From Ny
In re: (i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby
Every Deutsche Bank National Trusts Pooling and Servicing Agreements have this included.
9 thoughts on “Trustee lacks power to Act without Express Written Permission from Certificate Holders”
I think the title of this post is misstated. This language states that the Trustee DOES NOT HAVE TO ACT even with the Certificate Holders’ written consent unless a bond or some other surety remunerating the Trustee against the costs associated with acting is put up by the Certificate Holder.
Here’s the party authorized to foreclose:
Section 3.15 Realization upon Defaulted Mortgage Loans. Each Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon
heres the complete Trustee powers from my Pooling and Servicing agreeement:
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct.
Unless an Event of Default known to the Trustee has occurred and is
continuing:
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming on their face to the requirements of this Agreement which it believed
in good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement.
Section 8.02 Certain Matters Affecting the Trustee and the
Custodians. Except as otherwise provided in Section 8.01: (a) the Trustee and
the Custodians may request and rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer’s Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties and neither the Trustee nor the Custodians shall have
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee and the Custodians may consult with counsel,
financial advisers or accountants and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) neither the Trustee nor the Custodians shall be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder; provided, further, the Trustee shall
not be responsible for any act or omission of any Custodian;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement;
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of an Event of Default, the Trustee shall not be deemed to
have knowledge of an Event of Default, until a Responsible Officer of the
Trustee shall have received written notice thereof; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor, the Securities Administrator or a Servicer of any
funds paid to the Depositor, the Securities Administrator or a Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from any Collection
Account or the Distribution Account by the Depositor, the Securities
Administrator or a Servicer.
The Trustee shall have no responsibility for filing or recording any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
servicer).
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee’s Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee shall be paid its fee by the
Securities Administrator from the Securities Administrator’s own funds pursuant
to a separate agreement. The Trustee and any director, officer, employee, or
agent of the Trustee shall be indemnified by the Trust Fund against any loss,
liability, or expense (including reasonable attorney’s fees) resulting from any
error in any tax or information return prepared by any Servicer or incurred in
connection with any claim or legal action relating to (a) this Agreement, (b)
the Certificates or the Interest Rate Swap Agreement, or (c) the performance of
any of the Trustee’s duties under this Agreement (including any unreimbursed
out-of-pocket costs resulting from a servicing transfer), the Certificates or
the Interest Rate Swap Agreement, other than any loss, liability, or expense (i)
resulting from any breach of any Servicer’s obligations in connection with this
Agreement for which the related Servicer has performed its obligation to
indemnify the Trustee pursuant to Section 6.05, (ii) resulting from any breach
of any Responsible Party’s obligations in connection with this Agreement for
which the related Responsible Party has performed its obligations to indemnify
the Trustee pursuant to Section 2.03(j) or (iii) incurred because of willful
misconduct, bad faith, or negligence in the performance of any of the Trustee’s
duties under this Agreement. This indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trustee under this
Agreement. Without limiting the foregoing, except as otherwise agreed upon in
writing by the Depositor and the Trustee, and except for any expense,
disbursement, or advance arising from the Trustee’s negligence, bad faith, or
willful misconduct, the Trust Fund shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with this Agreement with respect to:
In re: How can I get the agreement for my loan?
Google it or http://www.secinfo.com
google it
How can I get the agreement for my loan? I have asked my servicer to tell me how to contact the master servicer to no avail. Do I have to wait until I file my lawsuit and obtain this information through discovery?
Ny and Mike Tiner, is that how, out of context, you parse the pooling agreement passage?
I cannot agree. See my comments above. I hope you’ll persuade me otherwise.
I invite a robust discussion.
RSVP
Allan
BeMoved@AOL.com
Nice post, Ny.
This reinforces my position that the nominee’s authority to foreclose has to come from up the securitization chain, regardless of the power of sale clause in the mortgage.
I’d love to see the written consent letter from one of the certificate holders. It seems to me they would want to make sure the servicer or trustee has done everything possible to modify the loan and keep the revenue flowing in.
Of course, if the servicer or trustee just keeps the proceeds of the sale after foreclosure…
Ny, I don’t know if the headline is yours or the Blogmaster Extraordinaire of this site’s.
When I Googled “Deutsche Bank Pooling and Servicing Agreements” I came across this example.
From the Table of Contents of the following pooling agreement where Deutsche Bank is trustee, it appears the trustee has many enumerated powers, quite apart from the reserve power of maybe undertaking any action of Certificate holders who’re required to first indemnify the trust (as per the paragraph you cited). I’d want to review these various enumerated powers before concluding “Trustee lacks power to Act without Express Written Permission from Certificate Holders.” It appears more “Certificate Holders lack power to Act without Express Written Permission from Trustee.”
Have you drilled down to see what are the trustee’s powers?
Anybody else?
Allan
MERRILL LYNCH MORTGAGE INVESTORS, INC.
Depositor
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
Master Servicer and Securities Administrator
WILSHIRE CREDIT CORPORATION,
Servicer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
——————————-
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2003
——————————-
TERWIN Mortgage Trust
Asset-Backed Certificates, Series tmts 2003-5SL
TABLE OF CONTENTS
ARTICLE I DEFINITIONS …………………………………………………………… 1
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES ……………….. 51
SECTION 2.01. Conveyance of Mortgage Loans ……………………………………. 51
SECTION 2.02. Acceptance by the Trustee of the Mortgage Loans …………………… 53
SECTION 2.03. Representations, Warranties and Covenants of the Depositor …………. 54
SECTION 2.04. Representations and Warranties of the Master Servicer;
Representations and Warranties of the Servicer;
Representations and Warranties of the Securities Administrator ……… 58
SECTION 2.05. Substitutions and Repurchases of Mortgage Loans which
are not “Qualified Mortgages” …………………………………… 61
SECTION 2.06. Authentication and Delivery of Certificates ………………………. 61
SECTION 2.07. REMIC Elections ……………………………………………….. 61
SECTION 2.08. Covenants of the Master Servicer ………………………………… 64
SECTION 2.09. Covenants of the Servicer ………………………………………. 65
SECTION 2.10. [RESERVED] ……………………………………………………. 65
SECTION 2.11. Permitted Activities of the Trust ……………………………….. 65
SECTION 2.12. Qualifying Special Purpose Entity ……………………………….. 65
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS ……………………………. 65
SECTION 3.01. Servicer to Service Mortgage Loans ………………………………. 65
SECTION 3.02. Servicing and Subservicing; Enforcement of the
Obligations of Servicer ………………………………………… 67
SECTION 3.03. Rights of the Depositor, the Securities Administrator and
the Trustee in Respect of the Servicer …………………………… 67
SECTION 3.04. Securities Administrator to Act as Servicer ………………………. 67
SECTION 3.05. Collection of Mortgage Loan Payments; Collection
Account; Certificate Account ……………………………………. 68
SECTION 3.06. Collection of Taxes, Assessments and Similar Items; Escrow Accounts …. 72
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans ……………………………………. 72
SECTION 3.08. Permitted Withdrawals from the Collection Account and
Certificate Account ……………………………………………. 72
SECTION 3.09. Servicing Transfer Dates ……………………………………….. 74
SECTION 3.10. [RESERVED.] …………………………………………………… 75
SECTION 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements ………….. 75
SECTION 3.12. Realization Upon Defaulted Mortgage Loans;
Determination of Excess Proceeds ………………………………… 75
SECTION 3.13. Trustee to Cooperate; Release of Mortgage Files …………………… 78
{/Table}
i
{PAGE}
TABLE OF CONTENTS
(continued)
{Table}
{Caption}
PAGE
{S} {C}
SECTION 3.14. Documents, Records and Funds in Possession of Servicer
to be Held for the Trustee ……………………………………… 79
SECTION 3.15. Servicing Compensation …………………………………………. 79
SECTION 3.16. Access to Certain Documentation …………………………………. 80
SECTION 3.17. Annual Statement as to Compliance ……………………………….. 80
SECTION 3.18. Annual Independent Public Accountants’ Servicing
Statement; Financial Statements …………………………………. 80
SECTION 3.19. Duties and Removal of the Credit Risk Manager …………………….. 80
SECTION 3.20. Periodic Filings ………………………………………………. 81
SECTION 3.21. Annual Certificate by Securities Administrator ……………………. 82
SECTION 3.22. Annual Certificate by Servicer ………………………………….. 82
SECTION 3.23. Prepayment Penalty Reporting Requirements ………………………… 83
SECTION 3.24. Statements to the Securities Administrator ……………………….. 83
SECTION 3.25. Indemnification ……………………………………………….. 83
SECTION 3.26. Nonsolicitation ……………………………………………….. 85
ARTICLE IV DISTRIBUTIONS …………………………………………………………. 85
SECTION 4.01. Advances ……………………………………………………… 85
SECTION 4.02. Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls ………………………………….. 86
SECTION 4.03. Distributions on the REMIC Interests …………………………….. 86
SECTION 4.04. Distributions …………………………………………………. 86
SECTION 4.05. Monthly Statements to Certificateholders …………………………. 90
ARTICLE V THE CERTIFICATES ………………………………………………………. 92
SECTION 5.01. The Certificates ………………………………………………. 92
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates ……………………………………………….. 94
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates …………………. 98
SECTION 5.04. Persons Deemed Owners ………………………………………….. 98
SECTION 5.05. Access to List of Certificateholders’ Names and Addresses ………….. 98
SECTION 5.06. Book-Entry Certificates ………………………………………… 99
SECTION 5.07. Notices to Depository ………………………………………….. 99
SECTION 5.08. Definitive Certificates ………………………………………… 100
SECTION 5.09. Maintenance of Office or Agency …………………………………. 100
SECTION 5.10. Authenticating Agents ………………………………………….. 100
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SERVICER
AND THE SECURITIES ADMINISTRATOR ………………………………………… 101
SECTION 6.01. Respective Liabilities of the Depositor, the Master Servicer,
the Servicer and the Securities Administrator …………………….. 101
SECTION 6.02. Merger or Consolidation of the Depositor, the Master
Servicer, the Servicer or the Securities Administrator …………….. 101
SECTION 6.03. Limitation on Liability of the Depositor, the Securities
Administrator, the Master Servicer, the Servicer and Others ………… 102
{/Table}
ii
{PAGE}
{Table}
{Caption}
PAGE
{S} {C}
SECTION 6.04. Limitation on Resignation of Servicer ……………………………. 103
SECTION 6.05. Errors and Omissions Insurance; Fidelity Bonds ……………………. 103
SECTION 6.06. Limitation on Resignation of the Master Servicer ………………….. 103
SECTION 6.07. Assignment of Master Servicing ………………………………….. 104
SECTION 6.08. Limitation Upon Liability of the Credit Risk Manager ………………. 104
ARTICLE VII DEFAULT; TERMINATION OF SERVICER ………………………………………… 104
SECTION 7.01. Events of Default ……………………………………………… 104
SECTION 7.02. Securities Administrator to Act; Appointment of Successor ………….. 106
SECTION 7.03. Notification to Certificateholders ………………………………. 107
ARTICLE VIII CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR ……………………. 107
SECTION 8.01. Duties of Trustee and the Securities Administrator ………………… 107
SECTION 8.02. Certain Matters Affecting the Trustee ……………………………. 108
SECTION 8.03. Trustee and the Securities Administrator Not Liable for
Certificates or Mortgage Loans ………………………………….. 110
SECTION 8.04. Trustee and the Securities Administrator May Own Certificates ………. 110
SECTION 8.05. Trustee’s Fees and Expenses …………………………………….. 110
SECTION 8.06. Indemnification and Expenses of Trustee ………………………….. 110
SECTION 8.07. Eligibility Requirements for Trustee …………………………….. 111
SECTION 8.08. Resignation and Removal of Trustee ………………………………. 111
SECTION 8.09. Successor Trustee ……………………………………………… 112
SECTION 8.10. Merger or Consolidation of Trustee ………………………………. 112
SECTION 8.11. Appointment of Co-Trustee or Separate Trustee …………………….. 113
SECTION 8.12. Tax Matters …………………………………………………… 114
ARTICLE IX TERMINATION …………………………………………………………… 116
SECTION 9.01. Termination upon Liquidation or Repurchase of all Mortgage Loans ……. 116
SECTION 9.02. Final Distribution on the Certificates …………………………… 116
SECTION 9.03. Additional Termination Requirements ……………………………… 117
ARTICLE X MISCELLANEOUS PROVISIONS ……………………………………………….. 118
SECTION 10.01. Amendment …………………………………………………….. 118
SECTION 10.02. Counterparts ………………………………………………….. 120
SECTION 10.03. Governing Law …………………………………………………. 120
SECTION 10.04. Intention of Parties …………………………………………… 120
SECTION 10.05. Notices ………………………………………………………. 121
SECTION 10.06. Severability of Provisions ……………………………………… 121
SECTION 10.07. Assignment ……………………………………………………. 122
SECTION 10.08. Limitation on Rights of Certificateholders ……………………….. 122
SECTION 10.09. Inspection and Audit Rights …………………………………….. 122
SECTION 10.10. Certificates Nonassessable and Fully Paid ………………………… 123
{/Table}
iii
{PAGE}
{Table}
{Caption}
PAGE
{S} {C}
SECTION 10.11. [RESERVED] ……………………………………………………. 123
SECTION 10.12. [RESERVED] ……………………………………………………. 123
SECTION 10.13. [RESERVED] ……………………………………………………. 123
SECTION 10.14. Assignment; Sales; Advance Facilities ……………………………. 123
ARTICLE XI MASTER SERVICING OF THE MORTGAGE LOANS BY THE
MASTER SERVICER ……………………………………………………….. 125
SECTION 11.01. Master Servicer ……………………………………………….. 125
SECTION 11.02. Monitoring of Interim Servicers …………………………………. 126
SECTION 11.03. Fidelity Bond …………………………………………………. 127
SECTION 11.04. Powers to Act; Procedures ………………………………………. 127
SECTION 11.05. Due-on-Sale Clauses; Assumption Agreements ……………………….. 128
SECTION 11.06. Master Servicing of Mortgage Loans Prior to Servicing Transfer Dates … 128
SECTION 11.07. Documents, Records and Funds in Possession of Master
Servicer to be Held for Trustee …………………………………. 129
SECTION 11.08. Standard Hazard Insurance and Flood Insurance Policies …………….. 129
SECTION 11.09. Presentment of Claims and Collection of Proceeds ………………….. 129
SECTION 11.10. Trustee to Retain Possession of Certain Insurance Policies
and Documents …………………………………………………. 130
SECTION 11.11. Realization Upon Defaulted Mortgage Loans ………………………… 130
SECTION 11.12. REO Property ………………………………………………….. 130
SECTION 11.13. Annual Statement as to Compliance ……………………………….. 131
SECTION 11.14. Annual Independent Public Accountants’ Servicing
Statement; Financial Statements …………………………………. 131
SECTION 11.15. Obligation of the Master Servicer in Respect of Certain
Prepayment Interest Shortfalls ………………………………….. 131
SECTION 11.16. Collection Account …………………………………………….. 131
SECTION 11.17. Obligation of the Master Servicer in Respect of Certain Advances …… 131
SECTION 11.18. Termination of the Master Servicer ………………………………. 131
{/Table}
{Table}
{S} {C}
EXHIBIT A FORMS OF CERTIFICATES
EXHIBIT B MORTGAGE LOAN SCHEDULE
EXHIBIT C SCHEDULE OF MORTGAGE LOANS WITH NO PREPAYMENT ENFORCEMENT
EXHIBIT D FORM OF TRUSTEE CERTIFICATION
EXHIBIT E-1 FORM OF TRANSFEREE’S LETTER AND AFFIDAVIT
EXHIBIT E-2 FORM OF TRANSFEROR’S AFFIDAVIT
EXHIBIT F FORM OF TRANSFEROR CERTIFICATE
EXHIBIT G FORM OF INVESTMENT LETTER
EXHIBIT H FORM OF RULE 144A LETTER
EXHIBIT I REQUEST FOR RELEASE
EXHIBIT J LIST OF INTERIM SERVICING AGREEMENTS
EXHIBIT K FORM OF OFFICER’S CERTIFICATE OF SECURITIES ADMINISTRATOR
EXHIBIT L FORM OF OFFICER’S CERTIFICATE OF SERVICER
EXHIBIT M FORM OF OFFICER’S CERTIFICATE WITH RESPECT TO PREPAYMENTS
{/Table}
iv
{PAGE}
POOLING AND SERVICING AGREEMENT, dated as of October 1, 2003, among
MERRILL LYNCH MORTGAGE INVESTORS, INC., a Delaware corporation, as depositor
(the “Depositor”), WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national
banking association, as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”), WILSHIRE CREDIT CORPORATION, a
Nevada corporation, as servicer (the “Servicer”) and DEUTSCHE BANK NATIONAL
TRUST COMPANY, a national banking association, as trustee (the “Trustee”).
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. It is intended that for federal
income tax purposes the Trust Fund will include (i) four real estate mortgage
investment conduits (the “Lower Tier REMIC,” “Middle Tier REMIC 1,” “Middle Tier
REMIC 2” and the “Upper Tier REMIC”), (ii) the regular interests in the Lower
Tier REMIC, Middle Tier REMIC 1, Middle Tier REMIC 2 and the Upper Tier REMIC,
(iii) the rights to receive Prepayment Penalties and (iv) the grantor trusts
described in Section 2.07 hereof. The Lower Tier REMIC will consist of all of
the assets constituting the Trust Fund (other than the assets described in
clauses (ii), (iii) and (iv) above) and will be evidenced by the Lower Tier
REMIC Regular Interests (which will be uncertificated and will represent the
“regular interests” in the Lower Tier REMIC) and the Class LTR Interest as the
single “residual interest” in the Lower Tier REMIC. The Trustee will hold the
Lower Tier REMIC Regular Interests. Middle Tier REMIC 1 will consist of the
Lower Tier REMIC Regular Interests and will be evidenced by the Middle Tier
REMIC 1 Regular Interests (which will be uncertificated and will represent the
“regular interests” in Middle Tier REMIC 1) and the Class MT1R Interest as the
single “residual interest” in Middle Tier REMIC 1. The Trustee will hold the
Middle Tier REMIC 1 Regular Interests. Middle Tier REMIC 2 will consist of the
Middle Tier REMIC 1 Regular Interests (other than the Middle Tier REMIC 1 IO
Interests) and will be evidenced by the Middle Tier REMIC 2 Regular Interests
(which will be uncertificated and will represent the “regular interests” in
Middle Tier REMIC 2) and the Class MT2R Interest as the single “residual
interest” in Middle Tier REMIC 2. The Trustee will hold the Middle Tier REMIC 2
Regular Interests. The Upper Tier REMIC will consist of the Middle Tier REMIC 2
Regular Interests and the Middle Tier REMIC 1 IO Interests and will be evidenced
by the Upper Tier REMIC Regular Interests (which will represent the “regular
interests” in the Upper Tier REMIC) and the Residual Interest as the single
“residual interest” in the Upper Tier REMIC. The Class R Certificate will
represent beneficial ownership of the Class LTR Interest, the Class MT1R
Interest, the Class MT2R Interest and the Residual Interest. The “latest
possible maturity date” for federal income tax purposes of all interests created
hereby will be the Latest Possible Maturity Date.
All covenants and agreements made by the Seller in the Sale Agreement
and by the Depositor and the Trustee herein with respect to the Mortgage Loans
and the other property constituting the Trust Fund are for the benefit of the
Holders from time to time of the Certificates.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Servicer, the Securities Administrator and
the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
{PAGE}
Accepted Master Servicing Practices: With respect to any Mortgage Loan,
as applicable, either (x) those customary mortgage master servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Master
Servicer (except in its capacity as successor to the Servicer), or (y) as
provided in Section 11.01 hereof, but in no event below the standard set forth
in clause (x).
Accepted Servicing Practices: The Servicer’s normal servicing
practices, which will conform to the mortgage servicing practices of prudent
mortgage lending institutions which service for their own account mortgage loans
of the same type as the Mortgages Loans in the jurisdictions in which the
related Mortgaged Properties are located.
Accrual Period: With respect to the Certificates (other than the Class
A-X and Class B Certificates) and any Distribution Date, the period commencing
on the immediately preceding Distribution Date (or, in the case of the first
Distribution Date, the Closing Date) and ending on the day immediately preceding
such Distribution Date. With respect to the Class A-X and Class B Certificates
and any Distribution Date, the calendar month immediately preceding the month in
which such Distribution Date occurs. All calculations of interest on the
Certificates (other than the Class A-X and Class B Certificates) will be made on
the basis of the actual number of days elapsed in the related Accrual Period and
a 360 day year. All calculations of interest on the Class A-X and Class B
Certificates will be made on the basis of a 360-day year consisting of twelve
30-day months. The Accrual Period for each Lower Tier REMIC Regular Interest,
each Middle Tier REMIC 1 Regular Interest and each Middle Tier REMIC 2 Regular
Interest for any Distribution Date will be the calendar month immediately
preceding the month in which such Distribution Date occurs. All calculations of
interest on the Lower Tier REMIC Regular Interests, the Middle Tier REMIC 1
Regular Interests and the Middle Tier REMIC 2 Regular Interests will be made on
the basis of a 360-day year consisting of twelve 30-day months.
Adjusted Net WAC: As of any Distribution Date, a per annum rate equal
to the weighted average rate of the Middle Tier REMIC 1 Regular Interests. With
respect to the Class A-1, Class M and Class R Certificates, such rate is
multiplied by 30 and divided by the actual number of days in the related Accrual
Period.
Advance: The aggregate of the advances required to be made by the
Servicer with respect to any Distribution Date pursuant to Section 4.01, the
amount of any such advances being equal to the sum of the aggregate of payments
of principal and interest (net of the Servicing Fee Rate) on the Mortgage Loans
that were due during the applicable Due Period and not received as of the close
of business on the related Determination Date, less the aggregate amount of any
such Delinquent payments that the Servicer has determined would constitute a
Non-Recoverable Advance were an advance to be made with respect thereto;
provided, however, that with respect to any Mortgage Loan that is 150 days
delinquent or more (whether or not the Mortgage Loan has been converted to an
REO Property), there will be no obligation to make advances and, provided
further, however, that with respect to any Mortgage Loan that has been converted
to an REO Property which is less than 150 days delinquent, the obligation to
make Advances shall only be to payments of interest.
Advance Facility: A financing or other facility as described in
Section 10.14(a).
Advance Facility Notice: As defined in Section 10.14(b).
Advance Financing Person: As defined in Section 10.14(a).
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