemen:
In connection with the purchase from ______________________ (the
"Transferor") on the date hereof of the captioned trust certificates (the
"Certificates"), _______________ (the "Transferee") hereby certifies as follows:
The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the "1933
Act") and has completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. The Transferee is aware that the sale to
it is being made in reliance on Rule 144A. The Transferee is acquiring the
Certificates for its own account or for the account of a qualified institutional
buyer, and understands that such Certificate may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement
referred to below, and (d) any credit enhancement mechanism associated with the
Certificates, that it has requested.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of [_______ ___, 20___], among Stanwich Asset Acceptance Company,
L.L.C. as Depositor, [Name of Servicer] as Servicer and [Name of Trustee] as
Trustee, pursuant to which the Certificates were issued.
[TRANSFEREE]
By:
-------------------------------
Name:
Title:
F-1-3
ANNEX 1 TO EXHIBIT F-1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [Name of Trustee], as Trustee, with respect to the
mortgage pass-through certificates (the "Certificates") described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. In connection with purchases by the Transferee, the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Transferee owned and/or
invested on a discretionary basis $______________________(1) in securities
(except for the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
___ BANK. The Transferee (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
----------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities. $25,000,000 as demonstrated in its latest annual financial
statements, A COPY OF WHICH IS ATTACHED HERETO.
F-1-4
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) securities issued or guaranteed by the U.S. or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii) securities
owned but subject to a repurchase agreement and (viii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee and did not include any of
the securities referred to in the preceding paragraph. Further, in determining
such aggregate amount, the Transferee may have included securities owned by
subsidiaries of the Transferee, but only if such subsidiaries are consolidated
with the Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a reporting
company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", the Transferee
agrees that, in connection with any purchase of securities sold to the
Transferee for the account of a third party (including any separate account) in
reliance on Rule 144A, the Transferee will only purchase for the account of a
third party that at the time is a "qualified institutional buyer" within the
meaning of Rule 144A. In addition, the Transferee agrees that the Transferee
will not purchase securities for a third party unless the Transferee has
obtained a current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to
F-1-5
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Certificates will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties
updated annual financial statements promptly after they become available.
Dated:
-------------
-----------------------------------
Print Name of Transferee
By:
-------------------------------
Name:
Title:
F-1-6
ANNEX 2 TO EXHIBIT F-1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [Name of Trustee], as Trustee, with respect to the
mortgage pass- through certificates (the "Certificates") described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the entity purchasing the
Certificates (the "Transferee") or, if the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because the Transferee is part of a Family of
Investment Companies (as defined below), is such an officer of the investment
adviser (the "Adviser").
2. In connection with purchases by the Transferee, the Transferee is a
"qualified institutional buyer" as defined in Rule 144A because (i) the
Transferee is an investment company registered under the Investment Company Act
of 1940, and (ii) as marked below, the Transferee alone, or the Transferee's
Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining the amount of
securities owned by the Transferee or the Transferee's Family of Investment
Companies, the cost of such securities was used.
____ The Transferee owned $___________________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements,
F-1-7
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Dated:
-------------
----------------------------------------
Print Name of Transferee or Advisor
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
F-1-8
FORM OF TRANSFEREE REPRESENTATION LETTER
The undersigned hereby certifies on behalf of the purchaser named
below (the "Purchaser") as follows:
1. I am an executive officer of the Purchaser.
2. The Purchaser is a "qualified institutional buyer", as defined in
Rule 144A, ("Rule 144A") under the Securities Act of 1933, as amended.
3. As of the date specified below (which is not earlier than the last
day of the Purchaser's most recent fiscal year), the amount of "securities",
computed for purposes of Rule 144A, owned and invested on a discretionary basis
by the Purchaser was in excess of $100,000,000.
Name of Purchaser
By:
------------------------------------
Name:
Title:
Date of this certificate:
Date of information provided in paragraph 3:
F-1-9
EXHIBIT F-2
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF NEW YORK )
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes, represents and
warrants as follows:
1. I am a ______________________ of ____________________________ (the
"Owner") a corporation duly organized and existing under the laws of
______________, the record owner of ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series
20[___-_______] Asset-Backed Pass-Through Certificates, Class R-I Certificates
and the Class R-II, (the "Class R Certificates"), on behalf of whom I make this
affidavit and agreement. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
pursuant to which the Class R Certificates were issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of
____________, 20__ and (ii) is acquiring the Class R Certificates for its own
account or for the account of another Owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
possession of the United States. For this purpose, a "disqualified organization"
means the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
or, if such transfer is through an agent (which person includes a broker,
nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that
the person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the transferee
is a Permitted Transferee and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that each of the
Class R Certificates may be a "noneconomic residual interest" within the meaning
of proposed Treasury regulations promulgated under the Code and that the
transferor of a "noneconomic residual interest" will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer is to impede the assessment or collection of tax.
F-2-1
4. The Owner is aware of the tax imposed on a "pass-through entity"
holding the Class R Certificates if, at any time during the taxable year of the
pass-through entity, a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is aware that the Trustee will not register the transfer
of any Class R Certificate unless the transferee, or the transferee's agent,
delivers to the Trustee, among other things, an affidavit in substantially the
same form as this affidavit. The Owner expressly agrees that it will not
consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. The Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class R Certificates will only be owned, directly
or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is _________________.
8. The Owner has reviewed the restrictions set forth on the face of
the Class R Certificates and the provisions of Section 5.02(d) of the Pooling
and Servicing Agreement under which the Class R Certificates were issued (in
particular, clauses (iii)(A) and (iii)(B) of Section 5.02(d) which authorize the
Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event that the Owner holds such Certificate
in violation of Section 5.02(d)); and that the Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
9. The Owner is not acquiring and will not transfer the Class R
Certificates in order to impede the assessment or collection of any tax.
10. The Owner anticipates that it will, so long as it holds the Class
R Certificates, have sufficient assets to pay any taxes owed by the holder of
such Class R Certificates, and hereby represents to and for the benefit of the
person from whom it acquired the Class R Certificates that the Owner intends to
pay taxes associated with holding such Class R Certificates as they become due,
fully understanding that it may incur tax liabilities in excess of any cash
flows generated by the Class R Certificates.
11. The Owner has no present knowledge that it may become insolvent or
subject to a bankruptcy proceeding for so long as it holds the Class R
Certificates.
12. The Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
13. The Owner is not acquiring the Class R Certificates with the
intent to transfer the Class R Certificates to any person or entity that will
not have sufficient assets to pay any taxes owed by the holder of such Class R
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain outstanding.
F-2-2
14. The Owner will, in connection with any transfer that it makes of
the Class R Certificates, obtain from its transferee the representations
required by Section 5.02(d) of the Pooling and Servicing Agreement under which
the Class R Certificate were issued and will not consummate any such transfer if
it knows, or knows facts that should lead it to believe, that any such
representations are false.
15. The Owner will, in connection with any transfer that it makes of
the Class R Certificates, deliver to the Trustee an affidavit, which represents
and warrants that it is not transferring the Class R Certificates to impede the
assessment or collection of any tax and that it has no actual knowledge that the
proposed transferee: (i) has insufficient assets to pay any taxes owed by such
transferee as holder of the Class R Certificates; (ii) may become insolvent or
subject to a bankruptcy proceeding for so long as the Class R Certificates
remains outstanding; and (iii) is not a "Permitted Transferee".
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States may be included in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
17. The Owner of the Class R Certificate, hereby agrees that in the
event that the Trust Fund created by the Pooling and Servicing Agreement is
terminated pursuant to Section 9.01 thereof, the undersigned shall assign and
transfer to the Holders of the Class CE Certificates (with respect to a
termination of REMIC I) any amounts in excess of par received in connection with
such termination. Accordingly, in the event of such termination, the Trustee is
hereby authorized to withhold any such amounts in excess of par and to pay such
amounts directly to the Holders of the Class CE Certificates. This agreement
shall bind and be enforceable against any successor, transferee or assigned of
the undersigned in the Class R Certificate. In connection with any transfer of
the Class R Certificate, the Owner shall obtain an agreement substantially
similar to this clause from any subsequent owner.
F-2-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
__________, 20__.
[OWNER]
By:
------------------------------------
Name:
Title: [Vice] President
ATTEST:
By:
---------------------------------
Name:
Title: [Assistant] Secretary
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 a [Vice]
President of the Owner, 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 Owner.
Subscribed and sworn before me this ____ day of __________, 20___.
----------------------------------------
Notary Public
County of ___________________
State of ___________________
My Commission expires:
F-2-4
FORM OF TRANSFEROR AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes, represents and
warrants as follows:
1. I am a ____________________ of ____________________________ (the
"Owner"), a corporation duly organized and existing under the laws of
______________, on behalf of whom I make this affidavit.
2. The Owner is not transferring the Class R Certificates (the
"Residual Certificates") to impede the assessment or collection of any tax.
3. The Owner has no actual knowledge that the Person that is the
proposed transferee (the "Purchaser") of the Residual Certificates: (i) has
insufficient assets to pay any taxes owed by such proposed transferee as holder
of the Residual Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Residual Certificates remain
outstanding and (iii) is not a Permitted Transferee.
4. The Owner understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit F-2. The Owner does not know or believe that
any representation contained therein is false.
5. At the time of transfer, the Owner has conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Owner has determined that the Purchaser has historically paid
its debts as they became due and has found no significant evidence to indicate
that the Purchaser will not continue to pay its debts as they become due in the
future. The Owner understands that the transfer of a Residual Certificate may
not be respected for United States income tax purposes (and the Owner may
continue to be liable for United States income taxes associated therewith)
unless the Owner has conducted such an investigation.
6. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
F-2-5
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
___________, 20__.
[OWNER]
By:
------------------------------------
Name:
Title: [Vice] President
ATTEST:
By:
---------------------------------
Name:
Title: [Assistant] Secretary
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 a [Vice]
President of the Owner, 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 Owner.
Subscribed and sworn before me this ____ day of __________, 20___.
----------------------------------------
Notary Public
County of ___________________
State of ___________________
My Commission expires:
F-2-6
EXHIBIT G
FORM OF CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________, 20__
[Name of Trustee]
[__________________]
[__________________]
Attention: [____]
Re: ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series 20[___-_______]
Asset-Backed Pass-Through Certificates
Dear Sirs:
_______________________ (the "Transferee") intends to acquire from
_____________________ (the "Transferor") $____________ Initial Certificate
Principal Balance of ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series 20[___-_______]
Asset-Backed Pass-Through Certificates, Class [CE] [P] [R](the "Certificates"),
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of [_______ ___, 20___], among Stanwich Asset Acceptance
Company, L.L.C. as depositor (the "Depositor"), [Name of Servicer] as servicer
(the "Servicer") and [Name of Trustee] as trustee (the "Trustee"). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
thereto in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to, and covenants with the Depositor, the Trustee and
the Servicer that:
The Certificates or any interest therein are not being transferred to
(i) any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), that is subject to
Title I of ERISA, any "plan" as defined in Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), that is subject to Section 4975 of the
Code or any entity deemed to hold plan assets of any of the foregoing (each, a
"Plan"), (ii) any Person acting, directly or indirectly, on behalf of any such
Plan or (iii) any Person acquiring the Certificates with "plan assets" of a Plan
(within the meaning of the Department of Labor regulation promulgated at 29
C.F.R. Section 2510.3-101).
G-1
Very truly yours,
----------------------------------------
By:
------------------------------------
Name:
Title:
G-2
EXHIBIT H
FORM OF LOST NOTE AFFIDAVIT
Loan #: ____________
Borrower: _____________
LOST NOTE AFFIDAVIT
I, as ____________________ of ______________________, a
_______________ corporation am authorized to make this Affidavit on behalf of
_____________________ (the "Seller"). In connection with the administration of
the Mortgage Loans held by ____________________, a _________________ corporation
as Seller on behalf of Stanwich Asset Acceptance Company, L.L.C., a Delaware
limited liability company (the "Purchaser"), _____________________ (the
"Deponent"), being duly sworn, deposes and says that:
1. The Seller's address is: _____________________________________________
_____________________________________________
_____________________________________________
2. The Seller previously delivered to the Purchaser a signed Initial
Certification with respect to such Mortgage and/or Assignment of
Mortgage;
3. Such Mortgage Note and/or Assignment of Mortgage was assigned or sold
to the Purchaser by ________________________, a ____________
corporation pursuant to the terms and provisions of a Mortgage Loan
Purchase Agreement dated as of __________ __, _____;
4. Such Mortgage Note and/or Assignment of Mortgage is not outstanding
pursuant to a request for release of Documents;
5. Aforesaid Mortgage Note and/or Assignment of Mortgage (the "Original")
has been lost;
6. Deponent has made or caused to be made a diligent search for the
Original and has been unable to find or recover same;
7. The Seller was the Seller of the Original at the time of the loss; and
8. Deponent agrees that, if said Original should ever come into Seller's
possession, custody or power, Seller will immediately and without
consideration surrender the Original to the Purchaser.
9. Attached hereto is a true and correct copy of (i) the Note, endorsed
in blank by the Mortgagee and (ii) the Mortgage or Deed of Trust
(strike one) which secures the Note, which Mortgage or Deed of Trust
is recorded in the county where the property is located.
H-1
10. Deponent hereby agrees that the Seller (a) shall indemnify and hold
harmless the Purchaser, its successors and assigns, against any loss,
liability or damage, including reasonable attorney's fees, resulting
from the unavailability of any Notes, including but not limited to any
loss, liability or damage arising from (i) any false statement
contained in this Affidavit, (ii) any claim of any party that has
already purchased a mortgage loan evidenced by the Lost Note or any
interest in such mortgage loan, (iii) any claim of any borrower with
respect to the existence of terms of a mortgage loan evidenced by the
Lost Note on the related property to the fact that the mortgage loan
is not evidenced by an original note and (iv) the issuance of a new
instrument in lieu thereof (items (i) through (iv) above hereinafter
referred to as the "Losses") and (b) if required by any Rating Agency
in connection with placing such Lost Note into a Pass-Through
Transfer, shall obtain a surety from an insurer acceptable to the
applicable Rating Agency to cover any Losses with respect to such Lost
Note.
11. This Affidavit is intended to be relied upon by the Purchaser, its
successors and assigns. _____________________, a ______________
corporation represents and warrants that is has the authority to
perform its obligations under this Affidavit of Lost Note.
Executed this ____ day, of ___________ ______.
SELLER
By:
------------------------------------
Name:
Title:
On this _____ day of ________, _____, before me appeared
_________________ to me personally known, who being duly sworn did say that he
is the _____________________ of ____________________ a ______________
corporation and that said Affidavit of Lost Note was signed and sealed on behalf
of such corporation and said acknowledged this instrument to be the free act and
deed of said corporation.
Signature:
------------------------------
[Seal]
H-2
EXHIBIT I-1
FORM OF FORM 10-K CERTIFICATE
I, [identify the certifying individual], certify that:
(i) I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on Form
10-K of the trust (the Exchange Act periodic reports) of ▇▇▇▇▇▇▇▇▇▇ Mortgage
Loan Trust, Series 20[__-___] Asset-Backed Pass-Through Certificates;
(ii) Based on my knowledge, Exchange Act periodic reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
(iii) Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
(iv) I am responsible for reviewing the activities performed by the
Servicer and based on my knowledge and the compliance review conducted in
preparing the servicer compliance statement required in this report under Item
1123 of Regulation AB and except as disclosed in the Exchange Act periodic
reports, the Servicer has fulfilled its obligations under the Agreement; and
(v) All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on assessment
of compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: [Name of Trustee]
[Name of Servicer]
By:
------------------------------------
Name:
Title:
Date:
I-1
EXHIBIT I-2
FORM OF CERTIFICATION TO BE
PROVIDED TO SERVICER BY THE TRUSTEE
Re: ▇▇▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Series 20[__-___] Asset-Backed
Pass-Through Certificates
I, [identify the certifying individual], a [title] of [Name of
Trustee], as Trustee of the Trust, hereby certify to [Name of Servicer] (the
"Servicer"), and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
1. The Trustee has performed all of the duties specifically required
to be performed by it pursuant to the provisions of the Pooling and Servicing
Agreement dated [_____] 1, 20[__] (the "Agreement") by and among Stanwich Asset
Acceptance Company, L.L.C. as depositor (the "Depositor"), [Name of Servicer] as
servicer (the "Servicer") and [Name of Trustee] as trustee (the "Trustee");
2. Based on my knowledge, the information in these distribution
reports prepared by the Trustee, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading as of the last day of the period covered by that
annual report; and
3. Based on my knowledge, the distribution information required to be
provided by the Trustee under the Pooling and Servicing Agreement is included in
these reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Agreement.
[Name of Trustee], as Trustee
By:
------------------------------------
Name:
Title:
Date:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF ANNUAL CERTIFICATION
Re: The Pooling and Servicing Agreement dated as of [________], 20[__] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ________________________________, the _______________________ of [NAME
OF EACH SERVICER (as defined in Section 11.03(c))], certify to [the
Seller], [the Depositor], and the [Master Servicer] [Securities
Administrator] [Trustee], and their officers, with the knowledge and intent
that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Servicer during 20[__] that were delivered by the
Servicer to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Servicing Information required to be
provided by the Servicer under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the Servicer
as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Servicer
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Servicer and by any Subservicer or
Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the
J-1-1
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the Servicing Criteria has been disclosed in such reports.
Date:
----------------------
By:
-------------------------------
Name: _____________________________
Title: ____________________________
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [Name of Servicer (as defined in
Section 11.03(c)] shall address, at a minimum, the criteria identified as below
as "Applicable Servicing Criteria":
--------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers and
events of default in accordance with the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
--------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements
to maintain a back-up servicer for the
mortgage loans are maintained.
--------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions
policy is in effect on the party participating
in the servicing function throughout the
reporting period in the amount of coverage
required by and otherwise in accordance with
the terms of the transaction agreements.
--------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into
the appropriate custodial bank accounts and
related bank clearing accounts no more than
two business days following receipt, or such
other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf
of an obligor or to an investor are made only
by authorized personnel.
--------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and
any interest or other fees charged for such
advances, are made, reviewed and approved as
specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such
as cash reserve accounts or accounts
established as a form of
overcollateralization, are separately
maintained (e.g., with respect to commingling
of cash) as set forth in the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as
set forth in the transaction agreements. For
purposes of this criterion, "federally insured
depository institution" with respect to a
foreign financial institution means a foreign
financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
--------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to
prevent unauthorized access.
--------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly
basis for all asset-backed securities related
bank accounts, including custodial accounts
and related bank clearing accounts. These
reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days
after the bank statement cutoff date, or such
other number of days specified in the
transaction agreements; (C) reviewed and
approved by someone other than the person who
prepared the reconciliation; and (D) contain
explanations for reconciling items. These
reconciling items are resolved within 90
calendar days of their original
identification, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------
J-2-1
--------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be
filed with the Commission, are maintained in
accordance with the transaction agreements
and applicable Commission requirements.
Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set
forth in the transaction agreements; (B)
provide information calculated in accordance
with the terms specified in the transaction
agreements; (C) are filed with the Commission
as required by its rules and regulations; and
(D) agree with investors' or the trustee's
records as to the total unpaid principal
balance and number of mortgage loans serviced
by the Servicer.
--------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set
forth in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted
within two business days to the Servicer's
investor records, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other
form of payment, or custodial bank statements.
--------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction
agreements or related mortgage loan documents.
--------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are
safeguarded as required by the transaction
agreements
--------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to
the asset pool are made, reviewed and approved
in accordance with any conditions or
requirements in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any
payoffs, made in accordance with the related
mortgage loan documents are posted to the
Servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated to
principal, interest or other items (e.g.,
escrow) in accordance with the related
mortgage loan documents.
--------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage
loans agree with the Servicer's records with
respect to an obligor's unpaid principal
balance.
--------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of
an obligor's mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed
and approved by authorized personnel in
accordance with the transaction agreements and
related pool asset documents.
--------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established
by the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a mortgage loan
is delinquent in accordance with the
transaction agreements. Such records are
maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's
activities in monitoring delinquent mortgage
loans including, for example, phone calls,
letters and payment rescheduling plans in
cases where delinquency is deemed temporary
(e.g., illness or unemployment).
--------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of
return for mortgage loans with variable rates
are computed based on the related mortgage
loan documents.
--------------------------------------------------------------------------------
J-2-2
--------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least
an annual basis, or such other period
specified in the transaction agreements; (B)
interest on such funds is paid, or credited,
to obligors in accordance with applicable
mortgage loan documents and state laws; and
(C) such funds are returned to the obligor
within 30 calendar days of full repayment of
the related mortgage loans, or such other
number of days specified in the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or
before the related penalty or expiration
dates, as indicated on the appropriate bills
or notices for such payments, provided that
such support has been received by the servicer
at least 30 calendar days prior to these
dates, or such other number of days specified
in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with
any payment to be made on behalf of an obligor
are paid from the servicer's funds and not
charged to the obligor, unless the late
payment was due to the obligor's error or
omission.
--------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the
obligor's records maintained by the servicer,
or such other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
accordance with the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements.
--------------------------------------------------------------------------------
[NAME OF SERVICER (as defined in Section 11.03(c)]
Date: _________________________
By:
---------------------------
Name: ________________________________
Title: _______________________________
J-2-3
EXHIBIT K
FORM OF SWAP AGREEMENT
(Available Upon Request)
K-1
EXHIBIT L
FORM OF REPORT PURSUANT TO SECTION 13.01
DATA TO BE PROVIDED TO CLASS CE CERTIFICATE HOLDER:
Loan Number:
Original Loan Amount:
Current Loan Amount:
Original Appraisal Value:
Original LTV:
Current Interest Rate:
First Payment Date:
Last Payment Date:
Current P&I Payment Amount:
Origination Date:
Loan Term:
Product Type (adjustable rate or fixed rate):
Property Type:
Street Address:
Zip Code:
State:
Delinquency Status:
Foreclosure Flag:
Bankruptcy Flag:
Payment Plan Flag (forbearance):
MI Certificate Number:
Foreclosure Start Date (Referral Date):
Foreclosure Actual Sale Date:
NOD Date:
REO List Date:
REO List Price:
Occupancy Status:
Eviction Status:
REO Net Sales Proceeds:
REO Sales Price:
Current Market Value:
Prepayment Flag:
Prepayment Expiration Date:
Prepayment Charges Collected:
Prepayment Premium Waived:
Prepayment Calculation:
Senior Lien Position:
Senior Lien Holder:
Senior Lien Balance:
Estimated Senior Lien Foreclosure Sale Date:
Senior Lien in Foreclosure - Flag:
L-1
Schedule 1
MORTGAGE LOAN SCHEDULE
[FILED BY PAPER]
Schedule 1-1
Schedule 2
SCHEDULE OF PREPAYMENT CHARGES
(Available Upon Request)
Schedule 2-1
Schedule 3
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
The Depositor hereby represents, warrants, and covenants as follows on the
Closing Date and on each Distribution Date thereafter:
General
2. This Agreement creates a valid and continuing security interest (as
defined in the applicable Uniform Commercial Code ("UCC")) in the Mortgage Loans
in favor of the Trustee which security interest is prior to all other liens, and
is enforceable as such as against creditors of and purchasers from the
Depositor.
3. The Mortgage Loans constitute "general intangibles" or
"instruments" within the meaning of the applicable UCC.
4. The Custodial Account and all subaccounts thereof constitute either
a deposit account or a securities account.
5. To the extent that payments and collections received or made with
respect to the Mortgage Loans constitute securities entitlements, such payments
and collections have been and will have been credited to the Custodial Account.
The securities intermediary for the Custodial Account has agreed to treat all
assets credited to the Custodial Account as "financial assets" within the
meaning of the applicable UCC.
Creation
6. The Depositor owns and has good and marketable title to the
Mortgage Loans free and clear of any lien, claim or encumbrance of any Person,
excepting only liens for taxes, assessments or similar governmental charges or
levies incurred in the ordinary course of business that are not yet due and
payable or as to which any applicable grace period shall not have expired, or
that are being contested in good faith by proper proceedings and for which
adequate reserves have been established, but only so long as foreclosure with
respect to such a lien is not imminent and the use and value of the property to
which the lien attaches is not impaired during the pendency of such proceeding.
7. The Depositor has received all consents and approvals to the
transfer of the Mortgage Loans hereunder to the Trustee required by the terms of
the Mortgage Loans that constitute instruments.
8. To the extent the Custodial Account or subaccounts thereof
constitute securities entitlements, certificated securities or uncertificated
securities, the Depositor has received all consents and approvals required to
transfer to the Trustee its interest and rights in the Custodial Account
hereunder.
Schedule 3-1
Perfection
9. The Depositor has caused or will have caused, within ten days after
the effective date of this Agreement, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the transfer of the Mortgage Loans from the
Depositor to the Trustee and the security interest in the Mortgage Loans granted
to the Trustee hereunder.
10. With respect to the Custodial Account and all subaccounts that
constitute deposit accounts, either:
(i) the Depositor has delivered to the Trustee a fully-executed
agreement pursuant to which the bank maintaining the deposit accounts has
agreed to comply with all instructions originated by the Trustee directing
disposition of the funds in the Custodial Account without further consent
by the Depositor; or
(ii) the Depositor has taken all steps necessary to cause the Trustee
to become the account holder of the Custodial Account.
11. With respect to the Custodial Account or subaccounts thereof that
constitute securities accounts or securities entitlements, either:
(i) the Depositor has caused or will have caused, within ten days
after the effective date of this Agreement, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security
interest in the Custodial Account granted by the Depositor to the Trustee;
or
(ii) the Depositor has delivered to the Trustee a fully-executed
agreement pursuant to which the securities intermediary has agreed to
comply with all instructions originated by the Trustee relating to the
Custodial Account without further consent by the Trustee; or
(iii) the Depositor has taken all steps necessary to cause the
securities intermediary to identify in its records the Trustee as the
person having a security entitlement against the securities intermediary in
the Custodial Account.
Priority
12. Other than the transfer of the Mortgage Loans to the Trustee
pursuant to this Agreement, the Depositor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Mortgage Loans.
The Depositor has not authorized the filing of, or is not aware of any financing
statements against the Depositor that include a description of collateral
covering the Mortgage Loans other than any financing statement relating to the
security interest granted to the Trustee hereunder or that has been terminated.
13. The Depositor is not aware of any judgment, ERISA or tax lien
filings against the Depositor.
Schedule 3-2
14. The Trustee has in its possession all original copies of the
Mortgage Notes that constitute or evidence the Mortgage Loans. To the
Depositor's knowledge, none of the instruments that constitute or evidence the
Mortgage Loans has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Trustee or
its designee. All financing statements filed or to be filed against the
Depositor in favor of the Trustee in connection herewith describing the Mortgage
Loans contain a statement to the following effect: "A purchase of or security
interest in any collateral described in this financing statement will violate
the rights of the Trustee."
15. Neither the Custodial Account nor any subaccount thereof is in the
name of any person other than the Depositor or the Trustee or in the name of its
nominee. The Depositor has not consented for the securities intermediary of the
Custodial Account to comply with entitlement orders of any person other than the
Trustee or its designee.
16. Survival of Perfection Representations. Notwithstanding any other
provision of this Agreement or any other transaction document, the Perfection
Representations contained in this Schedule shall be continuing, and remain in
full force and effect (notwithstanding any replacement of the Servicer or
termination of the Servicer's rights to act as such) until such time as all
obligations under this Agreement have been finally and fully paid and performed.
17. No Waiver. The parties to this Agreement (i) shall not, without
obtaining a confirmation of the then-current rating of the Certificates waive
any of the Perfection Representations, and (ii) shall provide the Rating
Agencies with prompt written notice of any breach of the Perfection
Representations, and shall not, without obtaining a confirmation of the
then-current rating of the Certificates (as determined after any adjustment or
withdrawal of the ratings following notice of such breach) waive a breach of any
of the Perfection Representations.
17. Depositor to Maintain Perfection and Priority. The Depositor
covenants that, in order to evidence the interests of the Depositor and the
Trustee under this Agreement, the Depositor shall take such action, or execute
and deliver such instruments (other than effecting a Filing (as defined below),
unless such Filing is effected in accordance with this paragraph) as may be
necessary or advisable (including, without limitation, such actions as are
requested by the Trustee) to maintain and perfect, as a first priority interest,
the Trustee's security interest in the Mortgage Loans. The Depositor shall, from
time to time and within the time limits established by law, prepare and present
to the Purchaser or its designee to authorize (based in reliance on the Opinion
of Counsel hereinafter provided for) the Depositor to file, all financing
statements, amendments, continuations, initial financing statements in lieu of a
continuation statement, terminations, partial terminations, releases or partial
releases, or any other filings necessary or advisable to continue, maintain and
perfect the Trustee's security interest in the Mortgage Loans as a
first-priority interest (each a "Filing"). The Depositor shall present each such
Filing to the Trustee or its designee together with (x) an Opinion of Counsel to
the effect that such Filing is (i) consistent with the grant of the security
interest to the Trustee pursuant to Section 11.09 of this Agreement, (ii)
satisfies all requirements and conditions to such Filing in this Agreement and
(iii) satisfies the requirements for a Filing of such type under the Uniform
Commercial Code in the applicable jurisdiction (or if the Uniform Commercial
Code does not apply, the applicable statute governing the perfection of security
interests), and (y) a form of authorization for the
Schedule 3-3
Trustee's signature. Upon receipt of such Opinion of Counsel and form of
authorization, the Trustee shall promptly authorize in writing the Depositor to,
and the Depositor shall, effect such Filing under the UCC without the signature
of the Depositor or the Trustee where allowed by applicable law. Notwithstanding
anything else in the transaction documents to the contrary, the Depositor shall
not have any authority to effect a Filing without obtaining written
authorization from the Trustee or its designee.
Schedule 3-4