EXHIBIT 4.1
================================================================================
AMERICAN HOME MORTGAGE SECURITIES LLC
Depositor,
[NAME OF MASTER SERVICER]
Master Servicer,
and
[NAME OF TRUSTEE],
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of_____________1, 200_
Mortgage Pass-Through Certificates
Series 200_-__
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
<S>
<C>
<C>
SECTION 1.01.
Defined
Terms...............................................................................2
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01.
Conveyance of Mortgage
Loans...............................................................24
SECTION 2.02.
Acceptance of the Trust Fund by the
Trustee................................................27
SECTION 2.03.
Representations,
Warranties and
Covenants of the Master Servicer and the
Depositor..................................................................................28
SECTION 2.04.
Representations and Warranties of the Seller; Repurchase
and
Substitution.................30
SECTION 2.05.
Issuance of Certificates Evidencing Interests in the Trust
Fund............................32
SECTION 2.06.
Purposes and Powers of the
Trust...........................................................32
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Master Servicer to Act
as Master
Servicer..................................................34
SECTION 3.02.
Sub-Servicing Agreements Between Master Servicer and Sub-
Servicers........................35
SECTION 3.03.
Successor
Sub-Servicers....................................................................36
SECTION 3.04.
Liability of the Master
Servicer...........................................................36
SECTION 3.05.
No
Contractual Relationship
Between
Sub-Servicers and Trustee or
Certificateholders.........................................................................36
SECTION 3.06.
Assumption or Termination of Sub-Servicing Agreements by
Trustee..........................36
SECTION 3.07.
Collection of Certain Mortgage Loan
Payments...............................................37
SECTION 3.08.
Sub-Servicing
Accounts.....................................................................37
SECTION 3.09.
Collection of Taxes, Assessments and Similar Items; Servicing
Accounts....................38
SECTION 3.10.
Custodial
Account..........................................................................38
SECTION 3.11.
Permitted Withdrawals From the Custodial
Account...........................................39
SECTION 3.12.
Permitted
Instruments......................................................................41
SECTION 3.13.
Maintenance of Primary Mortgage Insurance and Primary Hazard
Insurance.....................41
SECTION 3.14.
Enforcement of Due-on-Sale Clauses; Assumption
Agreements..................................43
-i-
<PAGE>
SECTION 3.15.
Realization Upon Defaulted Mortgage
Loans..................................................44
SECTION 3.16.
Trustee to Cooperate; Release of Mortgage
Files............................................45
SECTION 3.17.
Servicing
Compensation.....................................................................46
SECTION 3.18.
Maintenance of Certain Servicing
Policies..................................................46
SECTION 3.19.
Annual Statement as to
Compliance..........................................................47
SECTION 3.20.
Assessments of Compliance and Attestation
Reports..........................................47
SECTION 3.21.
Access to Certain
Documentation............................................................49
SECTION 3.22.
Title, Conservation and Disposition of REO
Property........................................50
SECTION 3.23.
Additional Obligations of the Master
Servicer..............................................52
SECTION 3.24.
Additional Obligations of the
Depositor....................................................52
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Certificate Account;
Distributions.........................................................54
SECTION 4.02.
Statements to
Certificateholders...........................................................57
SECTION 4.03.
Remittance Reports; Advances by the Master
Servicer........................................60
SECTION 4.04.
Allocation of Realized
Losses..............................................................61
SECTION 4.05.
Information Reports to be Filed by the Master
Servicer.....................................62
SECTION 4.06.
Compliance with Withholding
Requirements...................................................62
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The
Certificates...........................................................................64
SECTION 5.02.
Registration of Transfer and Exchange of
Certificates......................................65
SECTION 5.03.
Mutilated, Destroyed, Lost or Stolen
Certificates..........................................69
SECTION 5.04.
Persons Deemed
Owners......................................................................69
ARTICLE VI
THE
DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01.
Liability of the Depositor and the Master
Servicer.........................................70
SECTION 6.02.
Merger, Consolidation or Conversion of the Depositor or the Master
Servicer................70
SECTION 6.03.
Limitation on Liability of the Depositor, the Master Servicer and
Others...................70
SECTION 6.04.
Limitation on Resignation of the Master
Servicer...........................................71
-ii-
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of
Default..........................................................................72
SECTION 7.02.
Trustee to Act; Appointment of
Successor...................................................74
SECTION 7.03.
Notification to
Certificateholders.........................................................74
SECTION 7.04.
Waiver of Events of
Default................................................................75
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01.
Duties of
Trustee..........................................................................76
SECTION 8.02.
Certain Matters Affecting the
Trustee......................................................77
SECTION 8.03.
Trustee Not Liable for Certificates or Mortgage
Loans......................................78
SECTION 8.04.
Trustee May Own
Certificates...............................................................78
SECTION 8.05.
Payment of Trustee's
Fees..................................................................78
SECTION 8.06.
Eligibility Requirements for
Trustee.......................................................79
SECTION 8.07.
Resignation and Removal of the
Trustee.....................................................79
SECTION 8.08.
Successor
Trustee..........................................................................80
SECTION 8.09.
Merger or Consolidation of
Trustee.........................................................81
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee..............................................81
SECTION 8.11.
Commission
Reporting.......................................................................82
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Mortgage
Loans...........................87
SECTION 9.02.
Additional Termination
Requirements........................................................88
ARTICLE X
REMIC PROVISIONS
SECTION 10.01.
REMIC
Administration.......................................................................90
SECTION 10.02.
Prohibited Transactions and
Activities.....................................................92
SECTION 10.03.
Master Servicer and Trustee
Indemnification................................................93
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment..................................................................................94
-iii-
<PAGE>
SECTION 11.02.
Recordation of Agreement;
Counterparts.....................................................95
SECTION 11.03.
Limitation on Rights of
Certificateholders.................................................95
SECTION 11.04.
Governing
Law..............................................................................96
SECTION 11.05.
Notices....................................................................................96
SECTION 11.06.
Severability of
Provisions.................................................................97
SECTION 11.07.
Successors and Assigns; Third Party
Beneficiary............................................97
SECTION 11.08.
Article and Section
Headings...............................................................97
SECTION 11.09.
Notice to Rating Agencies and
Certificateholder............................................97
</TABLE>
Exhibit A-1.......Form of Class A Certificate
Exhibit A-2.......Form of Class B Certificate
Exhibit B.........Form of Class R Certificate
Exhibit C.........Form of Trustee Initial Certification
Exhibit D.........Form of Trustee Final Certification
Exhibit E.........Form of Remittance Report
Exhibit F-1.......Request for Release
Exhibit F-2.......Request for Release for Mortgage Loans Paid in
Full
Exhibit G-1.......Form of Investor Representation Letter
Exhibit G-2 Form
of Transferor Representation Letter
Exhibit G-3
Transferor Affidavit and Agreement in connection with transfer
of Residual Certificates
Exhibit G-4 Form
of Transferor Certificate
Exhibit G-5 Form
of Investor Representation Letter for Insurance Companies
Exhibit H
Mortgage Loan Schedule
Exhibit I
Seller's Warranty Certificate
Exhibit J
Form of Notice Under Section 3.24
Exhibit K
Form of Depositor Certification
Exhibit L
Form of Trustee Certification
Exhibit M
Form of Servicer Certification
Exhibit N
Form 10-D, Form 8-K and Form 10-K Reporting Responsibility
Exhibit CC
Servicing Criteria to be Addressed in Assessment of Compliance
-iv-
<PAGE>
This Pooling and Servicing Agreement, effective as of
_______________ 1, 200_, among AMERICAN HOME MORTGAGE SECURITIES
LLC, as the
depositor (together with its permitted successors and assigns, the
"Depositor"),
[NAME OF MASTER SERVICER], as master servicer (together with its
permitted
successors and assigns, the "Master Servicer"), and [NAME OF
TRUSTEE], as
trustee (together with its permitted successors and assigns, the
"Trustee"),
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through
certificates (collectively, the "Certificates"), to be issued
hereunder in
multiple classes (each, a "Class"), which in the aggregate will
evidence the
entire beneficial ownership interest in the Mortgage Loans (as
defined herein).
As provided herein, the Master Servicer will make an election to
treat the
segregated pool of assets described in the definition of Trust Fund
(as defined
herein), and subject to this Agreement (including the Mortgage
Loans but
excluding the Initial Monthly Payment Deposit), as a real estate
mortgage
investment conduit (a "REMIC") for federal income tax purposes, and
such
segregated pool of assets will be designated as the "Trust Fund."
The Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7
and Class B
Certificates will represent ownership of "regular interests" in the
Trust Fund,
and the Class R Certificates will be the sole class of "residual
interests"
therein, for purposes of the REMIC Provisions (as defined herein)
under federal
income tax law.
The following table sets forth the designation, type,
Pass-Through Rate, aggregate Initial Certificate Principal Balance,
initial
ratings and certain features for each Class of Certificates
comprising the
interests in the Trust Fund created hereunder.
AGGREGATE INITIAL PASS-CERTIFICATE
INITIAL RATINGS THROUGH PRINCIPAL DESCRIPTION TYPE
RATE BALANCE FEATURES
[INSERT TABLE HERE]
The Mortgage Loans have an aggregate Stated Principal Balance
as of the Cut-off Date equal to $___________. The Mortgage Loans
are fixed rate
mortgage loans having terms to maturity at origination or
modification of not
more than 30 years.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer and the Trustee agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the
meanings
specified in this Article.
"Accrued Certificate Interest": With respect to each
Distribution Date, as to any Class A Certificate (other than the
Class A-5
Certificates and Class A-7 Certificates) or any Class B
Certificate, one month's
interest accrued at the then applicable Pass-Through Rate on the
Certificate
Principal Balance thereof immediately prior to such Distribution
Date. With
respect to each Distribution Date, as to the Class A-5 Certificates
and Class
A-7 Certificates, one month's interest accrued at the then
applicable
Pass-Through Rate on the Notional Amount thereof immediately prior
to such
Distribution Date. Accrued Certificate Interest will be calculated
on the basis
of a 360-day year consisting of twelve 30-day months. In each case
Accrued
Certificate Interest on any Class of Certificates will be reduced
by the amount
of (i) Prepayment Interest Shortfalls, if any, which are not
covered by payments
by the Master Servicer pursuant to Section 3.23 with respect to
such
Distribution Date, (ii) the interest portion (adjusted to the
related Net
Mortgage Rate) of any of Realized Losses (including Excess Special
Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses and
Extraordinary Losses)
not allocated solely to one or more specific Classes of
Certificates pursuant to
Section 4.04 (which, with respect to the pro rata portion thereof
allocated to
the Class A-1, Class A-5 and Class A-6 Certificates will be
allocated first to
the Class A-6 Certificates and second to the Class A-1 and Class
A-5
Certificates on a pro rata basis to the extent such Realized Losses
are Default
Losses), (iii) the interest portion of Advances previously made
with respect to
a Mortgage Loan or REO Property which remained unreimbursed
following the Cash
Liquidation or REO Disposition of such Mortgage Loan or REO
Property that was
made with respect to delinquencies that were ultimately determined
to be Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses or
Extraordinary Losses, and (iv) any other interest shortfalls not
covered by the
subordination provided by the Class B Certificates pursuant to
Section 4.04,
including interest that is not collectible from the Mortgagor
pursuant to the
Relief Act or similar legislation or regulations as in effect from
time to time;
with all such reductions allocated among the Classes of
Certificates, in
proportion to their respective amounts of Accrued Certificate
Interest which
would have resulted absent such reductions. In addition to that
portion of the
reductions described in the preceding sentence, Accrued Certificate
Interest on
the Class B Certificates will be reduced by the interest portion
(adjusted to
the related Net Mortgage Rate) of Realized Losses that are
allocated solely to
the Class B Certificates pursuant to Section 4.04.
"Advance": As to any Mortgage Loan, any advance made by the
Master Servicer on any Distribution Date pursuant to Section
4.03.
-2-
<PAGE>
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof.
"Anniversary": Each
anniversary of _____________ 1, 20__.
"Assessment of Compliance": As defined in Section 3.20.
"Attestation Report":
As defined in Section 3.20.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, 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.
"Assignment Agreement": The Assignment and Assumption
Agreement, dated as of ____________, 200_, between [Name of Seller]
and the
Depositor relating to the transfer and assignment of the Mortgage
Loans.
"Available Distribution Amount": With respect to each
Distribution Date, the Available Distribution Amount will be an
amount equal to
(a) the sum of (i) the balance on deposit in the Custodial Account
as of the
close of business on the related Determination Date and (ii) the
aggregate
amount of any Advances made, all required amounts pursuant to
Section 3.22 and
all amounts required to be paid by the Master Servicer pursuant to
Sections 3.13
and 3.23 by deposits into the Certificate Account on the
immediately preceding
Certificate Account Deposit Date, reduced by (b) the sum, as of the
close of
business on the related Determination Date of (i) Monthly Payments
collected but
due during a Due Period subsequent to the Due Period ending on the
first day of
the month of the related Distribution Date, (ii) all interest or
other income
earned on deposits in the Custodial Account, (iii) any other
amounts
reimbursable or payable to the Master Servicer or any other Person
pursuant to
Section 3.11, (iv) Insurance Proceeds, Liquidation Proceeds,
Principal
Prepayments, REO Proceeds and the proceeds of Mortgage Loan
purchases (or
amounts received in connection with substitutions) made pursuant to
Section 2.02
and 2.04, in each case received or made in the month of such
Distribution Date
and (v) the Trustee's Fee.
"Bankruptcy Amount": As of any date of determination, an
amount, equal to the excess, if any, of (A) $_______, over (B) the
aggregate
amount of Bankruptcy Losses allocated solely to one or more
specific Classes of
Certificates in accordance with Section 4.04.
The Bankruptcy Amount may be further reduced by the Master
Servicer (including accelerating the manner in which such coverage
is reduced)
provided that prior to any such reduction, the Master Servicer
shall (i) obtain
written confirmation from each Rating Agency that such reduction
shall not
reduce the rating assigned to any Class of Certificates by such
Rating Agency
below the lower of the then-current rating or the rating assigned
to such
-3-
<PAGE>
Certificates as of the Closing Date by such Rating Agency and (ii)
provide a
copy of such written confirmation to the Trustee.
"Bankruptcy Code": The United States Bankruptcy Code of 1978,
as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a
Deficient Valuation or Debt Service Reduction; provided, however,
that a
Deficient Valuation or a Debt Service Reduction shall not be deemed
a Bankruptcy
Loss hereunder so long as the Master Servicer has notified the
Trustee in
writing that the Master Servicer is diligently pursuing any
remedies that may
exist in connection with the related Mortgage Loan and either (A)
the related
Mortgage Loan is not in default with regard to payments due
thereunder or (B)
delinquent payments of principal and interest under the related
Mortgage Loan
and any related escrow payments in respect of such Mortgage Loan
are being
advanced on a current basis by the Master Servicer, in either case
without
giving effect to any Deficient Valuation or Debt Service
Reduction.
"Business Day": Any day other than (i) a Saturday or a Sunday
or (ii) a day on which banking institutions in the State of
______________ or
the State of ______________ (and such other state or states in
which the
Custodial Account or the Certificate Account are at the time
located) are
required or authorized by law or executive order to be closed.
"Cash Liquidation": As to any defaulted Mortgage Loan other
than a Mortgage Loan as to which an REO Acquisition occurred, the
final receipt
by or on behalf of the Master Servicer of all Insurance Proceeds,
Liquidation
Proceeds and other payments or cash recoveries which the Master
Servicer
reasonably and in good faith expects to be finally recoverable with
respect to
such Mortgage Loan.
"Certificate": Any
Class A, Class B or Class R Certificate.
"Certificate Account": The account or accounts created and
maintained pursuant to Section 4.01, which shall be entitled
"___________________________________, as trustee, in trust for the
registered
holders of American Home Mortgage Securities LLC, Mortgage
Pass-Through
Certificates, Series 200_-__" and which must be an Eligible
Account.
"Certificate Account Deposit Date": The 20th day (or if such
20th day is not a Business Day, the Business Day immediately
preceding such 20th
day) of the month.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that,
neither a
Disqualified Organization nor a Non-United States Person shall be a
Holder of a
Class R Certificate for any purposes hereof and, solely for the
purposes of
giving any consent pursuant to this Agreement, any Certificate
registered in the
name of the Depositor or the Master 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 11.01. The Trustee shall
-4-
<PAGE>
be entitled to rely upon a certification of the Depositor or the
Master Servicer
in determining if any Certificates are registered in the name of a
respective
affiliate.
"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 an indirect participating brokerage firm for which a
Depositor
Participant acts as agent, if any, and otherwise on the books of a
Depositor
Participant, if any, and otherwise on the books of the
Depositor.
"Certificate Principal Balance": With respect to each Class A
Certificate (other than a Class A-5 Certificate or Class A-7
Certificate), on
any date of determination, an amount equal to (i) the Initial
Certificate
Principal Balance of such Certificate as specified on the face
thereof, minus
(ii) the sum of (x) the aggregate of all amounts previously
distributed with
respect to such Certificate (or any predecessor Certificate) and
applied to
reduce the Certificate Principal Balance thereof pursuant to
Section 4.02(b) and
(y) the aggregate of all reductions in Certificate Principal
Balance deemed to
have occurred in connection with Realized Losses which were
previously allocated
to such Certificate (or any predecessor Certificate) pursuant to
Section 4.04.
With respect to the Class B Certificates, on 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 Stated Principal Balance
of the
Mortgage Loans over (B) the then aggregate Certificate Principal
Balance of all
other Classes of Certificates then outstanding. The Class A-5
Certificates,
Class A-7 Certificates and Class R Certificates have no Certificate
Principal
Balance.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same designation.
"Class A Certificate": Any one of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6 or Class A-7
Certificates, executed
by the Trustee and authenticated by the Certificate Registrar
substantially in
the form annexed hereto as Exhibit A-1, each such Certificate
evidencing an
interest designated as a "regular interest" in the Trust Fund for
purposes of
the REMIC Provisions.
"Class B Certificate": The Class B Certificates executed by
the Trustee and authenticated by the Certificate Registrar
substantially in the
form annexed hereto as Exhibit A-2 and evidencing an interest
designated as a
"regular interest" in the Trust Fund for purposes of the REMIC
Provisions.
"Class B Percentage": With respect to any Distribution Date,
the lesser of (i) 100% minus the Senior Percentage and (ii) a
fraction,
expressed as a percentage, the numerator of which is the aggregate
Certificate
Principal Balance of the Class B Certificates immediately prior to
such date and
the denominator of which is the aggregate Stated Principal Balance
of all of the
Mortgage Loans (or related REO Properties) immediately prior to
such
Distribution Date.
-5-
<PAGE>
"Class R Certificate": Any one of the Class R Certificates
executed and delivered by the Trustee substantially in the form
annexed hereto
as Exhibit B and evidencing an interest designated as a "residual
interest" in
the REMIC for purposes of the REMIC Provisions.
"Closing Date" : _______________ ___, 20__.
"Code": The
Internal Revenue Code of 1986.
"Collateral Value": The appraised value of a Mortgaged
Property based upon the lesser of (i) the appraisal made at the
time of the
origination of the related Mortgage Loan, or (ii) the sales price
of such
Mortgaged Property at such time of origination. With respect to a
Mortgage Loan
the proceeds of which were used to refinance an existing mortgage
loan, the
appraised value of the Mortgaged Property based upon the appraisal
(as reviewed
and approved by the Seller) obtained at the time of
refinancing.
"Depositor": American Home Mortgage Securities LLC, or its
successor in interest.
"Corporate Trust Office": The principal office of the Trustee
at which at any particular time its corporate trust business with
respect to
this Agreement shall be administered, which office at the date of
the execution
of this instrument is located at _____________________,
Attention:
__________________ Series 200_-__.
"Credit Support Depletion Date": The first Distribution Date
on which the Senior Percentage equals 100%.
"Custodial Account": The custodial account or accounts created
and maintained pursuant to Section 3.10 in a depository
institution, as
custodian for the holders of the Certificates, for the holders of
certain other
interests in mortgage loans serviced or sold by the Master Servicer
and for the
Master Servicer, into which the amounts set forth in Section 3.10
shall be
deposited directly. Any such account or accounts shall be an
Eligible Account.
"Cut-off Date":
_____________ 1, 200_.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan
by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code,
except such a
reduction constituting a Deficient Valuation or any reduction that
results in a
permanent forgiveness of principal.
"Default Loss": Any Realized Loss that is attributable to the
related Mortgagor's failure to make any payment of principal or
interest as
required under the Mortgage Note, excluding Special Hazard Losses
(or any other
loss resulting from damage to a Mortgaged Property), Bankruptcy
Losses, Fraud
Losses, or other losses of a type not covered by the subordination
provided by
the Class B Certificates pursuant to Section 4.04.
-6-
<PAGE>
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged
Property in an
amount less than the then outstanding indebtedness under the
Mortgage Loan,
which valuation results from a proceeding initiated by the
Mortgagor under the
Bankruptcy Code.
"Definitive Certificate": Any definitive, fully registered
Certificate.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced with a Qualified Substitute Mortgage Loan.
"Determination Date": The 15th day (or if such 15th day is not
a Business Day, the Business Day immediately preceding such 15th
day) of the
month of the related Distribution Date.
"Disqualified Organization": Any of the following: (i) the
United States, any State or any 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 the Freddie Mac, a majority of
its board of
directors is not selected by any such governmental unit), (ii) a
foreign
government, international organization or any agency or
instrumentality of
either the foregoing, (iii) an organization (except certain
farmers'
cooperatives described in Section 521 of the Code) which is exempt
from tax
imposed by Chapter 1 of the Code (unless such organization is
subject to the tax
imposed by Section 511 of the Code on unrelated business taxable
income), (iv)
rural electric and telephone cooperatives described in Section 1381
of the Code
or (v) any other Person so designated by the Trustee based on an
Opinion of
Counsel obtained by the Trustee, at the expense of the Trust Fund,
(which
opinion shall be sought only if the Trustee has actual knowledge
that the
holding of an Ownership Interest in a Class R Certificate by such
Person may
cause the Trust Fund 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 Class R 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 on _______ 25, 20__.
"Due Date": The first day of the month of the related
Distribution Date.
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the month preceding the
month of such
Distribution Date (or, with respect to the first Due Period, the
day following
the Cut-off Date) and ending on the related Due Date.
"Eligible Account": An account maintained with a federal or
state chartered depository institution (i) the short-term
obligations of which
are rated by each of the Rating
-7-
<PAGE>
Agencies in its highest rating at the time of any deposit therein,
or (ii)
insured by the FDIC (to the limits established by such
Corporation), the
uninsured deposits in which account are otherwise secured such
that, as
evidenced by an Opinion of Counsel (obtained by and at the expense
of the Person
requesting that the account be held pursuant to this clause (ii))
delivered to
the Trustee prior to the establishment of such account, the
Certificateholders
will have a claim with respect to the funds in such account and a
perfected
first priority security interest against any collateral (which
shall be limited
to Permitted Instruments, each of which shall mature not later than
the Business
Day immediately preceding the Distribution Date next following the
date of
investment in such collateral or the Distribution Date if such
Permitted
Instrument is an obligation of the institution that maintains the
Certificate
Account or Custodial Account) securing such funds that is superior
to claims of
any other depositors or general creditors of the depository
institution with
which such account is maintained or (iii) a trust account or
accounts maintained
with a federal or state chartered depository institution or trust
company with
trust powers acting in its fiduciary capacity or (iv) an account or
accounts of
a depository institution acceptable to the Rating Agencies (as
evidenced in
writing by the Rating Agencies that use of any such account as the
Custodial
Account or the Certificate Account will not have an adverse effect
on the
then-current ratings assigned to the Classes of the Certificates
then rated by
the Rating Agencies). Eligible Accounts may bear interest.
"Event of Default": One or more of the events described in
Section 7.01.
"Excess Bankruptcy Loss": Any Bankruptcy Loss, or portion
thereof, which exceeds the then applicable Bankruptcy Amount.
"Excess Fraud Loss": Any Fraud Loss, or portion thereof, which
exceeds the then applicable Fraud Loss Amount.
"Excess Special Hazard Loss": Any Special Hazard Loss, or
portion thereof, that exceeds the then applicable Special Hazard
Amount.
"Extraordinary Events": Any of the following conditions with
respect to a Mortgaged Property or Mortgage Loan causing or
resulting in a loss
which causes the liquidation of such Mortgage Loan:
(a) losses
that are of a type that would be covered by
the fidelity bond and the errors and omissions insurance policy
required to be
maintained pursuant to Section 3.18 but are in excess of the
coverage maintained
thereunder;
(b) nuclear
reaction or nuclear radiation or radioactive
contamination, all whether controlled or uncontrolled, and whether
such loss be
direct or indirect, proximate or remote or be in whole or in part
caused by,
contributed to or aggravated by a peril covered by the definition
of the term
"Special Hazard Loss";
(c) hostile or
warlike action in time of peace or war,
including action in hindering, combating or defending against an
actual,
impending or expected attack:
-8-
<PAGE>
1. by
any government or sovereign power, de jure or de
facto, or by any authority maintaining or using military, naval or
air forces;
or
2. by
military, naval or air forces; or
3. by
an agent of any such government, power, authority
or forces;
(d) any weapon
of war employing atomic fission or
radioactive force whether in time of peace or war; or
(e)
insurrection, rebellion, revolution, civil war,
usurped power or action taken by governmental authority in
hindering, combating
or defending against such an occurrence, seizure or destruction
under quarantine
or customs regulations, confiscation by order of any government or
public
authority; or risks of contraband or illegal transportation or
trade.
"Extraordinary Losses": Any loss incurred on a Mortgage Loan
caused by or resulting from an Extraordinary Event.
"Fannie Mae": Federal National Mortgage Association or any
successor.
"FDIC": Federal Deposit Insurance Corporation or any
successor.
["Fitch": Fitch
Ratings, or its successor in interest.]
"Fraud Losses": Any Realized Loss sustained by reason of a
default arising from fraud, dishonesty or misrepresentation in
connection with
the related Mortgage Loan.
"Fraud Loss Amount": As of any date of determination after the
Cut-off Date, an amount equal to: (X) up to and including the
[first]
anniversary of the Cut-off Date an amount equal to ______% of the
aggregate
outstanding principal balance of all of the Mortgage Loans as of
the Cut-off
Date minus the aggregate amount of Fraud Losses allocated to the
Class B
Certificates in accordance with Section 4.04 since the Cut-off Date
up to such
date of determination, (Y) from the [first] to the fifth
anniversary of the
Cut-off Date, an amount equal to (1) the lesser of (a) the Fraud
Loss Amount as
of the most recent anniversary of the Cut-off Date and (b) ______%
of the
aggregate outstanding principal balance of all of the Mortgage
Loans as of the
most recent anniversary of the Cut-off Date minus (2) the Fraud
Losses allocated
solely to the Class B Certificates in accordance with Section 4.04
since the
most recent anniversary of the Cut-off Date up to such date of
determination. On
and after the fifth anniversary of the Cutoff Date the Fraud Loss
Amount shall
be zero.
The Fraud Loss Amount may be further reduced by the Master
Servicer (including accelerating the manner in which such coverage
is reduced)
provided that prior to any such reduction, the Master Servicer
shall (i) obtain
written confirmation from each Rating Agency that such reduction
shall not
reduce the rating assigned to any Class of Certificates by such
Rating Agency
below the lower of the then-current rating or the rating assigned
to such
-9-
<PAGE>
Certificates as of the Closing Date by such Rating Agency and (ii)
provide a
copy of such written confirmation to the Trustee.
"Freddie Mac": Federal Home Loan Mortgage Corporation or any
successor.
"Funding Date": With respect to each Mortgage Loan, the date
on which funds were advanced by or on behalf of the Seller and
interest began to
accrue thereunder.
"Initial Certificate Principal Balance": With respect to each
Class of Certificates, the Certificate Principal Balance of such
Class of
Certificates as of the Cut-off Date as set forth in the Preliminary
Statement
hereto.
"Insurance Policy": With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to
time under this
Agreement in respect of such Mortgage Loan.
"Insurance Proceeds": Proceeds paid by any insurer pursuant to
the Primary Mortgage Insurance Policy and any other insurance
policy covering a
Mortgage Loan to the extent such proceeds are not applied to the
restoration of
the related Mortgaged Property or released to the Mortgagor in
accordance with
the procedures that the Master Servicer would follow in servicing
mortgage loans
held for its own account.
"Late Collections": With respect to any Mortgage Loan, all
amounts received during any Due Period, whether as late payments of
Monthly
Payments or as Insurance Proceeds, Liquidation Proceeds or
otherwise, which
represent late payments or collections of Monthly Payments due but
delinquent
for a previous Due Period and not previously recovered.
"Liquidation Proceeds": Amounts (other than Insurance
Proceeds) received by the Master Servicer in connection with the
taking of an
entire Mortgaged Property by exercise of the power of eminent
domain or
condemnation or in connection with the liquidation of a defaulted
Mortgage Loan
through trustee's sale, foreclosure sale or otherwise, other than
amounts
received in respect of REO Property.
"Loan-to-Value Ratio": As of any date, the fraction, expressed
as a percentage, the numerator of which is the current principal
balance of the
related Mortgage Loan at the date of determination and the
denominator of which
is the Collateral Value of the related Mortgaged Property.
"Master Servicer": [Name of Master Servicer], or any successor
master servicer appointed as herein provided.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and interest on such
Mortgage Loan which
is payable by a Mortgagor from time to time under the related
Mortgage Note as
originally executed (after adjustment, if any, for Principal
Prepayments and for
Deficient Valuations occurring prior to such Due Date, and
after
-10-
<PAGE>
any adjustment by reason of any bankruptcy or similar proceeding or
any
moratorium or similar waiver or grace period).
["Moody's": Moody's Investors Service, Inc. or its successor
in interest.]
"Mortgage": The mortgage, deed of trust or any other
instrument securing the Mortgage Loan.
"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;
provided, that
whenever the term "Mortgage File" is used to refer to documents
actually
received by the Trustee, such term shall not be deemed to include
such
additional documents required to be added unless they are actually
so added.
"Mortgage Loan": Each of the mortgage loans, transferred and
assigned to the Trustee pursuant to Section 2.01 or Section 2.03
and from time
to time held in the Trust Fund, the Mortgage Loans originally so
transferred,
assigned and held being identified in the Mortgage Loan Schedule
attached hereto
as Exhibit H (and any Qualified Substitute Mortgage Loans). As used
herein, the
term "Mortgage Loan" includes the related Mortgage Note and
Mortgage.
"Mortgage Loan Schedule": As of any date of determination, the
schedule of Mortgage Loans included in the Trust Fund. The initial
schedule of
Mortgage Loans with accompanying information transferred on the
Closing Date to
the Trustee as part of the Trust Fund for the Certificates,
attached hereto as
Exhibit H (as amended from time to time to reflect the addition of
Qualified
Substitute Mortgage Loans) (and, for purposes of the Trustee's
review of the
Mortgage Files pursuant to Section 2.02, in computer-readable form
as delivered
to the Trustee), which list shall set forth the following
information, if
applicable, with respect to each Mortgage Loan:
(i) the loan
number and name of the Mortgagor;
(ii)
the street address, city, state and zip code of the
Mortgaged Property;
(iii) the
Mortgage Rate;
(iv)
the maturity date;
(v) the
original principal balance;
(vi)
the first payment date; (vii) the type of Mortgaged
Property;
(viii) the
Monthly Payment in effect as of the Cut-off Date;
-11-
<PAGE>
(ix)
the principal balance as of the Cut-off Date;
(x) the
occupancy status;
(xi)
the purpose of the Mortgage Loan;
(xii) the
Collateral Value of the Mortgaged Property;
(xiii) the
original term to maturity;
(xiv) the
paid-through date of the Mortgage Loan;
(xv)
the Loan-to-Value Ratio; and
(xvi)
whether or not the Mortgage Loan was underwritten
pursuant to a limited documentation program.
The Mortgage Loan Schedule shall also set forth the total of
the amounts described under (ix) above for all of the Mortgage
Loans. The
Mortgage Loan Schedule may be in the form of more than one
schedule,
collectively setting forth all of the information required. With
respect to any
Qualified Substitute Mortgage Loan, the item described in clauses
(viii) shall
be set forth as the date of substitution.
"Mortgage Note": The note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Rate": With respect to any Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan. "Mortgaged
Property": The
underlying property securing a Mortgage Loan.
"Mortgagor": The obligor or
obligors on a Mortgage Note.
"Net Mortgage Rate": As to each Mortgage Loan, a per annum
rate of interest equal to the related Mortgage Rate as in effect
from time to
time minus the sum of the Servicing Fee Rate and the rate at which
the Trustee's
Fee accrues.
"Nonrecoverable Advance": Any Advance previously made or
proposed to be made in respect of a Mortgage Loan which, in the
good faith
judgment of the Master Servicer, will not or, in the case of a
proposed Advance,
would not be ultimately recoverable from related Late Collections,
Insurance
Proceeds, Liquidation Proceeds, REO Proceeds or amounts
reimbursable to the
Master Servicer pursuant to Section 4.01(b). The determination by
the Master
Servicer that it has made a Nonrecoverable Advance or that any
proposed Advance
would constitute a Nonrecoverable Advance, shall be evidenced by an
Officers'
Certificate delivered to the Depositor and the Trustee.
-12-
<PAGE>
"Non-United States Person": Any Person other than a United
States Person.
"Notional Amount": As of any Distribution Date, with respect
to the Class A-5 Certificates and the Class A-7 Certificates, an
amount equal to
the aggregate Certificate Principal Balance of all Classes of
Certificates
immediately prior to such date.
"Officers' Certificate": A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a
vice president
and by the Treasurer, the Secretary, or one of the assistant
treasurers or
assistant secretaries of the Master Servicer or of the Sub-Servicer
and
delivered to the Depositor and Trustee.
"Opinion of Counsel": A written opinion of counsel, who may be
counsel for the Depositor or the Master Servicer, reasonably
acceptable to the
Trustee; except that any opinion of counsel relating to (a) the
qualification of
any account required to be maintained pursuant to this Agreement as
an Eligible
Account, (b) qualification of the Trust Fund as a REMIC, (c)
compliance with the
REMIC Provisions or (d) resignation of the Master Servicer pursuant
to Section
6.04 must be an opinion of counsel who (i) is in fact independent
of the
Depositor and the Master Servicer, (ii) does not have any direct
financial
interest or any material indirect financial interest in the
Depositor or the
Master Servicer or in an affiliate of either and (iii) is not
connected with the
Depositor or the Master Servicer as an officer, employee, director
or person
performing similar functions.
"Optimal Percentage": A fraction, expressed as a percentage,
the numerator of which is the Certificate Principal Balance of the
Class A-1
Certificates immediately prior to the applicable Distribution Date
and the
denominator of which is the aggregate Certificate Principal Balance
of all of
the Class A Certificates immediately prior to such Distribution
Date.
"Optimal Principal Distribution Amount": An amount equal to
the product of (i) the then applicable Optimal Percentage and (ii)
the Senior
Principal Distribution Amount.
"Original Senior Percentage": _______%, which is the fraction,
expressed as a percentage, the numerator of which is the aggregate
Initial
Certificate Principal Balance of the Class A Certificates and the
denominator of
which is the aggregate Stated Principal Balance of the Mortgage
Loans.
"OTS":
Office of Thrift Supervision or any successor.
"Outstanding Mortgage Loan": As to any Due Date, a Mortgage
Loan (including an REO Property) which was not the subject of a
Principal
Prepayment in full, Cash Liquidation or REO Disposition and which
was not
purchased or substituted for prior to such Due Date pursuant to
Sections 2.02 or
2.04.
"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.
-13-
<PAGE>
"Pass-Through Rate": With respect to the Class A Certificates
(other than the Class A-7 Certificates) and Class B Certificates
and any
Distribution Date, the per annum rate set forth in the Preliminary
Statement
hereto. With respect to the Class A-7 Certificates and any
Distribution Date, a
rate equal to the weighted average, expressed as a percentage, of
the Pool Strip
Rates of all Mortgage Loans in the Trust Fund as of the Due Date in
the month
immediately preceding the month in which such Distribution Date
occurs, weighted
on the basis of the respective Stated Principal Balances of such
Mortgage Loans,
which Stated Principal Balances shall be the Stated Principal
Balances of such
Mortgage Loans at the close of business on the immediately
preceding
Distribution Date after giving effect to the distributions thereon
allocable to
principal (or, in the case of the initial Distribution Date, at the
close of
business on the Cut-off Date). With respect to the Class A-7
Certificates and
the initial Distribution Date, the Pass-Through Rate is equal to
______% per
annum.
"Percentage Interest": With respect to any Certificate (other
than a Class A-5, Class A-7 or Class R Certificate), the undivided
percentage
ownership interest in the related Class evidenced by such
Certificate, which
percentage ownership interest shall be equal to the initial
Certificate
Principal Balance thereof divided by the aggregate Initial
Certificate Principal
Balance of all of the Certificates of the same Class. With respect
to a Class
A-5 or Class A-7 Certificate, the undivided percentage ownership
interest in the
related Class evidenced by such Certificate, which percentage
ownership interest
shall be equal to the initial Notional Amount thereof divided by
the aggregate
initial Notional Amount of all of the Certificates of the same
Class. With
respect to a Class R Certificate, the interest in distributions to
be made with
respect to such Class evidenced thereby, expressed as a percentage,
as stated on
the face of each such Certificate.
"Permitted Instruments": Any one or more of the
following:
(xvii) (a)
direct obligations of, or obligations fully
guaranteed as to 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 and (b)
direct
obligations of, and obligations guaranteed as to timely payment
by
Freddie Mac or Fannie Mae if, at the time of investment, they
are
assigned the highest credit rating by the Rating Agencies;
(xviii) repurchase
obligations (the collateral for which is
held by a third party or the Trustee) with respect to any
security
described in clause (i) above, provided that the short-term
unsecured
obligations of the party agreeing to repurchase such obligations
are at
the time rated by each Rating Agency in one of its two highest
long-term rating categories;
(xix)
certificates of deposit, time deposits, demand
deposits and bankers' acceptances of any bank or trust company
incorporated under the laws of the United States or any state
thereof
or the District of Columbia, provided that the short-term
commercial
paper of such bank or trust company (or, in the case of the
principal
-14-
<PAGE>
depository institution in a depository institution holding company,
the
long-term unsecured debt obligations of the depository
institution
holding company) at the date of acquisition thereof has been rated
by
each Rating Agency in its highest short-term rating;
(xx)
commercial paper (having original maturities of not
more than nine months) of any corporation incorporated under the
laws
of the United States or any state thereof or the District of
Columbia
which on the date of acquisition has been rated by each Rating
Agency
in its highest short- term rating;
(xxi) a
money market fund or a qualified investment fund
rated by each Rating Agency in its highest rating available;
and
(xxii) if
previously confirmed in writing to the Trustee,
any other obligation or security acceptable to each Rating Agency
in
respect of mortgage pass-through certificates rated in each
Rating
Agency's highest rating category;
provided, that no such instrument shall be a Permitted Instrument
if such
instrument evidences either (a) the right to receive interest only
payments with
respect to the obligations underlying such instrument or (b) both
principal and
interest payments derived from obligations underlying such
instrument where the
principal and interest payments with respect to such instrument
provide a yield
to maturity exceeding 120% of the yield to maturity at par of such
underlying
obligation.
"Permitted Transferee": Any transferee of a Class R
Certificate other than a Disqualified Organization or a Non-United
States
Person.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or
government or any agency or political subdivision thereof.
"Pool Strip Rate": With respect to each Mortgage Loan, the
rate per annum equal to the Net Mortgage Rate thereon minus _____%
per annum.
"Prepayment Assumption": A prepayment assumption of _____% of
the standard prepayment assumption, used for determining the
accrual of original
issue discount and market discount and premium on the Certificates
for federal
income tax purposes. The standard prepayment assumption assumes a
constant rate
of prepayment of mortgage loans of 0.2% per annum of the then
outstanding
principal balance of such mortgage loans in the first month of the
life of the
mortgage loans, increasing by an additional 0.2% per annum in each
succeeding
month until the thirtieth month, and a constant 6% per annum rate
of prepayment
thereafter for the life of such mortgage loans.
"Prepayment Interest Shortfall": With respect to any
Distribution Date, for each Mortgage Loan that was the subject of a
partial
Principal Prepayment, a Principal Prepayment in full, or of a Cash
Liquidation
or an REO Disposition during the related Prepayment Period, an
-15-
<PAGE>
amount equal to the amount of interest that would have accrued at
the applicable
Net Mortgage Rate (i) in the case of a Principal Prepayment in
full, Cash
Liquidation or REO Disposition on the principal balance of such
Mortgage Loan
immediately prior to such prepayment (or liquidation), commencing
on the date of
prepayment (or liquidation) and ending on the last day of the month
of
prepayment or liquidation or (ii) in the case of a partial
Principal Prepayment,
on the amount of such prepayment, commencing on the date as of
which the
prepayment is applied and ending on the last day of the month of
prepayment.
"Prepayment Period": As to any Distribution Date, the calendar
month preceding the month in which such Distribution Date
occurs.
"Primary Hazard Insurance Policy": Each primary hazard
insurance policy required to be maintained pursuant to Section
3.13.
"Primary Mortgage Insurance Policy": Each primary mortgage
insurance policy required to be maintained pursuant to Section
3.13.
"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
scheduled interest due on any date or dates in any month or months
subsequent to
the month of prepayment.
"Purchase Price": With respect to any Mortgage Loan (or REO
Property) required to be purchased pursuant to Section 2.02 or
2.04, an amount
equal to the sum of (i) 100% of the Stated Principal Balance
thereof, (ii)
unpaid accrued interest (or REO Imputed Interest) at the sum of the
applicable
Net Mortgage Rate, the rate at which the Trustee's Fee accrues on
the Stated
Principal Balance thereof outstanding during each Due Period that
such interest
was not paid or advanced, from the date through which interest was
last paid by
the Mortgagor or advanced and distributed to Certificateholders
together with
unpaid related Servicing Fees from the date through which interest
was last paid
by the Mortgagor, in each case to the first day of the month in
which such
Purchase Price is to be distributed, plus (iii) the aggregate of
all Advances
made in respect thereof that were not previously reimbursed.
"Qualified Insurer": An insurance company duly qualified as
such under the laws of the state of its principal place of business
and each
state having jurisdiction over such insurer in connection with the
insurance
policy issued by such insurer, duly authorized and licensed in such
states to
transact business in such states and to write the insurance
provided by the
insurance policy issued by it, approved as an insurer by the Master
Servicer, as
a Fannie Mae approved mortgage insurer and having a claims paying
ability rating
of at least "AA" by ________________ and which is acceptable to
_______________.
Any replacement insurer with respect to a Mortgage Loan must have
at least as
high a claims paying ability rating by ______________ and
_______________ as the
insurer it replaces had on the Closing Date.
-16-
<PAGE>
"Qualified Substitute Mortgage Loan": A Mortgage Loan
substituted by the Depositor for a Deleted Mortgage Loan which
must, on the date
of such substitution, as confirmed in an Officers' Certificate
delivered to the
Trustee, (i) have an outstanding principal balance, after deduction
of the
principal portion of the monthly payment due in the month of
substitution (or in
the case of a substitution of more than one Mortgage Loan for a
Deleted Mortgage
Loan, an aggregate outstanding principal balance, after such
deduction), not in
excess of the Stated Principal Balance of the Deleted Mortgage Loan
(the amount
of any shortfall to be deposited by the Master Servicer, in the
Custodial
Account in the month of substitution); (ii) have a Mortgage Rate
and a Net
Mortgage Rate no lower than and not more than 1% per annum higher
than the
Mortgage Rate and Net Mortgage Rate, respectively, of the Deleted
Mortgage Loan
as of the date of substitution; (iii) have a remaining term to
stated maturity
not greater than (and not more than one year less than) that of the
Deleted
Mortgage Loan; (iv) comply with each representation and warranty
set forth in
Section 2 of the Seller's Warranty Certificate; (v) 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; and (vi) be covered
under a Primary
Insurance Policy if such Qualified Substitute Mortgage Loan has a
Loan-to-Value
Ratio in excess of 80%. 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 Net Mortgage
Rates
described in clause (ii) hereof shall be satisfied as to each such
mortgage
loan, the terms described in clause (iii) shall be determined on
the basis of
weighted average remaining terms to maturity, the Loan-to-Value
Ratios described
in clause (v) 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 (iv) hereof must be satisfied as
to each
Qualified Substitute Mortgage Loan or in the aggregate, as the case
may be.
"Rating Agency": [Standard & Poor's] [Moody's] [Fitch]. If
either agency or a successor is no longer in existence, "Rating
Agency" shall be
such statistical credit rating agency, or other comparable Person,
designated by
the Depositor, notice of which designation shall be given to the
Trustee and the
Master Servicer. References herein to the two highest long term
debt rating
categories of a Rating Agency shall mean "AA" or better in the case
of [Standard
& Poor's] [Fitch] and "Aa2" or better in the case of Moody's
and references
herein to the highest short-term debt rating of a Rating Agency
shall mean "A-1"
in the case of [Standard & Poor's,] and in the case of any
other Rating Agency
such references shall mean such rating categories without regard to
any plus or
minus.
"Realized Loss": With respect to any Mortgage Loan or related
REO Property as to which a Cash Liquidation or REO Disposition has
occurred, an
amount (not less than zero) equal to (i) the Stated Principal
Balance of the
Mortgage Loan as of the date of Cash Liquidation or REO
Disposition, plus (ii)
interest (and REO Imputed Interest, if any) at the related Net
Mortgage Rate
from the Due Date as to which interest was last paid or advanced
to
Certificateholders up to the date of the Cash Liquidation or REO
Disposition on
the Stated Principal Balance of such Mortgage Loan outstanding
during each Due
Period that such interest
-17-
<PAGE>
was not paid or advanced, minus (iii) the proceeds, if any,
received during the
month in which such Cash Liquidation or REO Disposition occurred,
to the extent
applied as recoveries of interest at the related Net Mortgage Rate
and to
principal of the Mortgage Loan, net of the portion thereof
reimbursable to the
Master Servicer or any Sub-Servicer with respect to related
Advances not
previously reimbursed. 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 amount of such Debt Service
Reduction.
"Record Date": The last Business Day of the month immediately
preceding the month of the related Distribution Date.
"Regular Certificate": Any of the Certificates other than the
Class R Certificates.
"Relief Act": The Servicemembers Relief Act of 2003, as
amended.
"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 Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and 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 prepared by the Master Servicer
providing the information set forth in Exhibit E attached
hereto.
"REO Acquisition": The acquisition by the Master Servicer on
behalf of the Trustee for the benefit of the Certificateholders of
any REO
Property pursuant to Section 3.15.
"REO Disposition": The receipt by the Master Servicer of
Insurance Proceeds, Liquidation Proceeds and other payments and
recoveries
(including proceeds of a final sale) which the Master Servicer
expects to be
finally recoverable from the sale or other disposition of the REO
Property.
"REO Imputed Interest": As to any REO Property, for any
period, an amount equivalent to interest (at the Mortgage Rate that
would have
been applicable to the related Mortgage Loan had it been
outstanding) on the
unpaid principal balance of the Mortgage Loan as
-18-
<PAGE>
of the date of acquisition thereof (as such balance is reduced by
any income
from the REO Property treated as a recovery of principal pursuant
to Section
3.15).
"REO Proceeds": Proceeds, net of directly related expenses,
received in respect of any REO Property (including, without
limitation, proceeds
from the rental of the related Mortgaged Property and of any REO
Disposition),
which proceeds are required to be deposited into the Custodial
Account as and
when received.
"REO Property": A Mortgaged Property acquired by the Master
Servicer through foreclosure or deed-in-lieu of foreclosure in
connection with a
defaulted Mortgage Loan.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibits F-1 or F-2 attached hereto.
"Required Insurance Policy": With respect to any Mortgage
Loan, any Insurance Policy or any other insurance policy that is
required to be
maintained from time to time under this Agreement or pursuant to
the provisions
of a Mortgage Loan.
"Residual Certificate": Any of the Class R
Certificates.
"Responsible Officer": When used with respect to the Trustee,
the Chairman or Vice Chairman of the Board of Directors or
Trustees, the
Chairman or Vice Chairman of the Executive or Standing Committee of
the Board of
Directors or Trustees, the President, the Chairman of the Committee
on Trust
Matters, any vice president, any assistant vice president, the
Secretary, any
assistant secretary, the Treasurer, any assistant treasurer, the
Cashier, any
assistant cashier, any trust officer or assistant trust officer,
the Controller
and any assistant controller or any other officer of the Trustee
customarily
performing functions similar to those performed by any of the above
designated
officers and also, with respect to a particular matter, any other
officer to
whom such matter is referred because of such officer's knowledge of
and
familiarity with the particular subject.
"Seller": [Name of Seller] and its successors and assigns.
"Seller's Warranty Certificate": The Seller's Warranty
Certificate of the Seller, dated ______ __, 20__, in the form of
Exhibit I
attached hereto.
"Senior Accelerated Distribution Percentage": With respect to
any Distribution Date, the percentage indicated below:
DISTRIBUTION DATE SENIOR ACCELERATED DISTRIBUTION PERCENTAGE
[TABLE]
provided, however, (i) that any scheduled reduction to the Senior
Accelerated
Distribution Percentage described above shall not occur as of any
Distribution
Date unless either (a)(1) the
-19-
<PAGE>
outstanding principal balance of Mortgage Loans delinquent [60]
days or more
averaged over the last six months, as a percentage of the aggregate
outstanding
principal balance of all Mortgage Loans averaged over the last
[six] months,
does not exceed [2%] and (2) Realized Losses on the Mortgage Loans
to date for
such Distribution Date if occurring during the sixth, seventh,
eighth, ninth or
tenth year (or any year thereafter) after the Closing Date are less
than [30%,
35%, 40%, 45% or 50%], respectively, of the Initial Certificate
Principal
Balance of the Class B Certificates or (b)(1) the outstanding
principal balance
of the Mortgage Loans delinquent [60] days or more averaged over
the last six
months, as a percentage of the aggregate outstanding principal
balance of all
Mortgage Loans averaged over the last [six] months, does not exceed
[4%] and (2)
Realized Losses on the Mortgage Loans to date for such Distribution
Date are
less than [10%] of the Initial Certificate Principal Balance of the
Class B
Certificates and (ii) that for any Distribution Date on which the
Senior
Percentage is greater than the Original Senior Percentage, the
Senior
Accelerated Distribution Percentage for such Distribution Date
shall be 100%.
Notwithstanding the foregoing, upon the reduction of the aggregate
Certificate
Principal Balance of the Class A Certificates to zero, the Senior
Accelerated
Distribution Percentage shall thereafter be 0%.
"Senior Percentage": As of any Distribution Date, the lesser
of 100% and a fraction, expressed as a percentage, the numerator of
which is the
aggregate Certificate Principal Balance of the Class A Certificates
immediately
prior to such Distribution Date and the denominator of which is the
aggregate
Stated Principal Balance of all of the Mortgage Loans (or related
REO
Properties) immediately prior to such Distribution Date.
"Senior Principal Distribution Amount": As to any Distribution
Date, the lesser of (a) the balance of the Available Distribution
Amount
remaining after the distribution of all amounts required to be
distributed
pursuant to Section 4.02(b)(i) and (b) the sum of the amounts
required to be
distributed to the Class A Certificateholders on such Distribution
Date pursuant
to Section 4.02(b)(ii) and (vi).
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.09.
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses incurred in connection with a
default,
delinquency or other unanticipated event by the Master Servicer in
the
performance of its servicing obligations, including, but not
limited to, the
cost of (i) the preservation, restoration and protection of a
Mortgaged
Property, (ii) any enforcement or judicial proceedings, including
foreclosures,
(iii) the management and liquidation of any REO Property and (iv)
compliance
with the obligations under the second paragraph of Section 3.01 and
Section
3.09.
"Servicing Fee": As to each Mortgage Loan, an amount, payable
out of any payment of interest on the Mortgage Loan, equal to
interest at the
related Servicing Fee Rate on the Stated Principal Balance of such
Mortgage Loan
for the calendar month preceding the month in which the payment is
due
(alternatively, in the event such payment of interest accompanies
a
-20-
<PAGE>
Principal Prepayment in full made by the Mortgagor, interest for
the number of
days covered by such payment of interest).
"Servicing Fee Rate": With respect to each Mortgage Loan, the
per annum rate of ______%.
"Servicing Officer": Any officer of the Master Servicer
involved in, or responsible for, the administration and servicing
of the
Mortgage Loans, whose name appears on a list of servicing officers
furnished to
the Trustee by the Master Servicer, as such list may from time to
time be
amended.
"Single Certificate": A Certificate of any Class evidencing
the minimum denomination for Certificates of such Class as set
forth in Section
5.01.
"Special Hazard Amount": As of any Distribution Date, an
amount equal to $___________ (the initial "Special Hazard Amount")
minus the sum
of (i) the aggregate amount of Special Hazard Losses allocated
solely to the
Class B Certificates pursuant to Section 4.04 and (ii) the
Adjustment Amount (as
defined below) as most recently calculated. For each anniversary of
the Cut-off
Date, the Adjustment Amount shall be calculated and shall be equal
to the
amount, if any, by which the amount calculated in accordance with
the preceding
sentence (without giving effect to the deduction of the Adjustment
Amount for
such anniversary) exceeds the greater of (A) the product of the
Special Hazard
Percentage for such anniversary multiplied by the outstanding
principal balance
of all of the Mortgage Loans on such anniversary and (B) twice the
outstanding
principal balance of the Mortgage Loan which has the largest
outstanding
principal balance on such Anniversary.
"Special Hazard Percentage": As of each anniversary of the
Cut-off Date, the greater of (i) 1% and (ii) the largest percentage
obtained by
dividing the aggregate outstanding principal balance on such
anniversary of the
Mortgage Loans secured by Mortgaged Properties located in a single,
five-digit
zip code area in the State of California by the outstanding
principal balance of
all the Mortgage Loans on such anniversary.
"[Standard & Poor's": Standard & Poor's, a division of
The
McGraw-Hill Companies, Inc., or its successor in interest.]
"Startup Day": The day designated as such pursuant to Article
X hereof.
"Stated Principal Balance": With respect to any Mortgage Loan
or related REO Property at any given time, (i) the principal
balance of the
Mortgage Loan outstanding as of the Cut-off Date, after application
of principal
payments due on or before such date, whether or not received, minus
(ii) the sum
of (a) the principal portion of the Monthly Payments due with
respect to such
Mortgage Loan or REO Property during each Due Period ending prior
to the most
recent Distribution Date which were received or with respect to
which an Advance
was made, (b) all Principal Prepayments with respect to such
Mortgage Loan or
REO Property, and all Insurance Proceeds, Liquidation Proceeds and
net income
from a REO Property to the extent
-21-
<PAGE>
applied by the Master Servicer as recoveries of principal in
accordance with
Section 3.15 with respect to such Mortgage Loan or REO Property,
which were
distributed pursuant to Section 4.01 on any previous Distribution
Date and (c)
any Realized Loss with respect thereto allocated pursuant to
Section 4.04 for
any previous Distribution Date.
"Subordinate Principal Distribution Amount": With respect to
any Distribution Date and the Class B Certificates, (a) the sum of
(i) the
product of (x) the Class B Percentage and (y) the aggregate of the
amounts
calculated for such Distribution Date under clauses (1), (2) and
(3) of Section
4. 01 (b)(ii)(A); (ii) the principal collections described in
Section 4. 01
(b)(ii)(B) to the extent such collections are not otherwise
distributed to the
Senior Certificates; and (iii) the product of (x) 100% minus the
Senior
Accelerated Distribution Percentage and (z) the aggregate of all
Principal
Prepayments in Full and Curtailments received in the related
Prepayment Period;
provided, however, that such amount shall in no event exceed the
outstanding
Certificate Principal Balance of the Class B Certificates
immediately prior to
such date.
"Sub-Servicer": Any Person with which the Master Servicer has
entered into a Sub-Servicing Agreement and which meets the
qualifications of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicer Remittance Date": The 18th day of each month, or
if such day is not a Business Day, the immediately preceding
Business Day.
"Sub-Servicing Account": An account established by a
Sub-Servicer which meets the requirements set forth in Section 3.08
and is
otherwise acceptable to the Master Servicer.
"Sub-Servicing Agreement": The written contract between the
Master Servicer and a Sub-Servicer and any successor Sub-Servicer
relating to
servicing and administration of certain Mortgage Loans as provided
in Section
3.02.
"Swap Provider": The swap provider under a swap agreement
either (a) entitled to receive payments from an administrator from
amounts
payable by the Trust Fund under this Agreement or (b) required to
make payments
to an administrator for payment to the Trust Fund, in either case
pursuant to
the terms of a swap agreement, and any successor in interest or
assign.
"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 its classification
as a REMIC
under the REMIC Provisions, together with any and all other
information, reports
or returns that may be required to be furnished to the
Certificateholders or
filed with the Internal Revenue Service or any other governmental
taxing
authority under any applicable provisions of federal, state or
local tax laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation or other form of assignment of any Ownership Interest
in a
Certificate.
-22-
<PAGE>
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trust Fund": The segregated pool of assets subject hereto,
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) the
Mortgage Loans (exclusive of payments of principal and interest due
on or before
the Cut-off Date, if any) as from time to time are subject to this
Agreement and
all payments under and proceeds of the Mortgage Loans, together
with all
documents included in the related Mortgage File, subject to Section
2.01; (ii)
such funds or assets as from time to time are deposited in the
Custodial Account
and the Certificate Account; (iii) any REO Property; (iv) the
Primary Mortgage
Insurance Policies, if any, Primary Hazard Insurance Policies and
all other
Insurance Policies with respect to the Mortgage Loans; and (v) the
Depositor's
interest in respect of the representations and warranties made by
the Seller in
the Seller's Warranty Certificate as assigned to the Trustee
pursuant to Section
2.04 hereof.
"Trustee": [Name of Trustee], or its successor in interest, or
any successor trustee appointed as herein provided.
"Trustee's Fee": As to each Mortgage Loan and Distribution
Date, an amount, payable out of any payment of interest on the
Mortgage Loan,
equal to interest at ______% per annum on the Stated Principal
Balance of such
Mortgage Loan as of the Due Date immediately preceding the month in
which such
Distribution Date occurs.
"Uninsured Cause": Any cause of damage to property subject to
a Mortgage such that the complete restoration of such property is
not fully
reimbursable by the hazard insurance policies or flood insurance
policies
required to be maintained pursuant to Section 3.13.
"United States Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or
organized in, or
under the laws of, the United States or any political subdivision
thereof, or an
estate or trust whose income from sources without the United States
is
includable in gross income for United States federal income tax
purposes
regardless of its connection with the conduct of a trade or
business within the
United States. The term "United States" shall have the meaning set
forth in
Section 7701 of the Code or successor provisions.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. ______% of
all of the
Voting Rights shall be allocated among Holders of the
Certificates,
respectively, other than the Class A-5, Class A-7 and Class R
Certificates, in
proportion to the outstanding Certificate Principal Balances of
their respective
Certificates; and the Holders of the Class A-5, Class A-7 and Class
R
Certificates shall be entitled to ___%, ___% and ___% of all of the
Voting
Rights, respectively, allocated among the Certificates of each such
Class in
accordance with their respective Percentage Interests.
-23-
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance of Mortgage Loans.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery hereof, does hereby assign, transfer,
sell, set over
and otherwise convey to the Trustee without recourse all the right,
title and
interest of the Depositor in and to the Mortgage Loans identified
on the
Mortgage Loan Schedule and all other assets included or to be
included in the
Trust Fund for the benefit of the Certificateholders. Such
assignment includes
all principal and interest received by the Master Servicer on or
with respect to
the Mortgage Loans (other than payment of principal and interest
due on or
before the Cut-off Date).
In connection with such transfer and assignment, the Depositor
has requested the Seller to deliver to, and deposit with the
Trustee, the
following documents or instruments:
(i) the
original Mortgage Note, endorsed by the Seller
"Pay to the order of [Name of Trustee], as trustee without
recourse" or
to "Pay to the order of [Name of Trustee], as trustee for holders
of
American Home Mortgage Securities LLC, Mortgage Pass-Through
Certificates, Series 200_-_, without recourse" with all
intervening
endorsements showing a complete chain of endorsements from the
originator to the Person endorsing it to the Trustee;
(ii)
the original recorded Mortgage or, if the original
Mortgage has not been returned from the applicable public
recording
office, a copy of the Mortgage certified by the Seller to be a true
and
complete copy of the original Mortgage submitted to the title
insurance
company for recording;
(iii) a
duly executed original Assignment of the Mortgage
endorsed by the Seller, without recourse, to "[Name of Trustee],
as
trustee" or to "[Name of Trustee], as trustee for holders of
American
Home Mortgage Securities LLC, Mortgage Pass-Through
Certificates,
Series 200_-_", with evidence of recording thereon;
(iv)
the original recorded Assignment or Assignments of
the Mortgage showing a complete chain of assignment from the
originator
thereof to the Person assigning it to the Trustee or, if any
such
Assignment has not been returned from the applicable public
recording
office, a copy of such Assignment certified by the Seller to be a
true
and complete copy of the original Assignment submitted to the
title
insurance company for recording;
(v) the
original lender's title insurance policy, or, if
such policy has not been issued, any one of an original or a copy
of
the preliminary title report, title binder or title
-24-
<PAGE>
commitment on the Mortgaged Property with the original policy of
the
insurance to be delivered promptly following the receipt
thereof;
(vi)
the original of any assumption, modification,
extension or guaranty agreement;
(vii) the
original or a copy of the private mortgage
insurance policy or original certificate of private mortgage
insurance,
if applicable; and
(viii) if any of
the documents or instruments referred to
above were executed on behalf of the Mortgagor by another Person,
the
original power of attorney or other instrument that authorized
and
empowered such Person to sign, or a copy thereof certified by
the
Seller (or by an officer of the applicable title insurance or
escrow
company) to be a true and correct copy of the original.
The Seller is
obligated pursuant to the Seller's Warranty
Certificate to deliver to the Trustee: (a) either the original
recorded
Mortgage, or in the event such original cannot be delivered by the
Seller, a
copy of such Mortgage certified as true and complete by the
appropriate
recording office, in those instances where a copy thereof certified
by the
Seller was delivered to the Trustee pursuant to clause (ii) above;
and (b)
either the original Assignment or Assignments of the Mortgage, with
evidence of
recording thereon, showing a complete chain of assignment from the
originator to
the Seller, or in the event such original cannot be delivered by
the Seller, a
copy of such Assignment or Assignments certified as true and
complete by the
appropriate recording office, in those instances where copies
thereof certified
by the Seller were delivered to the Trustee pursuant to clause (iv)
above.
Notwithstanding anything to the contrary contained in this Section
2.01, in
those instances where the public recording office retains the
original Mortgage
after it has been recorded, the Seller shall be deemed to have
satisfied its
obligations hereunder upon delivery to the Trustee of a copy of
such Mortgage
certified by the public recording office to be a true and complete
copy of the
recorded original thereof.
If any Assignment is lost or returned unrecorded to the
Trustee because of any defect therein, the Seller is required to
prepare a
substitute Assignment or cure such defect, as the case may be, and
the Trustee
shall cause such Assignment to be recorded in accordance with this
paragraph.
The Seller is required, as described in the Seller's Warranty
Certificate, to deliver to the Trustee the original of any
documents assigned to
the Trustee pursuant to this Section 2.01 not later than 120 days
after the
Closing Date.
All original documents relating to the Mortgage Loans which
are not delivered to the Trustee, to the extent delivered by the
Seller to the
Master Servicer, are and shall be held by the Master Servicer in
trust for the
benefit of the Trustee on behalf of the Certificateholders.
Except as may otherwise expressly be provided herein, neither
the Depositor, the Master Servicer nor the Trustee shall (and the
Master
Servicer shall ensure that no Sub-Servicer
-25-
<PAGE>
shall) assign, sell, dispose of or transfer any interest in the
Trust Fund or
any portion thereof, or permit the Trust Fund or any portion
thereof to be
subject to any lien, claim, mortgage, security interest, pledge or
other
encumbrance of, any other Person.
It is intended that the conveyance of the Mortgage Loans by
the Depositor to the Trustee as provided in this Section be, and be
construed
as, a sale of the Mortgage Loans by the Depositor to the Trustee
for the benefit
of the Certificateholders. It is, further, not intended 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. However, in the event
that the
Mortgage Loans are held to be property of the Depositor, or if for
any reason
this Agreement is held or deemed to create a security interest in
the Mortgage
Loans, then it is intended that, (a) this Agreement shall also be
deemed to be a
security agreement within the meaning of Articles 8 and 9 of the
New York
Uniform Commercial Code and the Uniform Commercial Code of any
other applicable
jurisdiction; (b) the conveyance provided for in this Section shall
be deemed to
be (1) a grant by the Depositor to the Trustee of a security
interest in all of
the Depositor's right (including the power to convey title
thereto), title and
interest, whether now owned or hereafter acquired, in and to (A)
the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related
insurance
policies and all other documents in the related Mortgage Files, (B)
all amounts
payable to the holders of the Mortgage Loans in accordance with the
terms
thereof and (C) all proceeds of the conversion, voluntary or
involuntary, of the
foregoing into cash, instruments, securities or other property,
including
without limitation all amounts from time to time held or invested
in the
Certificate Account or the Custodial Account, whether in the form
of cash,
instruments, securities or other property and (2) an assignment by
the Depositor
to the Trustee of any security interest in any and all of the
Seller's right
(including the power to convey title thereto), title and interest,
whether now
owned or hereafter acquired, in and to the property described in
the foregoing
clauses (1)(A) through (C) granted by [Name of Seller] to the
Depositor pursuant
to the Assignment Agreement; (c) the possession by the Trustee or
its agent of
Mortgage Notes and such other items of property as constitute
instruments,
money, negotiable documents or chattel paper shall be deemed to be
"possession
by the secured party" or possession by a purchaser or a person
designated by
such secured party, for purposes of perfecting the security
interest pursuant to
the New York Uniform Commercial Code and the Uniform Commercial
Code of any
other applicable jurisdiction (including, without limitation,
Sections 9-115,
9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d)
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. The Depositor and the
Trustee
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 Mortgage Loans, 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.
-26-
<PAGE>
SECTION 2.02. Acceptance of the Trust Fund by the Trustee.
The Trustee acknowledges receipt (subject to any exceptions
noted in the Initial Certification described below) of the
documents referred to
in Section 2.01 above and all other assets included in the Trust
Fund and
declares that it holds and will hold such documents and the other
documents
delivered to it constituting the Mortgage Files, and that it holds
or will hold
such other assets included in the Trust Fund (to the extent
delivered or
assigned to the Trustee), 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 to
ascertain that all
documents required to be delivered to it are in its possession, and
the Trustee
agrees to execute and deliver to the Depositor and the Master
Servicer on the
Closing Date an Initial Certification in the form annexed hereto as
Exhibit C to
the effect 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 such certification as not covered by such
certification), (i) all
documents required to be delivered to it pursuant to this Agreement
with respect
to such Mortgage Loan 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
documents, the
information set forth in items (i) - (vi) and (xiii) of the
definition of the
"Mortgage Loan Schedule" accurately reflects information set forth
in the
Mortgage File. Neither the Trustee nor the Master Servicer shall be
under any
duty to determine whether any Mortgage File should include any of
the documents
specified in clause (vi) of Section 2.01. Neither the Trustee nor
the Master
Servicer shall be under any duty or obligation to inspect, review
or examine
said documents, instruments, certificates or other papers to
determine that the
same are genuine, enforceable or appropriate for the represented
purpose or that
they have actually been recorded or that they are other than what
they purport
to be on their face.
Within 90 days of the Closing Date the Trustee shall deliver
to the Depositor and the Master Servicer a Final Certification in
the form
annexed hereto as Exhibit D evidencing the completeness of the
Mortgage Files,
with any applicable exceptions noted thereon.
If in the process of reviewing the Mortgage Files and
preparing 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, the Trustee shall promptly notify the Seller,
the Master
Servicer and the Depositor. The Trustee shall promptly notify the
Seller of such
defect and request that the Seller cure any such defect within 60
days from the
date on which the Seller was notified of such defect, and if the
Seller does not
cure such defect in all material respects during such period,
request that the
Seller purchase such Mortgage Loan from the Trust Fund on behalf of
the
Certificateholders at the Purchase Price within 90 days after the
date on which
the Seller was notified of such defect. It is understood and agreed
that the
obligation of the Seller to cure a material defect in, or purchase
any Mortgage
Loan as to which a material defect in a constituent document exists
shall
constitute the sole remedy respecting such defect available to
Certificateholders or the Trustee on behalf of Certificateholders.
The
-27-
<PAGE>
Purchase Price for the purchased Mortgage Loan shall be deposited
or caused to
be deposited upon receipt by the Master Servicer in the Custodial
Account and,
upon receipt by the Trustee of written notification of such deposit
signed by a
Servicing Officer, the Trustee shall release or cause to be
released to the
Seller the related Mortgage File and shall execute and deliver such
instruments
of transfer or assignment, in each case without recourse, as the
Seller shall
require as necessary to vest in the Seller ownership of any
Mortgage Loan
released pursuant hereto and at such time the Trustee shall have no
further
responsibility with respect to the related Mortgage File.
SECTION 2.03. Representations, Warranties and Covenants of the
Master Servicer and the Depositor.
(a) The Master
Servicer hereby represents and warrants to
and covenants with the Depositor and the Trustee for the benefit
of
Certificateholders that:
(i) The Master
Servicer is, and throughout the term
hereof shall remain, a duly organized, validly existing and in
good
standing under the laws of the State of (except as otherwise
permitted
pursuant to Section 6.02), the Master Servicer is, and shall
remain, in
compliance with the laws of each state in which any Mortgaged
Property
is located to the extent necessary to perform its obligations
under
this
Agreement, and the Master Servicer is, and shall remain,
approved
to sell mortgage loans to and service mortgage loans for Fannie Mae
and
Freddie Mac;
(ii)
The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms
of
this Agreement by the Master Servicer, will not violate the
Master
Servicer's articles of incorporation or bylaws or constitute a
default
(or an event which, with notice or lapse of time, or both,
would
constitute a default) under, or result in the breach of, any
material
agreement or other instrument to which it is a party or which
is
applicable to it or any of its assets;
(iii) The
Master Servicer 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 Depositor and the Trustee, constitutes a
valid,
legal and binding obligation of the Master Servicer,
enforceable
against the Master Servicer in accordance with the terms
hereof,
subject to (A) applicable bankruptcy, insolvency,
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;
-28-
<PAGE>
(v) The Master
Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance
and
compliance with the terms of this Agreement will not constitute
a
violation of, any law, any order or decree of any court or arbiter,
or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation is likely
to
affect materially and adversely either the ability of the
Master
Servicer
to perform its obligations under this Agreement or the
financial condition of the Master Servicer;
(vi)
No litigation is pending or, to the best of the
Master Servicer's knowledge, threatened against the Master
Servicer
which would prohibit its entering into this Agreement or performing
its
obligations under this Agreement or is likely to affect materially
and
adversely either the ability of the Master Servicer to perform
its
obligations under this Agreement or the financial condition of
the
Master Servicer;
(vii) The
Master Servicer will comply in all material
respects in the performance of this Agreement and with all
reasonable
rules and requirements of each insurer under each Insurance Policy;
and
(viii) The
execution of this Agreement and the performance
of the Master Servicer's obligations hereunder do not require
any
license, consent or approval of any state or federal court,
agency,
regulatory authority or other governmental body having
jurisdiction
over the Master Servicer, other than such as have been obtained;
and
(ix) no information, certificate of an officer, statement furnished
in
writing or report delivered to the Depositor, any affiliate of
the
Depositor or the Trustee by the Master Servicer will, to the
knowledge
of the Master Servicer, contain any untrue statement of a material
fact
or omit a material fact necessary to make the information,
certificate,
statement or report not misleading.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.03(a) shall
survive the
execution and delivery of this Agreement, and shall inure to the
benefit of the
Depositor, the Trustee and the Certificateholders. Upon discovery
by the
Depositor, the Trustee or the Master Servicer of a breach of any of
the
foregoing representations, warranties and covenants that materially
and
adversely affects the interests of the Depositor or the Trustee,
the party
discovering such breach shall give prompt written notice to the
other parties.
(b) The
Depositor hereby represents and warrants to the
Master Servicer and the Trustee for the benefit of
Certificateholders that as of
the Closing Date (or, if otherwise specified below, as of the date
so
specified):
(i)
Immediately prior to the assignment of the Mortgage
Loans to the Trustee, the Depositor had good title to, and was the
sole
owner of, each Mortgage Loan free and clear of any pledge,
lien,
encumbrance or security interest (other than rights to servicing
and
related compensation) and such assignment validly transfers
ownership
of the
-29-
<PAGE>
Mortgage Loans to the Trustee free and clear of any pledge,
lien,
encumbrance or security interest;
(ii)
No Mortgage Loan is one month or more delinquent in
payment of principal and interest as of the Cut-off Date and no
Mortgage Loan has been so delinquent more than once in the
12-month
period prior to the Cut- off Date;
(iii) The
information set forth in the Mortgage Loan
Schedule with respect to each Mortgage Loan or the Mortgage Loans,
as
the case may be, is true and correct in all material respects at
the
date or dates respecting which such information is furnished;
(iv)
The Mortgage Loans are fully-amortizing, fixed-rate
mortgage loans with level Monthly Payments due on the first day of
each
month and terms to maturity at origination or modification of not
more
than 30 years;
(v) Each
Mortgage Loan secured by a Mortgaged Property
with a Loan-to-Value Ratio at origination in excess of 80% is
the
subject of a Primary Mortgage Insurance Policy that insures
that
portion of the principal balance thereof that exceeds the amount
equal
to 75% of the appraised value of the related Mortgaged Property.
Each
such Primary Mortgage Insurance Policy is in full force and effect
and
the Trustee is entitled to the benefits thereunder; and
(vi)
The representations and warranties of the Seller with
respect to the Mortgage Loans and the remedies therefor are as
set
forth in the Seller's Warranty Certificate.
[Other representations and warranties as applicable.]
It is understood and agreed that the representations and
warranties set forth in this Section 2.03(b) shall survive delivery
of the
respective Mortgage Files to the Trustee.
Upon discovery by either the Depositor, the Master Servicer or
the Trustee of a breach of any representation or warranty set forth
in this
Section 2.03 which materially and adversely affects the interests
of the
Certificateholders in any Mortgage Loan, the party discovering such
breach shall
give prompt written notice to the other parties.
SECTION 2.04. Representations and Warranties of the Seller;
Repurchase and Substitution.
The Depositor hereby assigns to the Trustee for the benefit of
Certificateholders its interest in respect of the representations
and warranties
made by the Seller in the Seller's Warranty Certificate or the
exhibits thereto.
Insofar as the Seller's Warranty Certificate relates to such
representations and
warranties and any remedies provided thereunder for any breach of
such
representations and warranties, such right, title and interest may
be enforced
by the Trustee on behalf of the Certificateholders. Upon the
discovery by the
Depositor, the Master Servicer or
-30-
<PAGE>
the Trustee of a breach of any of the representations and
warranties made in the
Seller's Warranty Certificate in respect of any Mortgage Loan which
materially
and adversely affects 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 promptly notify the Seller of such
breach and
request that such Seller shall, within 90 days from the date that
the Depositor,
the Seller or the Trustee was notified of such breach, either (i)
cure such
breach in all material respects or (ii) purchase such Mortgage Loan
from the
Trust Fund at the Purchase Price and in the manner set forth in
Section 2.02;
provided that in the case of such breach, the Seller shall have the
option to
substitute a Qualified Substitute Mortgage Loan or Loans for such
Mortgage Loan
if such substitution occurs within two years following the Closing
Date. Any
such substitution must occur within 90 days from the date the
Seller was
notified of the breach if such 90 day period expires before two
years following
the Closing Date. In the event that the Seller elects to substitute
a Qualified
Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan
pursuant to this
Section 2.04, the Seller shall deliver to the Trustee for the
benefit of the
Certificateholders with respect to such Qualified Substitute
Mortgage Loan or
Loans, the original Mortgage Note, the Mortgage, an Assignment of
the Mortgage
in recordable form, and such other documents and agreements as are
required by
Section 2.01, with the Mortgage Note endorsed as required by
Section 2.01. No
substitution will be made in any calendar month after the
Determination Date for
such month. Monthly Payments due with respect to Qualified
Substitute Mortgage
Loans in the month of substitution shall not be part of the Trust
Fund and will
be retained by the Master Servicer and remitted by the Master
Servicer to the
Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to
Certificateholders will include the Monthly Payment due on a
Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to
retain all
amounts received in respect of such Deleted Mortgage Loan. The
Depositor shall
amend or cause to be amended the Mortgage Loan Schedule for the
benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage
Loan and the
substitution of the Qualified Substitute Mortgage Loan or Loans and
the
Depositor shall deliver the amended Mortgage Loan Schedule, to the
Trustee. Upon
such substitution, the Qualified Substitute Mortgage Loan or Loans
shall be
subject to the terms of this Agreement in all respects, the Seller
shall be
deemed to have made the representations and warranties with respect
to the
Qualified Substitute Mortgage Loan contained in the Seller's
Warranty
Certificate as of the date of substitution, and the Depositor shall
be deemed to
have made with respect to any Qualified Substitute Mortgage Loan or
Loans, as of
the date of substitution, the representations and warranties set
forth in
Section 2.03 hereof, and the Seller shall be obligated to
repurchase or
substitute for any Qualified Substitute Mortgage Loan as to which a
repurchase
or substitution obligation has occurred pursuant to Section 3 of
the Seller's
Warranty Certificate.
In connection with the substitution of one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Master
Servicer will determine the amount (if any) by which the aggregate
principal
balance of all such Qualified Substitute Mortgage Loans as of the
date of
substitution is less than the aggregate Stated Principal Balance of
all such
Deleted Mortgage Loans (in each case after application of the
principal portion
of the Monthly
-31-
<PAGE>
Payments due in the month of substitution that are to be
distributed to
Certificateholders in the month of substitution). The Seller shall
provide the
Master Servicer on the day of substitution for immediate deposit in
to the
Custodial Account the amount of such shortfall, without any
reimbursement
therefor. The Seller shall give notice in writing to the Trustee of
such event,
which notice shall be accompanied by an Officers' Certificate as to
the
calculation of such shortfall and by an Opinion of Counsel to the
effect that
such substitution will not cause (a) any federal tax to be imposed
on the Trust
Fund, including without limitation, any federal tax imposed on
"prohibited
transactions" under Section 860F(a)(1) of the Code or on
"contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any
portion of the
Trust Fund to fail to qualify as a REMIC at any time that any
Certificate is
outstanding. The costs of any substitution as described above,
including any
related assignments, opinions or other documentation in connection
therewith
shall be borne by the Seller.
Except as expressly set forth herein neither the Trustee nor
the Master Servicer is under any obligation to discover any breach
of the above
mentioned representations and warranties. It is understood and
agreed that the
obligation of the Seller to cure such breach or to so purchase or
substitute for
any Mortgage Loan as to which such a breach has occurred and is
continuing shall
constitute the sole remedy respecting such breach available to
Certificateholders or the Trustee on behalf of Certificateholders.
In addition,
if the first scheduled Monthly Payment is due during the first
month after its
closing date (as such term is used in the Seller's Warranties
Certificate) and
such Monthly Payment is not received by the Master Servicer within
30 days of
the due date in accordance with the terms of the related Mortgage
Note, the
Master Servicer shall promptly notify the Seller and the Trustee
and the Seller
shall purchase such Mortgage Loan from the Trust Fund at the
Purchase Price or
substitute a Qualified Substitute Mortgage Loan therefor within 15
days from the
date that the Seller was notified.
SECTION 2.05. Issuance of Certificates Evidencing Interests in
the Trust Fund.
The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery of the Mortgage Files to it together with
the assignment
to it of all other assets included in the Trust Fund, receipt of
which is hereby
acknowledged. Concurrently with such delivery and in exchange
therefor, the
Trustee, pursuant to the written request of the Depositor executed
by an officer
of the Depositor, has executed and caused to be authenticated, and
delivered to
or upon the order of the Depositor, the Certificates in authorized
denominations
which evidence ownership of the entire Trust Fund.
SECTION 2.06. Purposes and Powers of the Trust.
The purpose of the common law trust, as created hereunder, is
to engage in the following activities:
(a) acquire
and hold the Mortgage Loans and the other
assets of the Trust Fund and the proceeds therefrom;
-32-
<PAGE>
(b) to issue
the Certificates sold to the Depositor in
exchange for the Mortgage Loans;
(c) to make
payments on the Certificates;
(d) to engage
in those activities that are necessary,
suitable or convenient to accomplish the foregoing or are
incidental thereto or
connected therewith; and
(e) subject to
compliance with this Agreement, to engage
in such other activities as may be required in connection with
conservation of
the Trust Fund and the making of distributions to the
Certificateholders.
The trust is hereby authorized to engage in the foregoing
activities. The Trustee shall not cause the trust to engage in any
activity
other than in connection with the foregoing or other than as
required or
authorized by the terms of this Agreement while any Certificate is
outstanding,
and this Section 2.06 may not be amended, without the consent of
the
Certificateholders evidencing 51% or more of the aggregate Voting
Rights of the
Certificates.
-33-
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Master Servicer to Act as Master Servicer.
The Master Servicer shall service and administer the Mortgage
Loans for the benefit of the Certificateholders, in accordance with
this
Agreement and the customary and usual standards of practice of
prudent
institutional mortgage lenders servicing comparable mortgage loans
for their own
account in the respective states in which the Mortgaged Properties
are located.
Subject to the foregoing, the Master Servicer shall have full power
and
authority, acting alone and/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 that it may deem necessary or
desirable. Without
limiting the generality of the foregoing, the Master Servicer in
its own name or
in the name of a Sub-Servicer is hereby authorized and empowered by
the Trustee
when the Master Servicer believes it appropriate in its best
judgment, to (i)
execute and deliver, on behalf of the Certificateholders and the
Trustee or any
of them, any and all instruments of satisfaction or cancellation,
or of partial
or full release or discharge, and all other comparable instruments,
with respect
to the Mortgage Loans and the Mortgaged Properties, (ii) institute
foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to
convert the
ownership of such properties, and (iii) hold or cause to be held
title to such
properties, on behalf of the Trustee and Certificateholders. The
Master 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. Subject to Section 3.16, the
Trustee shall
furnish to the Master Servicer and any Sub-Servicer any powers of
attorney and
other documents necessary or appropriate to enable the Master
Servicer and any
Sub- Servicer to carry out their servicing and administrative
duties hereunder.
The Trustee shall not be responsible for any action taken by the
Master Servicer
or any Sub-Servicer pursuant to the application of such powers of
attorney. In
accordance with the standards of the preceding paragraph, the
Master Servicer
shall advance or cause to be advanced funds as necessary for the
purpose of
effecting the payment of taxes and assessments on the Mortgaged
Properties,
which advances shall be reimbursable in the first instance from
related
collections from the Mortgagors pursuant to Section 3.09, and
further as
provided in Section 3.11. No costs incurred by the Master Servicer
or by Sub-
Servicers in effecting the payment of taxes and assessments on the
Mortgaged
Properties shall, for the purpose of calculating distributions
to
Certificateholders, be added to the amount owing under the related
Mortgage
Loans, notwithstanding that the terms of such Mortgage Loans so
permit.
The Master Servicer shall not (unless the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in
the judgment of
the Master Servicer, reasonably foreseeable) make or permit any
modification,
waiver or amendment of any term of any Mortgage Loan that would
both (i) effect
an exchange or reissuance of such Mortgage Loan under Section 1001
of the Code
(or final, temporary or proposed Treasury regulations promulgated
thereunder)
and (ii) cause the Trust Fund to fail to qualify as a REMIC under
the
-34-
<PAGE>
Code or the imposition of any tax on "prohibited transactions"
or
"contributions" after the startup date under the REMIC
Provisions.
The Master Servicer may approve a request for a partial
release of the Mortgaged Property, easement, consent to alteration
or demolition
and other similar matters if it has determined, exercising its good
faith
business judgement in the same manner as it would if it were the
owner of the
related Mortgage Loan, that such approval will not adversely affect
the security
for, or the timely and full collectability of, the related Mortgage
Loan. Any
fee collected by the Master Servicer for processing such request
will be
retained by the Master Servicer as additional servicing
compensation.
The relationship of the Master Servicer (and of any successor
to the Master Servicer under this Agreement) to the Trustee under
this Agreement
is intended by the parties to be that of an independent contractor
and not that
of a joint venturer, partner or agent.
SECTION 3.02. Sub-Servicing Agreements Between Master Servicer
and Sub- Servicers.
(a) The Master
Servicer may enter into Sub-Servicing
Agreements with Sub- Servicers for the servicing and administration
of the
Mortgage Loans and for the performance of any and all other
activities of the
Master Servicer hereunder. Each Sub-Servicer shall be either (i) an
institution
the accounts of which are insured by the FDIC or (ii) another
entity that
engages in the business of originating or servicing mortgage loans,
and in
either case shall be authorized to transact business in the state
or states in
which 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, and in
either case
shall be a Freddie Mac or Fannie Mae approved mortgage servicer.
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. With
the consent of
the Trustee, which consent shall not be unreasonably withheld, the
Master
Servicer and the Sub-Servicers may enter into Sub-Servicing
Agreements 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.
(b) As part of
its servicing activities hereunder, the
Master 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 to make
advances in respect of delinquent payments as required by a
Sub-Servicing
Agreement, or to purchase a Mortgage Loan on account of defective
documentation
or on account of a breach of a representation or warranty, as
described in
Section 2.02. 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 Master Servicer, in its good faith
business
-35-
<PAGE>
judgment, would require were it the owner of the related Mortgage
Loans. The
Master Servicer shall pay the costs of such enforcement at its own
expense, but
shall be reimbursed therefor only (i) from a general recovery
resulting from
such enforcement only to the extent, if any, that such recovery
exceeds all
amounts due in respect of the related Mortgage Loans 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 Master 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 Master Servicer without any act or deed on
the part of
such Sub-Servicer or the Master Servicer, and the Master 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.
SECTION 3.04. Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements
between the
Master Servicer and a Sub-Servicer or reference to actions taken
through a
Sub-Servicer or otherwise, the Master Servicer shall remain
obligated and
primarily liable to the Trustee and 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 Master Servicer alone were servicing and administering
the Mortgage
Loans. For purposes of this Agreement, the Master Servicer shall be
deemed to
have received payments on Mortgage Loans when the Sub-Servicer has
received such
payments. The Master Servicer shall be entitled to enter into any
agreement with
a Sub-Servicer for indemnification of the Master 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 and Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a
Sub-Servicer
in its capacity as such and not as an originator shall be deemed to
be between
the Sub-Servicer and the Master Servicer alone, and the Trustee
and
Certificateholders shall not be deemed parties thereto and shall
have no claims,
rights, obligations, duties or liabilities with respect to the
Sub-Servicer
except as set forth in Section 3.06.
-36-
<PAGE>
SECTION 3.06. Assumption or Termination of Sub-Servicing
Agreements by Trustee.
In the event the Master Servicer shall for any reason no
longer be the master servicer (including by reason of an Event of
Default), the
Trustee or its designee shall thereupon assume all of the rights
and obligations
of the Master Servicer under each Sub-Servicing Agreement that the
Master
Servicer may have entered into, unless the Trustee is then
permitted and elects
to terminate any Sub-Servicing Agreement in accordance with its
terms. The
Trustee, its designee or the successor servicer for the Trustee
shall be deemed
to have assumed all of the Master Servicer's interest therein and
to have
replaced the Master Servicer as a party to each Sub-Servicing
Agreement to the
same extent as if the Sub-Servicing Agreements had been assigned to
the assuming
party, except that the Master Servicer shall not thereby be
relieved of any
liability or obligations under the Sub-Servicing Agreements, and
the Master
Servicer shall continue to be entitled to any rights or benefits
which arose
prior to its termination as master servicer.
The Master 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 it and otherwise use
its best
efforts to effect the orderly and efficient transfer of the
Sub-Servicing
Agreements to the assuming party.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Master 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 related Insurance Policy,
follow such
collection procedures as it would follow with respect to mortgage
loans
comparable to the Mortgage Loans and held for its own account. The
Master
Servicer shall not be required to institute or join in litigation
with respect
to collection of any payment (whether under a Mortgage, Mortgage
Note, Primary
Hazard Insurance Policy, Primary Mortgage Insurance Policy or
otherwise or
against any public or governmental authority with respect to a
taking or
condemnation) if it reasonably believes that it is prohibited by
applicable law
from enforcing the provision of the Mortgage or other instrument
pursuant to
which such payment is required. Consistent with the foregoing, the
Master
Servicer may in its discretion waive any prepayment fees, late
payment charge or
other charge, except as otherwise required under applicable law.
The Master
Servicer shall be responsible for preparing and distributing all
information
statements relating to payments on the Mortgage Loans, in
accordance with all
applicable federal and state tax laws and regulations.
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
-37-
<PAGE>
more accounts (collectively, the "Sub-Servicing Account"). The
Sub-Servicing
Account shall be an Eligible Account and shall otherwise be
acceptable to the
Master Servicer. All amounts held in a Sub-Servicing Account shall
be held in
trust for the Trustee for the benefit of the Certificateholders.
The
Sub-Servicer will be required to deposit into the Sub-Servicing
Account no later
than the first Business Day after receipt all proceeds of Mortgage
Loans
received by the Sub-Servicer, less its servicing compensation and
any
unreimbursed expenses and advances, to the extent permitted by the
Sub-Servicing
Agreement. On each Sub-Servicer Remittance Date the Sub-Servicer
will be
required to remit to the Master Servicer for deposit into the
Custodial Account
all funds held in the Sub-Servicing Account with respect to any
Mortgage Loan as
of the Sub-Servicer Remittance Date, after deducting from such
remittance an
amount equal to the servicing compensation and unreimbursed
expenses and
advances to which it is then entitled pursuant to the related Sub-
Servicing
Agreement, to the extent not previously paid to or retained by it.
In addition,
on each Sub-Servicer Remittance Date the Sub-Servicer will be
required to remit
to the Master Servicer any amounts required to be advanced pursuant
to the
related Sub-Servicing Agreement. The Sub-Servicer will also be
required to remit
to the Master Servicer, within one Business Day of receipt, the
proceeds of any
Principal Prepayment made by the Mortgagor and any Insurance
Proceeds or
Liquidation Proceeds.
SECTION 3.09. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.
The Master Servicer and the Sub-Servicers shall establish and
maintain one or more accounts (the "Servicing Accounts"), and shall
deposit and
retain therein all collections from the Mortgagors (or related
advances from
Sub- Servicers) for the payment of taxes, assessments, Primary
Hazard Insurance
Policy premiums, and comparable items for the account of the
Mortgagors, to the
extent that the Master Servicer customarily escrows for such
amounts.
Withdrawals of amounts so collected from a Servicing Account may be
made only to
(i) effect payment of taxes, assessments, Primary Hazard Insurance
Policy
premiums and comparable items; (ii) reimburse the Master Servicer
(or a
Sub-Servicer to the extent provided in the related Sub-Servicing
Agreement) out
of related collections for any payments made pursuant to Sections
3.01 (with
respect to taxes and assessments) and 3.13 (with respect to Primary
Hazard
Insurance Policies); (iii) refund to Mortgagors any sums as may be
determined to
be overages; or (iv) clear and terminate the Servicing Account at
the
termination of this Agreement pursuant to Section 9.01. As part of
its servicing
duties, the Master Servicer or Sub-Servicers shall, if and to the
extent
required by law, pay to the Mortgagors interest on funds in
Servicing Accounts
from its or their own funds, without any reimbursement
therefor.
SECTION 3.10. Custodial Account.
(a) The Master
Servicer shall establish and maintain one
or more accounts (collectively, the "Custodial Account") in which
the Master
Servicer shall deposit or cause to be deposited no later than the
first Business
Day after receipt or as and when received from the Sub-Servicers,
the following
payments and collections received or made by or on behalf of it
subsequent to
the Cut-off Date, or received by it prior to the Cut-off Date but
allocable to a
-38-
<PAGE>
period subsequent thereto (other than in respect of principal and
interest on
the Mortgage Loans due on or before the Cut-off Date):
(i) all
payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(ii)
all payments on account of interest on the Mortgage
Loans, not including any portion thereof representing interest
on
account of the related Servicing Fee Rate;
(iii) all
Insurance Proceeds, other than proceeds that
represent reimbursement of costs and expenses incurred by the
Master
Servicer in connection with presenting claims under the related
Insurance Policies, Liquidation Proceeds and REO Proceeds;
(iv)
all proceeds of any Mortgage Loan or REO Property
repurchased or purchased in accordance with Sections 2.02, 2.04 or
9.01
and all amounts required to be deposited in connection with the
substitution of a Qualified Substitute Mortgage Loan pursuant
to
Section 2.04;
(v) any
amounts required to be deposited in the Custodial
Account pursuant to Section 3.12, 3.13 or 3.22; and
(vi)
all amounts transferred from the Certificate Account
to the Custodial Account in accordance with Sections 4.01(b).
For purposes of the immediately preceding sentence, the
Cut-off Date with respect to any Qualified Substitute Mortgage Loan
shall be
deemed to be the date of substitution.
The foregoing requirements for deposit in the Custodial Account
shall be
exclusive. In the event the Master Servicer shall deposit in the
Custodial
Account any amount not required to be deposited therein, it may
withdraw such
amount from the Custodial Account, any provision herein to the
contrary
notwithstanding. The Custodial Account shall be maintained as a
segregated
account, separate and apart from trust funds created for mortgage
pass-through
certificates of other series, and the other accounts of the Master
Servicer.
(b) Funds in
the Custodial Account may be invested in
Permitted Instruments in accordance with the provisions set forth
in Section
3.12. The Master Servicer shall give notice to the Trustee and the
Depositor of
the location of the Custodial Account after any change thereof.
(c) Payments
in the nature of late payment charges,
prepayment fees, assumption fees and reconveyance fees received on
the Mortgage
Loans shall not be deposited in the Custodial Account, but rather
shall be
received and held by the Master Servicer as additional servicing
compensation.
-39-
<PAGE>
SECTION 3.11. Permitted Withdrawals From the Custodial
Account.
The Master Servicer may, from time to time as provided herein,
make withdrawals from the Custodial Account of amounts on deposit
therein
pursuant to Section 3.10 that are attributable to the Mortgage
Loans for the
following purposes:
(i) to make
deposits into the Certificate Account in the
amounts and in the manner provided for in Section 4.01, such
deposit to
include interest collections on the Mortgage Loans at the Net
Mortgage
Rate [and net of amounts reimbursed therefrom];
(ii)
to pay to itself, the Depositor, the Seller or any
other appropriate person, as the case may be, with respect to
each
Mortgage Loan that has previously been purchased, repurchased
or
replaced pursuant to Sections 2.02, 2.04 or 9.01 all amounts
received
thereon and not yet distributed as of the date of purchase,
repurchase
or substitution;
(iii) to
reimburse itself or any Sub-Servicer for Advances
not previously reimbursed, the Master Servicer's or any
Sub-Servicer's
right to reimbursement pursuant to this clause (iii) being limited
to
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 and as further provided in Section
3.15;
(iv)
to reimburse or pay itself, the Trustee or the
Depositor for expenses incurred by or reimbursable to the
Master
Servicer, the Trustee or the Depositor pursuant to Sections 3.22,
6.03,
8.05, 10.01(c) or 10.01(g), except as otherwise provided in
such
Sections;
(v) to
reimburse itself or any Sub-Servicer for costs and
expenses incurred by or reimbursable to it relating to the
prosecution
of any claims pursuant to Section 3.13 that are in excess of
the
amounts so recovered;
(vi)
to reimburse itself or any Sub-Servicer for unpaid
Servicing Fees and unreimbursed Servicing Advances, the Master
Servicer's or any Sub-Servicer's right to reimbursement pursuant
to
this clause (vi) with respect to any Mortgage Loan being limited
to
late recoveries
of the payments for which such advances were made
pursuant to Section 3.01 or Section 3.09 and any other related
Late
Collections;
(vii) to
pay itself as servicing compensation (in addition
to the Servicing Fee),
on or after each Distribution Date, any interest
or investment income earned on funds deposited in the Custodial
Account
for the period ending on such Distribution Date, subject to
Section
8.05;
(viii) to
reimburse itself or any Sub-Servicer for any
Advance previously made which itself has determined to be a
Nonrecoverable Advance, provided that either (a) such Advance was
made
with respect to a delinquency that ultimately constituted an
-40-
<PAGE>
Excess Special Hazard Loss, Excess Fraud Loss, Excess Bankruptcy
Loss
or Extraordinary Loss, or (b) the Certificate Principal Balances of
the
Class B Certificates have been reduced to zero; and
(ix)
to clear and terminate the Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate
accounting records on a Mortgage Loan by Mortgage Loan basis, for
the purpose of
justifying any withdrawal from the Custodial Account pursuant to
such clauses
(ii), (iii), (iv), (v), (vi), (vii) and (viii). Reconciliations
will be prepared
by the Master Servicer for the related Collection Account within 30
calendar
days after the bank statement cut-off date. All items requiring
reconciliation
will be resolved within 90 calendar days of their original
identification.
In connection with clause (viii) above, the Trustee shall
notify the Master Servicer if and when the Certificate Principal
Balances of the
Class B Certificates have been reduced to zero.
SECTION 3.12. Permitted Instruments.
Any institution maintaining the Custodial Account shall at the
direction of the Master Servicer invest the funds in such account
in Permitted
Instruments, each of which shall mature not later than the Business
Day
immediately preceding the Distribution Date next following the date
of such
investment (except that if such Permitted Instrument is an
obligation of the
institution that maintains such account, then such Permitted
Instrument shall
mature not later than such Distribution Date) and shall not be sold
or disposed
of prior to its maturity. All income and gain realized from any
such investment
as well as any interest earned on deposits in the Custodial Account
shall be for
the benefit of the Master Servicer. The Master Servicer shall
deposit in the
Custodial Account (with respect to investments made hereunder of
funds held
therein) an amount equal to the amount of any loss incurred in
respect of any
such investment immediately upon realization of such loss without
right of
reimbursement.
SECTION 3.13. Maintenance of Primary Mortgage Insurance and
Primary Hazard Insurance.
(a) The Master
Servicer shall not take, or permit any
Sub-Servicer to take, any action which would result in non-coverage
under any
applicable Primary Mortgage Insurance Policy of any loss which, but
for the
actions of the Master Servicer or Sub-Servicer, would have been
covered
thereunder. To the extent coverage is available, the Master
Servicer shall keep
or cause to be kept in full force and effect each such Primary
Mortgage
Insurance Policy until the principal balance of the related
Mortgage Loan
secured by a Mortgaged Property is reduced to 75% or less of the
Collateral
Value in the case of such a Mortgage Loan having a Loan-to-Value
Ratio at
origination in excess of 80%. The Master Servicer shall not cancel
or refuse to
renew any such Primary Mortgage Insurance Policy, or consent to any
Sub-Servicer
canceling or
-41-
<PAGE>
refusing to renew any such Primary Mortgage Insurance Policy
applicable to a
Mortgage Loan subserviced by it, that is in effect at the date of
the initial
issuance of the Certificates and is required to be kept in force
hereunder
unless the replacement Primary Mortgage Insurance Policy for such
canceled or
non-renewed policy is maintained with a Qualified Insurer.
(b) In
connection with its activities as administrator
and servicer of the Mortgage Loans, the Master Servicer agrees to
present or to
cause the related Sub-Servicer to present, on behalf of the Master
Servicer, the
Sub-Servicer, if any, the Trustee and Certificateholders, claims to
the insurer
under any Primary Mortgage Insurance Policies, in a timely manner
in accordance
with such policies, and, in this regard, to take or cause to be
taken such
reasonable action as shall be necessary to permit recovery under
any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to
Section 3. 10, any Insurance Proceeds collected by or remitted to
the Master
Servicer under any Primary Mortgage Insurance Policies shall be
deposited in the
Custodial Account, subject to withdrawal pursuant to Section
3.11.
(c) The Master
Servicer shall cause to be maintained for
each Mortgage Loan primary hazard insurance with extended coverage
on the
related Mortgaged Property in an amount equal to the lesser of 100%
of the
replacement value of the improvements, as determined by the
insurance company,
on such Mortgaged Property or the unpaid principal balance of the
Mortgage Loan.
The Master Servicer shall also cause to be maintained on property
acquired upon
foreclosure, or deed in lieu of foreclosure, of any Mortgage Loan,
fire
insurance with extended coverage in an amount equal to the
replacement value of
the improvements thereon. Pursuant to Section 3.10, any amounts
collected by the
Master Servicer under any such policies (other than amounts to be
applied to the
restoration or repair of the related Mortgaged Property or property
thus
acquired or amounts released to the Mortgagor in accordance with
the Master
Servicer's normal servicing procedures) shall be deposited in the
Custodial
Account, subject to withdrawal pursuant to Section 3.11. Any cost
incurred by
the Master Servicer in maintaining any such insurance shall not,
for the purpose
of calculating monthly distributions to Certificateholders, be
added to the
amount owing under the Mortgage Loan, notwithstanding that the
terms of the
Mortgage Loan so permit. It is understood and agreed that no
earthquake or other
additional insurance is to be required of any Mortgagor or
maintained on
property acquired in respect of a Mortgage Loan other than pursuant
to such
applicable laws and regulations as shall at any time be in force
and as shall
require such additional insurance. When the improvements securing a
Mortgage
Loan are located at the time of origination of such Mortgage Loan
in a federally
designated special flood hazard area, the Master Servicer shall
cause flood
insurance (to the extent available) to be maintained in respect
thereof. Such
flood insurance shall be in an amount equal to the lesser of (i)
the replacement
value of the improvements, which are part of such Mortgaged
Property on a
replacement cost basis 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).
-42-
<PAGE>
In the event that the Master Servicer shall obtain and
maintain a blanket fire insurance policy with extended coverage
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 3.13, it being understood and agreed that such policy may
contain a
deductible clause, in which case the Master Servicer shall, in the
event that
there shall not have been maintained on the related Mortgaged
Property a policy
complying with the first two sentences of this Section 3.13 and
there shall have
been a loss which would have been covered by such policy, deposit
in the
Certificate Account the amount not otherwise payable under the
blanket policy
because of such deductible clause. Any such deposit by the Master
Servicer shall
be made on the Certificate Account Deposit Date next preceding the
Distribution
Date which occurs in the month following the month in which
payments under any
such policy would have been deposited in the Custodial Account. In
connection
with its activities as administrator and servicer of the Mortgage
Loans, the
Master Servicer agrees to present, on behalf of itself, the Trustee
and
Certificateholders, claims under any such blanket policy.
SECTION 3.14. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
The Master Servicer will, to the extent it has knowledge of
any conveyance or prospective conveyance by any Mortgagor of the
Mortgaged
Property (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 or the
Mortgage), exercise or cause to be exercised its rights to
accelerate the
maturity of such Mortgage Loan under any "due-on-sale" clause
applicable
thereto; provided, however, that the Master Servicer shall not
exercise any such
rights if it reasonably believes that it is prohibited by law from
doing so or
if such enforcement will adversely affect or jeopardize required
coverage under
the Insurance Policies. If the Master Servicer is unable to enforce
such "due-
on-sale" clause (as provided in the previous sentence) or if no
"due-on-sale"
clause is applicable, the Master Servicer or the Sub-Servicer will
enter into an
assumption and modification agreement 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;
provided, however,
that the Master Servicer shall not enter into any assumption and
modification
agreement if the coverage provided under the Primary Insurance
Policy, if any,
would be impaired by doing so. The Master 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, if the
Master
Servicer shall have determined in good faith that such substitution
will not
adversely affect the collectability of the Mortgage Loan. Any fee
collected by
or on behalf of the Master Servicer for entering into an assumption
or
substitution of liability agreement will be retained by or on
behalf of the
Master Servicer as additional servicing compensation. In connection
with any
such assumption, no material term of the Mortgage Note (including
but not
limited to the Mortgage Rate, the amount of the Monthly Payment and
any other
term affecting the amount or timing of payment on the Mortgage
Loan) may be
changed. The Master Servicer shall not enter into any substitution
or assumption
if such substitution or
-43-
<PAGE>
assumption would constitute a "significant modification" effecting
an exchange
or reissuance of such Mortgage Loan under the Code (or final,
temporary or
proposed Treasury regulations promulgated thereunder) and cause the
Trust Fund
to fail to qualify as a REMIC under the Code or the imposition of
any tax on
"prohibited transactions" or "contributions" after the Startup Day
under the
REMIC Provisions. The Master Servicer shall notify the Trustee that
any such
substitution or assumption agreement has been completed by
forwarding to the
Trustee the original copy of such substitution or assumption
agreement, which
copy shall be added to the related Mortgage File and shall, for all
purposes, be
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 Master 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 any assumption
that the
Master Servicer may be restricted by law from preventing, for any
reason
whatsoever. For purposes of this Section 3.14, the term
"assumption" is deemed
to also include a sale of a Mortgaged Property that is not
accompanied by an
assumption or substitution of liability agreement.
SECTION 3.15. Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall exercise reasonable efforts,
consistent with the procedures that the Master Servicer would use
in servicing
loans for its own account, to foreclose upon or otherwise
comparably convert
(which may include an REO Acquisition) 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, and which are not released from the Trust
Fund
pursuant to any other provision hereof. The Master Servicer shall
use reasonable
efforts to realize upon such defaulted Mortgage Loans in such
manner as will
maximize the receipt of principal and interest by
Certificateholders, taking
into account, among other things, the timing of foreclosure
proceedings. The
foregoing is subject to the provisions that, in any case in which
Mortgaged
Property shall have suffered damage from an Uninsured Cause, the
Master Servicer
shall not be required to expend its own funds toward the
restoration of such
property unless it shall determine in (i) that such restoration
will increase
the net proceeds of liquidation of the related Mortgage Loan to
Certificateholders after reimbursement to itself for such expenses,
and (ii)
that such expenses will be recoverable by the Master Servicer
through Insurance
Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as
contemplated in Section 3.11. The Master Servicer shall be
responsible for all
other costs and expenses incurred by it in any such proceedings;
provided,
however, that it shall be entitled to reimbursement thereof from
the related
Mortgaged Property, as contemplated in Section 3.11.
The proceeds of any Cash Liquidation or REO Disposition, as
well as any recovery resulting from a partial collection of
Insurance Proceeds
or Liquidation Proceeds or any income from an REO Property, will be
applied in
the following order of priority: first, to reimburse the Master
Servicer or any
Sub- Servicer for any related unreimbursed Servicing
-44-
<PAGE>
Advances, pursuant to Section 3.11 (vi) or 3.22; second, to accrued
and unpaid
interest on the Mortgage Loan or REO Imputed Interest, at the
Mortgage Rate, to
the date of the Cash Liquidation or REO Disposition, or to the Due
Date prior to
the Distribution Date on which such amounts are to be distributed
if not in
connection with a Cash Liquidation or REO Disposition; and third,
as a recovery
of principal of the Mortgage Loan. If the amount of the recovery so
allocated to
interest is less than a full recovery thereof, that amount will be
allocated as
follows: first, on a pro rata basis, to unpaid Servicing Fees; and
second, to
interest at the related Net Mortgage Rate. The portion of the
recovery so
allocated to unpaid Servicing Fees shall be reimbursed to the
Master Servicer or
any Sub-Servicer pursuant to Section 3.11(vi). The portions of the
recovery so
allocated to interest at the related Net Mortgage Rate and to
principal of the
Mortgage Loan shall be applied as follows: first, to reimburse the
Trustee for
any unpaid Trustee's Fees, second, to reimburse the Master Servicer
or any
Sub-Servicer for any related unreimbursed Advances in accordance
with Section 3.
1 31 (iii) or 3.22, and third, for distribution in accordance with
the
provisions of Section 4.01(b) and 4.01(c).
SECTION 3.16. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt
by the Master Servicer of a notification that payment in full shall
be escrowed
in a manner customary for such purposes, the Master Servicer will
immediately
notify the Trustee by a certification (which certification shall
include a
statement to the effect that all amounts received or to be received
in
connection with such payment 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 in the
form of the Request for Release attached hereto as Exhibit F-2.
Upon receipt of
such certification and request, the Trustee shall promptly release
the related
Mortgage File to the Master Servicer. Subject to the receipt by the
Master
Servicer of the proceeds of such payment in full and the payment of
all related
fees and expenses, the Master Servicer shall arrange for the
release to the
Mortgagor of the original cancelled Mortgage Note. The Master
Servicer shall
provide for preparation of the appropriate instrument of
satisfaction covering
any Mortgage Loan which pays in full and the Trustee shall
cooperate in the
execution and return of such instrument to provide for its delivery
or recording
as may be required. All other documents in the Mortgage File shall
be retained
by the Master Servicer to the extent required by applicable law. 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.
From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose,
collection under
the Insurance Policies or any other insurance policy relating to
the Mortgage
Loan, the Trustee shall, upon request of the Master Servicer and
delivery to the
Trustee of a Request for Release in the form attached hereto as
Exhibit F-1,
release the related Mortgage File to the Master Servicer, and the
Trustee shall
execute such documents as the Master Servicer shall prepare and
request as being
necessary to the prosecution of any such proceedings. Such Request
for Release
shall obligate the Master Servicer to return each document
previously requested
from the Mortgage File to the Trustee
-45-
<PAGE>
when the need therefor by the Master Servicer no longer exists,
unless the
Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the
Mortgage Loan have been deposited in the Custodial Account or 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 Master Servicer has
delivered to
the Trustee a certificate of a Servicing Officer certifying as to
the name and
address of the Person to which such Mortgage File or such document
was delivered
and the purpose or purposes of such delivery. Upon receipt of a
certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated
and that all
amounts received or to be received in connection with such
liquidation which are
required to be deposited into the Custodial Account have been or
will be so
deposited, or that such Mortgage Loan has become an REO Property,
the servicing
receipt shall be released by the Trustee to the Master
Servicer.
Upon written request of a Servicing Officer, the Trustee shall
execute and deliver to the Master Servicer any court pleadings,
requests for
trustee's sale or other documents prepared by the Master Servicer
that are
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 request that
such
pleadings or documents be executed by the Trustee shall include a
certification
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 3.17. Servicing Compensation.
As compensation for its activities hereunder, the Master
Servicer shall be entitled to retain, from deposits to the
Custodial Account of
amounts representing payments or recoveries of interest, the
Servicing Fees with
respect to each Mortgage Loan (less any portion of such amounts
retained by any
Sub-Servicer). In addition, the Master Servicer shall be entitled
to recover
unpaid Servicing Fees out of related Late Collections to the extent
permitted in
Section 3.11.
The Master Servicer also shall be entitled pursuant to Section
3.11 to receive from the Custodial Account, as additional servicing
compensation
interest or other income earned on deposits therein, as well as any
prepayment
fees, assumption fees, late payment fees and reconveyance fees. The
Master
Servicer shall be required to pay all expenses incurred by it in
connection with
its servicing activities hereunder (including payment of the
premiums for any
Primary Mortgage Insurance Policy or blanket policy insuring
against hazard
losses pursuant to Section 3.13, payment of the servicing
compensation of the
Sub-Servicer to the extent not retained by it), and shall not be
entitled to
reimbursement therefor except as specifically pro vided in Section
3.11. The
Servicing Fee may not be transferred in whole or in part except
in
-46-
<PAGE>
connection with the transfer of all of the Master Servicer's
responsibilities
and obligations under this Agreement.
SECTION 3.18. Maintenance of Certain Servicing Policies.
During the term of its service as Master Servicer, the Master
Servicer shall maintain in force (i) a policy or policies of
insurance covering
errors and omissions in the performance of its obligations as
servicer hereunder
and (ii) a fidelity bond in respect of its officers, employees or
agents. Each
such policy or policies and bond shall, together, comply with the
requirements
from time to time of Fannie Mae or Freddie Mac for persons
performing servicing
for mortgage loans purchased by such corporation. The Master
Servicer shall
prepare and present, on behalf of itself, the Trustee and
Certificateholders,
claims under any such errors and omissions policy or policies or
fidelity bond
in a timely fashion in accordance with the terms of such policy or
bond, and
upon the filing of any claim on any policy or bond described in
this Section,
the Master Servicer shall promptly notify the Trustee of any such
claims and the
Trustee shall notify the Rating Agency of such claim.
SECTION 3.19. Annual Statement as to Compliance.
Not later than February 28 of each calendar year beginning in
2007, the Master Servicer shall deliver to the Depositor and the
Trustee an
Officer's Certificate (an "Annual Statement of Compliance")
stating, as to the
signer thereof, that (i) a review of the activities of such
Servicer during the
preceding calendar year and of the performance of the Master
Servicer under this
Agreement or other applicable servicing agreement has been made
under such
officer's supervision, and (ii) to the best of such officer's
knowledge, based
on such review, the Master Servicer has fulfilled all its
obligations under this
Agreement or other applicable servicing agreement in all material
respects
throughout such year, or, if there has been a failure to fulfill
any such
obligation in any material respect, specifying each such failure
known to such
officer and the nature and status of cure provisions thereof. Such
Annual
Statement of Compliance shall contain no restrictions or
limitations on its use.
In the event that the Master Servicer has delegated any
servicing
responsibilities with respect to the Mortgage Loans serviced by it
to a
Subservicer, the Master Servicer shall deliver an officer's
certificate of the
Subservicer as described above as to each Subservicer as and when
required with
respect to the Master Servicer.
If the Master Servicer cannot deliver the related Annual
Statement of Compliance by February 28th of such year, the Trustee,
at its sole
option, may permit a cure period for the Master Servicer to deliver
such Annual
Statement of Compliance, but in no event later than March 10th of
such year.
Failure of the Master Servicer to timely comply with this
Section 3.19 shall be deemed an Event of Default, automatically,
without notice
and without any cure period, and the Trustee may, in addition to
whatever rights
the Trustee may have under this Agreement and at law or equity or
to damages,
including injunctive relief and specific performance, terminate
all
-47-
<PAGE>
the rights and obligations of the Master Servicer under this
Agreement and in
and to the Mortgage Loans serviced by it and the proceeds thereof
without
compensating the Master Servicer for the same. This paragraph shall
supercede
any other provision in this Agreement or any other agreement to the
contrary.
SECTION 3.20. Assessments of Compliance and Attestation
Reports.
On and after January 1, 2006, the Master Servicer shall
service and administer the related Mortgage Loans in accordance
with all
applicable requirements of the Servicing Criteria. The Master
Servicer shall
deliver to the Trustee and the Depositor on or before February 28
of each
calendar year beginning in 2007, a report (an "Assessment of
Compliance")
reasonably satisfactory to the Trustee regarding the Master
Servicer's
assessment of compliance with the Servicing Criteria during the
preceding
calendar year as required by Rules 13a-18 and 15d-18 of the
Exchange Act and
Item 1122 of Regulation AB, which as of the date hereof, require a
report by an
authorized officer of the related Servicer that contains the
following:
(a) A
statement by such officer of its responsibility for
assessing compliance with the Servicing Criteria applicable to the
Master
Servicer;
(b) A
statement by such officer that such officer used
the Servicing Criteria to assess compliance with the Servicing
Criteria
applicable to the Master Servicer;
(c) An
assessment by such officer of the Master
Servicer's compliance with the applicable Servicing Criteria for
the period
consisting of the preceding calendar year, including disclosure of
any material
instance of noncompliance with respect thereto during such period,
which
assessment shall be based on the activities it performs with
respect to
asset-backed securities transactions taken as a whole involving the
Master
Servicer, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm
has issued an attestation report on the Master Servicer's
Assessment of
Compliance for the period consisting of the preceding calendar
year; and
(e) A
statement as to which of the Servicing Criteria, if
any, are not applicable to the Master Servicer, which statement
shall be based
on the activities it performs with respect to asset-backed
securities
transactions taken as a whole involving the Master Servicer, that
are backed by
the same asset type as the Mortgage Loans.
Such report at a minimum shall address each of the Servicing
Criteria specified on a certification substantially in the form of
Exhibit CC
hereto delivered to the Trustee and the Depositor concurrently with
the
execution of this Agreement.
On or before February 28 of each calendar year beginning in
2007, the Master Servicer shall furnish to the Trustee and the
Depositor a
report (an "Attestation Report") by a registered public accounting
firm that
attests to, and reports on, the Assessment of Compliance
-48-
<PAGE>
made by the Master Servicer, as required by Rules 13a-18 and 15d-18
of the
Exchange Act and Item 1122(b) of Regulation AB, which Attestation
Report must be
made in accordance with standards for attestation reports issued or
adopted by
the Public Company Accounting Oversight Board.
The Master Servicer shall cause any subservicer, and each
subcontractor determined by the Master Servicer to be
"participating in the
servicing function" within the meaning of Item 1122 of Regulation
AB, to deliver
to the Trustee and the Depositor an assessment of compliance and
accountants'
attestation.
If the Master Servicer cannot deliver the related Assessment
of Compliance or Attestation Report by February 28th of such year,
the Trustee,
at its sole option, may permit a cure period for the Master
Servicer to deliver
such Assessment of Compliance or Attestation Report, but in no
event later than
March 10th of such year.
The Trustee shall also provide an Assessment of Compliance and
Attestation Report, as and when provided above, which shall at a
minimum address
each of the Servicing Criteria specified on Exhibit N hereto which
are indicated
as applicable to the "trustee" or "securities administrator." In
addition, the
Trustee shall cause the Custodian to deliver to the Trustee and the
Depositor an
Assessment of Compliance and Attestation Report, as and when
provided above,
which shall at a minimum address each of the Servicing Criteria
specified on
Exhibit N hereto which are indicated as applicable to a
"custodian."
Notwithstanding the foregoing, as to any Custodian, an Assessment
of Compliance
is not required to be delivered unless it is required as part of a
Form 10-K
with respect to the Trust Fund.
Failure of the Master Servicer to timely comply with this
Section 3.20 shall be deemed an Event of Default, automatically,
without notice
and without any cure period, and the Trustee may, in addition to
whatever rights
the Trustee may have under this Agreement and at law or equity or
to damages,
including injunctive relief and specific performance, terminate all
the rights
and obligations of the Master Servicer under this Agreement and in
and to the
Mortgage Loans serviced by it and the proceeds thereof without
compensating the
Master Servicer for the same. This paragraph shall supercede any
other provision
in this Agreement or any other agreement to the contrary.
SECTION 3.21. Access to Certain Documentation.
(a) The Master
Servicer shall provide to the OTS, the
FDIC and other federal banking regulatory agencies, and their
respective
examiners, access to the documentation regarding the Mortgage Loans
required by
applicable regulations of the OTS, the FDIC and such other
agencies. Such access
shall be afforded without charge, but only upon reasonable and
prior written
request and during normal business hours at the offices of the
Master Servicer
designated by it. Nothing in this Section shall derogate from the
obligation of
the Master Servicer to observe any applicable law prohibiting
disclosure of
information regarding the Mortgagors and
-49-
<PAGE>
the failure of the Master Servicer to provide access as provided in
this Section
as a result of such obligation shall not constitute a breach of
this section.
(b) The Master
Servicer shall afford the Depositor and
the Trustee, upon reasonable notice, during normal business hours
access to all
records maintained by the Master Servicer in respect of its rights
and
obligations hereunder and access to officers of the Master Servicer
responsible
for such obligations. Upon request, the Master Servicer shall
furnish the
Depositor and the Trustee with its most recent financial statements
and such
other information as the Master Servicer possesses regarding its
business,
affairs, property and condition, financial or otherwise to the
extent related to
the servicing of the Mortgage Loans. Payments on the Mortgage
Loans, including
any Payoffs, made in accordance with the related Mortgage File will
be entered
into the Master Servicer's set of records no more than two Business
Days after
receipt, and allocated to principal or interest as specified in the
related
Mortgage File. The Depositor may, but is not obligated to, enforce
the
obligations of the Master Servicer hereunder and may, but is not
obligated to,
perform, or cause a designee to perform, any defaulted obligation
of the Master
Servicer hereunder or exercise the rights of the Master Servicer
hereunder;
provided that the Master Servicer shall not be relieved of any of
its
obligations hereunder 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 Master Servicer and is not
obligated to
supervise the performance of the Master Servicer under this
Agreement or
otherwise.
SECTION 3.22. Title, Conservation and Disposition of REO
Property.
This Section shall apply only to REO Properties acquired for
the account of the Trust Fund, and shall not apply to any REO
Property relating
to a Mortgage Loan which was purchased or repurchased from the
Trust Fund
pursuant to any provision hereof. In the event that title to any
such REO
Property is acquired, the deed or certificate of sale shall be
issued to the
Trustee, or to its nominee, on behalf of the Certificateholders.
The Master
Servicer, on behalf of the Trust Fund, shall either sell any REO
Property within
two years after the Trust Fund acquires ownership of such REO
Property for
purposes of Section 86OG(a)(8) of the Code or, at the expense of
the Trust Fund,
request an extension of the two-year grace period, more than 60
days before the
day on which the two-year grace period would otherwise expire,
unless the Master
Servicer has delivered to the Trustee an Opinion of Counsel,
addressed to the
Trustee and the Master Servicer, to the effect that the holding by
the Trust
Fund of such REO Property subsequent to two years after its
acquisition will not
result in the imposition on the Trust Fund of taxes on "prohibited
transactions"
thereof, as defined in Section 86OF of the Code, or cause the Trust
Fund to fail
to qualify as a REMIC under federal law at any time that any
Certificates are
outstanding. The Master 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
86OG(a)(8) or result in the receipt by the Trust Fund of any
"income from non-
permitted assets" within the meaning of Section 86OF(a)(2)(B) of
the Code or any
"net income from foreclosure property" which is subject to taxation
under the
REMIC
-50-
<PAGE>
Provisions. Pursuant to its efforts to sell such REO Property, the
Master
Servicer shall either itself or through an agent selected by the
Master Servicer
protect and conserve such REO Property in the same manner and to
such extent as
is customary in the locality where such REO Property is located and
may,
incident to its conservation and protection of the interests of
the
Certificateholders, rent the same, or any part thereof, as the
Master Servicer
deems to be in the best interest of the Certificateholders for the
period prior
to the sale of such REO Property.
The Master 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. The
Master Servicer
shall deposit, or cause to be deposited, on a daily basis in the
Custodial
Account all revenues received with respect to the REO Properties,
net of any
directly related expenses incurred or withdraw therefrom funds
necessary for the
proper operation, management and maintenance of the REO
Property.
If as of the date of acquisition of title to any REO Property
there remain outstanding unreimbursed Servicing Advances with
respect to such
REO Property or any outstanding Advances allocated thereto the
Master Servicer,
upon an REO Disposition, shall be entitled to reimbursement for any
related
unreimbursed Servicing Advances and any unreimbursed related
Advances as well as
any unpaid Servicing Fees from proceeds received in connection with
the REO
Disposition, as further provided in Section 3.15.
Subject to the first paragraph of this Section 3.22, the REO
Disposition shall be carried out by the Master Servicer at such
price and upon
such terms and conditions as the Master Servicer shall determine to
be in the
best economic interest of the Trust Fund.
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).
The Master Servicer shall deposit the proceeds from the REO
Disposition, net of any payment to the Master Servicer as provided
above, in the
Custodial Account upon receipt thereof for distribution in
accordance with
Section 4.01, including any such net proceeds which are in excess
of the
applicable Stated Principal Balance plus all unpaid REO Imputed
Interest thereon
through the date of the REO Disposition.
Notwithstanding the foregoing provisions of this Section 3.22,
with respect to any Mortgage Loan as to which the Master Servicer
has received
notice of, or has actual knowledge of, the presence of any toxic or
hazardous
substance on the Mortgaged Property, the Master Servicer shall
promptly request
the Trustee and the Depositor to provide directions and
instructions with
respect to such Mortgage Loan and shall act in accordance with any
such
directions and instructions jointly provided by the Trustee and the
Depositor.
Notwithstanding the preceding sentence of this Section 3.22, with
respect to any
Mortgage Loan described by such sentence, the Master Servicer shall
not, on
behalf of the Trustee, either (i) obtain title to the related
Mortgaged Property
as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire
possession of, the related Mortgaged Property, unless (i) the
Depositor and the
Trustee
-51-
<PAGE>
jointly direct the Master Servicer to take such action and (ii)
either (A) the
Master Servicer has, at least 30 days prior to taking such action,
obtained and
delivered to the Depositor an environmental audit report prepared
by a Person
who regularly conducts environmental audits using customary
industry standards
or (B) the Depositor has directed the Master Servicer not to obtain
an
environmental audit report. If the Trustee and the Depositor have
not jointly
provided directions and instructions to the Master Servicer in
connection with
any such Mortgage Loan within 30 days of a request by the Master
Servicer for
such directions and instructions, then the Master Servicer shall
take such
action as it deems to be in the best economic interest of the Trust
Fund (other
than proceeding against the Mortgaged Property) and is hereby
authorized at such
time as it deems appropriate to release such Mortgaged Property
from the lien of
the related Mortgage.
The cost of the environmental audit report contemplated by
this Section 3.22 shall be advanced by the Master Servicer as an
expense of the
Trust Fund, and the Master Servicer shall be reimbursed therefor
from the
Custodial Account as 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.
If the Master 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 in 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 Master Servicer shall take such action as it deems to be in the
best
economic interest of the Trust Fund. The cost of any such
compliance,
containment, clean-up or remediation shall be advanced by the
Master Servicer as
an expense of the Trust Fund, and the Master Servicer shall be
entitled to be
reimbursed therefor from the Custodial Account as 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.
SECTION 3.23. Additional Obligations of the Master Servicer.
On each Certificate Account Deposit Date, the Master Servicer
shall deliver to the Trustee for deposit in the Certificate Account
from its own
funds and without any right of reimbursement therefor, a total
amount equal to
the aggregate of the Prepayment Interest Shortfalls for such
Distribution Date;
provided that the Master Servicer's obligations under this
subsection on any
Distribution Date shall not be more than the total amount of its
master
servicing compensation payable in such month.
SECTION 3.24. Additional Obligations of the Depositor.
The Depositor agrees that on or prior to the tenth day after
the Closing Date, the Depositor shall provide the Trustee with a
written
notification, substantially in the form of Exhibit J attached
hereto, relating
to each Class of Certificates, setting forth (i) in the case of
-52-
<PAGE>
each Class of such Certificates, (a) if less than 10% of the
aggregate
Certificate Principal Balance of such Class of Certificates has
been sold as of
such date, the value calculated pursuant to clause (b)(iii) of
Exhibit J hereto,
or, (b) if 10% or more of such Class of Certificates has been sold
as of such
date but no single price is paid for at least 10% of the aggregate
Certificate
Principal Balance of such Class of Certificates, then the weighted
average price
at which the Certificates of such Class were sold and the aggregate
percentage
of Certificates of such Class sold, (c) the first single price at
which at least
10% of the aggregate Certificate Principal Balance of such class of
Certificates
was sold or, (d) if any Certificates of each Class of Certificates
are retained
by the Depositor or an affiliated corporation, or are delivered to
the Seller,
the fair market value of such Certificates as of the Closing Date,
(ii) the
prepayment assumption used in pricing the Certificates, and (iii)
such other
information as to matters of fact as the Trustee may reasonably
request to
enable it to comply with its reporting requirements with respect to
each Class
of such Certificates to the extent such information can in the good
faith
judgment of the Depositor be determined by it.
SECTION 3.25. Intention of the Parties and Interpretation.
Each of the parties acknowledges and agrees that the purpose
of Sections 3.19, 3.20, Section 8.11 and this Section 3.25 of this
Agreement is
to facilitate compliance by the Seller and the Depositor with the
provisions of
Regulation AB promulgated by the Commission under the 1934 Act (17
C.F.R. ss.ss.
229.1100 - 229.1123), as such may be amended from time to time and
subject to
clarification and interpretive advice as may be issued by the staff
of the
Commission from time to time. Therefore, each of the parties agrees
that (a) the
obligations of the parties hereunder shall be interpreted in such a
manner as to
accomplish that purpose, (b) the parties' obligations hereunder
will be
supplemented and modified as necessary to be consistent with any
such
amendments, interpretive advice or guidance, convention or
consensus among
active participants in the asset-backed securities markets, advice
of counsel,
or otherwise in respect of the requirements of Regulation AB, (c)
the parties
shall comply with requests made by the Seller or the Depositor for
delivery of
additional or different information as the Seller or the Depositor
may determine
in good faith is necessary to comply with the provisions of
Regulation AB, and
(d) no amendment of this Agreement shall be required to effect any
such changes
in the parties' obligations as are necessary to accommodate
evolving
interpretations of the provisions of Regulation AB.
-53-
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Certificate Account; Distributions.
(a) The
Trustee shall establish and maintain a
Certificate Account, in which the Master Servicer shall cause to be
deposited on
behalf of the Trustee on or before 3:00 P.M. New York time on each
Certificate
Account Deposit Date by wire transfer of immediately available
funds an amount
equal to the sum of (i) any Advance for the immediately succeeding
Distribution
Date, (ii) any amount required to be deposited in the Certificate
Account
pursuant to Sections 3.11, 3.13, 3.23 or 4.03(b) and (iii) all
other amounts
constituting or, if not otherwise applicable to the payment of the
Trustee's
Fee, that would constitute the Available Distribution Amount for
the immediately
succeeding Distribution Date. The Trustee shall transfer from the
Certificate
Account to itself, the Trustee's Fee on each Certificate Account
Deposit Date.
Such amounts do not constitute part of the Available Distribution
Amount.
(b) On each
Distribution Date the Trustee shall,
distribute to the Master Servicer, in the case of a distribution
pursuant to
Section 4.01(b)(iii), and to each Certificateholder of record on
the next
preceding Record Date (other than as provided in Section 9.01
respecting the
final distribution) either in immediately available funds (by wire
transfer or
otherwise) to the account of such Certificateholder at a bank or
other entity
having appropriate facilities therefor, if such Certificateholder
has so
notified the Trustee at least 5 Business Days prior to the related
Record Date
and such Certificateholder is the registered owner of Certificates
the aggregate
Initial Certificate Principal Balance of which is not less than
$2,500,000 (or,
with respect to the Class A-5 and Class A-7 Certificates, is the
registered
owner of an initial Notional Amount of not less than $10,000,000 of
each such
class), or otherwise by check mailed to such Certificateholder at
the address of
such Holder appearing in the Certificate Register, such
Certificateholder's
share (based on the aggregate of the Percentage Interests
represented by
Certificates of the applicable Class held by such Holder) of the
following
amounts, in the following order of priority, in each case to the
extent of the
Available Distribution Amount:
(i) to the
Class A Certificateholders on a pro rata basis
based on Accrued Certificate Interest payable thereon, Accrued
Certificate Interest on such Classes of Certificates for such
Distribution Date and to the extent not previously paid, for all
prior
Distribution Dates;
(ii)
to the Class A Certificateholders (other than the
Class A-5 Certificateholders and the Class A-7 Certificateholders),
in
the priorities and amounts set forth in Sections 4.01(c) and (d),
the
sum of the following (applied to reduce the Certificate
Principal
Balances of such Class A Certificates, as applicable):
(A) the Senior
Percentage for such Distribution Date
times the sum of the following:
-54-
<PAGE>
(1) the
principal portion of each Monthly Payment due
during the related Due Period on each Outstanding Mortgage
Loan,
whether or not received on or prior to the related Determination
Date,
minus the principal portion of any Debt Service Reduction which
together with other Bankruptcy Losses exceeds the Bankruptcy
Amount;
(2) the Stated
Principal Balance of any Mortgage Loan
purchased during the related Prepayment Period and the amount of
any
shortfall deposited in the Custodial Account in connection with
the
substitution of a Deleted Mortgage Loan pursuant to Section 2.04
during
the related Prepayment Period; and
(3) the
principal portion of all other unscheduled
collections (other than Principal Prepayments and amounts received
in
connection with a Cash Liquidation or REO Disposition) received
during
the related Prepayment Period, including, without limitation,
Insurance
Proceeds, Liquidation Proceeds and REO Proceeds, to the extent
applied
by the Master Servicer as recoveries of principal of the
related
Mortgage Loan pursuant to Section 3.15;
(B) with
respect to each Mortgage Loan for which a Cash
Liquidation or a REO Disposition occurred during the related
Prepayment Period
and did not result in any Excess Special Hazard Losses, Excess
Fraud Losses,
Excess Bankruptcy Losses or Extraordinary Losses, an amount equal
to the lesser
of (a) the Senior Percentage for such Distribution Date times the
Stated
Principal Balance of such Mortgage Loan and (b) the Senior
Accelerated
Distribution Percentage for such Distribution Date times the
related unscheduled
collections (including without limitation Insurance Proceeds,
Liquidation
Proceeds and REO Proceeds) to the extent applied by the Master
Servicer as
recoveries of principal of the related Mortgage Loan pursuant to
Section 3.15;
(C) the Senior
Accelerated Distribution Percentage for
such Distribution Date times the aggregate of all Principal
Prepayments in Full
and Curtailments received in the related Prepayment Period; and
(D) any
amounts described in clauses (A), (B) and (C) of
this Section 4.01 (b)(ii), as determined for any previous
Distribution Date,
which remain unpaid after application of amounts previously
distributed pursuant
to this clause (D) to the extent that such amounts are not
attributable to
Realized Losses which have been allocated to the Class B
Certificates;
(iii) if
the Certificate Principal Balances of the Class B
Certificates have not been reduced to zero, to the Master Servicer
or a
Sub-Servicer, to the extent of and in reimbursement for any
Advances
previously made with respect to any Mortgage Loan or REO Property
which
remain unreimbursed in whole or in part following the Cash
Liquidation
or REO Disposition of such Mortgage Loan or REO Property, minus
any
such Advances that were made with respect to delinquencies that
ultimately constituted
-55-
<PAGE>
Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy
Losses or Extraordinary Losses;
(iv)
to the Holders of the Class B Certificates, the
Accrued Certificate Interest thereon for such Distribution Date,
plus
any Accrued Certificate Interest thereon remaining unpaid from
any
previous Distribution Date, except as provided below;
(v) to the
Holders of the Class B Certificates, an amount
equal
