Exhibit 4.1
EXECUTION COPY
POOLING AND SERVICING AGREEMENT
Relating to
ACCESS FINANCIAL MORTGAGE LOAN TRUST ______
Among
ACCESS FINANCIAL LENDING CORP.,
as Seller and Master Servicer,
and
____________________________________________
as Trustee
Dated as of ___________
TABLE OF CONTENTS
(Not a Part of this Agreement)
Page
Parties .............................................................. 1
Recitals ............................................................. 1
ARTICLE I DEFIN1TIONS; RULES OF CONSTRUCTION ...................... 1
1.1. Definitions ......................................... 1
Access Financial Loan Purchase Trust ........ 1
Account ..................................... 2
Accrual Period .............................. 2
Addition Notice ............................. 2
Affiliate ................................... 2
Agreement ................................... 2
Appraised Value ............................. 2
Auction Call ................................ 2
Authorized Officer .......................... 2
Base Group I Principal Distribution
Amount .................................. 3
Base Group II Principal Distribution
Amount .................................. 3
Business Day ................................ 3
Capitalized Interest Account ................ 3
Carry-Forward Amount ........................ 3
Certificate ................................. 4
Certificate Account ......................... 4
Certificate Insurance Policy ................ 4
Certificate Insurer ......................... 4
Certificateholder ........................... 4
Class ....................................... 4
Class A Certificates ........................ 4
Class A Group I Certificates ................ 4
Class A Group I Distribution Account ........ 4
Class A Group II Distribution Account ....... 5
Class A-1 Distribution Amount ............... 5
Class A-1 Group I Certificates .............. 5
Class A-1 Interest Carry-Forward Amount ..... 5
Class A-1 Interest Distribution Amount ...... 5
Class A-1 Pass-Through Rate ................. 5
Class A-1 Principal Balance ................. 5
Class A-1 Principal Carry-Forward
Amount .................................. 5
Class A-1 Principal Distribution Amount ..... 6
Class A-1 Termination Date .................. 6
Class A-2 Distribution Amount ............... 6
Class A-2 Group I Certificates .............. 6
Class A-2 Interest Carry-Forward Amount ..... 6
Class A-2 Interest Distribution Amount ...... 7
Class A-2 Pass-Through Rate ................. 7
Class A-2 Principal Balance ................. 7
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Class A-2 Principal Carry-Forward
Amount................................... 7
Class A-2 Principal Distribution Amount...... 7
Class A-2 Termination Date................... 7
Class A-3 Distribution Amount................ 7
Class A-3 Group I Certificates............... 8
Class A-3 Interest Carry-Forward Amount...... 8
Class A-3 Interest Distribution Amount....... 8
Class A-3 Pass-Through Rate.................. 8
Class A-3 Principal Balance.................. 8
Class A-3 Principal Carry-Forward
Amount................................... 8
Class A-3 Principal Distribution Amount...... 8
Class A-3 Termination Date................... 9
Class A-4 Distribution Amount................ 9
Class A-4 Group I Certificates............... 9
Class A-4 Interest Carry-Forward Amount...... 9
Class A-4 Interest Distribution Amount....... 9
Class A-4 Pass-Through Rate.................. 9
Class A-4 Principal Balance.................. 9
Class A-4 Principal Carry-Forward
Amount................................... 10
Class A-4 Principal Distribution Amount...... 10
Class A-5 Distribution Amount................ 10
Class A-5 Group I Certificates............... 10
Class A-5 Interest Carry-Forward Amount...... 10
Class A-5 Interest Distribution Amount....... 11
Class A-5 Pass-Through Rate.................. 11
Class A-5 Principal Balance.................. 11
Class A-5 Principal Carry-Forward
Amount................................... 11
Class A-5 Principal Distribution Amount...... 11
Class A-6 Distribution Account............... 11
Class A-6 Distribution Amount................ 11
Class A-6 Formula Distribution Amount........ 12
Class A-6 Formula Pass-Through Rate.......... 12
Class A-6 Full Distribution Amount........... 12
Class A-6 Full Interest Distribution
Amount................................... 12
Class A-6 Interest Carry-Forward Amount...... 12
Class A-6 Interest Distribution Amount....... 12
Class A-6 Pass-Through Rate.................. 13
Class A-6 Principal Balance.................. 13
Class A-6 Principal Carry-Forward
Amount................................... 13
Class A-6 Principal Distribution Amount...... 13
Class A-6 Group II Certificates.............. 13
Class B Certificates......................... 13
Class B Group I Carry-Forward Amount......... 13
Class B Group I Certificates................. 14
Class B Group I Distribution Account......... 14
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Class B Group I Distribution Amount ......... 14
Class B Group I Interest .................... 14
Class B Group I Interest Distribution
Amount .................................. 14
Class B Group I Principal Balance ........... 14
Class B Group II Carry-Forward Amount ....... 15
Class B Group II Certificates ............... 15
Class B Group II Distribution Account ....... 15
Class B Group II Distribution Amount ........ 15
Class B Group II Interest ................... 15
Class B Group II Interest Distribution
Amount .................................. 15
Class B Group II Principal Balance .......... 16
Class BI-S Certificate ...................... 16
Class BII-S Certificate ..................... 16
Class LT1 Certificates ...................... 17
Class LT2 Certificates ...................... 17
Class LT3 Certificates ...................... 17
Class LT4 Certificates ...................... 17
Class LT5 Certificates ...................... 17
Class LT6 Certificates ...................... 17
Class RL Certificates ....................... 17
Class RU Certificates ....................... 17
Code ........................................ 17
Compensating Interest ....................... 17
Coupon Rate ................................. 17
Cumulative Net Realized Losses .............. 17
Cut-Off Date ................................ 17
Delinquency Advance ......................... 18
Delinquent .................................. 18
Delivery Order .............................. 18
Depository .................................. 18
Designated Depository Institution ........... 18
Designated Residual Holder .................. 19
Determination Date .......................... 19
Disqualified Organization ................... 19
Distribution Accounts ....................... 19
Eligible Investments ........................ 19
Event of Default ............................ 19
Excess Pre-Funding Earnings ................. 19
FDIC ........................................ 20
FHLMC ....................................... 20
File ........................................ 20
First Mortgage Loan ......................... 20
FNMA ........................................ 20
Group I ..................................... 20
Group I Allocable Losses .................... 20
Group I Available Funds ..................... 20
Group I Capitalized Interest
Requirement ............................. 20
Group I Certificates ........................ 21
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Group I Cumulative Crossover Amount ......... 21
Group I Cumulative Net Realized Losses ...... 21
Group I Excess Subordinated Amount .......... 21
Group I Insured Distribution Amount ......... 21
Group I Insured Interest Distribution
Amount .................................. 21
Group I Insured Payment ..................... 21
Group I Insured Principal Distribution
Amount .................................. 22
Group I Interest Remittance Amount .......... 22
Group I Maximum Collateral Amount ........... 22
Group I Monthly Remittance .................. 22
Group I Mortgage Loans ...................... 22
Group I Pre-Funding Earnings ................ 22
Group I Pool Delinquency Rate ............... 23
Group I Pool Principal Balance .............. 23
Group I Premium Amount ...................... 23
Group I Principal Distribution Amount ....... 23
Group I Principal Remittance Amount ......... 23
Group I Rolling Three Month Delinquency
Rate .................................... 23
Group I Shortfall Amount .................... 24
Group I Specified Subordinated Amount ....... 24
Group I Subordinated Amount ................. 24
Group I Subordination Deficiency Amount ..... 24
Group I Subordination Deficit ............... 24
Group I Subordination Increase Amount ....... 25
Group I Subordination Reduction Amount ...... 25
Supplemental Interest Payment Account ....... 25
Group I Total Available Funds ............... 25
Group I Trustee's Fee ....................... 25
Group II Allocable Losses ................... 25
Group II Available Funds .................... 25
Group II Base Subordinated Amount ........... 26
Group II Capitalized Interest
Requirement ............................. 26
Group II Certificates ....................... 26
Group II Cumulative Crossover Amount ........ 26
Group II Cumulative Net Realized Losses ...... 26
Group II Excess Subordinated Amount ......... 26
Group II .................................... 26
Group II Insured Distribution Amount ........ 26
Group II Insured Interest Distribution
Amount .................................. 26
Group II Insured Payment .................... 26
Group II Insured Principal Distribution
Amount .................................. 27
Group II Interest Remittance Amount ......... 27
Group II Monthly Remittance ................. 27
Group II Mortgage Loans ..................... 27
Group II Pool Delinquency Rate .............. 27
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Group II Pool Principal Balance ............. 27
Group II Premium Amount ..................... 27
Group II Principal Distribution Amount ...... 28
Group II Principal Remittance Amount ........ 28
Group II Rolling Three Month Delinquency
Rate .................................... 28
Group II Shortfall Amount ................... 28
Group II Specified Subordinated Amount ...... 28
Group II Subordinated Amount ................ 28
Group II Subordination Deficiency
Amount .................................. 29
Group II Subordination Deficit .............. 29
Group II Subordination Increase Amount ...... 29
Group II Subordination Reduction Amount ..... 29
Supplemental Interest Payment Account ....... 29
Group II Total Available Funds .............. 29
Group II Trigger Event ...................... 29
Group II Trustee's Fee ...................... 29
Highest Lawful Rate ......................... 30
Initial Mortgage Loans ...................... 30
Insurance Agreement ......................... 30
Insurance Policy ............................ 30
Insurance Proceeds .......................... 30
Insured Payment ............................. 30
Interest Advance ............................ 30
Interest Advance Reimbursement Amount ....... 30
Interest Determination Date ................. 30
LIBOR ....................................... 30
Liquidated Loan ............................. 31
Liquidation Expenses ........................ 31
Liquidation Proceeds ........................ 31
Loan Balance ................................ 31
Loan Purchase Price ......................... 31
Loan-to-Value Ratio ......................... 32
London Business Day ......................... 32
Lower Tier Distribution Amount .............. 32
Lower-Tier Interests ........................ 32
Lower-Tier REMIC ............................ 32
Master Servicer ............................. 32
Master Servicer's Trust Receipt ............. 32
Master Servicing Fee ........................ 32
Monthly Remittance .......................... 32
__________ .................................. 33
Mortgage .................................... 33
Mortgage Loan ............................... 33
Mortgage Loan Group ......................... 33
Mortgage Loan Schedules ..................... 33
Mortgagor ................................... 34
Net Insurance Proceeds ...................... 34
Net Liquidation Proceeds .................... 34
Net Proceeds ................................ 34
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Net Realized Loss ........................... 34
Net Released Mortgage Property Proceeds ..... 34
Net Weighted Average Coupon Rate ............ 34
Nonrecoverable Advances ..................... 34
Note ........................................ 35
Officer's Certificate ....................... 35
Operative Documents ......................... 35
Original Aggregate Pre-Funded Amount ........ 35
Original Group I Pool Principal Balance ..... 35
Original Group II Pool Principal
Balance ................................. 35
Original Pool Principal Balance ............. 35
Original Principal Balance .................. 35
Outstanding ................................. 35
Overfunded Interest Amount .................. 36
Owner ....................................... 37
Payment Date ................................ 37
Percentage Interest ......................... 37
Person ...................................... 37
Pool Delinquency Rate ....................... 37
Pool Principal Balance ...................... 37
Pool Rolling Three Month Delinquency
Rate .................................... 37
Pre-Funded Amount ........................... 37
Pre-Funding Account ......................... 37
Pre-Funding Period .......................... 37
Preference Amount ........................... 38
Premium Amount .............................. 39
Prepayment .................................. 39
Preservation Expenses ....................... 39
Principal and Interest Account .............. 39
Principal Balance ........................... 39
Principal Remittance Amounts ................ 40
Prohibited Transaction ...................... 40
Property .................................... 40
Prospectus .................................. 40
Prospectus Supplement ....................... 40
Qualified Liquidation ....................... 40
Qualified Mortgage .......................... 40
Qualified Replacement Mortgage .............. 40
Rating Agency ............................... 41
Record Date ................................. 41
Reference Banks ............................. 41
Register .................................... 42
Registration Statement ...................... 42
Reimbursable Advances ....................... 42
Released Mortgaged Property Proceeds ........ 42
REMIC ....................................... 42
REMIC Provisions ............................ 42
REMIC Reporting Fee ......................... 42
REMIC Trust ................................. 42
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Remittance Date.............................. 42
Remittance Period............................ 42
REO Property................................. 43
Replacement Cut-Off Date..................... 43
Representation Letter........................ 43
Reserve Interest Rate........................ 43
Residual Certificate......................... 43
___ ......................................... 43
Second Mortgage Loan......................... 43
Seller....................................... 43
Senior Lien.................................. 43
Servicing Advance............................ 43
Servicing Standards.......................... 44
Startup Day.................................. 44
Sub-Servicer................................. 44
Sub-Servicing Agreement...................... 44
Subsequent Cut-Off Date...................... 44
Subsequent Mortgage Loans.................... 44
Subsequent Transfer Agreement................ 44
Subsequent Transfer Date..................... 44
Substitution Amount.......................... 44
Supplemental Interest Payment Amount......... 44
Supplemental Interest Trust.................. 44
Tax Matters Person........................... 44
Trust........................................ 44
Trust Estate................................. 45
Trustee...................................... 45
Trustee's Fee................................ 45
Underwriters................................. 45
Unregistered Certificate..................... 45
Upper-Tier REMIC............................. 45
1.2. Use of Words and Phrases............................. 45
1.3. Captions; Table of Contents.......................... 46
1.4. Opinions............................................. 46
1.5. Calculations......................................... 46
ARTICLE II THE TRUST.................................... 46
2.1. Establishment of the Trust........................... 46
2.2. Office ............................................. 46
2.3. Purpose and Powers................................... 47
2.4. Appointment of the Trustee; Declaration of
Trust........................................ 47
2.5. Expenses of the Trust................................ 47
2.6. Ownership of the Trust............................... 47
2.7. Receipt of Trust Estate.............................. 47
2.8. Miscellaneous REMIC Provisions....................... 48
ARTICLE III REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE SELLER AND THE MASTER
SERVICER; CONVEYANCE OF MORTGAGE LOANS....... 49
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Page
3.1. Representations and Warranties of the
Seller and the Master Servicer............... 49
3.2. Covenants of the Seller to Take Certain
Actions with Respect to the Mortgage
Loans in Certain Situations.................. 54
3.3. Conveyance of the Initial Mortgage Loans
and Qualified Replacement Mortgages.......... 66
3.4. Acceptance by Trustee; Certain
Substitutions of Mortgage Loans;
Certification by Trustee..................... 70
3.5. Cooperation Procedures............................... 73
3.6. Conveyance of the Subsequent Mortgage
Loans........................................ 73
ARTICLE IV ISSUANCE AND SALE OF CERTIFICATES............ 76
4.1. Issuance of Certificates............................. 76
4.2. Sale of Certificates................................. 76
ARTICLE V CERTIFICATES AND TRANSFER OF INTERESTS....... 77
5.1. Terms ............................................. 77
5.2. Forms ............................................. 77
5.3. Execution, Authentication and Delivery............... 78
5.4. Registration and Transfer of Certificates............ 78
5.5. Mutilated, Destroyed, Lost or Stolen
Certificates................................. 80
5.6. Persons Deemed Owners................................ 81
5.7. Cancellation......................................... 81
5.8. Limitation on Transfer of Ownership
Rights....................................... 81
5.9. Assignment of Rights................................. 83
ARTICLE VI COVENANTS.................................... 83
6.1. Distributions........................................ 83
6.2. Money for Distributions to be Held in
Trust; Withholding........................... 83
6.3. Protection of Trust Estate........................... 84
6.4. Performance of Obligations........................... 85
6.5. Negative Covenants................................... 85
6.6. No Other Powers...................................... 85
6.7. Limitation of Suits.................................. 86
6.8. Unconditional Rights of Owners to Receive
Distributions................................ 86
6.9. Rights and Remedies Cumulative....................... 87
6.10. Delay or Omission Not Waiver........................ 87
6.11. Control by Owners................................... 87
ARTICLE VII ACCOUNTS, FLOW OF FUNDS, DISTRIBUTIONS
AND REPORTS.................................. 88
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7.1. Collection of Money.................................. 88
7.2. Establishment of Accounts............................ 88
7.3. Flow of Funds........................................ 88
7.4. Investment of Accounts............................... 95
7.5. Eligible Investments................................. 96
7.6. Reports by Trustee................................... 97
7.7. Drawings under the Certificate Insurance
Policy and Reports by Trustee................ 102
7.8. Allocation of Realized Losses........................ 103
7.9. Supplemental Interest Payments....................... 103
7.10. Pre-Funding Account and Capitalized
Interest Account............................. 105
ARTICLE VIII TERMINATION OF TRUST......................... 106
8.1. Termination of Trust................................. 106
8.2. Termination Upon Option of the Seller................ 107
8.3. Auction Call......................................... 107
8.4. Disposition of Proceeds.............................. 109
ARTICLE IX THE TRUSTEE.................................. 109
9.1. Certain Duties and Responsibilities.................. 109
9.2. Removal of Trustee for Cause......................... 111
9.3. Certain Rights of the Trustee........................ 113
9.4. Not Responsible for Recitals or Issuance
of Certificates.............................. 114
9.5. May Hold Certificates................................ 114
9.6. Money Held in Trust.................................. 114
9.7. Compensation and Reimbursement....................... 114
9.8. Corporate Trustee Required; Eligibility.............. 115
9.9. Resignation and Removal; Appointment of
Successor.................................... 115
9.10. Acceptance of Appointment by Successor
Trustee...................................... 116
9.11. Merger, Conversion, Consolidation or
Succession to Business of the Trustee........ 117
9.12. Reporting; Withholding.............................. 117
9.13. Liability of the Trustee............................ 118
9.14. Appointment of Co-Trustee or Separate
Trustee...................................... 118
ARTICLE X SERVICING AND ADMINISTRATION OF MORTGAGE
LOANS........................................ 120
10.1. General Servicing Procedures........................ 120
10.2. Collection of Certain Mortgage Loan
Payments..................................... 123
10.3. Sub-Servicing Agreements Between Master
Servicer and Sub-Servicers................... 123
10.4. Successor Sub-Servicers............................. 124
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10.5. Liability of Master Servicer........................ 124
10.6. No Contractual Relationship Between
Sub-Servicer and Trustee or the Owners....... 124
10.7. Assumption or Termination of
Sub-Servicing Agreement by Trustee........... 124
10.8. Principal and Interest Account...................... 125
10.9. Delinquency Advances and Servicing
Advances..................................... 128
10.10. Compensating Interest.............................. 129
10.11. Maintenance of Insurance........................... 129
10.12. Due-on-Sale Clauses; Assumption and
Substitution Agreements...................... 131
10.13. Realization Upon Defaulted Mortgage
Loans........................................ 131
10.14. Trustee to Cooperate; Release of Files............. 133
10.15. Master Servicing Compensation...................... 135
10.16. Annual Statement as to Compliance.................. 135
10.17. Annual Independent Certified Public
Accountants' Reports......................... 135
10.18. Access to Certain Documentation and
Information Regarding the Mortgage
Loans; Confidentiality....................... 136
10.19. Assignment of Agreement............................ 136
10.20. Inspections by Certificate Insurer and
Account Parties; Errors and Omissions
Insurance.................................... 136
10.21. Financial Statements............................... 137
10.22. REMIC ............................................. 137
10.23. The Designated Depository Institution.............. 138
10.24. Appointment of Custodian........................... 138
ARTICLE XI EVENTS OF DEFAULT; REMOVAL OF MASTER
SERVICER; MERGER............................. 138
11.1. Removal of Master Servicer; Resignation
of Master Servicer........................... 138
11.2. Merger, Conversion, Consolidation or
Succession to Business of Master
Servicer..................................... 143
ARTICLE XII MISCELLANEOUS................................ 144
12.1. Compliance Certificates and Opinions................ 144
12.2. Form of Documents Delivered to the
Trustee...................................... 144
12.3. Acts of Owners...................................... 145
12.4. Notices, etc. to Trustee............................ 146
12.5. Notices and Reports to Owners; Waiver of
Notices...................................... 146
12.6. Rules by Trustee and Seller......................... 147
12.7. Successors and Assigns.............................. 147
x
12.8. Severability........................................ 147
12.9. Benefits of Agreement............................... 147
12.10. Legal Holidays..................................... 147
12.11. Governing Law...................................... 147
12.12. Counterparts....................................... 147
12.13. Usury ............................................. 147
12.14. Amendment.......................................... 148
12.15. The Certificate Insurer............................ 149
12.16. REMIC Status; Taxes................................ 149
12.17. Additional Limitation on Action and
Imposition of Tax............................ 151
12.18. Appointment of Tax Matters Person.................. 152
12.19. Notices............................................ 152
12.20. Grant of Security Interest......................... 153
12.21. Indemnification.................................... 154
EXHIBIT A-1 -- Form of Class A-1 Group I Certificate
EXHIBIT A-2 -- Form of Class A-2 Group I Certificate
EXHIBIT A-3 -- Form of Class A-3 Group I Certificate
EXHIBIT A-4 -- Form of Class A-4 Group I Certificate
EXHIBIT A-5 -- Form of Class A-5 Group I Certificate
EXHIBIT A-6 -- Form of Class A-6 Group II Certificate
EXHIBIT B-1 -- Form of Class B Group I Certificate
EXHIBIT B-2 -- Form of Class B Group II Certificate
EXHIBIT B-3 -- Form of Class BI-S Certificate
EXHIBIT B-4 -- Form of Class BII-S Certificate
EXHIBIT C-1 -- Form of Class RL Certificate
EXHIBIT C-2 -- Form of Class RU Certificate
EXHIBIT D -- Form of Transfer Certificate
EXHIBIT E -- Form of Residual Certificate Tax Matters
Transfer Certificate
EXHIBIT F -- Form of Master Servicer's Trust Receipt
EXHIBIT G -- Form of Liquidation Report
EXHIBIT H -- Form of Delivery Order
EXHIBIT I -- Officer's Certificate
EXHIBIT J -- Form of Certificate Regarding Prepaid Loans
EXHIBIT K -- Form of Initial Trustee Certification
EXHIBIT L -- Form of Interim Trustee Certification
EXHIBIT M -- Form of Final Trustee Certification
EXHIBIT N -- Auction Procedures
EXHIBIT O -- Form of Trustee Request for Class A-6
Formula Interest Shortfall
xi
POOLING AND SERVICING AGREEMENT, relating to ACCESS FINANCIAL
MORTGAGE LOAN TRUST _______, dated as of ____________, by and among
________________________________, ACCESS FINANCIAL LENDING CORP., a Delaware
corporation, as Seller (in such capacity, the "Seller") and as Master Servicer
(in such capacity, the "Master Servicer"), and _______________________________,
a national banking association, in its capacity as trustee (the "Trustee").
WHEREAS, the Seller wishes to establish a trust and two
sub-trusts and provide for the allocation and sale of the beneficial interests
therein and the maintenance and distribution of the trust estate;
WHEREAS, the Seller wishes to convey the Mortgage Loans to the
Trust;
WHEREAS, the Master Servicer has agreed to service the
Mortgage Loans, which constitute the principal assets of the trust estate;
WHEREAS, all things necessary to make the Certificates, when
executed and authenticated by the Trustee, valid instruments, and to make this
Agreement a valid agreement, in accordance with their and its terms, have been
done; and
WHEREAS, ___________, is willing to serve in the capacity of
Trustee hereunder.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the Seller, the Master Servicer and the
Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 1.1. Definitions. For all purposes of this Agreement,
the following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
"Access Financial Loan Purchase Trust": The trusts,
collectively, created by the Second Amended and Restated Pooling and Servicing
Agreement dated as of February 1, 1994, among the Trustee, the Seller and
Electronic Data Systems Corporation and the Pooling and Servicing Agreement,
dated as of January 1, 1995 among the Trustee, the Seller and LSI.
"Account": The Certificate Account, each Principal and
Interest Account and each Distribution Account including any sub-Accounts
created pursuant to Section 7.2.
"Accrual Period": With respect to the Class A-2, A-3, A-4 and
A-5 Certificates and any Payment Date, the period from and including the second
day of the calendar month immediately preceding such Payment Date to and
including the first day of the calendar month in which such Payment Date occurs;
with respect to the Class A-1 and A-6 Certificates and any Payment Date, the
period from and including the prior Payment Date (or, in the case of the first
Payment Date, from and including the Startup Day) to and including the day
immediately preceding such Payment Date.
"Addition Notice": With respect to the transfer of Subsequent
Mortgage Loans to the Trust pursuant to Section 3.6(b) of this Agreement,
notice, which shall be given not later than five Business Days prior to the
related Subsequent Transfer Date, of the Seller's designation of Subsequent
Mortgage Loans to be sold to the Trust and the aggregate Loan Balance of such
Subsequent Mortgage Loans.
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, as it may
be amended from time to time, and including the Exhibits hereto.
"Appraised Value": The appraised value of any Property based
upon the appraisal made at the time of the origination of the related Mortgage
Loan, or, in the case of a Mortgage Loan which is a purchase money mortgage, the
sales price of the Property at such time of origination, if such sales price is
less than such appraised value.
"Auction Call": As defined in Section 8.3 hereof.
"Authorized Officer": With respect to any Person, any person
who is authorized to act for such Person in matters relating to this Agreement,
and whose action is binding upon such Person and, with respect to the Trustee,
the Seller, and the Master Servicer, initially including those individuals whose
names appear on the lists of Authorized Officers delivered on the Startup Day.
2
"Base Group I Principal Distribution Amount": As to any
Payment Date, an amount equal to (x) the sum, without duplication, of (i) the
principal portion of all scheduled and unscheduled payments received by the
Master Servicer on the Group I Mortgage Loans during the related Remittance
Period, including any Prepayments and any Net Proceeds, (ii) the principal
portion of all Substitution Amounts and the principal portion of all Loan
Purchase Prices deposited into the Principal and Interest Accounts with respect
to the Group I Mortgage Loans on the related Remittance Date, and (iii) the
proceeds received by the Trustee with respect to the Group I Mortgage Loans in
connection with any termination of the Trust pursuant to Article VIII hereof, to
the extent such proceeds relate to principal, minus (y) the amount of any Group
I Subordination Reduction Amount for such Payment Date.
"Base Group II Principal Distribution Amount": As to any
Payment Date, an amount equal to (x) the sum, without duplication, of (i) the
principal portion of all scheduled and unscheduled payments received by the
Master Servicer on the Group II Mortgage Loans during the related Remittance
Period, including any Prepayments and any Net Proceeds, (ii) the principal
portion of all Substitution Amounts and the principal portion of all Loan
Purchase Prices deposited into the Principal and Interest Accounts with respect
to the Group II Mortgage Loans on the related Remittance Date, and (iii) the
proceeds received by the Trustee with respect to the Group II Mortgage Loans in
connection with any termination of the Trust pursuant to Article VIII hereof, to
the extent such proceeds relate to principal, minus (y) the amount of any Group
II Subordination Reduction Amount for such Payment Date.
"Business Day": Any day that is not a Saturday, Sunday or
other day on which commercial banking institutions in the State of New York, the
state in which the principal corporate office or bank of the Master Servicer is
located or in the state in which the principal corporate trust office of the
Trustee is located, which initially is ____________, ____________, are
authorized or obligated by law or executive order to be closed.
"Capitalized Interest Account": The Capitalized Interest
Account established in accordance with Section 7.2 hereof and maintained by the
Trustee.
"Carry-Forward Amount": The Class A-1 Interest Carry-Forward
Amount, the Class A-2 Interest Carry-Forward Amount, the Class A-3 Interest
Carry-Forward Amount, the Class A-4 Interest Carry-Forward Amount, the Class A-5
Interest Carry-Forward Amount, the Class A-6 Interest Carry-Forward Amount, the
Class A-1 Principal Carry-Forward Amount, the Class A-2 Principal Carry-Forward
Amount, the Class A-3
3
Principal Carry-Forward Amount, the Class A-4 Principal Carry-Forward Amount,
the Class A-5 Principal Carry-Forward Amount, the Class A-6 Principal
Carry-Forward Amount, the Class B Group I Carry-Forward Amount or the Class B
Group II Carry-Forward Amount.
"Certificate": Any one of the Class A-1 Group I Certificates,
Class A-2 Group I Certificates, Class A-3 Group I Certificates, Class A-4 Group
I Certificates, Class A-5 Group I Certificates, Class A-6 Group II Certificates,
Class B Group I Certificates, Class B Group II Certificates, Class BI-S
Certificates, Class BII-S Certificates or the Residual Certificates.
"Certificate Account": The account designated as the
Certificate Account pursuant to Section 7.2 hereof.
"Certificate Insurance Policy": The certificate guaranty
surety bond number __________ issued by the Certificate Insurer to the Trustee
for the benefit of the Owners of the Class A Certificates.
"Certificate Insurer": Financial Guaranty Insurance Company, a
New York stock insurance company.
"Certificateholder": As of any date and with respect to any
Certificate, the Person in whose name such Certificate is registered on the
Register on such date.
"Class": All of the Class A-1 Group I Certificates, the Class
A-2 Group I Certificates, the Class A-3 Group I Certificates, the Class A-4
Group I Certificates, the Class A-5 Group I Certificates, the Class A-6 Group
II Certificates, the Class B Group I Certificates, the Class B Group II
Certificates, or all of the Residual Certificates, as applicable.
"Class A Certificates": Collectively, the Class A-1 Group I
Certificates, the Class A-2 Group I Certificates, the Class A-3 Group I
Certificates, the Class A-4 Group I Certificates, the Class A-5 Group I
Certificates, and the Class A-6 Group II Certificates.
"Class A Group I Certificates": All of the Class A-1 Group I
Certificates, the Class A-2 Group I Certificates, the Class A-3 Group I
Certificates, the Class A-4 Group I Certificates and the Class A-5 Group I
Certificates.
"Class A Group I Distribution Account": The Class A Group I
Distribution Account created pursuant to Section 7.2 hereof.
4
"Class A Group II Distribution Account": The Class A Group II
Distribution Account created pursuant to Section 7.2 hereof.
"Class A-1 Distribution Amount": As of any Payment Date, the
sum of (i) the Class A-1 Principal Distribution Amount for such Payment Date,
(ii) the Class A-1 Interest Distribution Amount for such Payment Date, (iii) the
Class A-1 Interest Carry-Forward Amount for such Payment Date and (iv) the Class
A-1 Principal Carry-Forward Amount for such Payment Date.
"Class A-1 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Interest Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-1 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, made to the Owners of the Class A-1 Group I Certificates pursuant to
Section 7.3(c)(i)(A) hereof on such immediately preceding Payment Date and
allocable to the Class A-1 Interest Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-1 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-1 Interest Distribution Amount": As of any Payment
Date, interest accrued during the related Accrual Period at the Class A-1
Pass-Through Rate on the Class A-1 Principal Balance immediately prior to such
Payment Date.
"Class A-1 Pass-Through Rate": the least of (i) LIBOR as of
the second to last Business Day prior to the immediately preceding Payment Date
(or prior to the Startup Day, in the case of the initial Payment Date) plus
0.125% per annum, (ii) the Net Weighted Average Coupon Rate for the Group I
Mortgage Loans for such Payment Date, and (iii) 10% per annum.
"Class A-1 Principal Balance": The original Class A-1
Principal Balance of ___________ reduced by the sum of all amounts previously
distributed to the Owners of the Class A-1 Group I Certificates in respect of
principal on all previous Payment Dates, but shall not be reduced below zero.
"Class A-1 Principal Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-1 Principal
Distribution Amount as of the
5
immediately preceding Payment Date exceeded (y) the amount of the actual
distribution, exclusive of any portion of any Insured Payment, made to the
Owners of the Class A-1 Group I Certificates pursuant to Section 7.3(c)(i)(A)
hereof on such immediately preceding Payment Date and allocable to the Class A-1
Principal Distribution Amount on such immediately preceding Payment Date and
(ii) interest on the amount, if any, described in clause (i) at one-twelfth of
the Class A-1 Pass-Through Rate from such immediately preceding Payment Date.
"Class A-1 Principal Distribution Amount": With respect to any
Payment Date on or prior to the Class A-1 Termination Date, an amount equal to
the lesser of (x) the Group I Principal Distribution Amount for such Payment
Date and (y) the amount necessary to reduce the Class A-1 Principal Balance (as
it was immediately prior to such Payment Date) to zero. On the Class A-1
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-1 Principal Balance shall be distributed as the initial principal
distribution on the Class A-2 Group I Certificates.
"Class A-1 Termination Date": The Payment Date on which the
Class A-1 Principal Balance is reduced to zero.
"Class A-2 Distribution Amount": As of any Payment Date, the
sum of (i) the Class A-2 Principal Distribution Amount for such Payment Date,
(ii) the Class A-2 Interest Distribution Amount for such Payment Date, (iii) the
Class A-2 Interest Carry-Forward Amount for such Payment Date and (iv) the Class
A-2 Principal Carry-Forward Amount for such Payment Date.
"Class A-2 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Interest Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-2 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, made to the Owners of the Class A-2 Group I Certificates pursuant to
Section 7.3(c)(i)(B) hereof on such immediately preceding Payment Date and
allocable to the Class A-2 Interest Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-2 Pass-Through Rate from such
immediately preceding Payment Date.
6
"Class A-2 Interest Distribution Amount": As of any Payment
Date, interest accrued during the related Accrual Period at the Class A-2
Pass-Through Rate on the Class A-2 Principal Balance immediately prior to such
Payment Date.
"Class A-2 Pass-Through Rate": ________% per annum.
"Class A-2 Principal Balance": The original Class A-2
Principal Balance of _____________ reduced by the sum of all amounts previously
distributed to the Owners of the Class A-2 Group I Certificates in respect of
principal on all previous Payment Dates, but shall not be reduced below zero.
"Class A-2 Principal Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-2 Principal
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, to the Owners of the Class A-2 Group I Certificates made pursuant to
Section 7.3(c)(i)(B) hereof on such immediately preceding Payment Date and
allocable to the Class A-2 Principal Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-2 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-2 Principal Distribution Amount": With respect to any
Payment Date following the Class A-1 Termination Date, an amount equal to the
lesser of (x) the Group I Principal Distribution Amount for such Payment Date
and (y) the amount necessary to reduce the Class A-2 Principal Balance (as it
was immediately prior to such Payment Date) to zero. On the Class A-1
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-1 Principal Balance shall be distributed as the initial principal
distribution on the Class A-2 Group I Certificates. On the Class A-2 Termination
Date any portion of the Group I Principal Distribution Amount remaining on such
Payment Date following the reduction to zero of the Class A-2 Principal Balance
shall be distributed as the initial principal distribution on the Class A-3
Group I Certificates.
"Class A-2 Termination Date": The Payment Date on which the
Class A-2 Principal Balance is reduced to zero.
"Class A-3 Distribution Amount": As of any Payment Date, the
sum of (i) the Class A-3 Principal Distribution Amount for such Payment Date,
(ii) the Class A-3 Interest Distribution Amount for such Payment Date, (iii) the
Class A-3 Interest Carry-Forward Amount for such Payment Date and (iv)
7
the Class A-3 Principal Carry-Forward Amount for such Payment Date.
"Class A-3 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-3 hereto.
"Class A-3 Interest Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-3 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, made to the Owners of the Class A-3 Group I Certificates pursuant to
Section 7.3(c)(i)(C) hereof on such immediately preceding Payment Date and
allocable to the Class A-3 Interest Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-3 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-3 Interest Distribution Amount": As of any Payment
Date, interest accrued during the related Accrual Period at the Class A-3
Pass-Through Rate on the Class A-3 Principal Balance immediately prior to such
Payment Date.
"Class A-3 Pass-Through Rate": ___________% per annum.
"Class A-3 Principal Balance": The original Class A-3
Principal Balance of _____________ reduced by the sum of all amounts previously
distributed to the Owners of the Class A-3 Group I Certificates in respect of
principal on all previous Payment Dates, but shall not be reduced below zero.
"Class A-3 Principal Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-3 Principal
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, to the Owners of the Class A-3 Group I Certificates made pursuant to
Section 7.3(c)(i)(C) hereof on such immediately preceding Payment Date and
allocable to the Class A-3 Principal Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-3 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-3 Principal Distribution Amount": With respect to any
Payment Date following the Class A-2 Termination Date, an amount equal to the
lesser of (x) the Group I Principal Distribution Amount for such Payment Date
8
and (y) the amount necessary to reduce the Class A-3 Principal Balance (as it
was immediately prior to such Payment Date) to zero. On the Class A-2
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-2 Principal Balance shall be distributed as the initial principal
distribution on the Class A-3 Group I Certificates. On the Class A-3 Termination
Date any portion of the Group I Principal Distribution Amount remaining on such
Payment Date following the reduction to zero of the Class A-3 Principal Balance
shall be distributed as the initial principal distribution on the Class A-4
Group I Certificates.
"Class A-3 Termination Date": The Payment Date on which the
Class A-3 Principal Balance is reduced to zero.
"Class A-4 Distribution Amount": As of any Payment Date, the
sum of (i) the Class A-4 Principal Distribution Amount for such Payment Date,
(ii) the Class A-4 Interest Distribution Amount for such Payment Date, (iii) the
Class A-4 Interest Carry-Forward Amount for such Payment Date and (iv) the Class
A-4 Principal Carry-Forward Amount for such Payment Date.
"Class A-4 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-4 hereto.
"Class A-4 Interest Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-4 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, made to the Owners of the Class A-4 Group I Certificates pursuant to
Section 7.3(c)(i)(D) hereof on such immediately preceding Payment Date and
allocable to the Class A-4 Interest Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-4 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-4 Interest Distribution Amount": As of any Payment
Date, interest accrued during the related Accrual Period at the Class A-4
Pass-Through Rate on the Class A-4 Principal Balance immediately prior to such
Payment Date.
"Class A-4 Pass-Through Rate": __________% per annum.
"Class A-4 Principal Balance": The original Class A-4
Principal Balance of ____________ reduced by the sum of all amounts previously
distributed to the Owners of the
9
Class A-4 Group I Certificates in respect of principal on all previous Payment
Dates, but shall not be reduced below zero.
"Class A-4 Principal Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-4 Principal
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, to the Owners of the Class A-4 Group I Certificates made pursuant to
Section 7.3(c)(i)(D) hereof on such immediately preceding Payment Date and
allocable to the Class A-4 Principal Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-4 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-4 Principal Distribution Amount": With respect to any
Payment Date following the Class A-3 Termination Date, an amount equal to the
lesser of (x) the Group I Principal Distribution Amount for such Payment Date
and (y) the amount necessary to reduce the Class A-4 Principal Balance (as it
was immediately prior to such Payment Date) to zero. On the Class A-3
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-3 Principal Balance shall be distributed as the initial principal
distribution on the Class A-4 Group I Certificates. On the Class A-4 Termination
Date any portion of the Group I Principal Distribution Amount remaining on such
Payment Date following the reduction to zero of the Class A-4 Principal Balance
shall be distributed as the initial principal distribution on the Class A-5
Group I Certificates.
"Class A-5 Distribution Amount": As of any Payment Date, the
sum of (i) the Class A-5 Principal Distribution Amount for such Payment Date,
(ii) the Class A-5 Interest Distribution Amount for such Payment Date, (iii) the
Class A-5 Interest Carry-Forward Amount for such Payment Date and (iv) the Class
A-5 Principal Carry-Forward Amount for such Payment Date.
"Class A-5 Group I Certificates": Those certificates in
substantially the form set forth in Exhibit A-5 hereto.
"Class A-5 Interest Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-5 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, made to the Owners of the Class A-5 Group I Certificates pursuant to
Section 7.3(c)(i)(E) hereof on such
10
immediately preceding Payment Date and allocable to the Class A-5 Interest
Distribution Amount on such immediately preceding Payment Date and (ii) interest
on the amount, if any, described in clause (i) at one-twelfth of the Class A-5
Pass-Through Rate from such immediately preceding Payment Date.
"Class A-5 Interest Distribution Amount": As of any Payment
Date, interest accrued during the related Accrual Period at the Class A-5
Pass-Through Rate on the Class A-5 Principal Balance immediately prior to such
Payment Date.
"Class A-5 Pass-Through Rate": __________% per annum.
"Class A-5 Principal Balance": The original Class A-5
Principal Balance of ___________ reduced by the sum of all amounts previously
distributed to the Owners of the Class A-5 Group I Certificates in respect of
principal on all previous Payment Dates, but shall not be reduced below zero.
"Class A-5 Principal Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-5 Principal
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, to the Owners of the Class A-5 Group I Certificates made pursuant to
Section 7.3(c)(i)(E) hereof on such immediately preceding Payment Date and
allocable to the Class A-5 Principal Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-5 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-5 Principal Distribution Amount": With respect to any
Payment Date following the Class A-4 Termination Date, an amount equal to the
lesser of (x) the Group I Principal Distribution Amount for such Payment Date
and (y) the amount necessary to reduce the Class A-5 Principal Balance (as it
was immediately prior to such Payment Date) to zero. On the Class A-4
Termination Date any portion of the Group I Principal Distribution Amount for
such Payment Date remaining on such Payment Date following the reduction to zero
of the Class A-4 Principal Balance shall be distributed as the initial principal
distribution on the Class A-5 Group I Certificates.
"Class A-6 Distribution Account": The Class A-6 Distribution
Account created by Section 7.2 hereof.
"Class A-6 Distribution Amount": As of any Payment Date, the
sum of (i) the Class A-6 Principal Distribution
11
Amount for such Payment Date, (ii) the Class A-6 Interest Distribution Amount
for such Payment Date, (iii) the Class A-6 Interest Carry-Forward Amount for
such Payment Date and (iv) the Class A-6 Principal Carry-Forward Amount for such
Payment Date.
"Class A-6 Formula Distribution Amount": With respect to the
Class A-6 Certificates for any Payment Date, the sum of (x) the Class A-6
Interest Distribution Amount for such Payment Date and (y) the Class A-6
Principal Distribution Amount for such Payment Date.
"Class A-6 Formula Interest Shortfall": As defined in Section
7.9(b) hereof.
"Class A-6 Formula Pass-Through Rate": As of any Payment Date,
the rate described in clause (i) of the definition of "Class A-6 Pass-Through
Rate".
"Class A-6 Full Distribution Amount": With respect to any
Payment Date, the sum of (x) the Class A-6 Full Interest Distribution Amount for
such Payment Date and (y) the Class A-6 Principal Distribution Amount for such
Payment Date.
"Class A-6 Full Interest Distribution Amount": With respect to
any Payment Date, the Class A-6 Interest Distribution Amount for such Payment
Date calculated using the Class A-6 Formula Pass-Through Rate for such Payment
Date rather than the Class A-6 Pass-Through Rate for such Payment Date plus, if
the full amount of the Class A-6 Formula Interest Shortfall, if any, was not
funded on any prior Payment Date and remains unpaid on such Payment Date, such
amount, together with interest thereon (from the Payment Date on which such
Class A-6 Formula Interest Shortfall was calculated) at the Class A-6 Formula
Pass-Through Rate for such Payment Date.
"Class A-6 Interest Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-6 Interest
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, made to the Owners of the Class A-6 Group II Certificates pursuant to
Section 7.3(c)(ii) hereof on such immediately preceding Payment Date and
allocable to the Class A-6 Interest Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-6 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-6 Interest Distribution Amount": As of any Payment
Date, interest accrued during the related Accrual
12
Period at the Class A-6 Pass-Through Rate on the Class A-6 Principal Balance
immediately prior to such Payment Date.
"Class A-6 Pass-Through Rate": With respect to any Payment
Date and Accrual Period, the lesser of (i) LIBOR as of the second to last
Business Day prior to the immediately preceding Payment Date (or prior to the
Startup Day, in the case of the initial Payment Date) plus __________% per
annum, or (ii) the Net Weighted Average Coupon Rate for the Group II Mortgage
Loans for such Payment Date.
"Class A-6 Principal Balance": The original Class A-6
Principal Balance of $____________ reduced by the sum of all amounts previously
distributed to the Owners of the Class A-6 Group II Certificates in respect of
principal on all previous Payment Dates, but shall not be reduced below zero.
"Class A-6 Principal Carry-Forward Amount": As of any Payment
Date, the sum of (i) the amount, if any, by which (x) the Class A-6 Principal
Distribution Amount as of the immediately preceding Payment Date exceeded (y)
the amount of the actual distribution, exclusive of any portion of any Insured
Payment, made to the Owners of the Class A-6 Group II Certificates made pursuant
to Section 7.3(c)(ii) hereof on such immediately preceding Payment Date and
allocable to the Class A-6 Principal Distribution Amount on such immediately
preceding Payment Date and (ii) interest on the amount, if any, described in
clause (i) at one-twelfth of the Class A-6 Pass-Through Rate from such
immediately preceding Payment Date.
"Class A-6 Principal Distribution Amount": With respect to any
Payment Date, an amount equal to the lesser of (x) the Group II Principal
Distribution Amount for such Payment Date and (y) the amount necessary to reduce
the Class A-6 Principal Balance (as it was immediately prior to such Payment
Date) to zero.
"Class A-6 Group II Certificates": Those certificates in
substantially the form set forth in Exhibit A-6 hereto.
"Class B Certificates": Collectively, the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates and
the Class BII-S Certificates.
"Class B Group I Carry-Forward Amount": As of any Payment
Date, the amount, if any, by which (x) the Class B Group I Distribution Amount
as of the immediately preceding Payment Date exceeded (y) the amount of the
actual distribution to the Owners of the Class B Group I Certificates made
pursuant to Section 7.3(c)(iv) hereof on such immediately preceding Payment
Date.
13
"Class B Group I Certificates": Those certificates in
substantially the form set forth in Exhibit B-1 hereto.
"Class B Group I Distribution Account": The Class B Group I
Distribution Account created pursuant to Section 7.2 hereof.
"Class B Group I Distribution Amount": As of any Payment Date,
the sum of (i) the Class B Group I Interest Distribution Amount for such Payment
Date, (ii) the Group I Subordination Reduction Amount, if any, for such Payment
Date, (iii) any portion of the Group II Subordination Reduction Amount described
in Section 7.3(b)(iv)(E)(ii) hereof and (iv) the Class B Group I Carry-Forward
Amount, if any, as of such Payment Date.
"Class B Group I Interest": As of any Payment Date, the excess
of (i) the product of (x) the Net Weighted Average Coupon Rate of the Group I
Mortgage Loans for the immediately preceding Remittance Period, times the actual
number of days in such Remittance Period divided by 365 (or 366, as
appropriate), and (y) the Group I Pool Principal Balance as of the opening of
business on the first day of the immediately preceding Remittance Period over
(ii) the Group I Insured Interest Distribution Amount on such Payment Date.
"Class B Group I Interest Distribution Amount": As of any
Payment Date, the Class B Group I Interest for such Payment Date minus the sum
of (i) the amount of any Group I Subordination Increase Amount actually
paid to the Owners of the Class A Group I Certificates on such Payment Date as
all or a portion of the Group I Subordination Increase Amount on such Payment
Date pursuant to Section 7.3(b)(iv)(C)(i) hereof and (ii) the amount of any
Class B Group I Interest actually paid to the Owners of the Class A-6 Group II
Certificates as all or a portion of (x) the Group II Insured Distribution Amount
on such Payment Date, pursuant to Section 7.3(b)(iv)(B)(i) hereof or (y) the
portion of any Group II Subordination Increase Amount allocated to the Class A
Group II Distribution Account with respect to a Group II Subordination
Deficiency on such Payment Date, pursuant to Section 7.3(b)(iv)(D)(i) hereof.
"Class B Group I Principal Balance": The Class B Group I
Principal Balance shall be (x) increased on each Payment Date by the amounts, if
any, of the Class B Group I Interest (i) actually paid to the Owners of the
Class A Group I Certificates on such Payment Date as all or a portion of the
Group I Insured Principal Distribution Amount or as all or a portion of the
Group I Subordination Increase Amount on such Payment Date pursuant to Sections
7.3(b)(iv)(A)(iii) and 7.3(b)(iv)(C)(i) hereof or (ii) actually paid to the
Owners of the Class A-6 Group II Certificates on such Payment Date as
14
all or a portion of the Group II Insured Distribution Amount or as all or a
portion of the Group II Subordination Deficiency Amount on such Payment Date,
pursuant to Sections 7.3(b)(iv)(B)(i) and 7.3(b)(iv)(D)(i) hereof and (y)
decreased on each Payment Date by the amounts of (i) any Group I Subordination
Reduction Amount paid to the Owners of the Class B Group I Certificates on such
Payment Date pursuant to Section 7.3(b)(iv)(G)(i) hereof, (ii) any Group II
Subordination Reduction Amount paid to the Owners of the Class B Group I
Certificates on such Payment Date pursuant to Section 7.3(b)(iv)(E)(ii) hereof
and (iii) the amount of any Group I Allocable Losses allocated as a reduction of
the Class B Group I Principal Balance on such Payment Date pursuant to Section
7.8(a) hereof. The Class B Group I Principal Balance shall in no event be less
than zero.
"Class B Group II Carry-Forward Amount": As of any Payment
Date, the amount, if any, by which (x) the Class B Group II Distribution Amount
as of the immediately preceding Payment Date exceeded (y) the amount of the
actual distribution to the Owners of the Class B Group II Certificates made
pursuant to Section 7.3(c)(v) hereof on such immediately preceding Payment Date.
"Class B Group II Certificates": Those certificates in
substantially the form set forth in Exhibit B-2 hereto.
"Class B Group II Distribution Account": The Class B Group II
Distribution Account created pursuant to Section 7.2 hereof.
"Class B Group II Distribution Amount": As of any Payment
Date, the sum of (i) the Class B Group II Interest Distribution Amount for such
Payment Date, (ii) the Group II Subordination Reduction Amount, if any, for such
Payment Date, (iii) any portion of the Group I Subordination Reduction Amount
described in Section 7.3(b)(iv)(E)(i) hereof and (iv) the Class B Group II
Carry-Forward Amount, if any, as of such Payment Date.
"Class B Group II Interest": As of any Payment Date, the
excess of (i) the product of (x) the Net Weighted Average Coupon Rate of the
Group II Mortgage Loans for the immediately preceding Remittance Period, times
the actual number of days in such Remittance Period divided by 360 and (y) the
Group II Pool Principal Balance as of the opening of business on the first day
of the immediately preceding Remittance Period over (ii) the Group II Insured
Interest Distribution Amount on such Payment Date.
"Class B Group II Interest Distribution Amount": As of any
Payment Date, the Class B Group II Interest for such Payment Date minus the sum
of (i) the amount of any Group II
15
Subordination Increase Amount actually paid to the Owners of the Class A-6 Group
II Certificates on such Payment Date as all or a portion of the Group II
Subordination Increase Amount on such Payment Date pursuant to Section
7.3(b)(iv)(C)(ii) hereof and (ii) the amount of any Class B Group II Interest
actually paid to the Owners of the Class A Group I Certificates as all or a
portion of (x) the Group I Insured Distribution Amount on such Payment Date
pursuant to Section 7.3(b)(iv)(B)(ii) hereof or (y) the portion of any Group I
Subordination Increase Amount made with respect to a Group I Subordination
Deficiency on such Payment Date, pursuant to Section 7.3(b)(iv)(D)(ii) hereof.
"Class B Group II Principal Balance": The Class B Group II
Principal Balance shall be (x) increased on each Payment Date by the amounts, if
any, of the Class B Group II Interest (i) actually paid to the Owners of the
Class A-6 Group II Certificates on such Payment Date as all or a portion of the
Group II Insured Principal Distribution Amount or all or a portion of the Group
II Subordination Increase Amount on such Payment Date pursuant to Sections
7.3(b)(iv)(A)(v) and 7.3(b)(iv)(C)(ii) hereof or (ii) actually paid to the
Owners of the Class A Group I Certificates on such Payment Date as all or a
portion of the Group I Insured Distribution Amount or as all or a portion of the
Group I Subordination Deficiency Amount on such Payment Date, pursuant to
Section 7.3(b)(iv)(B)(ii) and 7.3(b)(iv)(D)(ii) hereof and (y) decreased on each
Payment Date by the amounts of (i) any Group II Subordination Reduction Amount
paid to the Owners of the Class B Group II Certificates on such Payment Date
pursuant to Section 7.3(b)(iv)(G)(ii) hereof, (ii) any Group I Subordination
Reduction Amount paid to the Owners of the Class B Group II Certificates on such
Payment Date pursuant to Section 7.3(b)(iv)(E)(i) hereof and (iii) the amount of
any Group II Allocable Losses allocated as a reduction of the Class B Group II
Principal Balance on such Payment Date pursuant to Section 7.8(b) hereof. The
Class B Group II Principal Balance shall in no event be less than zero.
"Class BI-S Certificate": Any of those Certificates
representing the right to receive excess amounts in the Group I Supplemental
Interest Payment Account, and designated as a "Class BI-S Certificate" on the
face thereof, in the form of Exhibit B-3 hereto.
"Class BII-S Certificate": Any of those Certificates
representing the right to receive excess amounts on the Group II Supplemental
Interest Payment Account, and designated as a "Class BII-S Certificate" on the
face thereof, in the form of Exhibit B-3 hereto.
16
"Class LT1 Certificates": The uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section 2.8
hereof.
"Class LT2 Certificates": The uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section 2.8
hereof.
"Class LT3 Certificates": The uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section 2.8
hereof.
"Class LT4 Certificates": The uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section 2.8
hereof.
"Class LT5 Certificates": The uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section 2.8
hereof.
"Class LT6 Certificates": The uncertificated class of
interests in the Lower-Tier REMIC, as described in and designated in Section 2.8
hereof.
"Class RL Certificates": Those certificates representing
certain residual rights to distributions from the Lower-Tier REMIC in
substantially the form set forth as Exhibit C-1 hereto.
"Class RU Certificates": Those certificates representing
certain residual rights to distributions from the Upper-Tier REMIC in
substantially the form set forth as Exhibit C-2 hereto.
"Code": The Internal Revenue Code of 1986, as amended.
"Compensating Interest": As defined in Section 10.10 of this
Agreement.
"Coupon Rate": With respect to any Note and Remittance Period,
the rate of interest borne by such Note at the opening of business on the first
day of such Remittance Period.
"Cumulative Net Realized Losses": As of any Payment Date, the
sum of all Net Realized Losses with respect to the Mortgage Loans experienced on
all prior Payment Dates.
"Cut-Off Date": The close of business on ____________.
17
"Delinquency Advance": As defined in Section 10.9(a) of this
Agreement.
"Delinquent": A Mortgage Loan is "delinquent" if any payment
due thereon is not made by the close of business on the day such payment is
scheduled to be due. A Mortgage Loan is "30 days delinquent" if such payment has
not been received by the close of business on the corresponding day of the month
immediately succeeding the month in which such payment was due, or, if there is
no such corresponding day (e.g., as when a 30-day month follows a 31-day month
in which a payment was due on the 31st day of such month) then on the last day
of such immediately succeeding month. Similarly for "60 days delinquent," "90
days delinquent" and so on.
"Delivery Order": The Delivery Order from the Seller to the
Trustee directing the Trustee to issue the Certificates on the Startup Day, in
substantially the form of Exhibit H hereto.
"Depository": The ______________________________, and any
successor depository hereafter named.
"Designated Depository Institution": With respect to any
Account, an institution whose deposits are insured by the Bank Insurance Fund or
the Savings Association Insurance Fund of the FDIC, the long-term deposits of
which shall be rated A or better by ___________ and A1 or better by ___________
and in one of the two highest short-term rating categories by S&P and the
highest short-term rating category by __________, unless otherwise approved in
writing by the Certificate Insurer, and which is any of the following: (i) a
federal savings and loan association duly organized, validly existing and in
good standing under the federal banking laws, (ii) an institution duly
organized, validly existing and in good standing under the applicable banking
laws of any state, (iii) a national banking association duly organized, validly
existing and in good standing under the federal banking laws, (iv) a principal
subsidiary of a bank holding company meeting the standards of (i)-(iii) above,
or (v) approved in writing by the Certificate Insurer and the Rating Agencies
and, in each case acting or designated by the Master Servicer or the Trustee as
the depository institution for such Account; provided, however, that any such
institution, association or subsidiary shall have combined capital, surplus and
individual profits of at least ____________. Notwithstanding the foregoing, an
Account may be held by an institution otherwise meeting the preceding
requirements except that the only applicable rating requirement shall be that
the unsecured and uncollateralized debt obligations thereof shall be rated
___________ or better by __________ and ___________ or better by ____________ if
such institution has capital and surplus of not less than _______________ and
has trust powers and the
18
Account is held by such institution in its trust capacity and not in its
commercial capacity.
"Designated Residual Holder": Access Financial Receivables
Corp.
"Determination Date": The second Business Day preceding each
Payment Date.
"Disqualified Organization": "Disqualified Organization" shall
have the meaning set forth from time to time in the definition thereof at
Section 860E(e)(5) of the Code (or any successor statute thereto) and applicable
to the Trust.
"Distribution Accounts": The Class A Group I Distribution
Account, the Class A Group II Distribution Account, the Class B Group I
Distribution Account and the Class B Group II Distribution Account.
"Eligible Investments": Those investments so designated
pursuant to Section 7.5 hereof.
"ERISA": As defined in Section 5.8(a) hereof.
"Event of Default": As defined in Section 11.1 of this
Agreement.
"Excess Pre-Funding Earnings": With respect to the , Payment
Date, an amount equal to the product of (x) all investment earnings received by
the Trustee on Pre-Funding Account moneys during the period
through (inclusive) and (y) a fraction, the numerator of which
is the difference between (i) the Original Pre-Funded Amount and (ii) the amount
remaining in the Pre-Funding Account at the close of business on
and the denominator of which is the Original Pre-Funded Amount. With respect to
the Payment Date, an amount equal to the product of (x) all investment
earnings received by the Trustee on Pre-Funding Account moneys during the period
through (inclusive) and (y) a fraction, the numerator of which is the difference
between (i) the amount on deposit in the Pre-Funding Account at the close of
business on and (ii) the amount remaining in the Pre-Funding Account at the
close of business on and the denominator of which is the amount on
deposit in the Pre-Funding Account at the close of business on .
With respect to the Payment Date, an amount equal to the product of
(x) all investment earnings received by the Trustee on Pre-Funding Account
moneys during the period through (inclusive) and
(y) a fraction, the numerator of which is the difference between (i) the amount
on deposit in the Pre-Funding Account at the close of business on and (ii) the
amount remaining in the Pre-Funding Account at the
19
close of business on and the denominator of which is the amount on
deposit in the Pre-Funding Account at the close of business on .
"FDIC": The Federal Deposit Insurance Corporation, or any
successor thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created pursuant to the Emergency
Home Finance Act of 1970, as amended, or any successor thereof.
"File": The documents pertaining to a particular Mortgage Loan
pursuant to Section 3.3(b) hereof and any additional documents required to be
added to the File pursuant to this Agreement.
"First Mortgage Loan": A Mortgage Loan which constitutes a
first priority mortgage lien with respect to any Property.
"FNMA": The Federal National Mortgage Association, a
federally-chartered and privately-owned corporation existing under the Federal
National Mortgage Association Charter Act, as amended, or any successor thereof.
"Group I": The group of Mortgage Loans that are the Group I
Mortgage Loans.
"Group I Allocable Losses": As defined in Section 7.8(a)
hereof.
"Group I Available Funds": As of any Payment Date, the amount
on deposit in the Certificate Account with respect to the Group I Mortgage Loans
on such Payment Date after making the deposits to the Certificate Account
pursuant to Sections 7.3(a)(i) hereof on such Payment Date. The term "Group I
Available Funds" does not include Insured Payments and does not include any
amounts that cannot be distributed to the Owners of the Certificates by the
Trustee as a result of proceedings under the United States Bankruptcy Code.
"Group I Capitalized Interest Requirement": With respect to
the Payment Dates occurring in , and of , the difference, if any, between (x)
the interest due on the Group I Certificates on such Payment Date and (y) the
sum of (i) one month's interest on the aggregate Loan Balances of all Mortgage
Loans in Group I as of the close of business on the last day of the immediately
preceding Remittance Period, calculated at the Group I Weighted Average Pass-
Through Rate as of such Payment Date and (ii) any Group I Pre-Funding Earnings
to be transferred to the Certificate Account on such Payment Date pursuant to
Section [7.4(f)(i)] hereof.
20
"Group I Certificates": Any of the Class A-1 Group I
Certificates, the Class A-2 Group I Certificates, the Class A-3 Group I
Certificates, the Class A-4 Group I Certificates, the Class A-5 Group I
Certificates and the Class B Group I Certificates.
"Group I Cumulative Crossover Amount": As of any Payment Date,
the excess of (x) the aggregate, cumulative amounts allocated to the Class A
Group I Distribution Account on all prior Payment Dates pursuant to sections
7.3(b)(iv)(B)(ii) and 7.3(b)(iv)(D)(ii) over (y) the aggregate, cumulative
amounts allocated to the Class B Group II Distribution Account on all prior
Payment Dates pursuant to Section 7.3(b)(iv)(E)(i) hereof.
"Group I Cumulative Net Realized Losses": As of any Payment
Date, the sum of all Net Realized Losses with respect to the Group I Mortgage
Loans experienced on all prior Payment Dates.
"Group I Excess Subordinated Amount": With respect to any
Payment Date, the excess, if any, of (x) the Group I Subordinated Amount that
would apply on such Payment Date after taking into account the payment of the
Group I Principal Distribution Amount on such Payment Date (except for any
distributions of related Group I Subordination Reduction Amounts on such Payment
Date) over (y) the Group I Specified Subordinated Amount for such Payment Date.
"Group I Insured Distribution Amount": With respect to any
Payment Date, the sum of (i) Group I Insured Interest Distribution Amount for
such Payment Date and (ii) the Group I Insured Principal Distribution Amount for
such Payment Date.
"Group I Insured Interest Distribution Amount": With respect
to any Payment Date, the sum of (i) the Class A-1 Interest Distribution Amount,
(ii) the Class A-2 Interest Distribution Amount, (iii) the Class A-3 Interest
Distribution Amount, (iv) the Class A-4 Interest Distribution Amount, (v) the
Class A-5 Interest Distribution Amount, (vi) the Class A-1 Interest
Carry-Forward Amount, (vii) the Class A-2 Interest Carry-Forward Amount, (viii)
the Class A-3 Interest Carry-Forward Amount, (ix) the Class A-4 Interest
Carry-Forward Amount and (x) the Class A-5 Interest Carry-Forward Amount, in
each case for such Payment Date.
"Group I Insured Payment": As of any Payment Date, the sum of
(x) the Group I Shortfall Amount for such Payment Date and (y) any Preference
Amounts with respect to the Group I Certificates with respect to which the
affected Owners have complied with the provisions of Section 7.3(g) hereof
during the related Remittance Period.
21
"Group I Insured Principal Distribution Amount": With respect
to any Payment Date, the sum of (i) the Group I Subordination Deficit, (ii) the
Class A-1 Principal Carry-Forward Amount, (iii) the Class A-2 Principal
Carry-Forward Amount, (iv) the Class A-3 Principal Carry-Forward Amount, (v) the
Class A-4 Principal Carry-Forward Amount and (vi) the Class A-5 Principal
Carry-Forward Amount, in each case for such Payment Date.
"Group I Interest Remittance Amount": For any Remittance Date,
the amount equal to (x) the sum, without duplication, of (i) the aggregate
interest portions of the payments (whether or not collected) becoming due on the
Group I Mortgage Loans during the immediately preceding Remittance Period and
(ii) Compensating Interest with respect to the Group I Mortgage Loans minus (y)
the aggregate Master Servicing Fee due to the Master Servicer with respect to
Group I Mortgage Loans for such Remittance Period to the extent not previously
paid to, or withheld by, the Master Servicer.
"Group I Maximum Collateral Amount": The aggregate Loan
Balances of all Mortgage Loans (including all Subsequent Mortgage Loans
transferred to the Trust and assigned to Group I) assigned to Group I at the
close of business on the last day of the Remittance Period in which the final
Subsequent Transfer Date has occurred.
"Group I Monthly Remittance": The sum of (i) the Group I
Interest Remittance Amount and the Group I Principal Remittance Amount required
to be remitted to the Trustee on each Remittance Date and (ii) the amount of any
Substitution Amounts and Loan Purchase Prices on deposit in the Principal and
Interest Account with respect to the Group I Mortgage Loans on such Remittance
Date.
"Group I Mortgage Loans": The Mortgage Loans held by the Trust
and assigned to the Group I, as indicated on the related Mortgage Loan Schedule,
as supplemented and amended from time to time.
"Group I Pre-Funding Earnings": With respect to the
Payment Date, the actual investment earnings earned during the period
through (inclusive) on that portion of the Pre-Funding Account
allocated to Group I during such period as calculated by the Seller pursuant to
Section [3.8(f)] hereof; with respect to the Payment Date the actual
investment earnings during the period through (inclusive) on that
portion of the Pre-Funding Account allocated to Group I during such period
as calculated by the Seller pursuant to Section [3.8(f)] hereof; with respect
to the Payment Date the actual investment earnings during the period
through (inclusive) on that portion of the Pre-Funding Account
22
allocated to Group I during such period as calculated by the Seller pursuant to
Section [3.8(f)] hereof.
"Group I Pool Delinquency Rate": With respect to any
Remittance Period, the fraction, expressed as a percentage, equal to (x) the
aggregate Principal Balances of all Group I Mortgage Loans 90 or more days
Delinquent as of the close of business on the last day of such Remittance Period
over (y) the Group I Pool Principal Balance as of the close of business on the
last day of such Remittance Period.
"Group I Pool Principal Balance": As of any date of
determination, the aggregate Principal Balances of all of the Group I Mortgage
Loans as of the close of business on such date.
"Group I Premium Amount": With respect to each Payment Date,
an amount equal to the product of (x) one twelfth of the Premium Rate set forth
in the Certificate Insurance Policy and (y) the Group I Pool Principal Balance
as of the close of business on the last day of the preceding Remittance Period.
"Group I Principal Distribution Amount": As of any Payment
Date, the sum of (i) the Base Group I Principal Distribution Amount, (ii) the
Group I Subordination Deficit, (iii) the Group I Subordination Increase Amount,
(iv) the Class A-1 Principal Carry-Forward Amount, (v) the Class A-2 Principal
Carry-Forward Amount, (vi) the Class A-3 Principal Carry-Forward Amount, (vii)
the Class A-4 Principal Carry-Forward Amount, (viii) the Class A-5 Principal
Carry-Forward Amount and (ix) any moneys released from the Pre-Funding Account
with respect to Group I on the Payment Date which immediately follows the end of
the Pre-Funding Period pursuant to Section [7.4(c)(i)] hereof as a prepayment of
the Group I Certificates on such Payment Date, in each case, for such Payment
Date.
"Group I Principal Remittance Amount": For any Remittance
Date, without duplication, the amount equal to the sum of (i) the aggregate
principal portions of the payments received by the Master Servicer with respect
to the Group I Mortgage Loans during the immediately preceding Remittance Period
and (ii) any Prepayments, Net Proceeds (but only to the extent that such Net
Proceeds do not exceed the Principal Balance of the related Mortgage Loan), in
each case described in clauses (i) and (ii) only to the extent collected on the
Group I Mortgage Loans during the preceding Remittance Period.
"Group I Rolling Three Month Delinquency Rate": As of any
Payment Date the fraction, expressed as a percentage, equal to the average of
the Group I Pool Delinquency Rates for each of the three (or one and two, in the
case of the first
23
and second Payment Dates) immediately preceding Remittance Periods.
"Group I Shortfall Amount": As of any Payment Date, the
excess, if any, of (x) the Group I Insured Distribution Amount, as of such
Payment Date and less any portion of the Class A-1 Interest Carry-Forward
Amount, the Class A-2 Interest Carry-Forward Amount, the Class A-3 Interest
Carry-Forward Amount, the Class A-4 Interest Carry-Forward Amount, the Class
A-5 Interest Carry-Forward Amount, the Class A-1 Principal Carry-Forward Amount,
the Class A-2 Principal Carry-Forward Amount, the Class A-3 Principal
Carry-Forward Amount, the Class A-4 Principal Carry-Forward Amount or the Class
A-5 Principal Carry-Forward Amount owed to the Certificate Insurer on such
Payment Date on account of its subrogation rights over (y) the Group I Total
Available Funds on deposit in the Class A Group I Distribution Account on such
Payment Date.
"Group I Specified Subordinated Amount": As defined in the
Insurance Agreement.
"Group I Subordinated Amount": With respect to any Payment
Date, the excess, if any, of (x) the sum of (i) the Group I Pool Principal
Balance as of the close of business on the last day of the preceding Remittance
Period and (ii) any amount on deposit in the Pre-Funding Account at such time
and allocated to Group I over (y) the sum of the Class A-1 Principal Balance,
the Class A-2 Principal Balance, the Class A-3 Principal Balance, the Class A-4
Principal Balance and the Class A-5 Principal Balance as of such Payment Date
(after taking into account the payment on such Payment Date of the Group I
Principal Distribution Amount, except for any portions thereof related to
payment of Group I Insured Payments applied as payments of the Group I Principal
Distribution Amount on such Payment Date or on any prior Payment Date and not
previously reimbursed to the Certificate Insurer pursuant to Section 7.3(f)
hereof).
"Group I Subordination Deficiency Amount": As of any Payment
Date, the excess, if any, of (x) the Group I Specified Subordinated Amount
applicable to such Payment Date over (y) the Group I Subordinated Amount
applicable to such Payment Date prior to taking into account the payment of any
related Group I Subordination Increase Amounts on such Payment Date.
"Group I Subordination Deficit": As of any Payment Date, the
excess, if any, of (x) the sum of the Class A-1 Principal Balance, the Class A-2
Principal Balance, the Class A-3 Principal Balance, the Class A-4 Principal
Balance and the Class A-5 Principal Balance after taking into account the
payment of the Group I Principal Distribution Amount on such Payment Date, over
(y) the sum of (i) the Group I Pool
24
Principal Balance as of the close of business on the last day of the preceding
Remittance Period and (ii) any Pre-Funding Account moneys allocable to Mortgage
Loan Group I as of the close of business on the last day of the prior Remittance
Period.
"Group I Subordination Increase Amount": With respect to any
Payment Date, the lesser of (x) the Group I Subordination Deficiency Amount as
of such Payment Date and (y) the sum of (i) the Class B Group I Interest as of
such Payment Date and (ii) any portion of the Class B Group II Interest applied
to the funding of a Group I Subordination Increase Amount on such Payment Date
pursuant to Section 7.3(b)(iv)(D)(ii) hereof.
"Group I Subordination Reduction Amount": With respect to any
Payment Date, an amount equal to the lesser of (x) the Group I Excess
Subordinated Amount and (y) the amount described in clause (x) of the definition
of Base Group I Principal Distribution Amount, in each case as of such Payment
Date.
"Group I Supplemental Interest Payment Account": The Group I
Supplemental Interest Payment Account established in accordance with Section
7.9(a) hereof and maintained by the Trustee.
"Group I Total Available Funds": As of any Payment Date, the
amount on deposit in the Class A Group I Distribution Account on such Payment
Date after making the allocations, transfers and disbursements from the
Certificate Account pursuant to Section 7.3(b) hereof on such Payment Date. The
term "Group I Total Available Funds" does not include Insured Payments and does
not include any amounts that cannot be distributed to the Owners of the
Certificates by the Trustee as a result of proceedings under the United States
Bankruptcy Code.
"Group I Trustee's Fee": With respect to any Payment Date, the
product of (i) one-twelfth of ___ and (ii) the Group I Pool Principal Balance as
of the last day of the preceding Remittance Period.
"Group II Allocable Losses": As defined in Section 7.8(b)
hereof.
"Group II Available Funds": As of any Payment Date, the amount
on deposit in the Certificate Account with respect to the Group II Mortgage
Loans on such Payment Date after making the deposit to the Certificate Account
pursuant to Section 7.3(a)(ii) hereof on such Payment Date. The term "Group II
Available Funds" does not include Insured Payments and does not include any
amounts that cannot be distributed to
25
the Owners of the Certificates by the Trustee as a result of proceedings under
the United States Bankruptcy Code.
"Group II Base Subordinated Amount: As defined in the
Insurance Agreement.
"Group II Capitalized Interest Requirement": With respect to
the Payment Date, $ .
"Group II Certificates": Any of the Class A-6 Group II
Certificates and the Class B Group II Certificates.
"Group II Cumulative Crossover Amount": As of any Payment
Date, the excess of (x) the aggregate, cumulative amounts allocated to the Class
A Group II Distribution Account on all prior Payment Dates pursuant to sections
7.3(b)(iv)(B)(i) and 7.3(b)(iv)(D)(i) over (y) the aggregate, cumulative amounts
allocated to the Class A Group I Distribution Account on all prior Payment Dates
pursuant to Section 7.3(b)(iv)(E)(ii) hereof.
"Group II Cumulative Net Realized Losses": As of any Payment
Date, the sum of all Net Realized Losses with respect to the Group II Mortgage
Loans experienced on all prior Payment Dates.
"Group II Excess Subordinated Amount": With respect to any
Payment Date, the excess, if any, of (x) the Group II Subordinated Amount that
would apply on such Payment Date after taking into account the payment of the
Group II Principal Distribution Amount on such Payment Date (except for any
distributions of related Group II Subordination Reduction Amounts on such
Payment Date) over (y) the Group II Specified Subordinated Amount for such
Payment Date.
"Group II": The group of Mortgage Loans that are the Group II
Mortgage Loans.
"Group II Insured Distribution Amount": With respect to any
Payment Date, the sum of (i) Group II Insured Interest Distribution Amount for
such Payment Date and (ii) the Group II Insured Principal Distribution Amount
for such Payment Date.
"Group II Insured Interest Distribution Amount": With respect
to any Payment Date, the sum of (i) the Class A-6 Interest Distribution Amount
and (ii) the Class A-6 Interest Carry-Forward Amount.
"Group II Insured Payment": As of any Payment Date, the sum of
(x) the Group II Shortfall Amount for such Payment Date and (y) any Preference
Amounts with respect to the Class A-6 Group II Certificates with respect to
which the affected
26
Owners have complied with the provisions of Section 7.3(g) hereof during the
related Remittance Period.
"Group II Insured Principal Distribution Amount": With respect
to any Payment Date, the sum of (i) the Group II Subordination Deficit and (ii)
the Class A-6 Group II Principal Carry-Forward Amount, in each case for such
Payment Date.
"Group II Interest Remittance Amount": For any Remittance
Date, the amount equal to (x) the sum, without duplication, of (i) the aggregate
interest portions of the payments (whether or not collected) becoming due on the
Group II Mortgage Loans during the immediately preceding Remittance Period and
(ii) Compensating Interest with respect to the Group II Mortgage Loans minus (y)
the aggregate Master Servicing Fee due to the Master Servicer with respect to
the Group II Mortgage Loans for such Remittance Period to the extent not
previously paid to, or withheld by, the Master Servicer.
"Group II Monthly Remittance": The sum of (i) the Group II
Interest Remittance Amount and the Group II Principal Remittance Amount required
to be remitted to the Trustee on each Remittance Date and (ii) the amount of any
Substitution Amounts and Loan Purchase Prices on deposit in the Principal and
Interest Account with respect to the Group II Mortgage Loans on such Remittance
Date.
"Group II Mortgage Loans": The Mortgage Loans held by the
Trust and assigned to Group II, as indicated on the related Mortgage Loan
Schedule, as supplemented and amended from time to time.
"Group II Pool Delinquency Rate": With respect to any
Remittance Period, the fraction, expressed as a percentage, equal to (x) the
aggregate Principal Balances of all Group II Mortgage Loans 90 or more days
Delinquent as of the close of business on the last day of such Remittance Period
over (y) the Group II Pool Principal Balance as of close of business on the last
day of such Remittance Period.
"Group II Pool Principal Balance": As of any date of
determination, the aggregate Principal Balances of all of the Group II Mortgage
Loans as of the close of business on such date.
"Group II Premium Amount": With respect to each Payment Date,
an amount equal to the product of (x) one twelfth of the Premium Rate set forth
in the Certificate Insurance Policy and (y) the Group II Pool Principal Balance
as of the close of business on the last day of the preceding Remittance Period.
27
"Group II Principal Distribution Amount": As of any Payment
Date, the sum of (i) the Base Group II Principal Distribution Amount, (ii) the
Group II Subordination Deficit, (iii) the Group II Subordination Increase
Amount, and (iv) the Class A-6 Principal Carry-Forward Amount, in each case for
such Payment Date.
"Group II Principal Remittance Amount": For any Remittance
Date, without duplication, the amount equal to the sum of (i) the aggregate
principal portions of the payments received by the Master Servicer with respect
to the Group II Mortgage Loans during the immediately preceding Remittance
Period and (ii) any Prepayments, Net Proceeds (but only to the extent that such
Net Proceeds do not exceed the Principal Balance of the related Mortgage Loan),
in each case described in clauses (i) and (ii) only to the extent collected on
the Group II Mortgage Loans during the preceding Remittance Period.
"Group II Rolling Three Month Delinquency Rate": As of any
Payment Date the fraction, expressed as a percentage, equal to the average of
the Group II Pool Delinquency Rates for each of the three (or one and two, in
the case of the first and second Payment Dates), immediately preceding
Remittance Periods.
"Group II Shortfall Amount": As of any Payment Date, the
excess, if any, of (x) the Group II Insured Distribution Amount, as of such
Payment Date and less any portion of the Class A-6 Interest Carry-Forward Amount
or the Class A-6 Principal Carry-Forward Amount, owed to the Certificate Insurer
on such Payment Date on account of its subrogation rights over (y) the Group II
Total Available Funds on deposit in the Class A-6 Group II Distribution Account
on such Payment Date.
"Group II Specified Subordinated Amount": As defined in the
Insurance Agreement.
"Group II Subordinated Amount": With respect to any Payment
Date, the excess, if any, of (x) the Group II Pool Principal Balance as of the
close of business on the last day of the preceding Remittance Period over (y)
the sum of the Class A-6 Group II Principal Balance as of such Payment Date
(after taking into account the payment on such Payment Date of the Group II
Principal Distribution Amount on such Payment Date, except for any portion
thereof related to payment of Group II Insured Payments applied as payments of
the Group II Principal Distribution Amount on such Payment Date or on any prior
Payment Date and not previously reimbursed to the Certificate Insurer pursuant
to Section 7.3(f) hereof).
28
"Group II Subordination Deficiency Amount": As of any Payment
Date, the excess, if any, of (i) the Group II Specified Subordinated Amount
applicable to such Payment Date over (ii) the Group II Subordinated Amount
applicable to such Payment Date prior to taking into account the payment of any
related Group II Subordination Increase Amounts on such Payment Date.
"Group II Subordination Deficit": As of any Payment Date, the
excess, if any, of (x) the Class A-6 Group II Principal Balance after taking
into account the payment of the Group II Principal Distribution Amount on such
Payment Date, over (y) the Group II Pool Principal Balance as of the close of
business on the last day of the preceding Remittance Period.
"Group II Subordination Increase Amount": With respect to any
Payment Date, the lesser of (x) the Group II Subordination Deficiency Amount as
of such Payment Date and (y) the sum of (i) the Class B Group II Interest as of
such Payment Date and (ii) any portion of the Class B Group I Interest applied
to the funding of a Group II Subordination Increase Amount on such Payment Date
pursuant to Sections 7.3(b)(iv)(D)(i) hereof.
"Group II Subordination Reduction Amount": With respect to any
Payment Date, an amount equal to the lesser of (x) the Group II Excess
Subordinated Amount for such Payment Date and (y) the amount described in clause
(x) of the definition of Base Group II Principal Distribution Amount for such
Payment Date.
"Group II Supplemental Interest Payment Account": The Group II
Supplemental Interest Payment Account established in accordance with Section
7.9(a) hereof and maintained by the Trustee.
"Group II Total Available Funds": As of any Payment Date, the
amount on deposit in the Class A Group II Distribution Account on such Payment
Date after making the allocations, transfers and disbursements from the
Certificate Account pursuant to Section 7.3(b) hereof on such Payment Date. The
term "Group II Total Available Funds" does not include Insured Payments and does
not include any amounts that cannot be distributed to the Owners of the
Certificates by the Trustee as a result of proceedings under the United States
Bankruptcy Code.
"Group II Trigger Event": As defined in the Insurance
Agreement.
"Group II Trustee's Fee": With respect to any Payment Date,
the product of (i) one-twelfth of ____ and
29
(ii) the Group II Pool Principal Balance as of the last day of the preceding
Remittance Period.
"Highest Lawful Rate": As defined in Section 12.13.
"Initial Mortgage Loans": shall mean Mortgage Loans delivered
by the Seller on the Startup Day.
"Insurance Agreement": The Insurance Agreement dated as of
____________ between the Certificate Insurer and the Seller.
"Insurance Policy": Any hazard or title insurance policy
relating to a Mortgage Loan.
"Insurance Proceeds": The proceeds of any Insurance Policy
relating to a Mortgage Loan, a Property or an REO Property, net of proceeds to
be applied to the repair of the Property or released to the Mortgagor and net of
expenses reimbursable therefrom, but excluding any Insured Payment.
"Insured Payment": The Group I Insured Payment or the Group II
Insured Payment, as the case may be.
"Interest Advance": As defined in Section 7.9(a)
_______________ hereof.
"Interest Advance Reimbursement Amount": As defined in Section
7.9(b) hereof.
"Interest Determination Date": With respect to any Accrual
Period for the Class A-6 Group II Certificates, the second London Business Day
preceding the first day of such Accrual Period.
"LIBOR": With respect to any Accrual Period for the Class A-1
Group I Certificates or the Class A-6 Group II Certificates, the rate determined
by the Trustee on the related Interest Determination Date on the basis of the
offered rates of the Reference Banks for one-month U.S. dollar deposits, as such
rates appear on the Reuters Screen LIBO Page, as of 11:00 a.m. (London time) on
such Interest Determination Date. On each Interest Determination Date, LIBOR for
the related Accrual Period will be established by the Trustee as follows:
(i) If on such Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the related
Accrual Period shall be the arithmetic mean of such offered
quotations (rounded upwards if necessary to the nearest whole
multiple of 1/16%).
30
(ii) If on such Interest Determination Date fewer than two
Reference Banks provide such offered quotations, LIBOR for the
related Accrual Period shall be the higher of (i) LIBOR as
determined on the previous Interest Determination Date and
(ii) the Reserve Interest Rate.
"Liquidated Loan": As to any Payment Date, any Mortgage Loan
as to which the Master Servicer has determined, in accordance with the servicing
procedures specified herein, during the related Remittance Period that all
Liquidation Proceeds which it expects to recover from or on account of such
Mortgage Loan have been recovered. Any such determination shall be evidenced by
an Officer's Certificate in the form of Exhibit I to this Agreement.
"Liquidation Expenses": Expenses which are incurred by the
Master Servicer in connection with the liquidation of any defaulted Mortgage
Loan, such expenses, including, without limitation, legal fees and expenses, and
any unreimbursed Servicing Advances expended by the Master Servicer pursuant to
Sections 10.9(b) and 10.13 of this Agreement with respect to the related
Mortgage Loan.
"Liquidation Proceeds": With respect to any Liquidated Loan,
any amounts (including the proceeds of any Insurance Policy) recovered by the
Master Servicer in connection with such Liquidated Loan, whether through
trustee's sale, foreclosure sale or otherwise, and including, without
limitation, sale proceeds received upon the sale of REO Property.
"Loan Balance": With respect to each Mortgage Loan, the
outstanding principal balance thereof on the Cut-Off Date or Subsequent Cut-Off
Date, as the case may be, less any related Principal Remittance Amounts relating
to such Mortgage Loan included in previous related Monthly Remittances that were
transferred by the Master Servicer or any Sub-Servicer to the Trustee for
deposit in the Certificate Account; provided, however, that the Loan Balance for
any Mortgage Loan which has become a Liquidated Loan shall be zero as of the
first day of the Remittance Period following the Remittance Period in which such
Mortgage Loan becomes a Liquidated Loan, and at all times thereafter.
"Loan Purchase Price": With respect to any Mortgage Loan
purchased from the Trust on a Remittance Date pursuant to Sections 3.2, 3.3,
3.4, or 10.13(f) hereof, an amount equal to the Principal Balance of such
Mortgage Loan as of the date of purchase (after giving effect to the related
Monthly Remittance remitted by the Master Servicer on such Remittance Date),
plus interest on the outstanding Principal Balance thereof as of the beginning
of the preceding Remittance Period
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computed at the related Coupon Rate less the rate at which the Master Servicing
Fee is calculated, plus the aggregate amounts of (i) all unreimbursed
Reimbursable Advances and (ii) all Delinquency Advances which the Master
Servicer has theretofore failed to remit with respect to such Mortgage Loan.
"Loan-to-Value Ratio": As of any particular date (i) with
respect to any First Mortgage Loan, the percentage of Appraised Value
represented by the original principal balance of the Note relating to such First
Mortgage Loan and (ii) with respect to any Second Mortgage Loan, the percentage
of Appraised Value as of the date of origination of such Second Mortgage Loan
represented by an amount equal to the sum of (a) the remaining principal balance
of the Senior Lien note relating to such First Mortgage Loan and (b) the
original principal balance of the Note relating to such Second Mortgage Loan.
"London Business Day": A day on which banks are open for
dealing in foreign currency and exchange in London and New York City.
"Lower Tier Distribution Amount": As of any Payment Date, the
sum of (i) the Group I Available Funds and (ii) the Group II Available Funds.
"Lower-Tier Interests": As defined in Section 2.8(c) hereof.
"Lower-Tier REMIC": The segregated pool of assets held by the
Trust consisting of the Mortgage Loans.
"Master Servicer": Access Financial Lending Corp., a Delaware
corporation.
"Master Servicer's Trust Receipt": The Master Servicer's trust
receipt in the form set forth in Exhibit F hereto.
"Master Servicing Fee": With respect to any Mortgage Loan, an
amount retained by the Master Servicer from collections of interest on the
Mortgage Loans as compensation for its servicing duties relating to such
Mortgage Loan pursuant to Section 10.15 hereof and equal to _____ per annum of
the then outstanding principal amount of such Mortgage Loan as of the first day
of each Remittance Period payable on a monthly basis; provided, that if the
Seller is no longer the Master Servicer, such rate may be increased to a rate
not in excess of _____ and if the Trustee is acting as Master Servicer such rate
shall be equal to _____.
"Monthly Remittance": The Group I Monthly Remittance, or the
Group II Monthly Remittance, as the case may be.
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"__________": ___________
"Mortgage": The mortgage, deed of trust or other instrument
creating a first or second lien on an estate in fee simple interest in real
property securing a Note.
"Mortgage Loan": Each of the mortgage loans sold by the Seller
to the Trust on the Startup Day, together with any Qualified Replacement
Mortgages substituted therefor by the Seller in accordance with Section 3.2, 3.3
or 3.4 hereof as from time to time are held as a part of the Trust Estate, the
Mortgage Loans originally so held being identified in the related Mortgage Loan
Schedule. The term "Mortgage Loan" includes the terms "First Mortgage Loan" and
"Second Mortgage Loan". The term "Mortgage Loan" includes any Mortgage Loan
which is Delinquent, which relates to a foreclosure or which relates to a
Property which is REO Property prior to such Property's disposition by the
Trust. Any mortgage loan which, although intended by the parties hereto to have
been, and which purportedly was, transferred and assigned to the Trust by the
Seller, in fact was not transferred and assigned to the Trust for any reason
whatsoever, including, without limitation, the incorrectness of the statement
set forth in Section 3.3(b)(i) hereof with respect to such mortgage loan, shall
nevertheless be considered a "Mortgage Loan" for all purposes of this Agreement.
The term "Mortgage Loan" includes the terms "Initial Mortgage Loan" and
"Subsequent Mortgage Loan".
"Mortgage Loan Group": Each of Group I and Group II.
"Mortgage Loan Schedules": The schedules of Mortgage Loans,
separated by Mortgage Loan Group and by Sub-Servicer, listing each Mortgage
Loan conveyed on the Startup Day and setting forth as to each Mortgage Loan the
following information: (i) the name of the Mortgagor, (ii) the street address of
the Property, (iii) the town or city in which the Property is located, (iv) the
Principal Balance as of the Cut-Off Date, (v) the account number, (vi) the
original principal amount, (vii) the current Coupon Rate, (viii) the first date
on which a scheduled monthly payment is due under the Note, (ix) the original
stated maturity date of the Note, (x) the State in which the Property is
located, (xi) the zip code of the Property, (xii) the Loan-to-Value Ratio,
(xiii) the Loan-to-Value Ratio of any Second Mortgage Loan calculated by
disregarding the amount described in clause (ii)(a) of the definition of
"Loan-to-Value Ratio", (xiv) whether the Property is owner-occupied or non-owner
occupied, (xv) whether the Property is a single family residence, two-to-four
family residence, a condominium, a townhouse or a rowhouse and (xvi) if such
Mortgage Loan is a "balloon loan", the amortization terms (e.g., 30 year
amortization due in 15 years), as they
33
may be further supplemented in connection with Subsequent Transfers.
"Mortgagor": The obligor on a Note.
"Net Insurance Proceeds": As to any Mortgage Loan, Insurance
Proceeds net of unreimbursed Reimbursable Advances relating thereto. In no event
shall Net Insurance Proceeds with respect to any Mortgage Loan be less than
zero.
"Net Liquidation Proceeds": As to any Liquidated Loan,
Liquidation Proceeds net of unreimbursed Reimbursable Advances relating to such
Mortgage Loan. In no event shall Net Liquidation Proceeds with respect to any
Liquidated Loan be less than zero.
"Net Proceeds": The sum of, without duplication, Net
Liquidation Proceeds, Net Insurance Proceeds and Net Released Mortgage Property
Proceeds.
"Net Realized Loss": With respect to any Liquidated Loan the
excess, if any, of (x) the Principal Balance thereof at the time the Mortgage
Loan became a Liquidated Loan over (y) the related Net Liquidation Proceeds.
"Net Released Mortgage Property Proceeds": As to any Mortgage
Loan, Released Mortgage Property Proceeds net of unreimbursed Reimbursable
Advances relating thereto. In no event shall Net Released Mortgage Property
Proceeds with respect to any Mortgage Loan be less than zero.
"Net Weighted Average Coupon Rate": With respect to any
Mortgage Loan Group and Remittance Period, the weighted average Coupon Rates
(weighted by Principal Balances) of the related Mortgage Loans, calculated at
the opening of business on the first day of such Remittance Period, less the
rate at which the Master Servicing Fee is then calculated and less the Trustee
Fee, REMIC Reporting Fee and Certificate Insurer premium.
"Nonrecoverable Advances": With respect to any Mortgage Loan,
any Servicing Advance or Delinquency Advance proposed to be made by the Master
Servicer in respect of a Mortgage Loan or REO Property which, in the good faith
business judgment of the Master Servicer, would not be ultimately recoverable
from late collections, Insurance Proceeds, Liquidation Proceeds or Released
Mortgage Property Proceeds on such Mortgage Loan or REO Property or otherwise.
Notwithstanding anything to the contrary contained in this Agreement, no
Delinquency Advance or Servicing Advance shall be required to be made by the
Master Servicer if such Delinquency Advance or Servicing Advance would, if made,
constitute a Nonrecoverable Advance.
34
"Note": The note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
"Officer's Certificate": A certificate signed by any
Authorized Officer of any Person delivering such certificate and delivered to
the Trustee.
"Operative Documents": This Agreement, the Subsequent Transfer
Agreements, the Underwriting Agreement dated as of __________ among the Seller
and the Underwriters, and the Indemnification Agreement dated as of __________
among the Seller, the Underwriters and the Certificate Insurer.
"Original Aggregate Pre-Funded Amount": The amount deposited
in the Pre-Funding Account on the Startup Day, from the proceeds of the sale of
the Class A Certificates, which amount is $ .
"Original Group I Pool Principal Balance": The aggregate
Principal Balances of all Group I Initial Mortgage Loans as of the Cut-Off Date,
i.e., ____________.
"Original Group II Pool Principal Balance": The aggregate
Principal Balances of all Group II Initial Mortgage Loans as of the Cut-Off
Date, i.e., ____________.
"Original Pool Principal Balance": The aggregate Principal
Balances of all Initial Mortgage Loans as of the Cut-Off Date, i.e.,
____________.
"Original Principal Balance": With respect to each Note, the
outstanding principal amount of such Note as of the Cut-Off Date.
"Outstanding": With respect to all Certificates of a Class, as
of any date of determination, all such Certificates theretofore executed and
delivered hereunder except:
(i) Certificates theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Certificates or portions thereof for which full and
final payment of money in the necessary amount has been theretofore
deposited with the Trustee in trust for the Owners of such
Certificates;
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to this
Agreement, unless proof satisfactory to
35
the Trustee is presented that any such Certificates are held by a bona
fide purchaser;
(iv) Certificates alleged to have been destroyed, lost or
stolen for which replacement Certificates have been issued as provided
for in Section 5.5 hereof; and
(v) With respect to voting rights, any Class A Certificates
held by the Seller, the Master Servicer or any affiliate of any
thereof, unless all other Class A Certificates have been paid in full.
Any Certificates in which the Certificate Insurer has an
interest pursuant to its right of subrogation shall be "Outstanding
Certificates".
"Overfunded Interest Amount": With respect to each Subsequent
Transfer Date occurring in , the difference between (i) three-months' interest
on the aggregate Loan Balances of the Subsequent Mortgage Loans acquired by the
Trust on such Subsequent Transfer Date and assigned to Group I, calculated at
the Group I Weighted Average Pass-Through Rate and (ii) three-months' interest
on the aggregate Loan Balances of the Subsequent Mortgage Loans acquired by the
Trust on such Subsequent Transfer Date and assigned to Group I, calculated at
the rate at which Pre-Funding Account moneys are invested as of such Subsequent
Transfer Date.
With respect to each Subsequent Transfer Date occurring in
, the difference between (i) two-month's interest on the aggregate
Loan Balances of the Subsequent Mortgage Loans acquired by the Trust on such
Subsequent Transfer Date and assigned to Group I, calculated at the Group I
Weighted Average Pass-Through Rate and (ii) two-month's interest on the
aggregate Loan Balances of the Subsequent Mortgage Loans acquired by the Trust
on such Subsequent Transfer Date and assigned to Group I, calculated at the rate
at which Pre-Funding Account moneys are invested as of such Subsequent Transfer
Date.
With respect to each Subsequent Transfer Date occurring in ,
the difference between (i) one-month's interest on the aggregate Loan Balances
of the Subsequent Mortgage Loans acquired by the Trust on such Subsequent
Transfer Date and assigned to Group I, calculated at the Group I Weighted
Average Pass-Through Rate and (ii) one-month's interest on the aggregate Loan
Balances of the Subsequent Mortgage Loans acquired by the Trust on such
Subsequent Transfer Date and assigned to Group I, calculated at the rate at
which Pre-Funding Account moneys are invested as of such Subsequent Transfer
Date.
36
"Owner": The Person in whose name a Certificate is registered
in the Register.
"Payment Date": The 18th day of each month (or, if such day is
not a Business Day, the next following Business Day), commencing in the month
following the Startup Day.
"Percentage Interest": As to any Class A Certificate or Class
B Certificate, that percentage, expressed as a fraction, the numerator of which
is the original principal balance of such Certificate as of the Cut-Off Date and
the denominator of which is the original principal balance of all Certificates
of the same Class as of the Cut-Off Date; as to any Residual Certificate, that
Percentage Interest set forth on such Residual Certificate.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pool Delinquency Rate": With respect to any Remittance
Period, the fraction, expressed as a percentage, equal to (x) the aggregate
Principal Balances of all Mortgage Loans 90 or more days Delinquent as of the
close of business on the last day of such Remittance Period over (y) the Pool
Principal Balance as of the close of business on the last day of such Remittance
Period.
"Pool Principal Balance": As to any Payment Date, the
aggregate principal balance of the Mortgage Loans as of the close of business on
the last day of the related Remittance Period.
"Pool Rolling Three Month Delinquency Rate": As of any Payment
Date the fraction, expressed as a percentage, equal to the average of the Pool
Delinquency Rates for each of the three (or one and two, in the case of the
first and second Payment Dates), immediately preceding Remittance Periods.
"Pre-Funded Amount": With respect to any Determination Date,
the amount on deposit in the Pre-Funding Account.
"Pre-Funding Account": The Pre-Funding Account established in
accordance with Section 7.2 hereof and maintained by the Trustee.
"Pre-Funding Period": The period commencing on the Startup Day
and ending on the earliest to occur of (i) the date on which the amount on
deposit in the Pre-Funding Account (exclusive of any investment earnings) is
less than $100,000,
37
(ii) the date on which any Event of Default occurs and (iii)
.
"Preference Amount": As to any Payment Date:
(i) with respect to the Class A-1 Group I Certificates, any
amounts included in previous distributions to Class A-1 Group I
Certificateholders of Class A-1 Distribution Amounts (exclusive of Group I
Insured Payments) which are recovered from such Class A-1 Group I Certificate-
holders as a voidable preference by a trustee in bankruptcy pursuant to the
United States Bankruptcy Code in accordance with a final, nonappealable order of
a court having competent jurisdiction and which have not theretofore been repaid
to such Class A-1 Group I Certificateholders provided such Class A-1 Group I
Certificateholders have complied with the provisions of Section 7.3(g);
(ii) with respect to the Class A-2 Group I Certificates, any
amounts included in previous distributions to Class A-2 Group I
Certificateholders of Class A-2 Distribution Amounts (exclusive of Group I
Insured Payments) which are recovered from such Class A-2 Group I
Certificateholders as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not heretofore
been repaid to such Class A-2 Group I Certificateholders provided such Class A-2
Group I Certificateholders have complied with the provisions of Section 7.3(g);
(iii) with respect to the Class A-3 Group I Certificates, any
amounts included in previous distributions to Class A-3 Group I
Certificateholders of Class A-3 Distribution Amounts (exclusive of Group I
Insured Payments) which are recovered from such Class A-3 Group I
Certificateholders as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not theretofore
been repaid to such Class A-3 Group I Certificateholders provided such Class A-3
Group I Certificateholders have complied with the provisions of Section 7.3(g);
(iv) with respect to the Class A-4 Group I Certificates, any
amounts included in previous distributions to Class A-4 Group I
Certificateholders of Class A-4 Distribution Amounts (exclusive of Group I
Insured Payments) which are recovered from such Class A-4 Group I
Certificateholders as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not heretofore
been
38
repaid to such Class A-4 Group I Certificateholders provided such Class A-4
Group I Certificateholders have complied with the provisions of Section 7.3(g);
(v) with respect to the Class A-5 Group I Certificates, any
amounts included in previous distributions to Class A-5 Group I
Certificateholders of Class A-5 Distribution Amounts (exclusive of Group I
Insured Payments) which are recovered from such Class A-5 Group I
Certificateholders as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not heretofore
been repaid to such Class A-5 Group I Certificateholders provided such Class A-5
Group I Certificateholders have complied with the provisions of Section 7.3(g);
and
(vi) with respect to the Class A-6 Group II Certificates, any
amounts included in previous distributions to Class A-6 Group II
Certificateholders of Class A-6 Distribution Amounts (exclusive of Group II
Insured Payments) which are recovered from such Class A-6 Group II
Certificateholders as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not heretofore
been repaid to such Class A-6 Group II Certificateholders provided such Class
A-6 Group II Certificateholders have complied with the provisions of Section
7.3(g).
"Premium Amount": The Group I Premium Amount or the Group II
Premium Amount, as the case may be.
"Prepayment": Any payment of principal of a Mortgage Loan by a
Mortgagor which is received by the Master Servicer in advance of the scheduled
due date for the payment of such principal.
"Preservation Expenses": Expenditures made by the Master
Servicer in connection with a foreclosed Mortgage Loan prior to the liquidation
thereof, including, without limitation, expenditures for real estate property
taxes, hazard insurance premiums, property restoration or preservation.
Preservation Expenses shall constitute "Servicing Advances" for all purposes of
this Agreement.
"Principal and Interest Account": The principal and interest
account created by the Master Servicer pursuant to Section 10.8 hereof.
"Principal Balance": As of any date of calculation and with
respect to each Mortgage Loan, the Original Principal Balance thereof less any
related Principal Remittance Amounts
39
relating to such Mortgage Loan included in previous related Monthly Remittances
and, if applicable, the related Monthly Remittance as of such date.
"Principal Remittance Amounts": The Group I Principal
Remittance Amount or the Group II Principal Remittance Amount, as the case may
be.
"Prohibited Transaction": Has the meaning as defined in
Section 860F of the Code.
"Property": The underlying real property, including the
improvements thereon, securing a Mortgage Loan.
"Prospectus": The Prospectus dated ____________ relating to
Mortgage Loan Asset Backed Securities, issuable in Series.
"Prospectus Supplement": The Prospectus Supplement dated
___________ relating to the Class A Certificates.
"Qualified Liquidation": "Qualified Liquidation" shall have
the meaning set forth from time to time in the definition thereof at Section
860F(a)(4) of the Code (or any successor statute thereto) and applicable to the
Trust.
"Qualified Mortgage": "Qualified mortgage" shall have the
meaning set forth from time to time in the definition thereof at Section
860G(a)(3) of the Code (or any successor statute thereto) and applicable to the
Trust.
"Qualified Replacement Mortgage": A Mortgage Loan substituted
for another by the Seller pursuant to Section 3.2, 3.3 or 3.4 hereof, which (i)
has a fixed rate of interest if the Mortgage Loan being replaced is a Group I
Mortgage Loan and has a variable rate of interest if the Mortgage Loan being
replaced is a Group II Mortgage Loan, (ii) has a Coupon Rate at least equal to
the Coupon Rate of the Mortgage Loan being replaced (which, in the case of a
Group II Mortgage Loan, shall be deemed to mean the same index and a margin
equal to or greater than the margin applicable to the Group II Mortgage Loan
being replaced), (iii) is of the same or better property type and the same or
better occupancy status as the replaced Mortgage Loan, (iv) shall mature no
later than the latest maturity date of any Mortgage Loan then held in the
related Mortgage Loan Group (v) has a Loan-to-Value Ratio as of the Replacement
Cut-Off Date no higher than the Loan-to-Value Ratio of the replaced Mortgage
Loan at such time, (vi) shall be a First Mortgage Loan if the Mortgage Loan
being replaced was a First Mortgage Loan, and shall have the same or higher lien
priority if the Mortgage Loan being replaced was a junior Mortgage Loan, (vii)
has a Principal Balance as of the related Replacement Cut-Off Date equal to or
less than the Principal
40
Balance of the replaced Mortgage Loan as of such Replacement Cut-Off Date,
(viii) shall be of the same or higher credit quality classification (determined
in accordance with the Seller's underwriting guidelines) as the Mortgage Loan
which such Qualified Replacement Mortgage replaces, (ix) satisfies the criteria
set forth from time to time in the definition of "qualified replacement
mortgage" at Section 860G(a)(4) of the Code (or any successor statute thereto)
and applicable to the Trust, and (x) complies as of the date of substitution
with each representation and warranty set forth in Section 3.2(b) hereof, all as
evidenced by any Officer's Certificate of the Seller delivered to the Trustee
prior to any such substitution. In the event that one or more mortgage loans are
proposed to be substituted for one or more Mortgage Loans, the Certificate
Insurer may allow the foregoing tests to be met on a weighted average basis or
other aggregate basis acceptable to the Certificate Insurer, as evidenced by a
written approval delivered to the Trustee by the Certificate Insurer, except
that the requirement of clause (ix) hereof must be satisfied as to each
Qualified Replacement Mortgage.
"Rating Agency": Any nationally recognized statistical credit
rating agency, or its successor, that rates any Certificates at the request of
the Seller at the time of the initial issuance of the Certificates. If such
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
Seller, notice of which designation shall be given to the Trustee, the
Certificate Insurer and the Master Servicer. References herein to the highest
rating category of a rating agency shall mean AAA (with respect to long-term
ratings) or A-1+ (with respect to short-term ratings), in the case of ______,
and _____ (with respect to long-term ratings) or _____ (with respect to
short-term ratings), in the case of ___________, and in the case of any other
Rating Agency shall mean such equivalent ratings.
"Record Date": With respect to the Group I Certificates and
any Payment Date, the close of business on the first Business Day of the
calendar month in which such Payment Date occurs. With respect to the Group II
Certificates and any Payment Date, the close of business on the Business Day
immediately preceding such Payment Date.
"Reference Banks": _____________, ________________ and
______________; provided that if any of the foregoing banks are not suitable to
serve as a Reference Bank, then any leading banks selected by the Trustee which
are engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London, (ii)
not controlling, under the control of or under common control with the Seller or
any affiliate thereof, (iii) whose quotations appear on the Reuters Screen LIBO
Page on the
41
relevant Interest Determination Date and (iv) which have been designated as such
by the Trustee.
"Register": The register maintained by the Trustee in
accordance with Section 5.4 hereof, in which the names of the Owners are set
forth.
"Registration Statement": The Seller's Registration Statement
number ___________, filed on Form S-3.
"Reimbursable Advances": As to any Mortgage Loan, all
Delinquency Advances and Servicing Advances made by the Master Servicer with
respect thereto, to the extent not previously paid to or withheld by the Master
Servicer.
"Released Mortgaged Property Proceeds": Proceeds received in
connection with a taking of a Property by condemnation or the exercise of
eminent domain or in connection with a release of part of the Property.
"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 the Code, and related provisions, and regulations and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"REMIC Reporting Fee": For any Payment Date, one-twelfth of
____ of the Pool Principal Balance paid to the Trustee who in turn shall pay to
the accountants designated by the Seller for REMIC reporting done in connection
with the Trust.
"REMIC Trust": The segregated pool of assets consisting of the
Trust Estate except for the Capitalized Interest Account, the Pre-Funding
Account, the Supplemental Interest Payment Account and the Class A-6
Distribution
Account.
"Remittance Date": Any date on which the Master Servicer is
required to remit moneys on deposit in a Principal and Interest Account to the
Trustee, which shall be the 13th day of each month, commencing in the month
following the Startup Day or if such day is not a Business Day the following
Business Day.
"Remittance Period": The period (inclusive) beginning at the
opening of business on the second day of the calendar month immediately
preceding the calendar month in which a Remittance Date occurs and ending at the
close of
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business on the first day of the calendar month in which such Remittance Date
occurs.
"REO Property": A Property acquired by the Master Servicer in
the name of and on behalf of the Trust through foreclosure or deed-in-lieu of
foreclosure in connection with a defaulted Mortgage Loan.
"Replacement Cut-Off Date": With respect to any Qualified
Replacement Mortgage, the second day of the calendar month in which such
Qualified Replacement Mortgage is conveyed to the Trust.
"Representation Letter": Letters to, or agreements with, the
Depository to effectuate a book entry system with respect to the Class A
Certificates registered in the Register under the nominee name of the
Depository.
"Representative": ________________________.
"Reserve Interest Rate": With respect to any Interest
Determination Date, the rate per annum that the Trustee determines to be either
(i) the arithmetic mean (rounded upwards if necessary to the nearest whole
multiple of _____) of the one-month U.S. dollar lending rates which three New
York City banks selected by the Trustee are quoting on the relevant Interest
Determination Date to the principal London offices of leading banks in the
London interbank market or (ii) in the event that the Trustee can determine no
such arithmetic mean, the lowest one-month U.S. dollar lending rate which three
New York City banks selected by the Trustee are quoting on such Interest
Determination Date to leading European banks.
"Residual Certificate": Any Class RL Certificate or any Class
RU Certificate.
"___": _______________________.
"Second Mortgage Loan": A Mortgage Loan which constitutes a
second priority mortgage lien with respect to the related Property.
"Seller": Access Financial Lending Corp., a Delaware
corporation.
"Senior Lien": With respect to any Second Mortgage Loan, the
mortgage loan relating to the corresponding Property having a first priority
lien.
"Servicing Advance": As defined in Sections 10.9(b) and 10.13
hereof.
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"Servicing Standards": As defined in Section 10.2 hereof.
"Startup Day": ________________.
"Sub-Servicer": Any Person with whom the Master Servicer has
entered into a Sub-Servicing Agreement and who satisfies the requirements set
forth in Section 10.3 hereof in respect of the qualification of a Sub-Servicer.
"Sub-Servicing Agreement": The written contract between the
Master Servicer and any Sub-Servicer relating to servicing and/or administration
of certain Mortgage Loans as permitted by Section 10.3 hereof.
"Subsequent Cut-Off Date": With respect to any Subsequent
Mortgage Loans, the first day of the month in which such Subsequent Mortgage
Loans are transferred and assigned to the Trust.
"Subsequent Mortgage Loans": The Mortgage Loans sold to the
Trust pursuant to Section 3.6 of the Agreement, which shall be listed on the
Mortgage Loan Schedule attached to the Subsequent Transfer Agreement.
"Subsequent Transfer Agreement": Each Subsequent Transfer
Agreement dated as of a Subsequent Transfer Date executed by the Trustee and the
Seller substantially in the form of Exhibit __ hereto, by which Subsequent
Mortgage Loans are sold and assigned to the Trust.
"Subsequent Transfer Date": The date specified in each
Subsequent Transfer Agreement.
"Substitution Amount": As defined in Section 3.2(a) hereof.
"Supplemental Interest Payment Amount": As defined in Section
7.9(a) hereof.
"Supplemental Interest Trust": The Access Financial
Supplemental Interest Trust ______ created pursuant to Section 7.9(a) hereof.
"Tax Matters Person": The tax matters person, as defined in
Section 1.860F-4(d) of the Treasury Regulations, appointed with respect to the
Trust pursuant to Section 12.18 hereof.
"Trust": Access Financial Mortgage Loan Trust ______, the
trust created under Article II of this Agreement.
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"Trust Estate": Collectively, all money, instruments, and
other property to the extent such money, instruments and other property, are
subject hereto or intended to be held in trust for the benefit of the Owners,
including all proceeds thereof, including, without limitation, (i) the Initial
Mortgage Loans and the Subsequent Mortgage Loans, (ii) such amounts, including
Eligible Investments, as from time to time may be held by the Trustee in any
Account, and by the Master Servicer in the Principal and Interest Account or
otherwise held by the Master Servicer in trust for the Owners (except as
otherwise provided herein), (iii) any Property, the ownership of which has been
effected in the name of the Trust as a result of foreclosure or acceptance by
the Master Servicer of a deed in lieu of foreclosure and that has not been
withdrawn from the Trust, (iv) the rights, if any, of the Trust in any Insurance
Policies relating to the Mortgage Loans, (v) Net Liquidation Proceeds (but only
to the extent that such Net Liquidation Proceeds do not exceed the Principal
Balance of the related Mortgage Loan plus accrued and unpaid interest on such
Mortgage Loan) with respect to any Liquidated Loan, (vi) Released Mortgaged
Property Proceeds, (vii) the Certificate Insurance Policy, (viii) such amounts
held in the Capitalized Interest Account and (ix) such amounts held in the
Pre-Funding Account.
"Trustee": ________________________________ ___________, a
national banking association located on the date of execution of this Agreement
at ________________ ____________________________________________________, not in
its individual capacity but solely as Trustee under this Agreement, and any
successor hereunder.
"Trustee's Fee": The total of the Group I Trustee's Fee and
the Group II Trustee's Fee.
"Underwriters": _____________________________________________
_______________________________.
"Unregistered Certificates": Certificates which are not
registered as evidenced by inclusion in the Register.
"Upper-Tier REMIC": The segregated pool of assets held by the
Trust consisting of the Lower Tier Interests (except for the RL Lower-Tier
Interest, as set forth in the chart in Section 2.8(c) hereof), the Distribution
Accounts and the Certificate Insurance Policy.
Section 1.2. Use of Words and Phrases. "Herein", "hereby",
"hereunder", "hereof", "hereinbefore", "hereinafter" and other equivalent words
refer to this Agreement as a whole and not solely to the particular section of
this Agreement in which any such word is used. The definitions set forth in
Section 1.1 hereof include both the singular and the plural.
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Whenever used in this Agreement, any pronoun shall be deemed to include both
singular and plural and to cover all genders.
Section 1.3. Captions; Table of Contents. The captions or
headings in this Agreement and the Table of Contents are for convenience only
and in no way define, limit or describe the scope and intent of any provisions
of this Agreement.
Section 1.4. Opinions. Each opinion with respect to the
validity, binding nature and enforceability of documents or Certificates may be
qualified to the extent that the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law) and may state
that no opinion is expressed on the availability of the remedy of specific
enforcement, injunctive relief or any other equitable remedy. Any opinion
required to be furnished by any Person hereunder must be delivered by counsel
upon whose opinion the addressee of such opinion may reasonably rely, and such
opinion may state that it is given in reasonable reliance upon an opinion of
another, a copy of which must be attached, concerning the laws of a foreign
jurisdiction. Opinions regarding REMIC matters must be furnished by special
counsel to the Seller.
Section 1.5. Calculations. All calculations of accrued
interest made pursuant to the Agreement shall be made assuming a 360-day year
consisting of twelve 30-day months, except for interest on the Group II
Certificates which calculations shall be made based on the actual number of days
over a 360-day year, or as otherwise specifically provided herein.
ARTICLE II
THE TRUST
Section 2.1. Establishment of the Trust. The Seller does
hereby create and establish, pursuant to the laws of the State of New York and
this Agreement, the Trust, which, for convenience, shall be known as "Access
Financial Mortgage Loan Trust _______. The Trust shall be deemed to consist of
two sub-trusts, one with respect to each Mortgage Loan Group.
Section 2.2. Office. The office of the Trust shall be in care
of the Trustee, _________________________________,
____________________________________ or at such other address as the Trustee may
designate by notice to the Seller, the Master Servicer, the Certificate Insurer
and the Owners.
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Section 2.3. Purpose and Powers. The purpose of the Trust is
to engage in the following activities, and only such activities: (i) the
purchase of the Mortgage Loans; (ii) the holding of the Mortgage Loans and the
Trust Estate related thereto; (iii) the issuance of the Certificates; (iv)
activities that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith, including the
investment of moneys in accordance with this Agreement; and (v) such other
activities as may be required in connection with conservation of the Trust
Estate and distributions to the Owners; provided, however, that nothing
contained herein shall be construed to permit the Trustee to take any action
which would adversely affect the status of any interest held by the Trust which
is intended to be treated as a REMIC.
Section 2.4. Appointment of the Trustee; Declaration of Trust.
The Seller hereby appoints the Trustee as trustee of the Trust effective as of
the Startup Day, to have all the rights, powers and duties set forth herein. The
Trustee hereby acknowledges and accepts such appointment, represents and
warrants its eligibility as of the Startup Day to serve as Trustee pursuant to
Section 9.8 hereof and declares that it will hold the Trust Estate in trust upon
and subject to the conditions set forth herein for the benefit of the Owners.
Section 2.5. Expenses of the Trust. The Master Servicer shall
retain its monthly aggregate Master Servicing Fees as provided in Section 10.15
herein; the Trustee's Fee shall be paid monthly as provided in Section 7.3(b)(i)
hereof; the REMIC Reporting Fee shall be paid monthly as provided in Section
7.3(b)(ii) hereof and the premiums due to the Certificate Insurer shall be paid
monthly as provided in Section 7.3(b)(iii) hereof; all other expenses of the
Trust including any fees and expenses incurred by the Trustee in connection with
a termination of the Trust pursuant to Article VIII shall be submitted to the
Seller for its approval, and, if so approved, shall be paid by the Seller. The
reasonable fees and expenses of the Trustee's counsel in connection with the
review and delivery of this Agreement and related documentation shall be due as
of the Startup Day and shall be paid by the Seller.
Section 2.6. Ownership of the Trust. On the Startup Day, the
ownership interests in the Trust shall be transferred as set forth in Section
4.2 hereof, such transfer to be evidenced by issuance of the Certificates as
described therein. Thereafter, transfer of any ownership interest shall be
governed by Section 5.4 hereof.
Section 2.7. Receipt of Trust Estate. The Seller hereby
directs the Trustee to accept the property conveyed to
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it pursuant to Section 3.3 hereof in connection with the establishment of the
Trust, and the Trustee hereby acknowledges receipt of such property. The Seller
further directs the Trustee to issue the Certificates, to hold the Class A
Certificates as transfer agent for the Depository as provided in Section 5.4,
and to deliver the Class B Certificates and the Residual Certificates to the
Seller.
Section 2.8. Miscellaneous REMIC Provisions. (a) The Trust
shall elect that the Upper-Tier REMIC and the Lower-Tier REMIC shall be treated
as REMICs under Section 860D of the Code. Any inconsistencies or ambiguities in
this Agreement or in the administration of the Trust shall be resolved in a
manner that preserves the validity of such REMIC elections.
(b) The Class A-1 Group I Certificates, the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates, the Class A-5 Group I Certificates, the uncertificated right of
the Group I Supplemental Interest Account to receive the distributions described
in Section 7.3(c)(iv) and the uncertificated right of the Group II Supplemental
Interest Account to receive the distributions described in Section 7.3(c)(v) of
(the "Uncertificated Interest") are hereby designated as "regular interests"
with respect to the Upper- Tier REMIC and the Class RU Certificates are hereby
designated as the single class of "residual interest" with respect to the
Upper-Tier REMIC. The Class LT1, LT2, LT3, LT4, LT5 and LT6 Certificates are
hereby designated as "regular interests" with respect to the Lower-Tier REMIC
and the Class RL Certificates are hereby designated as the single class of
"residual interest" with respect to the Lower-Tier REMIC. The Capitalized
Interest Account and the Pre-Funding Account are not part of the segregated pool
of assets which constitutes the REMIC Trust.
(c) The beneficial ownership interest of the Lower-Tier REMIC
shall be evidenced by the interests (the "Lower-Tier Interests") having the
characteristics and terms as follows:
Original Final
Class Companion Principal Interest Payment
Designation Classes Balance Rate Date
- -------------- --------------- ----------- -------- ---------------
LT-1 A-1, B Group I ___________ (1) _____________
LT-2 A-2, B Group I ___________ (1) _____________
LT-3 A-3, B Group I ___________ (1) _____________
LT-4 A-4, B Group I ___________ (1) _____________
LT-5 A-5, B Group I ___________ (1) _____________
LT-6 A-6, B Group II ___________ (2) _____________
RL (3) (3) _____________
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(1) The Net Weighted Average Coupon Rate of the Group I Mortgage Loans.
(2) The Net Weighted Average Coupon Rate of the Group II Mortgage Loans.
(3) The RL Certificate has no principal balance and does not bear interest.
The Lower-Tier Interests LT-1, LT-2, LT-3, LT-4, LT-5 and LT-6 shall be issued
as non-certificated interests and recorded on the records of the Lower-Tier
REMIC as being issued to and held by the Trustee on behalf of the Upper-Tier
REMIC.
On each Payment Date, the Lower Tier Distribution Amount shall
be applied as principal and interest of particular Lower Tier Interests, other
than the RL Certificate, in amounts corresponding to the aggregate respective
amounts required to be applied as principal and interest of their related
Companion Classes (as set forth above) pursuant to the priorities set forth in
section 7.3 hereof.
No distributions will be made on the Class RL Certificate,
except that any distribution of the proceeds of the final remaining assets of
the Lower Tier REMIC shall be distributed to the holder thereof upon
presentation and surrender of the Class RL Certificate.
(d) The Startup Day is hereby designated as the "startup day"
of each REMIC within the meaning of Section 860G(a)(9) of the Code.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SELLER AND THE MASTER SERVICER;
CONVEYANCE OF MORTGAGE LOANS
Section 3.1. Representations and Warranties of the Seller and
the Master Servicer.
(a) The Seller hereby represents, warrants and covenants to
the Trustee, the Master Servicer, the Certificate Insurer and to the Owners as
of the Startup Day that:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and is in good standing as a foreign corporation in each jurisdiction
in which the nature of its business, or the properties owned or leased
by it make such qualification necessary. The Seller has all requisite
corporate power and authority to own and operate its properties, to
enable it to carry out its business as presently conducted in a
material manner and as proposed to be conducted and to enter into and
discharge its obligations under this Agreement and the other Operative
Documents to which it is a party in a material manner.
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(ii) The execution and delivery of this Agreement and
the other Operative Documents to which the Seller is a party, by the
Seller, and its performance and compliance with the terms of this
Agreement and of the other Operative Documents to which it is a party
have been duly authorized by all necessary corporate action on the part
of the Seller and will not violate the Seller's Certificate 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 contract, agreement or
other instrument to which the Seller is a party or by which the Seller
is bound, or violate any statute or any order, rule or regulation of
any court, governmental agency or body or other tribunal having
jurisdiction over the Seller or any of its properties.
(iii) This Agreement and the other Operative Documents to
which the Seller is a party, assuming due authorization, execution and
delivery by the other parties hereto and thereto, each constitutes a
valid, legal and binding obligation of the Seller, enforceable against
it in accordance with the terms hereof and thereof, except as the
enforcement hereof and thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(iv) The Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties or
might have consequences that would materially and adversely affect its
performance hereunder and under the other Operative Documents to which
it is a party.
(v) No litigation is pending or, to the best of the
Seller's knowledge, threatened against the Seller which litigation
might have consequences that would prohibit its entering into this
Agreement or any other Operative Document to which it is a party or
that would materially and adversely affect the condition (financial or
otherwise) or operations of the Seller or its properties or might have
consequences that would materially and adversely affect its performance
hereunder and under the other Operative Documents to which it is a
party.
(vi) No certificate of an officer, statement furnished
in writing or report delivered pursuant to the terms hereof by the
Seller contains any untrue statement of a
50
material fact or omits to state a material fact necessary to make the
certificate, statement or report not misleading.
(vii) The statements contained in the Registration
Statement which describe the Seller or matters or activities for which
the Seller is responsible in accordance with the Operative Documents or
which are attributed to the Seller therein are true and correct in all
material respects, and the Registration Statement does not contain any
untrue statement of a material fact with respect to the Seller or omit
to state a material fact required to be stated therein or necessary in
order to prevent the statements contained therein with respect to the
Seller from being misleading. To the best of the Seller's knowledge and
belief, the Registration Statement does not contain any untrue
statement of a material fact required to be stated therein or omit to
state any material fact required to be stated therein or necessary to
make the statements contained therein not misleading.
(viii) All actions, approvals, consents, waivers,
exemptions, variances, franchises, orders, permits, authorizations,
rights and licenses required to be taken, given or obtained, as the
case may be, by or from any federal, state or other governmental
authority or agency (other than any such actions, approvals, etc. under
any state securities laws, real estate syndication or "Blue Sky"
statutes, as to which the Seller makes no such representation or
warranty), that are necessary or advisable in connection with the
purchase and sale of the Certificates and the execution and delivery by
the Seller of the Operative Documents to which it is a party, have been
duly taken, given or obtained, as the case may be, are in full force
and effect on the date hereof, are not subject to any pending
proceedings or appeals (administrative, judicial or otherwise) and
either the time within which any appeal therefrom may be taken or
review thereof may be obtained has expired or no review thereof may be
obtained or appeal therefrom taken, and are adequate to authorize the
consummation of the transactions contemplated by this Agreement and the
other Operative Documents on the part of the Seller and the performance
by the Seller of its obligations under this Agreement and such of the
other Operative Documents to which it is a party.
(ix) The transactions contemplated by this Agreement are
in the ordinary course of business of the Seller.
(x) The Seller received fair consideration and
reasonably equivalent value in exchange for the sale of the interests
in the Mortgage Loans.
(xi) The Seller did not sell any interest in any
Mortgage Loan with any intent to hinder, delay or defraud any of its
creditors.
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(xii) The Seller is solvent and the Seller will not be
rendered insolvent as a result of the sale of the Mortgage Loans to the
Trust.
(b) The Master Servicer hereby represents and warrants to the
Trustee, the Certificate Insurer, the Seller and to the Owners as of
the Startup Day that:
(i) The Master Servicer is a corporation duly organized,
validly existing and in good standing under the laws of Delaware, and
is, or a Sub-Servicer is, in compliance with the laws of each state in
which any Property is located to the extent necessary to enable the
Master Servicer to perform its obligations hereunder. The Master
Servicer and each Sub-Servicer is in good standing as a foreign
corporation in each jurisdiction in which the nature of its business,
or the properties owned or leased by it make such qualification
necessary to enable the Master Servicer to perform its obligations
hereunder. The Master Servicer has all requisite corporate power and
authority to own and operate its properties, to carry out its business
as presently conducted and as proposed to be conducted and to enter
into and discharge, either directly or through Sub-Servicers, its
obligations under this Agreement. The Master Servicer and each
Sub-Servicer (except ___________) has equity of at least $15,000,000 as
determined in accordance with generally accepted accounting principles.
Each Sub-Servicer appointed by the Master Servicer will have all
requisite corporate power and authority to own and operate its
properties, to carry out its business as presently conducted and as
proposed to be conducted.
(ii) The execution and delivery of this Agreement by the
Master Servicer and its performance and compliance with the terms of
this Agreement and any Sub-Servicing Agreement have been duly
authorized by all necessary corporate action on the part of the Master
Servicer and will not violate the Master Servicer's Certificate 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 contract, agreement or
other instrument to which the Master Servicer is a party or by which
the Master Servicer is bound or violate any statute or any order, rule
or regulation of any court, governmental agency or body or other
tribunal having jurisdiction over the Master Servicer or any of its
properties.
(iii) This Agreement and any Sub-Servicing Agreement, assuming
due authorization, execution and delivery by the other parties hereto
and thereto, each constitutes a valid, legal and binding obligation of
the Master Servicer, enforceable against it in accordance with the
terms hereof, except as the enforcement hereof may be limited by
applicable
52
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of
equity (whether considered in a proceeding or action in equity or at
law).
(iv) The Master Servicer is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or its
properties or might have consequences that would materially and
adversely affect its performance hereunder and under any Sub-Servicing
Agreement.
(v) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
litigation might have consequences that would prohibit its entering
into this Agreement or any Sub-Servicing Agreement or that would
materially and adversely affect the condition (financial or otherwise)
or operations of the Master Servicer or its properties or might have
consequences that would materially and adversely affect its performance
hereunder.
(vi) Each certificate of an officer, statement furnished in
writing or report delivered pursuant to the terms hereof by the Master
Servicer is true and correct in all material respects.
(vii) The statements contained in the Prospectus Supplement
which describe the Master Servicer under the caption "The Master
Servicer" are true and correct in all material respects.
(viii) The Master Servicing Fee is a "current (normal)
servicing fee rate" as that term is used in Statement of Financial
Accounting Standards No. 65 issued by the Financial Accounting
Standards Board. Neither the Master Servicer nor any affiliate thereof
will report on any financial statements any part of the Master
Servicing Fee as an adjustment to the sales price of the Mortgage
Loans.
(ix) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be,
by or from any federal, state or other governmental authority or agency
(other than any such actions, approvals, etc. under any state
securities laws, real estate syndication or "Blue Sky" statutes, as to
which the Master Servicer makes no such representation or warranty),
that are necessary or advisable in connection with the execution and
delivery by, and the performance of the
53
obligations of, the Master Servicer, either directly or through a
Sub-Servicer, of this Agreement and each Sub-Servicing Agreement, have
been duly taken, given or obtained, as the case may be, are in full
force and effect on the date hereof, are not subject to any pending
proceedings or appeals (administrative, judicial or otherwise) and
either the time within which any appeal therefrom may be taken or
review thereof may be obtained has expired or no review thereof may be
obtained or appeal therefrom taken, and are adequate to authorize the
consummation of the transactions contemplated by this Agreement and
each Sub-Servicing Agreement on the part of the Master Servicer and the
performance by the Master Servicer, either directly or through a
Sub-Servicer, of its obligations under this Agreement and each
Sub-Servicing Agreement.
(x) The collection practices used by the Master Servicer with
respect to the Mortgage Loans have been, in all material respects,
legal, proper, prudent and customary in the non-conforming credit
residential loan servicing business.
(xi) The transactions contemplated by this Agreement are in
the ordinary course of business of the Master Servicer.
It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the Mortgage
Loans to the Trustee.
Upon discovery by any of the Seller, the Master Servicer, the
Certificate Insurer or the Trustee of a breach of any of the representations and
warranties set forth in this Section 3.1(c) which materially and adversely
affects the interests of the Owners or of the Certificate Insurer, the party
discovering such breach shall give prompt written notice to the other parties
and the Certificate Insurer; provided that, the Trustee shall have no duty or
responsibility to inquire, investigate, determine or obtain actual knowledge of
facts or events constituting a breach of any such representations or warranties.
Within 30 days of its discovery or its receipt of notice of breach, the Master
Servicer shall cure such breach in all material respects and, upon the Master
Servicer's continued failure to cure such breach, may thereafter be removed
pursuant to Section 11.1 hereof.
Section 3.2. Covenants of the Seller to Take Certain Actions
with Respect to the Mortgage Loans in Certain Situations. (a) Upon the actual
knowledge of the Seller, the Certificate Insurer, the Master Servicer or the
Trustee that the statements set forth in (ii), (x), (xiii), (xix), (xxxii),
(xxxiii) or (xxxix) of subsection (b) below were untrue in any material respect
as of the Startup Day with respect to the Initial Mortgage Loans and as of the
related Subsequent Transfer Date with respect to any Subsequent Transfer Loan
(unless otherwise specified) or that any of the other statements set forth in
subsection (b) below were untrue as of the
54
Startup Day with respect to the Initial Mortgage Loans and as of the related
Subsequent Transfer Date with respect to any Subsequent Transfer Loan (unless
otherwise specified) with the result that the interests of the Owners or the
interests of the Certificate Insurer are materially and adversely affected, the
party discovering such breach shall give prompt written notice to the other
parties and the Certificate Insurer.
Upon the earliest to occur of the Seller's discovery, its
receipt of notice of breach from any one of the other parties or the Certificate
Insurer or such time as a situation resulting from an existing statement which
is untrue materially and adversely affects the interests of the Owners or of the
Certificate Insurer as set forth above, the Seller hereby covenants and warrants
that it shall promptly cure such breach in all material respects or it shall,
subject to the further requirements of this paragraph, on the second Remittance
Date next succeeding such discovery, receipt of notice or such time (i)
substitute in lieu of each Mortgage Loan which has given rise to the requirement
for action by the Seller a Qualified Replacement Mortgage and, if the
outstanding principal amount of such Qualified Replacement Mortgage as of the
applicable Replacement Cut-Off Date is less than the Principal Balance of such
Mortgage Loan as of such Replacement Cut-Off Date, deliver an amount equal to
such difference together with accrued and unpaid interest on such amount
calculated at the related Coupon Rate less the rate at which the Master
Servicing Fee is calculated, if any, of the Mortgage Loan being replaced (such
aggregate amount, the "Substitution Amount"), together with the aggregate amount
of all unreimbursed Delinquency Advances and Servicing Advances theretofore made
with respect to such Mortgage Loan to the Master Servicer for deposit in the
Principal and Interest Account or (ii) purchase such Mortgage Loan from the
Trust at a purchase price equal to the Loan Purchase Price thereof, which
purchase price shall be delivered to the Master Servicer for deposit in the
Principal and Interest Account. In connection with any such proposed purchase or
substitution, the Seller at its expense, shall cause to be delivered to the
Trustee and to the Certificate Insurer an opinion of counsel experienced in
federal income tax matters stating whether or not such a proposed purchase or
substitution would constitute a Prohibited Transaction for the Trust or would
jeopardize the status of either REMIC as a REMIC and the Seller shall only be
required to take either such action to the extent such action would not
constitute a Prohibited Transaction for the Trust or would not jeopardize the
status of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC. It is
understood and agreed that the obligation of the Seller so to cure the defect,
substitute or purchase any Mortgage Loan as to which such a statement set forth
below is untrue in any material respect and has not been remedied shall
constitute the sole remedy available to the Owners, the Trustee or the
Certificate Insurer respecting any such statement.
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(b) (i) The information with respect to each Initial Mortgage
Loan set forth in the related Mortgage Loan Schedule is true and
correct in all material respects as of the Cut-Off Date or, with
respect to any Subsequent Mortgage Loans, on the Related Subsequent
Cut-Off Date;
(ii) Each Mortgage Loan File has been or will be
delivered to the Trustee on the Startup Day or, with respect to any
Subsequent Mortgage Loan, on the related Subsequent Transfer Date;
(iii) Each Mortgage Loan being transferred to the
Trustee is a Qualified Mortgage and is a Mortgage;
(iv) _____% of the Original Group I Pool Principal
Balance and _____% of the Original Group II Pool Principal Balance have
corresponding Properties that are improved by a one-to-four family
residential dwelling and the remaining Mortgage Loans have
corresponding Properties that are improved by modular housing,
manufactured housing, PUD, SF row houses, townhouses or duplexes;
(v) As of the Cut-Off Date and any Subsequent Transfer
Date, no Mortgage Loan in Group I had a Loan-to-Value Ratio in excess
of _____% and the weighted average Loan-to-Value Ratio for Group I was
approximately _____% and no Mortgage Loan in Group II had a
Loan-to-Value Ratio in excess of _____% and the weighted average
Loan-to-Value Ratio for Group II was approximately _____%.
(vi) Each Mortgage Loan is being serviced by or on
behalf of the Master Servicer;
(vii) The Note related to each Group I Mortgage Loan
bears a fixed Coupon Rate of at least ____% per annum; the Note related
to each Group II Mortgage Loan bears interest based on an index of
six-month LIBOR, adjusts either every sixth month or every
twenty-fourth month or every thirty-sixth month, has a margin of at
least _____%, an adjustment cap of at least ____%, a lifetime cap of at
least _____% and a Coupon Rate as of the Cut-Off Date of at least
____%;
(viii) Notes representing not more than _____% of the
Original Group I Pool Principal Balance of the Mortgage Loans provide
for a "balloon" payment at the end of the 15th year and notes
representing not more than ____% of the Original Group II Pool
Principal Balance of the Mortgage Loans provide for a "balloon" payment
at the end of the 15th year (such Mortgage Loans having 30-year
amortization schedules);
(ix) As of the Cut-Off Date and any Subsequent Transfer
Date, each Mortgage is a valid and subsisting first or second lien of
record on the Property subject in the case
56
of any Second Mortgage Loan only to a Senior Lien on such Property and
subject in all cases to the exceptions to title set forth in the title
insurance policy with respect to the related Mortgage Loan, which
exceptions are generally acceptable to banking institutions in
connection with their regular mortgage lending activities, and such
other exceptions to which similar properties are commonly subject and
which do not individually, or in the aggregate, materially and
adversely affect the benefits of the security intended to be provided
by such Mortgage;
(x) Immediately prior to the transfer and assignment
herein contemplated, the Seller held good and indefeasible title to,
and was the sole owner of, each Mortgage Loan conveyed by the Seller
subject to no liens, charges, mortgages, encumbrances or rights of
others except as set forth in paragraph (ix) or other liens which will
be released simultaneously with such transfer and assignment; and
immediately upon the transfer and assignment herein contemplated, the
Trust will hold good and indefeasible title to, and be the sole owner
of, each Mortgage Loan subject to no liens, charges, mortgages,
encumbrances or rights of others except as set forth in paragraph (ix)
or other liens which will be released simultaneously with such transfer
and assignment;
(xi) As of the Cut-Off Date, no Initial Mortgage Loan is
more than 59 days delinquent, and Initial Mortgage Loans (in the
aggregate) representing no more than ____% of the Original Group I Pool
Principal Balance of the Initial Mortgage Loans are 30-59 days
delinquent and no more than ____% of the Original Group II Pool
Principal Balance of the Initial Mortgage Loans are 30-59 days
delinquent; as of the related Subsequent Transfer Date, no Subsequent
Mortgage Loan shall be 30 or more days delinquent;
(xii) As of the Startup Day with respect to the Initial
Mortgage Loans, and the Subsequent Transfer Date with respect to any
Subsequent Mortgage Loan, each Property is free
of substantial damage and is in good repair;
(xiii) As of the Startup Day with respect to the Initial
Mortgage Loans, and the Subsequent Transfer Date with respect to any
Subsequent Mortgage Loan, there is no valid and enforceable offset,
defense or counterclaim to any Note or Mortgage, including the
obligation of the related Mortgagor to pay the unpaid principal of or
interest on such Note;
(xiv) As of the Startup Day with respect to the Initial
Mortgage Loans, and the Subsequent Transfer Date with respect to any
Subsequent Mortgage Loan, there is no delinquent tax or assessment lien
on any Property, nor is there any claim for work, labor or material
affecting any
57
Property which is or may be a lien prior to, or equal with, the lien of
the related Mortgage except, in each case, those which are insured
against by any title insurance policy referred to in paragraph (xvi)
below;
(xv) Each Mortgage Loan at the time it was made complied
in all material respects with all applicable state and federal laws and
regulations, including, without limitation, the federal
Truth-in-Lending Act, Real Estate Settlement Procedure Act and other
consumer protection laws, usury, equal credit opportunity, disclosure
and recording laws;
(xvi) With respect to each Mortgage Loan, a lender's
title insurance policy, issued in standard California Land Title
Association form or American Land Title Association form in the state
in which the related Property is situated, in an amount at least equal
to the Original Principal Balance of such Mortgage Loan insuring the
mortgagee's interest under the related Mortgage Loan as the holder of a
valid first mortgage lien of record in the case of each First Mortgage
Loan or second mortgage lien of record in the case of each Second
Mortgage Loan on the real property described in the related Mortgage,
as the case may be, subject only to exceptions of the character
referred to in paragraph (ix) above, was effective on the date of the
origination of such Mortgage Loan, and, as of the Startup Day, such
policy will be valid and thereafter such policy shall continue in full
force and effect. The assignment to the Trust of the benefits of the
mortgage title insurance does not require the consent of or
notification to the insurer. No claims have been made under such
mortgage title insurance policies and no prior holder of the related
mortgage has done, by act or omission, anything that would impair the
coverage of such mortgage title insurance policy;
(xvii) As of the Startup Day with respect to the Initial
Mortgage Loans, and the Subsequent Transfer Date with respect to any
Subsequent Mortgage Loan, the improvements upon each Property are
covered by a valid and existing hazard insurance policy (which may be a
blanket policy of the type described in Section 10.11(c) hereof) with a
generally acceptable carrier that provides for fire and extended
coverage representing coverage not less than the least of (A) the
outstanding principal balance of the related Mortgage Loan (together,
in the case of a Second Mortgage Loan, with the outstanding principal
balance of the Senior Lien), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the
full insurable value of the Property and in any event which is not less
than the amount necessary to avoid the operation of any coinsurance
provisions with respect to the Property in the event of any loss less
than the amount of the insurance coverage and consistent with
58
the amount that would have been required as of the date of origination
by the related originator in its normal residential mortgage lending
activities with respect to similar properties in the same locality. All
hazard insurance policies are the valid and binding obligation of the
insurer and contain a standard mortgagee clause naming the originator,
its successors and assigns, as mortgagee. All premiums thereon have
been paid. Such insurance policy requires prior notice to the insured
of termination or cancellation, and no such notice has been received.
The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and upon the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(xviii) If any Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy (which may be a blanket
policy of the type described in Sections 10.11(b) and 10.11(c) hereof)
in a form meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with respect to such
Property with a generally acceptable carrier in an amount representing
coverage not less than the least of (A) the outstanding principal
balance of the related Mortgage Loan (together, in the case of a Second
Mortgage Loan, with the outstanding principal balance of the Senior
Lien), (B) the minimum amount required to compensate for damage or loss
on a replacement cost basis or (C) the maximum amount of insurance that
is available under the Flood Disaster Protection Act of 1973, as
amended. All flood insurance policies are the valid and binding
obligation of the insurer and contain a standard mortgagee clause
naming the originator, its successors and assigns, as mortgagee. All
premiums thereon have been paid. Such flood insurance policy requires
prior notice to the insured of termination or cancellation, and no such
notice has been received. The Mortgage obligates the Mortgagor
thereunder to maintain all such flood insurance at the Mortgagor's cost
and expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to obtain and maintain such flood insurance at
the Mortgagor's cost and expense and to seek reimbursement therefor
from the Mortgagor;
(xix) Each Mortgage and Note is the legal, valid and
binding obligation of the maker thereof and is enforceable in
accordance with its terms, except only as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity (whether considered in a proceeding
or action in equity or at law), and all parties to each Mortgage Loan
had full legal capacity to execute all documents relating to such
59
Mortgage Loan and convey the estate therein purported to be conveyed;
there is only one original Note with respect to each Mortgage Loan;
(xx) The Seller has caused and will cause to be
performed any and all acts required to be performed to preserve the
rights and remedies of the Trust in any Insurance Policies applicable
to any Mortgage Loans delivered by the Seller including, to the extent
such Mortgage Loan is not covered by a blanket policy described in
Section 10.11(c) hereof, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of
co-insured, joint loss payee and mortgagee rights in favor of the
Trustee;
(xxi) Each original Mortgage was recorded or is in the
process of being recorded, and all subsequent assignments of the
original Mortgage have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof for
the benefit of the Trustee (or, subject to Section 3.3 hereof, are in
the process of being recorded);
(xxii) The terms of each Note and each Mortgage have not
been impaired, altered or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the
interests of the Owners and which has been delivered to the Trustee.
The substance of any such alteration or modification is reflected on
the related Mortgage Loan Schedule;
(xxiii) The proceeds of each Mortgage Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee to
make future advances thereunder. Any and all requirements as to
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing or recording
such Mortgage Loans were paid;
(xxiv) No Mortgage Loan was originated under a buydown
plan;
(xxv) No Mortgage Loan has a shared appreciation feature,
or other contingent interest feature;
(xxvi) Each Property is located in the state identified in
the related Mortgage Loan Schedule and consists of one parcel of real
property (or several parcels secured by a blanket mortgage) with a
residential dwelling erected thereon;
(xxvii) Each Mortgage contains a provision for the
acceleration of the payment of the unpaid principal balance of
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the related Mortgage Loan in the event the related Property is sold
without the prior consent of the mortgagee thereunder;
(xxviii) Any advances made after the date of origination of
a Mortgage Loan but prior to the Cut-Off Date have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the Mortgage Loan
Schedule. The consolidated principal amount does not exceed the
original principal amount of the related Mortgage Loan. No Note permits
or obligates the Master Servicer to make future advances to the related
Mortgagor at the option of the Mortgagor;
(xxix) There is no proceeding pending or threatened for
the total or partial condemnation of any Property, nor is such a
proceeding currently occurring, and each Property is undamaged by
waste, fire, earthquake or earth movement;
(xxx) All of the improvements which were included for the
purposes of determining the Appraised Value of any Property lie wholly
within the boundaries and building restriction lines of such Property,
and no improvements on adjoining properties encroach upon such
Property, except in each case exceptions which are stated in the title
insurance policy and affirmatively insured;
(xxxi) With respect to each Mortgage constituting a deed
of trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named
in such Mortgage, and no fees or expenses are or will become payable by
the Owners or the Trust to the trustee under the deed of trust, except
in connection with a trustee's sale after default by the related
Mortgagor;
(xxxii) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Property of the
benefits of the security, including (A) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (B) otherwise by
judicial foreclosure. There is no homestead or other exemption
available that would materially interfere with the right to sell the
related Property at a trustee's sale or the right to foreclose on the
related Mortgage;
(xxxiii) Except as provided by clause (xi) of this
subsection 3.2(b), there is no default, breach, violation or event of
acceleration existing under any Mortgage or the related Note and no
event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach,
violation or event of
61
acceleration; and the Seller has not waived any default, breach,
violation or event of acceleration;
(xxxiv) No instrument of release or waiver has been
executed in connection with any Mortgage Loan, and no Mortgagor has
been released, in whole or in part;
(xxxv) Each Mortgage Loan conforms, and all such Mortgage
Loans in the aggregate conform, in all material respects to the
description thereof set forth in the Registration Statement;
(xxxvi) A full appraisal was performed with respect to each
Mortgage Loan; such appraisal was performed in material compliance with
the appraisal description set forth in the Prospectus;
(xxxvii) As of the Startup Day and any Subsequent Transfer
Date, no more than ____% of the Original Pool Principal Balance of the
Mortgage Loans in Group I is secured by condominiums, townhouses or
rowhouses and no more than ____% of the Original Pool Principal Balance
of the Mortgage Loans in Group II is secured by condominiums,
townhouses or rowhouses;
(xxxviii) The credit underwriting guidelines applicable to
each Mortgage Loan conform in all material respects to the description
thereof set forth in the Prospectus and the Prospectus Supplement and
each Mortgage Loan was underwritten in accordance therewith;
(xxxix) As of the Startup Day with respect to the Initial
Mortgage Loans, and the Subsequent Transfer Date with respect to any
Subsequent Mortgage Loan, the Seller had no actual knowledge that there
exists on any Property any hazardous substances, hazardous wastes or
solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource
Conservation and Recovery Act of 1976, or other federal, state or local
environmental legislation;
(xl) As of the Startup Day and any Subsequent Transfer
Date, no more than ___% of the Original Pool Principal Balance of the
Mortgage Loans in Group I is secured by Properties located within any
single zip code area and no more than ____% of the Original Pool
Principal Balance of the Mortgage Loans in Group II is secured by
Properties located within any single zip code area; no more than _____%
of the Original Pool Principal Balance of the Mortgage Loans in Group I
is located within any single state and no more than _____% of the
Original Pool Principal Balance of the Mortgage Loans in Group II is
located within any single state.
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(xli) As of the Startup Day with respect to the Initial
Mortgage Loans, and the Subsequent Transfer Date with respect to any
Subsequent Mortgage Loan, at least _____% of the Original Group I Pool
Principal Balance and at least _____% of the Original Group II Pool
Principal Balance is secured by Properties that are owner occupied;
(xlii) All taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid;
(xliii) Except for payments in the nature of escrow
payments, including, without limitation, taxes and insurance payments,
the Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the
Mortgage, except for interest accruing from the date of the Mortgage
Note or date of disbursement of the Mortgage proceeds, whichever is
greater, to the day which precedes by one month the due date of the
first installment of principal and interest;
(xliv) No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation. All inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate authorities and the Mortgaged Property is lawfully occupied
under applicable law;
(xlv) The related Mortgage Note is not and has not been
secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage;
(xlvi) There is no obligation on the part of the Seller,
the originator, the Master Servicer, the Trustee or any other Person to
make payments in addition to those made by the Mortgagor;
(xlvii) With respect to each Second Mortgage Loan, the
related Senior Lien requires equal monthly payments, or if it bears an
adjustable interest rate, the monthly payments for the related Senior
Lien may be adjusted no more frequently than monthly;
(xlviii) With respect to each Second Mortgage Loan, either
(i) no consent for the Mortgage Loan is required by the holder of the
related Senior Lien or (ii) such consent has been obtained and is
contained in the File;
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(xlix) With respect to any Senior Lien that provided for
negative amortization or deferred interest, the balance of such Senior
Lien used to calculate the Loan-to-Value Ratio for the Second Mortgage
Loan is based on the maximum amount of negative amortization or
deferred interest possible under such Senior Lien;
(l) The maturity date of each Second Mortgage Loan is
prior to the maturity date of the related Senior Lien if such Senior
Lien provides for a balloon payment;
(li) All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise,
are (or, during the period in which they held and disposed of such
interest, were) (1) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Property is located,
and (2)(A) organized under the laws of such state, or (B) qualified to
do business in such state, or (C) federal savings and loans
associations or national banks having principal offices in such state
or (D) not doing business in such state so as to require qualification
or licensing;
(lii) All amounts received on and after the Cut-Off Date
with respect to the Mortgage Loans to which the Master Servicer is not
entitled have been deposited into the Principal and Interest Account
and are, as of the Startup Day, in the Principal and Interest Account;
(liii) The Mortgage Loans were not selected for inclusion
in the Trust on any basis intended to adversely affect the Trust;
(liv) With respect to each Property subject to a land
trust (a "Land Trust Mortgage") (a) a trustee, duly qualified under
applicable law to serve as such, has been properly designated and
currently so serves and is named as such in the land trust agreement
and such trustee is named in the Land Trust Mortgage as Mortgagor; (b)
all fees and expenses of the land trustee which have previously become
due and owing have been paid and no fees or expenses are or will become
payable by the Owners or the Trust to the land trustee under the land
trust agreement; (c) the beneficiary is solely obligated to pay any
fees and expenses of the land trustee and the priority of the lien of
the Land Trust Mortgage is not and will not be primed by the land
trustee; (d) the Mortgaged Property is occupied by the beneficiary
under the land trust agreement and, if such land trust agreement
terminates, the beneficiary will become the owner of the Mortgaged
Property; (e) the beneficiary is obligated to make payments under the
Note and will have personal liability for deficiency judgments; (f) the
Land Trust Mortgage and assignment of beneficial interest relating to
such land trust held by the Trust was made in
64
compliance with the related land trust agreement, was validly entered
into by the related land trust trustee or beneficiary and, does not
currently, and will not in the future, violate any provision of the
related land trust agreement, nor any agreement between or amongst the
beneficiaries of such land trust; (g) a UCC financing statement has
been filed, continued, and will be continued, without intervening
liens, as the first lien upon any assignment of beneficial interest in
the Land Trust Mortgage; (h) the assignment of beneficial interest with
respect to such Land Trust Mortgage held by the Trust was at the time
of such assignment the only assignment of such beneficial interest in
the Land Trust Mortgage, such assignment was accepted by, and noted in
the records of the land trust trustee, subsequent assignment of the
beneficial interest in whole or in part has not been made, and such
subsequent assignment of the beneficial interest or any part thereof is
not permitted pursuant to a written agreement between the respective
beneficiary and the Mortgagee, until the expiration of the Note
relating to the Land Trust Mortgage; (i) the Land Trust Mortgage is the
first or second lien on the Property; no lien is in place against the
beneficial interests, or any part thereof, of such Land Trust Mortgage
or collateral assignment of beneficial interest, which liens are
superior to the interest held by the Seller and the beneficial
interest, or any part thereof, of any such Land Trust Mortgage or
collateral assignment of beneficial interest has not been pledged as
security for any other debt; and the beneficiary or land trust trustee
is forbidden, pursuant to a written agreement between the beneficiary
or the land trust trustee (as applicable) and the Mortgagee, from using
the land trust property or beneficial interest, or any part of either,
as security for any other debt until the expiration date of its
respective Note; and (x) the terms and conditions of the land trust
agreement do not prevent the free and absolute marketability of the
Mortgaged Property. As of the Cut-Off Date, the aggregate Principal
Balances of Land Trust Mortgage Loans with related Mortgaged Properties
subject to land trusts does not exceed ____% of the Original Pool
Principal Balance.
(lv) With respect to each Property subject to a ground
lease (a) the current ground lessor has been identified and all ground
rents which previously became due and owing have been paid; (b) the
ground lease term extends, or is automatically renewable, for at least
five years beyond the maturity date of the related Mortgage Loan; (c)
the ground lease has been duly executed and recorded; (d) the amount of
the ground rent and any increases therein are clearly identified in the
lease and are for predetermined amounts at predetermined times; (e) the
ground rent payment is included in the Mortgagor's monthly payment as
an expense item; (f) the Trust has the right to cure defaults on the
ground lease; and (g) the terms and conditions of the leasehold do not
prevent
65
the free and absolute marketability of the Property. As of the Cut-Off
Date, the aggregate Principal Balance of Mortgage Loans with related
Mortgaged Properties subject to ground leases does not exceed _% of the
Original Pool Principal Balance.
(lvi) None of the Mortgage Loans are subject to a plan of
bankruptcy or have borrowers that have sought protection or relief
under any state or federal bankruptcy or insolvency law during the term
of the related Mortgage. With respect to each Mortgage Loan which has
been the subject of bankruptcy or insolvency proceedings, (a) as of the
Cut-Off Date, the Mortgagor is not contractually delinquent more than
30 days with respect to any payment due under the related plan, (b) the
current Loan-to-Value Ratio is less than or equal to 85% and (c) either
(i) if the current Loan-to-Value Ratio is between __% and __%, as of
the Cut-Off Date, the Mortgagor has made at least six consecutive
payments under the related Plan or (ii) if the current Loan-to-Value
Ratio is less than __% as of the Cut-Off Date, the Mortgagor has made
at least three consecutive payments under the related plan.
(c) In the event that any Qualified Replacement Mortgage is
delivered by the Seller to the Trust pursuant to this Section 3.2, the Seller
shall be obligated to take the actions described in subsection (a) above with
respect to such Qualified Replacement Mortgage upon the discovery by any of the
Owners, the Seller, the Master Servicer, the Certificate Insurer, any
Sub-Servicer or the Trustee that the statements set forth in subsections (ii),
(x), (xiii), (xix), (xxxii), (xxxiii) or (xxxix) of subsection (b) above are
untrue in any material respect on the date such Qualified Replacement Mortgage
is conveyed to the Trust or that any of the other statements set forth in
subsection (b) hereof are untrue on the date such Qualified Replacement Mortgage
is conveyed to the Trust such that the interests of the Owners or the
Certificate Insurer in the related Qualified Replacement Mortgage are materially
and adversely affected; provided, however, that for the purposes of this
subsection (c) the statements in subsection (b) hereof referring to items "as of
the Cut-Off Date" or "as of the Startup Day" shall be deemed to refer to such
items as of the date such Qualified Replacement Mortgage is conveyed to the
Trust.
(d) It is understood and agreed that the covenants set forth
in this Section 3.2 shall survive delivery of the respective Mortgage Loans
(including Qualified Replacement Mortgage Loans) to
the Trustee.
Section 3.3. Conveyance of the Initial Mortgage Loans and
Qualified Replacement Mortgages. (a) The Seller hereby directs the Trustee in
its capacity as trustee of Access Financial Loan Purchase Trust to transfer,
assign, set over and otherwise convey without representation, warranty or
recourse, to the Trust, all right, title and interest of the Seller in and to
each Initial
66
Mortgage Loan listed on the Mortgage Loan Schedule delivered by the Seller on
the Startup Day, and all its right, title and interest in and to (i) scheduled
payments of interest due on each Initial Mortgage Loan after the Cut-Off Date,
(ii) scheduled payments of principal due, and unscheduled collections of
principal received, on each Initial Mortgage Loan on and after the Cut-Off Date,
and (iii) its Insurance Policies; such transfer of the Initial Mortgage Loans
set forth on the Mortgage Loan Schedule to the Trust is absolute and is intended
by the Owners and all parties hereto to be treated as a sale to the Trust.
(b) In connection with the transfer and assignment of the
Initial Mortgage Loans on the Startup Day, the Seller agrees to:
(i) deliver, or cause to be delivered, without recourse to
the Trustee on behalf of the Trust on the Startup Day with respect to
each Initial Mortgage Loan or, on the Subsequent Transfer Date with
respect to Subsequent Mortgage Loans, (A) the original Notes or, if any
original Note has been lost or destroyed, certified copies thereof,
endorsed without recourse by the originator (or most recent payee)
thereof "Pay to the order of ________________________________
___________, as Trustee", (B) originals (subject to the provisions of
paragraph (d) below relating to items in the process of being recorded)
of all intervening assignments, showing a complete chain of assignment
from origination to assignment to the Trustee, including warehousing
assignments, with evidence of recording thereon, (C) originals of all
assumption and modification agreements, if any, and (D) either: (1) the
original Mortgage (subject to the provisions of paragraph (d) below
relating to items in the process of being recorded), with evidence of
recording thereon, or (2) a copy of the Mortgage certified by the
public recording office in those instances where the original recorded
Mortgage has been lost and (E) the original lender's title insurance
policy issued on the date of origination of such Mortgage Loan,
together with any endorsements thereto; provided, however, that,
subject to Section 3.4(b), the Seller shall not be required to prepare
an assignment for any Mortgage as to which the original recording
information is lacking; and provided, further, that pending the
issuance of the final title policy, the Seller shall deliver the title
commitment or title binder to insure same; and
(ii) cause, within 10 Business Days following the Startup Day
with respect to the Initial Mortgage Loans or, on the Subsequent
Transfer Date with respect to Subsequent Mortgage Loans, assignments of
the Mortgages from the related originator to
____________________________________________ to be submitted for
recording in the appropriate jurisdictions wherein such recordation is
necessary to perfect the Trustee's lien thereunder as against creditors
of or purchasers from the
67
Seller, the above-listed items constituting the "File" for the related
Mortgage Loan;
(c) Notwithstanding anything to the contrary contained in this
Section 3.3, in those instances where the public recording office retains the
original Mortgage, the assignment of a Mortgage or the intervening assignments
of the 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, such assignment or assignments of Mortgage certified by the
public recording office to be a true copy of the recorded original thereof.
(d) Not later than ten days following the end of the 10-
Business Day period referred to in clause (b)(ii) above, the Seller shall
deliver, or cause to be delivered, to the Trustee copies of all Mortgage
assignments submitted for recording, together with a list of all Mortgages for
which no Mortgage assignment has yet been submitted for recording, which list
shall state the reason why such Mortgage assignments have not been submitted for
recording. With respect to any Mortgage assignment disclosed on such list as not
yet submitted for recording for a reason other than a lack of original recording
information, the Trustee shall make an immediate demand on the Seller to
prepare, or cause to be prepared, such Mortgage assignments, and shall inform
the Certificate Insurer of the Seller's failure to prepare such Mortgage
assignments. Thereafter, the Trustee shall cooperate in executing any documents
submitted to the Trustee in connection with this provision. Thereafter, the
Seller shall prepare, or cause to be prepared, a Mortgage assignment for any
Mortgage for which original recording information is subsequently received by
the Seller, and shall promptly deliver a copy of such Mortgage assignment to the
Trustee.
Neither the Master Servicer nor the Trustee shall be
responsible for the costs of recording any Mortgage or any assignment of
Mortgage pursuant to this Section 3.3.
Copies of all Mortgage assignments received by the Trustee
shall be kept in the related File. The Seller shall promptly deliver, or cause
to be delivered, to the Trustee such original Mortgage or intervening mortgage
assignment with evidence of recording indicated thereon upon receipt thereof
from the public recording official. If the Seller within nine months from the
Startup Day shall not have received such original Mortgage or intervening
mortgage assignment from the public recording official, it shall obtain and
deliver, or cause to be delivered, to the Trustee within ten months from the
Startup Day, a copy of such original Mortgage or mortgage assignment certified
by such public recording official to be a true and complete copy of such
original Mortgage or mortgage assignment as recorded by such public recording
office.
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(e) In the case of Initial Mortgage Loans which have been
prepaid in full on or after the Cut-Off Date and prior to the Startup Day, or
with respect to Subsequent Mortgage Loans which have been prepaid in full on or
after the Subsequent Cut-Off Date and prior to the Subsequent Transfer Date, the
Seller, in lieu of the foregoing, will deliver within 15 days after the Startup
Day, or Subsequent Transfer Date, as applicable, to the Trustee a certification
of an Authorized Officer in the form set forth in Exhibit J.
(f) The Seller (or an affiliate thereof) shall sell, transfer,
assign, set over and otherwise convey without recourse, to the Trustee all its
right, title and interest in and to any Qualified Replacement Mortgage delivered
by it to the Trustee on behalf of the Trust pursuant to Section 3.2 or 3.4
hereof and all its right, title and interest to principal collected and interest
accruing on such Qualified Replacement Mortgage on and after the applicable
Replacement Cut-Off Date; provided, however, that the Seller (or such affiliate)
shall reserve and retain all right, title and interest in and to payments of
principal and interest due on such Qualified Replacement Mortgage prior to the
applicable Replacement Cut-Off Date.
(g) As to each Mortgage Loan released from the Trust in
connection with the conveyance of a Qualified Replacement Mortgage therefor, the
Trustee will transfer, assign, set over and otherwise convey without
representation, warranty or recourse, on the Seller's order, all of its right,
title and interest in and to such released Mortgage Loan and all the Trust's
right, title and interest in and to principal collected and interest accruing on
such released Mortgage Loan on and after the applicable Replacement Cut-Off
Date; provided, however, that the Trust shall reserve and retain all right,
title and interest in and to payments of principal collected and interest
accruing on such released Mortgage Loan prior to the applicable Replacement
Cut-Off Date.
(h) In connection with any transfer and assignment of a
Qualified Replacement Mortgage to the Trustee on behalf of the Trust, the Seller
agrees to deliver to the Trustee the items described in Section 3.3(b) on the
date of such transfer and assignment or, if a later delivery time is permitted
by Section 3.3(b), then no later than such later delivery time.
(i) As to each Mortgage Loan released from the Trust in
connection with the conveyance of a Qualified Replacement Mortgage the Trustee
shall deliver on the date of conveyance of such Qualified Replacement Mortgage
and on the order of the Seller (i) the original Note, or the certified copy,
relating thereto, endorsed without recourse, to the Seller, and (ii) such other
documents as constituted the File with respect thereto.
(j) If a Mortgage assignment is lost during the process of
recording, or is returned from the recorder's office unrecorded
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due to a defect therein, the Seller shall prepare or cause to be prepared a
substitute assignment or cure such defect, as the case may be, and thereafter
cause each such assignment to be duly recorded.
(k) The Seller shall reflect on its records that the Mortgage
Loans have been sold to the Trust.
Section 3.4. Acceptance by Trustee; Certain Substitutions of
Mortgage Loans; Certification by Trustee. (a) The Trustee agrees to execute and
deliver on the Startup Day and on any Subsequent Transfer Date an acknowledgment
of receipt of the items delivered by the Seller in the form attached as Exhibit
K hereto (the "Initial Trustee Certification"), and declares that it will hold
such documents and any amendments, replacement or supplements thereto, as well
as any other assets included in the definition of Trust Estate and delivered to
the Trustee, as Trustee in trust upon and subject to the conditions set forth
herein for the benefit of the Owners. The Trustee agrees, for the benefit of the
Owners, to review such items within 45 days after the Startup Day (or, with
respect to any document delivered after the Startup Day, within 45 days of
receipt, or with respect to any Subsequent Mortgage Loan or Qualified
Replacement Mortgage, within 45 days after the assignment thereof) and to
deliver to the related Sub-Servicer, the Master Servicer, the Seller and the
Certificate Insurer a Pool Certification in the form attached hereto as Exhibit
L (the "Interim Trustee Certification"). Within 12 months from the Startup Day,
the Trustee shall review the contents of the Files and deliver to the
Sub-Servicers, the Master Servicer, the Seller and the Certificate Insurer a
Pool Certification in the form attached hereto as Exhibit M (the "Final Trustee
Certification").
The Trustee shall certify in the Initial Trustee Certification
that it has examined each Note to confirm that except as otherwise described in
such certification it is in possession of an executed original Note endorsed to
the Trustee. The Trustee shall certify in the Interim and Final Trustee
Certifications that except as described in such certification, 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 are in its possession and have been
executed, (ii) the original Note bearing an original endorsement to the Trustee
from the original payee (or set of original endorsements evidencing a complete
chain of title from the original payee to the Trustee) is in its possession;
(iii) such documents have been reviewed by it and have not been mutilated,
damaged, torn or otherwise physically altered and relate to such Mortgage Loan
identified in the Mortgage Loan Schedule and (iv) based on its examination and
only as to the foregoing documents, the information set forth on the Mortgage
Loan Schedule as to loan number, name of mortgagor and address, date of
origination, the original stated maturity date, the Original
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Principal Balance, the Coupon Rate, the scheduled monthly payment of principal
and interest and the date in each month or which the related payments are due,
accurately reflects the information set forth in the File. The Trustee shall be
under no duty or obligation pursuant to this Section 3.4 to inspect, review or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they are other than what they purport to be on their face, nor
shall the Trustee be under any duty to determine independently whether there are
any intervening assignments or assumption or modification agreements with
respect to any Mortgage Loan. In the Interim and Final Trustee Certifications,
the Trustee based on its examination of the Files shall also either confirm, or
list as an exception that:
(i) each Note and Mortgage bears an original signature or
signatures purporting to be that of the person or persons named as the maker and
mortgagor/trustor;
(ii) the principal amount of the indebtedness secured by the
Mortgage is identical to the original principal amount of the Note;
(iii) the assignment of Mortgage is in the form
"____________________, as Trustee" and bears a signature that purports to be the
signature of an authorized officer of the Person which the related File suggests
was the immediately prior record holder of such Mortgage;
(iv) if intervening assignments are included in the File, each
such intervening assignment bears a signature that purports to be the signature
of the mortgagee/beneficiary and/or the assignee;
(v) the address of the real property set forth in the title
insurance policy or preliminary title report or commitment to issue a title
policy is identical to the real property address contained in the Mortgage and
such policy or commitment is for an amount equal to the original principal
amount of the Note; and
(vi) it has received an original Mortgage with evidence of
recordation and assignment, in each case, with evidence of recordation thereon
or a copy thereof certified to be true and correct by the public recording
office in possession of such Mortgage and assignment.
Following the delivery of the Final Trustee Certification, the Trustee shall
provide to the Seller, the Master Servicer and the Certificate Insurer no less
frequently than monthly, updated certifications indicating the then current
status of exceptions, until all such exceptions have been eliminated.
(b) If the Trustee during such 45-day period in connection
with the Interim Trustee Certification, or 12-month
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period in connection with the Final Trustee Certification finds any document
constituting a part of a File which is not properly executed, has not been
received, or is unrelated to the Mortgage Loans identified in the Mortgage Loan
Schedule or the Trustee is unable to make any of the other required
certifications, or that any Mortgage Loan does not conform in a material respect
to the description thereof as set forth in the Mortgage Loan Schedule, the
Trustee shall promptly so notify the Seller and the Certificate Insurer. In
performing any such review, the Trustee may conclusively rely on the Seller as
to the purported genuineness of any such document and any signature thereon. It
is understood that the scope of the Trustee's review of the items delivered by
the Seller pursuant to Section 3.3(b)(i) is limited solely to such procedures as
are necessary to enable the Trustee to complete Exhibits K, L and M hereto.
The Seller agrees to use reasonable efforts to remedy a
material defect in a document constituting part of a File of which it is so
notified by the Trustee. If, however, (i) in the case of a defect consisting of
the failure of the Seller to deliver an original Mortgage and any intervening
mortgage assignment evidencing a complete chain of title to the Trustee with
evidence of recording thereon, on the first Remittance Date following the 12
month period from the Startup Day and (ii) in the case of all other defects
within 60 days after the Trustee's notice to it respecting such defect the
Seller has not remedied the defect and the defect materially and adversely
affects the interest in the related Mortgage Loan of the Owners or of the
Certificate Insurer, the Seller will on the next succeeding Remittance Date (i)
substitute in lieu of such Mortgage Loan a Qualified Replacement Mortgage and,
deliver the Substitution Amount applicable thereto to the Master Servicer for
deposit in the Principal and Interest Account or (ii) purchase such Mortgage
Loan at a purchase price equal to the Loan Purchase Price thereof, which
purchase price shall be delivered to the Master Servicer for deposit in the
Principal and Interest Account.
In connection with any such proposed purchase or substitution
the Seller shall cause at the Seller's expense to be delivered to the Trustee
and to the Certificate Insurer an opinion of counsel experienced in federal
income tax matters stating whether or not such a proposed purchase or
substitution would constitute a Prohibited Transaction for the Trust or would
jeopardize the status of either the Upper-Tier REMIC or the Lower-Tier REMIC as
a REMIC, and the Seller shall only be required to take either such action to the
extent such action would not constitute a Prohibited Transaction for either the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or would not jeopardize the
status of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC. Any
required purchase or substitution, if delayed by the absence of such opinion
shall nonetheless occur upon the earlier of (i) the occurrence of a default or
imminent default with respect to the Mortgage Loan or (ii) the delivery of such
opinion.
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Section 3.5. Cooperation Procedures. (a) The Seller shall, in
connection with the delivery of each Qualified Replacement Mortgage to the
Trustee, provide the Trustee with the information set forth in the related
Mortgage Loan Schedule with respect to such Qualified Replacement Mortgage.
(b) The Seller and the Trustee covenant to provide each other
and the Certificate Insurer with all data and information required to be
provided by them hereunder at the times required hereunder, and additionally
covenant reasonably to cooperate with each other in providing any additional
information required by any of them or the Certificate Insurer in connection
with their respective duties hereunder.
Section 3.6. Conveyance of the Subsequent Mortgage Loans. (a)
Subject to the conditions set forth in paragraph (b) below in consideration of
the Trustee's delivery on the related Subsequent Transfer Dates to or upon the
order of the Seller of all or a portion of the balance of funds in the
Pre-Funding Account, the Seller shall on any Subsequent Transfer Date direct the
Trustee in its capacity as trustee of Access Financial Loan Purchase Trust to
sell, transfer, assign, set over and otherwise convey without recourse, to the
Trustee with respect to Group I, all right, title and interest of the Access
Financial Loan Purchase Trust in and to each Subsequent Mortgage Loan listed on
the Mortgage Loan Schedule delivered by the Seller on such Subsequent Transfer
Date, all its right, title and interest in and to principal collected and
interest accruing on each such Subsequent Mortgage Loan on and after the related
Subsequent Cut-Off Date and all its right, title and interest in and to all
Insurance Policies; provided, however, that the Access Financial Loan Purchase
Trust reserves and retains all its right, title and interest in and to principal
(including Prepayments) collected and interest accruing on each such Subsequent
Mortgage Loan prior to the related Subsequent Cut-Off Date. The transfer by the
Access Financial Loan Purchase Trust of the Subsequent Mortgage Loans set forth
on the Mortgage Loan Schedule to the Trustee shall be absolute and shall be
intended by the Owners and all parties hereto to be treated as a sale by the
Access Financial Loan Purchase Trust.
The amount released from the Pre-Funding Account shall be
one-hundred percent (100%) of the aggregate principal balances of the Subsequent
Mortgage Loans so transferred.
(b) The Seller shall transfer to the Trustee the Subsequent
Mortgage Loans and the other property and rights related thereto described in
paragraph (a) above only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date.
(i) the Seller shall have provided the Trustee and the
Certificate Insurer with a timely Addition Notice and shall
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have provided any information reasonably requested by any of the
foregoing with respect to the Subsequent Mortgage Loans;
(ii) the Seller shall have delivered to the Trustee a duly
executed written assignment (including an acceptance by the Trustee) in
substantially the form of Exhibit __ (the "Subsequent Transfer
Agreement"), which shall include a Mortgage Loan Schedule, listing the
Subsequent Mortgage Loans and any other exhibits listed thereon;
(iii) the Seller shall have deposited in the Principal and
Interest Account all collections in respect of the Subsequent Mortgage
Loans received on or after the related Subsequent Cut-Off Date;
(iv) as of each Subsequent Transfer Date, neither the Master
Servicer nor the Seller was insolvent nor will either of them have been
made insolvent by such transfer nor is either of them aware of any
pending insolvency;
(v) such addition will not result in a material adverse tax
consequent to the Trust or the Owners of the Certificates;
(vi) the Pre-Funding Period with respect to the related
Mortgage Loan Group shall not have terminated;
(vii) the Seller shall have delivered to the Trustee an
Officer's Certificate confirming the satisfaction of each condition
precedent specified in this paragraph (b) and in the related Subsequent
Transfer Agreement; and
(viii) the Seller shall have delivered to the Certificate
Insurer, the Rating Agencies and the Trustee Opinions of Counsel with
respect to the transfer of the Subsequent Mortgage Loans substantially
in the form of the Opinions of Counsel delivered to the Certificate
Insurer and the Trustee on the Startup Day (bankruptcy, corporate and
tax opinions);
(c) the obligation of the Trust to purchase a Subsequent
Mortgage Loan on any Subsequent Transfer Date for assignment to Group I is
subject to the following requirements: (i) such Subsequent Mortgage Loan may not
be 30 or more days contractually delinquent as of the related Subsequent Cut-Off
Date; (ii) the remaining term to maturity of such Subsequent Mortgage Loan may
not exceed 30 years, (iii) such Subsequent Mortgage Loan has a Coupon Rate of at
least ___% and (iv) following the purchase of such Subsequent Mortgage Loans by
the Trust, the Mortgage Loans in Mortgage Loan Group I (including the Subsequent
Mortgage Loans) (a) will have a weighted average Coupon Rate of at least ____%;
(b) will have a weighted average remaining term to stated maturity of not more
than ___ months, (c) will have a weighted average Combined Loan-to-Value Ratio
of not more than __%; (d) will have not more than __% by aggregate principal
balance Balloon Loans; (e) will
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have no Mortgage Loan with a Loan Balance in excess of $________; and (f) will
have not more than __% in aggregate Loan Balance of Mortgage Loans relating to
non-owner occupied Properties.
(d) The obligation of the Trust to purchase a Subsequent
Mortgage Loan on any Subsequent Transfer Date is subject to the following
additional requirements, any of which may be waived or modified in any respect
by the Certificate Insurer by a written instrument executed by the Certificate
Insurer;
(1) The obligation of the Trust to purchase a Subsequent
Mortgage Loan on any Subsequent Transfer Date is subject to the
following additional requirements: (i) no such Subsequent Mortgage Loan
may have a Combined Loan-to-Value Ratio greater than %; (ii) no
such Subsequent Mortgage Loan may have an outstanding Loan Balance
greater than $ as of the related Subsequent Transfer Date;
(iii) no such Subsequent Mortgage Loan is secured by a Mortgage on
property which, at the time of the origination of such Mortgage Loan,
had an Appraised Value greater than $ ; (iv) the first payment
on each such Subsequent Mortgage Loan may be due no later than ;
except that, if the Sponsor shall deposit into the Certificate Account
an amount equal to 30 days' interest on any such Subsequent Mortgage
Loan at the related Coupon Rate less the applicable Servicing Fee, then
the first payment on such Subsequent Mortgage Loan may be due no later
than , (v) each such subsequent Mortgage Loan shall be
either a fully-amortizing loan with level payments over a remaining
term of not greater than 30 years or a loan with a balloon maturity of
not less than 15 years and (vi) no Subsequent Mortgage Loan may have a
Coupon Rate lower than %.
(2) After giving effect to the Trust's purchase of any such
Subsequent Mortgage Loan (i) the weighted average Coupon Rate of all
Mortgage Loans in Group I shall be no less than %; (ii) no more than
% of the Mortgage Loans held by the Trust shall be concentrated
in any single zip code; (iii) the Mortgage Loans in Group I shall have
weighted average Combined Loan-to-Value Ratio no greater than %; (iv)
no more than % of the Mortgage Loans by aggregate Loan Balance shall
be Balloon Loans; (v) no more than % of the Mortgage Loans by
aggregate Loan Balance may be Second Mortgage Loans; and (vi) no more
than % of the Mortgage Loans by aggregate Loan Balance may relate to
non-owner occupied Properties.
(e) In connection with the transfer and assignment of the
Subsequent Mortgage Loans, the Seller agrees to satisfy the conditions set forth
in Sections 3.3(b)-(k), 3.4 and 3.5.
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(f) In connection with each Subsequent Transfer Date and on
the Payment Dates occurring in , and of the Seller shall determine, and the
Trustee shall co-operate with the Seller in determining (i) the amount and
correct dispositions of the Group I and Group II Capitalized Interest
Requirements, Overfunded Interest Amounts, Excess Pre-Funding Earnings, Group I
Pre-Funding Earnings, the amounts of Pre-Funding Account moneys allocated to
Group I, and (ii) any other necessary matters in connection with the
administration of the Pre-Funding Account and of the Capitalized Interest
Account. In the event that any amounts are incorrectly released to the Owners of
the Class R Certificates from the Pre-Funding Account or from the Capitalized
Interest Account, such Owners or the Seller shall immediately repay such amounts
to the Trustee.
(g) In connection with the transfer of any Subsequent Mortgage
Loans to the Trust the Seller, the Master Servicer and the Trustee may, with the
prior written consent of the Certificate Insurer, amend the definition of
"Specified Subordinated Amount" with respect to the related Mortgage Loan Group
for the purpose of changing the related Specified Subordinated Amount; provided,
however, that any such amendment must comply with the provisions of Sections
[11.14(b) and (d)] hereof.
ARTICLE IV
ISSUANCE AND SALE OF CERTIFICATES
Section 4.1. Issuance of Certificates. On the Startup Day,
upon the Trustee's receipt from the Seller of an executed Delivery Order in the
form set forth as Exhibit H hereto, the Trustee shall execute, authenticate and
deliver the Certificates on behalf of the Trust in accordance with the
directions set forth in such Delivery Order.
Section 4.2. Sale of Certificates. At 11 a.m. New York City
time on the Startup Day, at the offices of Dewey Ballantine, 1301 Sixth Avenue,
New York, New York, the Seller will sell and convey the Initial Mortgage Loans
and the money, instruments and other property related thereto to the Trustee,
and the Trustee will (i) hold the Class A Certificates as transfer agent for the
Depository, with an aggregate Percentage Interest in each Class equal to 100%,
registered in the name of Cede & Co. or in such other names as the Underwriters
shall direct against payment of the purchase price thereof by wire transfer of
immediately available funds to the Trustee for disbursement to the Seller and
(ii) deliver to the Seller, the Class B Certificates and the Residual
Certificates, with an aggregate Percentage Interest equal to 100%, registered as
the Seller shall request. Upon receipt of the proceeds of the sale of the
Certificates, the Seller shall (a) pay the initial premiums due to the
Certificate Insurer, (b) pay other fees and expenses identified by the Seller,
(c) deposit an amount
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equal to the Original Aggregate Pre-Funded Amount in the Pre- Funding Account
and (d) deposit an amount equal to $ in the Capitalized Interest Account.
ARTICLE V
CERTIFICATES AND TRANSFER OF INTERESTS
Section 5.1. Terms. (a) The Certificates are pass-through
securities having the rights described therein and herein. Distributions on the
Certificates are payable solely from payments received on or with respect to the
Mortgage Loans (other than the Master Servicing Fees), moneys in the Certificate
Account, the Principal and Interest Account, the Supplemental Interest Payment
Account, the Capitalized Interest Account, the Pre-Funding Account, Insured
Payments made by the Certificate Insurer, Delinquency Advances and Compensating
Interest payments made by the Master Servicer or otherwise held by the Master
Servicer in trust for the Owners, except as otherwise provided herein, and from
earnings on moneys and the proceeds of property held as a part of the Trust
Estate. Each Certificate entitles the Owner thereof to receive distributions in
accordance with this Agreement and in a specified portion of the aggregate
distribution due to the related Class of Certificates, pro rata in accordance
with such Owner's Percentage Interest, certain amounts payable from the
Capitalized Interest Account and from the Pre-Funding Account and in the case of
the Class A-6 Certificates, certain amounts payable from the Supplemental
Interest Payment Account and from the Class A-6 Distribution Account.
(b) Each Owner is required, and hereby agrees, to return to
the Trustee any Certificate with respect to which the Trustee has made the final
distribution due thereon. Any such Certificate as to which the Trustee has made
the final distribution thereon shall be deemed cancelled and shall no longer be
Outstanding for any purpose of this Agreement, whether or not such Certificate
is ever returned to the Trustee.
Section 5.2. Forms. The Certificates of each Class shall be in
substantially the forms set forth as the related Exhibits to this Agreement,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Agreement or as may in the Seller's
judgment be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any applicable securities laws or as
may, consistently herewith, be determined necessary by the Authorized Officer of
the Trustee executing such Certificates, as evidenced by his execution thereof.
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Section 5.3. Execution, Authentication and Delivery. Each
Certificate shall be executed on behalf of the Trust, by the manual signature of
one of the Trustee's Authorized Officers and shall be authenticated by the
manual signature of one of the Trustee's Authorized Officers.
Certificates bearing the manual signature of individuals who
were at any time the proper officers of the Trustee shall bind the Trust,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the execution and delivery of such Certificates or did not hold
such offices at the date of authentication of such Certificates.
No Certificate shall be valid until executed and authenticated
as set forth above.
Certificates delivered on the Startup Day shall be dated the
Startup Day; all Certificates delivered thereafter shall be dated the date of
authentication.
Section 5.4. Registration and Transfer of Certificates. (a)
The Trustee shall cause to be kept a register (the "Register") in which, subject
to such reasonable regulations as it may prescribe, the Trustee shall provide
for the registration of Certificates and the registration of transfer of
Certificates.
(b) Subject to the provisions of Section 5.8 hereof with
respect to the Unregistered Certificates, upon surrender for registration of
transfer of any Certificate at the office designated as the location of the
Register, the Trustee shall execute and authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Certificates of a like
Class and in the aggregate principal or notional amount of the Certificate so
surrendered.
(c) At the option of any Owner, Certificates of any Class
owned by such Owner may be exchanged for other Certificates authorized of like
Class, tenor and a like aggregate original principal or notional amount and
bearing numbers not contemporaneously outstanding, upon surrender of the
Certificates to be exchanged at the office designated as the location of the
Register. Whenever any Certificate is so surrendered for exchange, the Trustee
shall execute and authenticate and deliver the Certificate or Certificates which
the Owner making the exchange is entitled to receive.
(d) All Certificates issued upon any registration of transfer
or exchange of Certificates shall be valid evidence of the same ownership
interests in the Trust and entitled to the same benefits under this Agreement as
the Certificates surrendered upon such registration of transfer or exchange.
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(e) Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Owner thereof or his attorney duly authorized in writing.
(f) No service charge shall be made to an Owner for any
registration of transfer or exchange of Certificates, but the Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates; any other expenses in connection with such transfer or
exchange shall be an expense of the Trust.
(g) It is intended that the Class A Certificates be registered
so as to participate in a global book-entry system with the Depository, as set
forth herein. Each Class of Class A Certificates shall be initially issued in
the form of a single fully registered Class A Certificate of the related Class
with a denomination equal to the original principal balance of the related
Class. Upon initial issuance, the ownership of such Class A Certificates shall
be registered in the Register in the name of Cede & Co., or any successor
thereto, as nominee for the Depository.
The minimum denominations shall be $1,000 for any Class A
Certificate, $100,000 for any Class B Certificate, and 10% Percentage Interest
for any Residual Certificate.
The Trustee is hereby authorized to execute and deliver the
Representation Letter with the Depository.
With respect to Class A Certificates registered in the
Register in the name of Cede & Co., as nominee of the Depository, the Seller,
the Master Servicer, and the Trustee shall have no responsibility or obligation
to the Depository's "Direct Participants" or "Indirect Participants" or
beneficial owners for which the Depository holds Class A Certificates from time
to time as a Depository. Without limiting the immediately preceding sentence,
the Seller, the Master Servicer and the Trustee shall have no responsibility or
obligation with respect to (i) the accuracy of the records of the Depository,
Cede & Co., or any Direct or Indirect Participant with respect to the ownership
interest in the Class A Certificates, (ii) the delivery to any Direct or
Indirect Participant or any other Person, other than a registered Owner of a
Class A Certificate as shown in the Register, of any notice with respect to the
Class A Certificates or (iii) the payment to, or withholding with respect to,
any Direct or Indirect Participant or any other Person, other than a registered
Owner of a Class A Certificate as shown in the Register, of any amount with
respect to any distribution of principal or interest on the Class A
Certificates. No Person other than a registered Owner of a Class
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A Certificate as shown in the Register shall receive a certificate evidencing
such Class A Certificate.
Upon delivery by the Depository to the Trustee of written
notice to the effect that the Depository has determined to substitute a new
nominee in place of Cede & Co., and subject to the provisions hereof with
respect to the payment of interest by the mailing of checks or drafts to the
registered Owners of Class A Certificates appearing as registered Owners in the
registration books maintained by the Trustee at the close of business on a
Record Date, the name Cede & Co. in this Agreement shall refer to such new
nominee of the Depository.
(h) In the event that (i) the Depository advises the Trustee
in writing that the Depository is no longer willing or able to discharge
properly its responsibilities as nominee and depository with respect to the
Class A Certificates and the Trustee is unable to locate a qualified successor,
(ii) the Seller at its sole option elects to terminate the book-entry system
through the Depository or (iii) after an Event of Default, Owners of
Certificates evidencing at least 51% Percentage Interests of any Class affected
thereby notify the Seller that the continuation of a book-entry system is not in
the best interests of such Class of Owners, the Class A Certificates or any
Class, as applicable, shall no longer be restricted to being registered in the
Register in the name of Cede & Co. (or a successor nominee) as nominee of the
Depository. At that time, the Class A Certificates shall be registered in the
name of and deposited with a successor depository operating a global book-entry
system, as may be acceptable to the Seller, or such depository's agent or
designee but, if the Seller does not select such alternative global book-entry
system, then the Trustee shall notify the Owners of the Class A Certificates in
writing of the termination of the book-entry system and the Class A Certificates
may be registered in whatever name or names registered Owners of Class A
Certificates transferring Class A Certificates shall designate, in accordance
with the provisions hereof.
(i) Notwithstanding any other provision of this Agreement to
the contrary, so long as any Class A Certificate is registered in the name of
Cede & Co., as nominee of the Depository, all distributions of principal or
interest on such Class A Certificates and all notices with respect to such Class
A Certificates shall be made and given, respectively, in the manner provided in
the Representation Letter.
Section 5.5. Mutilated, Destroyed, Lost or Stolen
Certificates. If (i) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate, and (ii) in the case of any mutilated Certificate,
such mutilated Certificate shall first be surrendered to the Trustee, and in the
case of any destroyed, lost or stolen Certificate, there shall be first
delivered to the Trustee such security or indemnity as may be
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reasonably required by it to hold the Trustee harmless, then, in the absence of
notice to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like Class, tenor and aggregate principal amount, bearing a
number not contemporaneously outstanding.
Upon the issuance of any new Certificate under this Section,
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto; any other
expense in connection with such issuance shall be an expense of the Owner.
Every new Certificate issued pursuant to this Section in
exchange for or in lieu of any mutilated, destroyed, lost or stolen Certificate
shall constitute evidence of a substitute interest in the Trust, and shall be
entitled to all the benefits of this Agreement equally and proportionately with
any and all other Certificates of the same Class duly issued hereunder and such
mutilated, destroyed, lost or stolen Certificate shall not be valid for any
purpose.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 5.6. Persons Deemed Owners. The Trustee and the
Certificate Insurer and any of their respective agents may treat the Person in
whose name any Certificate is registered as the Owner of such Certificate for
the purpose of receiving distributions with respect to such Certificate and for
all other purposes whatsoever, and neither the Trustee nor the Certificate
Insurer nor any of their respective agents shall be affected by notice to the
contrary.
Section 5.7. Cancellation. All Certificates surrendered for
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. No Certificate shall be authenticated in lieu of or in exchange for any
Certificate cancelled as provided in this Section, except as expressly permitted
by this Agreement. All cancelled Certificates may be held or destroyed by the
Trustee in accordance with its standard policies.
Section 5.8. Limitation on Transfer of Ownership Rights. (a)
No sale or other transfer of any Unregistered Certificate (other than the
initial sale of the Unregistered Certificates upon the issuance thereof) shall
be made to any Person unless such Person delivers to the Trustee (i) a completed
certificate in the form attached as Exhibit D hereto, (ii) if required by the
terms of
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such certificate, an opinion to the effect that such sale or other transfer will
not violate any applicable federal or state securities laws and (iii) an opinion
that such transfer will not jeopardize the REMIC status of either REMIC or the
deductibility of interest with respect to the Certificates; no sale or other
transfer of any Unregistered Certificate shall be made to any Person until such
Person delivers to the Trustee either (i) an opinion of counsel from the
prospective transferee of such Certificate, acceptable to, and in form and
substance satisfactory to the Seller, to the effect that such transferee is not
a pension or benefit plan or individual retirement arrangement that is subject
to the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
to Section 4975 of the Code or an entity whose underlying assets are deemed to
be assets of such a plan or arrangement by reason of such plan's or
arrangement's investments in the entity, as determined under U.S. Department of
Labor Regulations 29 C.F.R. 'ss' 2510.3-101 or otherwise, collectively, a
"Plan" or (ii) the representation set forth in Paragraph D of Exhibit D hereto.
(b) No sale or other transfer of record or beneficial
ownership of a Residual Certificate (whether pursuant to a purchase, a transfer
resulting from a default under a secured lending agreement or otherwise) shall
be made to a Disqualified Organization. The transfer, sale or other disposition
of a Residual Certificate (whether pursuant to a purchase, a transfer resulting
from a default under a secured lending agreement or otherwise) to a Disqualified
Organization shall be deemed to be of no legal force or effect whatsoever and
such transferee shall not be deemed to be an Owner for any purpose hereunder,
including, but not limited to, the receipt of distributions on such Residual
Certificate. Furthermore, in no event shall the Trustee accept surrender for
transfer, registration of transfer, or register the transfer, of any Residual
Certificate nor authenticate and make available any new Residual Certificate
unless the Trustee has received an affidavit from the proposed transferee in the
form attached hereto as Exhibit E. Each holder of a Residual Certificate by his
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this Section 5.8(b).
(c) Notwithstanding anything to the contrary herein, no sale
or other transfer of record or beneficial ownership of a Class B Certificate or
a Residual Certificate shall be made to any Person until such Person delivers to
the Trustee either (i) an opinion of counsel from the prospective transferee of
such Certificate, acceptable to, and in form and substance satisfactory to the
Seller, to the effect that such transferee is not a Plan or (ii) the
representation set forth in Paragraph D of Exhibit D hereto. Any such
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Certificate Insurer and the Seller against any
liability, cost or expense
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(including attorney's fees) that may result if the transfer is in violation of
such statute.
Section 5.9. Assignment of Rights. An Owner may pledge,
encumber, hypothecate or assign all or any part of its right to receive
distributions hereunder, but such pledge, encumbrance, hypothecation or
assignment shall not constitute a transfer of an ownership interest sufficient
to render the transferee an Owner of the Trust without compliance with the
provisions of Section 5.4 and Section 5.8 hereof.
ARTICLE VI
COVENANTS
Section 6.1. Distributions. On each Payment Date, the Trustee
will distribute, from funds comprising the Trust Estate, to the Owners of record
of the Certificates as of the related Record Date, such Owners' Percentage
Interests in the amounts required to be distributed to the Owners of each Class
of Certificates on such Payment Date. For so long as the Class A Certificates
are in book-entry form with the Depository, the only "Owner" of the Class A
Certificates will be the Depository.
Section 6.2. Money for Distributions to be Held in Trust;
Withholding. (a) All payments of amounts due and payable with respect to any
Certificate that are to be made from amounts withdrawn from the Certificate
Account pursuant to Section 7.3 hereof shall be made by and on behalf of the
Trustee.
(b) The Trustee on behalf of the Trust shall comply with all
requirements of the Code and applicable state and local law with respect to the
withholding from any distributions made by it to any Owner of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
(c) Any money held by the Trustee in trust for the payment of
any amount due with respect to any Class A Certificate, Class B Certificate or
Residual Certificate and remaining unclaimed by the Owner of such certificate
for three years after such amount has become due and payable shall be discharged
from such trust and be paid to the Seller; and the Owner of such Class A
Certificate, Class B Certificate or Residual Certificate shall thereafter, as an
unsecured general creditor, look only to the Seller for payment thereof (but
only to the extent of the amounts so paid to the Seller), and all liability of
the Trustee with respect to such trust money shall thereupon cease; provided,
however, that the Trustee, before being required to make any such payment, shall
at the expense of the Seller cause to be published once, in the eastern edition
of The Wall Street Journal, notice that such money remains unclaimed and that,
after a date specified therein, which
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shall be not fewer than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be paid to the Seller. The Trustee
shall, at the direction of the Seller, also adopt and employ, at the expense of
the Seller, any other reasonable means of notification of such payment
(including, but not limited to, mailing notice of such payment to Owners whose
right to or interest in moneys due and payable but not claimed is determinable
from the records of the Trustee at the last address of record for each such
Owner).
Section 6.3. Protection of Trust Estate. (a) The Trustee will
hold the Trust Estate in trust for the benefit of the Owners and, upon request
of the Certificate Insurer or the Seller and at the expense of the Seller, will
from time to time execute and deliver all such supplements and amendments hereto
pursuant to Section 12.14 hereof and all instruments of further assurance and
other instruments, and will take such other action upon such reasonable request,
to:
(i) more effectively hold in trust all or any portion of
the Trust Estate;
(ii) perfect, publish notice of, or protect the validity of
any grant made or to be made by this Agreement;
(iii) enforce any of the Mortgage Loans;
(iv) preserve and defend title to the Trust Estate and the
rights of the Trustee, and the ownership interests of the Owners
represented thereby, in such Trust Estate against the claims of all
Persons and parties; or
(v) perfect a security interest in the Mortgage Loans, in
the event that the conveyance by the Seller did not constitute a sale.
(b) The Trustee shall have the power to enforce, and shall
enforce the obligations of the other parties to this Agreement by action, suit
or proceeding at law or equity, and shall also have the power to enjoin, by
action or suit in equity, any acts or occurrences which may be unlawful or in
violation of the rights of the Owners; provided, however, that nothing in this
Section shall require any action by the Trustee unless the Trustee shall first
(i) have been furnished indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such action and (ii) when
required by this Agreement, have been requested to take such action by the
Certificate Insurer, or, with the consent of the Certificate Insurer by a
majority of the Percentage Interests represented by any Class of Class A
Certificates, or, if there are no longer any Class A Certificates then
Outstanding, by such percentage of the Percentage Interests represented by any
Class of Class B Certificates then Outstanding.
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(c) The Trustee shall execute any instrument reasonably
required pursuant to this Section so long as such instrument does not conflict
with this Agreement or with the Trustee's fiduciary duties.
Section 6.4. Performance of Obligations. The Trustee will not
take any action that would release the Seller or the Master Servicer, from any
of their respective covenants or obligations under any instrument or document
relating to the Trust Estate or the Certificates or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or document, except with
the prior written consent of the Certificate Insurer, or as expressly provided
in this Agreement or such other instrument or document.
Section 6.5. Negative Covenants. The Trustee will not, to the
extent within the control of the Trustee, take any of the following actions:
(i) sell, transfer, exchange or otherwise dispose of any of
the Trust Estate except as expressly permitted by this Agreement;
(ii) claim any credit on or make any deduction from the
distributions payable in respect of the Certificates (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Owner by reason of the payment
of any taxes levied or assessed upon any of the Trust Estate;
(iii) incur, assume or guaranty on behalf of the Trust any
indebtedness of any Person except pursuant to this Agreement;
(iv) dissolve or liquidate in whole or in part the Trust
Estate, except pursuant to Article VIII hereof; or
(v) (A) impair the validity or effectiveness of this
Agreement, or release any Person from any covenants or obligations with
respect to the Trust or to the Certificates under this Agreement,
except as may be expressly permitted hereby or (B) create or extend any
lien, charge, adverse claim, security interest, mortgage or other
encumbrance to or upon the Trust Estate or any part thereof or any
interest therein or the proceeds thereof.
Section 6.6. No Other Powers. The Trustee will not, to the
extent within the control of the Trustee, permit the Trust to engage in any
business activity or transaction other than those activities permitted by
Section 2.3 hereof.
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Section 6.7. Limitation of Suits. No Owner shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Agreement or the Certificate Insurance Policy, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Owner has previously given written notice to the Seller,
the Certificate Insurer and the Trustee of such Owner's
intention to institute such proceeding;
(2) the Owners of not less than 25% of the Percentage Interests
represented by any Class of Class A Certificates, or, if there
are no Class A Certificates then Outstanding, by such
percentage of the Percentage Interests of any Class of Class B
Certificates then Outstanding, shall have made written request
to the Trustee to institute such proceeding in its own name as
representative of the Owners;
(3) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute such
proceeding; and
(4) no direction inconsistent with such written request has been
given to the Trustee during such 30-day period by the
Certificate Insurer or by the Owners of a majority of the
Percentage Interests represented by each Class of Class A
Certificates or, if there are no Class A Certificates then
Outstanding, by such percentage of the Percentage Interests
represented by any Class of Class B Certificates then
Outstanding;
it being understood and intended that no one or more Owners shall have any right
in any manner whatever by virtue of, or by availing themselves of, any provision
of this Agreement to affect, disturb or prejudice the rights of any other Owner
of the same Class or to obtain or to seek to obtain priority or preference over
any other Owner of the same Class or to enforce any right under this Agreement,
except in the manner herein provided and for the equal and ratable benefit of
all the Owners of the same Class.
In the event the Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Owners, each
representing less than a majority of the applicable Class of Certificates, the
Trustee shall act at the direction of the Certificate Insurer.
Section 6.8. Unconditional Rights of Owners to Receive
Distributions. Notwithstanding any other provision in this Agreement, the Owner
of any Certificate shall have the right, which is absolute and unconditional, to
receive distributions to the extent provided herein and therein with respect to
such Certificate or to institute suit for the enforcement of any such
distribution,
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and such right shall not be impaired without the consent of such Owner.
Section 6.9. Rights and Remedies Cumulative. Except as
otherwise provided herein, no right or remedy herein conferred upon or reserved
to the Seller, the Trustee, the Master Servicer, to the Owners or to the
Certificate Insurer is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. Except as otherwise
provided herein, the assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 6.10. Delay or Omission Not Waiver. No delay of the
Seller, the Trustee, the Master Servicer, or any Owner of any Certificate or the
Certificate Insurer to exercise any right or remedy under this Agreement shall
impair any such right or remedy or constitute a waiver of any such right or
remedy. Every right and remedy given by this Article VI or by law to the Seller
or by the Owners or the Certificate Insurer may be exercised from time to time,
and as often as may be deemed expedient, by the Seller or by the Owners or the
Certificate Insurer, as the case may be.
Section 6.11. Control by Owners. Either (x) the Certificate
Insurer or (y) with the consent of the Certificate Insurer, the Owners of a
majority of the Percentage Interests represented by each Class of Class A
Certificates then Outstanding or, if there are no Class A Certificates then
Outstanding, by such majority of the Percentage Interests represented by any
Class of Class B Certificates then Outstanding, may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Agreement;
(2) the Trustee shall have been provided with indemnity
satisfactory to it; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction;
provided, however, that the Trustee need not take any action
which it determines might involve it in liability or may be
unjustly prejudicial to the Owners not so directing.
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ARTICLE VII
ACCOUNTS, FLOW OF FUNDS,
DISTRIBUTIONS AND REPORTS
Section 7.1. Collection of Money. Except as otherwise
expressly provided herein, the Trustee may demand payment or delivery of all
money and other property payable to or receivable by the Trustee pursuant to
this Agreement, including (a) all payments due on the Mortgage Loans in
accordance with the respective terms and conditions of such Mortgage Loans and
required to be paid over to the Trustee by the Master Servicer, or by any
Sub-Servicer and (b) Insured Payments in accordance with the terms of the
Certificate Insurance Policy. The Trustee shall hold all such money and property
received by it as part of the Trust Estate and shall apply it as provided in
this Agreement.
Section 7.2. Establishment of Accounts. The Trustee shall
establish and maintain, at the corporate trust office of the Trustee, a
Certificate Account, a Pre-Funding Account, a Capitalized Interest Account, a
Class A Group I Distribution Account, a Class A Group II Distribution Account, a
Class A-6 Distribution Account, a Class B Group I Distribution Account and a
Class B Group II Distribution Account, each to be held by the Trustee as a
segregated trust account so long as the Trustee qualifies as a Designated
Depository Institution and if the Trustee does not so qualify, then by any
Designated Depository Institution in the name of the Trust for the benefit of
the Owners of the Certificates and the Certificate Insurer, as their interests
may appear.
In administering the Accounts the Trustee may establish such
sub-Accounts as the Trustee deems desirable.
Section 7.3. Flow of Funds. (a) The Trustee shall deposit to
the Certificate Account
(i) with respect to the Group I Mortgage Loans, without
duplication, (i) upon receipt, each Group I Monthly Remittance
remitted by the Master Servicer or any Sub- Servicer, together
with any amounts received by the Trustee in connection with
the termination of the Trust insofar as such amounts relate to
the Group I Mortgage Loans and (ii) on the Payment Dates
occurring in , and (x) the Group I Pre-Funding
Earnings transferred by the Trustee pursuant to Section
7.10(d)(i) hereof, (y) the Group I Capitalized Interest
Requirement to be transferred on such Payment Dates from the
Capitalized Interest Account, pursuant to Section 7.10(f)(i)
hereof and (z) the portion of the amount, if any, to be
transferred on such Payment Date from the Pre- Funding
Account, pursuant to Section 7.10(c)(i) hereof.
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(ii) with respect to the Group II Mortgage Loans, without
duplication, (i) upon receipt, each Group II Monthly
Remittance remitted by the Master Servicer or any Sub-
Servicer, together with any amounts received by the Trustee in
connection with the termination of the Trust, insofar as such
amounts relate to the Group II Mortgage Loans, and (ii) on the
Payment Date occurring in the Group II Capitalized Interest
Requirement to be transferred on such Payment Date from the
Capitalized Interest Account, pursuant to Section 7.10(f)(ii)
hereof.
(b) On each Payment Date, the Trustee shall make the following
allocations, disbursements and transfers from the Group I Available Funds and
from the Group II Available Funds in the following order of priority, and each
such allocation, transfer and disbursement shall be treated as having occurred
only after all preceding allocations, transfers and disbursements have occurred:
(i) first, the Trustee shall pay first, to itself the
related Trustee's Fee then due;
(ii) second, the Trustee shall pay to itself the REMIC
Reporting Fee;
(iii) third, the Trustee shall pay to the Certificate
Insurer the related Premium Amount then due;
(iv) fourth, the Trustee shall allocate the following
amounts in the following order of priority:
(A) (i) From the Group I Available Funds then
on deposit in the Certificate Account,
the lesser of (x) the Group I
Available Funds and (y) the Group I
Insured Interest Distribution Amount
shall be allocated to the Class A
Group I Distribution Account;
(ii) From the Group II Available Funds
then on deposit in the Certificate
Account, the lesser of (x) the Group
II Available Funds and (y) the Group
II Insured Interest Distribution
Amount shall be allocated to the Class
A Group II Distribution Account;
(iii) From the remaining Group I Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group I Available Funds
and (y) the Group I Insured Principal
Distribution Amount shall be allocated
to the Class A Group I Distribution
Account;
(iv) [reserved];
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(v) From the remaining Group II Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group II Available
Funds and (y) the Group II Insured
Principal Distribution Amount shall be
allocated to the Class A Group II
Distribution Account;
(B) (i) From the remaining Group I Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group I Available
Funds, and (y) the excess of (i) the
Group II Insured Distribution Amount
over (ii) the amount then on deposit
in the Class A Group II Distribution
Account, shall be allocated to the
Class A Group II Distribution Account;
(ii) From the remaining Group II Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group II Available
Funds and (y) the excess of (i) the
Group I Insured Distribution Amount
over (ii) the amount then on deposit
in the Class A Group I Distribution
Account, shall be allocated to the
Class A Group I Distribution Account;
(C) (i) From the remaining Group I Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group I Available Funds
and (y) the excess of (i) the Group I
Principal Distribution Amount
applicable to such Payment Date over
(ii) all amounts then on deposit in
the Class A Group I Distribution
Account and allocable to principal,
shall be allocated to the Class A
Group I Distribution Account;
(ii) From the remaining Group II Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group II Available
Funds and (y) the excess of (i) the
Group II Principal Distribution Amount
applicable to such Payment Date over
(ii) all amounts then on deposit in
the Class A Group II Distribution
Account and allocable to principal,
shall be allocated to the Class A
Group II Distribution Account;
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(D) (i) From the remaining Group I Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group I Available Funds
and (y) the Group II Subordination
Deficiency Amount applicable to such
Payment Date, shall be allocated to
the Class A Group II Distribution
Account as a Group II Subordination
Increase Amount;
(ii) From the remaining Group II Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group II Available
Funds and (y) the Group I
Subordination Deficiency Amount
applicable to such Payment Date, shall
be allocated to the Class A Group I
Distribution Account as a Group I
Subordination Increase Amount;
(E) (i) From the remaining Group I Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group I Available Funds
and (y) the Group I Cumulative
Crossover Amount, shall be allocated
to the Class B Group II Distribution
Account and applied as a distribution
of principal on account of the Class B
Group II Principal Balance;
(ii) From the remaining Group II Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group II Available
Funds and (y) the Group II Cumulative
Crossover Amount, shall be allocated
to the Class B Group I Distribution
Account and applied as a distribution
of principal on account of the Class B
Group I Principal Balance;
(F) (i) From the remaining Group I Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group I Available Funds
and (y) the Class B Group I Interest,
shall be allocated to the Class B
Group I Distribution Account and
applied as a distribution of interest
on account of the Class B Group I
Certificates;
(ii) From the remaining Group II Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining
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Group II Available Funds and (y) the
Class B Group II Interest, shall be
allocated to the Class B Group II
Distribution Account and applied as a
distribution of interest on the Class
B Group II Certificates;
(G) (i) From the remaining Group I Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group I Available Funds
and (y) the Class B Group I Principal
Balance as of such Payment Date,
assuming that the amount then on
deposit in the Class B Group I
Distribution Account as a result of
the application of clause (E)(ii)
above has been applied as a
distribution of principal on account
of the Class B Group I Principal
Balance on such Payment Date, shall be
allocated to the Class B Group I
Distribution Account and applied as a
distribution of principal on the Class
B Group I Principal Balance;
(ii) From the remaining Group II Available
Funds then on deposit in the
Certificate Account, the lesser of (x)
such remaining Group II Available
Funds and (y) the Class B Group II
Principal Balance as of such Payment
Date, assuming that all amounts then
on deposit in the Class B Group II
Distribution Account as a result of
the application of (E)(i) above have
been applied as a distribution of
principal on account of the Class B
Group II Principal Balance on such
Payment Date, shall be allocated to
the Class B Group II Distribution
Account and applied as a distribution
of principal on the Class B Group II
Principal Balance;
(H) All remaining amounts then remaining on
deposit in the Certificate Account shall
be distributed to the Owners of the
Residual Certificates on such Payment
Date;
(c) On each Payment Date, the Trustee shall make the
following disbursements from amounts deposited in the Distribution Accounts
pursuant to Subsection (b) above, together with the amount of any Group I
Insured Payment deposited to the Class A Group I Distribution Account and the
amount of any Group II Insured Payment deposited to the Class A Group II
Distribution Account:
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(i) the Trustee shall pay, pari passu from the amount
then on deposit in the Class A Group I Distribution
Account:
(A) to the Owners of the Class A-1 Group I
Certificates, the Class A-1 Distribution
Amount for such Payment Date;
(B) to the Owners of the Class A-2 Group I
Certificates, the Class A-2 Distribution
Amount for such Payment Date;
(C) to the Owners of the Class A-3 Group I
Certificates, the Class A-3 Distribution
Amount for such Payment Date;
(D) to the Owners of the Class A-4 Group I
Certificates, the Class A-4 Distribution
Amount for such Payment Date; and
(E) to the Owners of the Class A-5 Group I
Certificates, the Class A-5 Distribution
Amount for such Payment Date;
provided, however, that if, on any Payment Date, (x)
the Certificate Insurer is then in default under the
Certificate Insurance Policy and (y) a Group I
Subordination Deficit exists, then any distribution
of the Group I Principal Distribution Amount on such
Payment Date shall be made pro rata to the Owners of
each of the Class A-1 Group I Certificates, the Class
A-2 Group I Certificates, the Class A-3 Group I
Certificates, the Class A-4 Group I Certificates and
the Class A-5 Group I Certificates on such Payment
Date.
(ii) the Trustee shall pay from the amount then on deposit
in the Class A Group II Distribution Account, to the
Owners of the Class A-6 Group II Certificates, the
Class A-6 Distribution Amount for such Payment Date;
(iii) [reserved];
(iv) the Trustee shall transfer from the amounts then on
deposit in the Class B Group I Distribution Account,
to the Group I Supplemental Interest Payment Account,
the Class B Group I Distribution Amount for such
Payment Date; such transfer shall be deemed a
distribution on the Class B Group I Certificates; and
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(v) the Trustee shall transfer from the amounts then on
deposit in the Class B Group II Distribution Account,
to the Group II Supplemental Interest Payment
Account, the Class B Group II Distribution Amount for
such Payment Date; such transfer shall be deemed a
distribution on the Class B Group II Certificates.
(d) Any amounts properly distributed to the Owners of the
Class B Certificates or to the Owners of the Residual Certificates pursuant to
the terms of this Agreement shall be distributed free of the subordination
described herein, and any such amounts shall in no event be required to be
returned to the Trustee or paid over to the Owners of the Class A Certificates.
(e) Whenever, during the administration of the Trust, there
comes into the possession of the Trustee any money or property which this
Agreement does not otherwise require to be distributed on account of the Class A
Certificates or the Class B Certificates, the Trustee shall distribute such
money or other property to the Owners of the Class RU Certificates.
(f) The Trustee shall (i) receive as attorney-in-fact of the
Owners of the Class A Certificates any Insured Payment from the Certificate
Insurer and (ii) disburse the same to such Owners as set forth in paragraphs
(c)(i) and (c)(ii) above. Insured Payments disbursed by the Trustee from
proceeds of the Certificate Insurance Policy shall not be considered payment by
the Trust with respect to the Class A Certificates, and the Certificate Insurer
shall become the owner of such unpaid amounts due from the Trust in respect of
Insured Payments as the deemed assignee of such Owners, as hereinafter provided.
The Trust and the Trustee hereby agree on behalf of each Owner of Class A
Certificates for the benefit of the Certificate Insurer that they recognize that
to the extent the Certificate Insurer pays Insured Payments, either directly or
indirectly (as by paying through the Trustee), to the Owners of the Class A
Certificates, the Certificate Insurer will be entitled to receive the amount of
any Class A-1 Interest Carry-Forward Amount, Class A-1 Principal Carry-Forward
Amount, Class A-2 Interest Carry-Forward Amount, Class A-2 Principal
Carry-Forward Amount, Class A-3 Interest Carry-Forward Amount, Class A-3
Principal Carry-Forward Amount, Class A-4 Interest Carry-Forward Amount, Class
A-4 Principal Carry-Forward Amount, Class A-5 Interest Carry-Forward Amount,
Class A-5 Principal Carry-Forward Amount, Class A-6 Interest Carry-Forward
Amount and Class A-6 Principal Carry-Forward Amount, and will be subrogated to
the rights of the Owners of the Class A Certificates with respect to such
Insured Payments, shall be deemed to the extent of the payments so made to be an
Owner of such Class A-1 Group I Certificates, Class A-2 Group I Certificates,
Class A-3 Group I Certificates, Class A-4 Group I Certificates, Class A-5 Group
I Certificates or Class A-6 Group II Certificates and shall receive future
distributions of the Class A-1 Distribution Amount, Class A-2 Distribution
Amount,
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Class A-3 Distribution Amount, Class A-4 Distribution Amount, Class A-5
Distribution Amount and of the Class A-6 Distribution Amount until all such
Insured Payments by the Certificate Insurer have been fully reimbursed, as
described in the following paragraph. To evidence such subrogation, the Trustee
shall note the Certificate Insurer's rights as subrogee on the Register upon
receipt from the Certificate Insurer of proof of the payment of any Insured
Payment, after making the distribution on any such future Payment Date to Owners
of the Class A Certificates other than to the Certificate Insurer. The
Certificate Insurer shall not acquire any voting rights hereunder as a result of
such subrogation, except as otherwise described herein.
It is understood and agreed that the intention of the parties
is that the Certificate Insurer shall not be entitled to reimbursement on any
Payment Date for amounts previously paid by it unless on such Payment Date the
Owners of the Class A Certificates shall also have received the full amount of
the Group I Insured Distribution Amount and of the Group II Insured Distribution
Amount (exclusive of any Class A-1 Interest Carry-Forward Amount, Class A-1
Principal Carry-Forward Amount, Class A-2 Interest Carry-Forward Amount, Class
A-2 Principal Carry-Forward Amount, Class A-3 Interest Carry-Forward Amount,
Class A-3 Principal Carry-Forward Amount, Class A-4 Interest Carry-Forward
Amount, Class A-4 Principal Carry-Forward Amount, Class A-5 Interest
Carry-Forward Amount, Class A-5 Principal Carry-Forward Amount, Class A-6
Interest Carry-Forward Amount or any Class A-6 Principal Carry-Forward Amount
representing amounts previously paid to the Owners of the Class A Certificates
as Insured Payments) for such Payment Date.
(g) Each Owner of a Class A Certificate which pays any
Preference Amounts theretofore received by such Owner on account of such Class A
Certificate will be entitled to receive reimbursement for such amounts from the
Certificate Insurer in accordance with the terms of the Certificate Insurance
Policy, but only after (i) delivering a copy to the Trustee of a final,
nonappealable order (a "Preference Order") of a court having competent
jurisdiction under the United States Bankruptcy Code demanding payment of such
amount to the bankruptcy court and (ii) irrevocably assigning such Owner's claim
with respect to such Preference Order to the Certificate Insurer in such form as
is required by the Certificate Insurer. In no event shall the Certificate
Insurer pay more than one Insured Payment in respect of any Preference Amount.
Section 7.4. Investment of Accounts. (a) All or a portion of
any Account held by the Trustee shall be invested and reinvested by the Trustee
in the name of the Trustee for the benefit of the Owners, as described in
Section 7.4(c) hereof. No investment in any Account shall mature later than the
Business Day immediately preceding the next Payment Date and shall be held until
maturity.
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(b) Subject to Section 9.1 hereof, the Trustee shall not in
any way be held liable by reason of any insufficiency in any Account held by the
Trustee resulting from any loss on any Eligible Investment included therein
(except to the extent that the bank serving as Trustee is the obligor thereon).
(c) The Trustee shall invest in Eligible Investments
described in paragraph (h) of Section 7.5 hereof.
(d) All income or other gain from investments in any Account
held by the Trustee shall be deposited in such Account immediately on receipt,
and any loss resulting from such investments shall be charged to such Account.
Section 7.5. Eligible Investments. The following are Eligible
Investments:
(a) Direct general obligations of the United States or the
obligations of any agency or instrumentality of the United States, the timely
payment or the guarantee of which constitutes a full faith and credit obligation
of the United States.
(b) Federal Housing Administration debentures, but excluding
any such securities whose terms do not provide for payment of a fixed dollar
amount upon maturity or call for redemption.
(c) FHLMC senior debt obligations, but excluding any such
securities whose terms do not provide for payment of a fixed dollar amount upon
maturity or call for redemption.
(d) FNMA senior debt obligations, but excluding any such
securities whose terms do not provide for payment of a fixed dollar amount upon
maturity or call for redemption.
(e) Federal funds, certificates of deposit, time and demand
deposits, and bankers' acceptances (having original maturities of not more than
365 days) of any domestic bank, the short-term debt obligations of which have
been rated ___ or better by ___ and ___ by _______.
(f) Deposits of any bank or savings and loan association which
has combined capital, surplus and undivided profits of at least ___________
which deposits are not in excess of the applicable limits insured by the Bank
Insurance Fund or the Savings Association Insurance Fund of the FDIC, provided
that the long-term deposits of such bank or savings and loan association are
rated at least _____ by ___ and ______ by _______.
(g) Commercial paper (having original maturities of not more
than 270 days) rated ___ or better by ___ and P-1 by _______.
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(h) Investments in money market funds rated at least ____ or
______ by ___ and ___ or ___ by _______.
(i) Such other investments as have been approved in writing
by ___, _______ and the Certificate Insurer;
provided that no instrument described above is permitted to evidence either the
right to receive (a) only interest with respect to obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations; and provided, further,
that no instrument described above may be purchased at a price greater than par
if such instrument may be prepaid or called at a price less than its purchase
price prior to stated maturity. Any Eligible Investment may be purchased by or
through the Trustee or any of its affiliates.
Section 7.6. Reports by Trustee. (a) On each Payment Date the
Trustee shall report in writing to each Owner and to the Seller and the Master
Servicer with a copy to the Certificate Insurer and ___ and _______:
(i) the amount of the distribution with respect to
each Class of Certificates;
(ii) the amount of such distributions allocable to
principal, separately identifying the aggregate amount of any
Prepayments or other unscheduled recoveries of principal included
therein;
(iii) the amount of such distributions allocable to
interest;
(iv) the amount of such distributions allocable to any
Carry-Forward Amount;
(v) the then-outstanding principal balance of each
Class of Class A Certificates as of such Payment Date, together with
the principal amount, by class, of each Class A Certificate (based on a
Certificate in the original principal amount of $1,000) then
Outstanding, in each case after giving effect to any payment of
principal on such Payment Date;
(vi) the then-outstanding principal balance of each
class of Class B Certificates, together with the principal amount, by
class, of each Class B Certificate (based on a Certificate in the
original principal amount of $1,000) then Outstanding, in each case
after giving effect to any payment of principal on such Payment Date;
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(vii) the total of any Substitution Amounts and any Loan
Purchase Prices included in such distribution;
(viii) for Payment Dates during the Pre-Funding Period,
the remaining Pre-Funded Amount;
(ix) for the final Subsequent Transfer Date, the
amount of any remaining Pre-Funded Amount that has not been used to
fund the purchase of Subsequent Mortgage Loans and that will be
distributed to the Owners of the related class of certificates as
principal, if any, on the immediately following Payment Date;
(x) the amount of any Supplemental Interest Payment
Amount, Class BI-S and Class BII-S Certificate distribution and any
Interest Advance on such Distribution Date, together with the amount of
any unreimbursed Interest Advance then owed to the Trustee;
(xi) the amount of the Master Servicing Fee paid with
respect to each of the two Mortgage Loan Groups with respect to the
related Remittance Period;
(xii) the amount of any Group I Insured Payment or any
Group II Insured Payment made with respect to such Payment Date;
(xiii) as of such Payment Date, the Group I Subordinated
Amount and the Group II Subordinated Amount; and
(xiv) the amount of the REMIC Reporting Fee paid with
respect to such Payment Date.
In preparing the report under this Section 7.6, the Trustee
shall rely solely upon the electronic report described in Section 10.8(d)(ii)
hereof being received from the Master Servicer or any Sub-Servicer. The Trustee
shall not be responsible for its obligations under Section 7.06 unless and until
it receives such report from the Master Servicer.
(b) On each Payment Date the Trustee will additionally inform
the Seller, the Master Servicer, the Certificate Insurer, ___ and _______ with
respect to the following:
(i) the Group I Available Funds and the Group II
Available Funds for the related Payment Date;
(ii) the Pool Principal Balance with respect to each of
the two Mortgage Loan Groups as of the end of the related Remittance
Period;
(iii) the number and Principal Balances of all Mortgage
Loans in each of the two Mortgage Loan Groups which
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were the subject of Prepayments during the related Remittance Period;
(iv) the total amount of payments in respect of or
allocable to interest on the Mortgage Loans in each of the two Mortgage
Loan Groups received or deemed to have been received from the related
Mortgagors by the Master Servicer or any Sub-Servicer during the
related Remittance Period (including any net income from REO Properties
received during the related Remittance Period);
(v) the aggregate of all principal payments received or
deemed to have been received from the related Mortgagors in each of the
two Mortgage Loan Groups by the Master Servicer or any Sub-Servicer
during the related Remittance Period;
(vi) the aggregate of any Insurance Proceeds received or
deemed to have been received by the Master Servicer or any Sub-Servicer
during the related Remittance Period with respect to each of the two
Mortgage Loan Groups;
(vii) the aggregate of any Released Mortgaged Property
Proceeds received or deemed to have been received by the Master
Servicer or any Sub-Servicer during the related Remittance Period with
respect to each of the two Mortgage Loan Groups;
(viii) the aggregate of any Liquidation Proceeds,
Liquidation Expenses and Net Liquidation Proceeds received or deemed to
have been received by the Master Servicer or any Sub-Servicer, and Net
Realized Losses incurred, during the related Remittance Period with
respect to each of the two Mortgage Loan Groups, the Group I Cumulative
Net Realized Losses, the Group II Cumulative Net Realized Losses and
the aggregate Cumulative Net Realized Losses since the Startup Day and
during the prior 12-month period and the Group I Rolling Three Month
Delinquency Rate and the Group II Rolling Three Month Delinquency Rate
with respect to each of the two Mortgage Loan Groups;
(ix) the total amount of Compensating Interest payments
paid or to be paid by the Master Servicer or any Sub-Servicer pursuant
to Section 10.10 hereof with respect to each of the two Mortgage Loan
Groups;
(x) the amount of Delinquency Advances made by the
Master Servicer or any Sub-Servicer pursuant to Section 10.9 hereof
with respect to such Payment Date with respect to each of the two
Mortgage Loan Groups;
(xi) the monthly Master Servicing Fee and any additional
servicing fees paid to the Master Servicer or any
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Sub-Servicer pursuant to Section 10.15 hereof with respect to each of
the two Mortgage Loan Groups;
(xii) the amount of Delinquency Advances with respect to
each of the two Mortgage Loan Groups reimbursable to the Master
Servicer or any Sub-Servicer during such Remittance Period pursuant to
Section 10.9 hereof and not previously reimbursed;
(xiii) the amount of any Servicing Advance made by the
Master Servicer or any Sub-Servicer pursuant to Sections 10.9 and 10.13
hereof with respect to each of the two Mortgage Loan Groups and not
previously reimbursed;
(xiv) the Class A-1 Distribution Amount, the Class A-2
Distribution Amount, the Class A-3 Distribution Amount, the Class A-4
Distribution Amount, the Class A-5 Distribution Amount, the Class A-6
Distribution Amount, the Class B Group I Distribution Amount and the
Class B Group II Distribution Amount, with the components thereof
stated separately;
(xv) the weighted average remaining term to maturity and
Net Weighted Average Coupon Rate of the Mortgage Loans with respect to
each of the two Mortgage Loan Groups as of the close of business on the
last day of the related Remittance
Period;
(xvi) the Group I Subordinated Amount, Group I
Subordination Deficiency Amount, Group I Specified Subordinated Amount,
Group I Subordination Increase Amount, Group II Subordinated Amount,
Group II Subordination Deficiency Amount, Group II Specified
Subordinated Amount and Group II Subordination Increase Amount for the
related Payment Date;
(xvii) the Group I Excess Subordinated Amount, Group I
Subordination Reduction Amount, Group I Cumulative Crossover Amount,
Group II Excess Subordinated Amount, Group II Subordination Reduction
Amount, and Group II Cumulative Crossover Amount for the related
Payment Date;
(xviii) the number of Mortgage Loans in each of the two
Mortgage Loan Groups at the beginning and end of the related Remittance
Period;
(xix) the Group I Shortfall Amount and the Group II
Shortfall Amount for the related Payment Date; and
(xx) such other information as the Certificate Insurer or
the Seller may reasonably request and which is derived from information
which is produced or available in the ordinary course of the Master
Servicer's or any Sub-Servicer's
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business or which otherwise materially relates to the transactions
contemplated hereby.
(c) In addition, on each Payment Date the Trustee will
disseminate to each Owner, the Master Servicer and to the Seller with a copy to
the Certificate Insurer, _____ and _______, together with the information
described in Subsection (a) preceding, the following information with respect to
each of the two Mortgage Loan Groups as of the close of business on the last day
of the related Remittance Period, which is required to be prepared by the Master
Servicer or a Sub-Servicer and furnished to the Trustee pursuant to Section
10.8(d)(ii) hereof for such purpose on or prior to the related Remittance Date:
(i) the total number of Mortgage Loans and the
aggregate Principal Balances thereof, together with the number and
aggregate principal balances of Mortgage Loans (a) 30-59 days
Delinquent, (b) 60-89 days Delinquent and (c) 90 or more days
Delinquent;
(ii) the number and aggregate principal balances of all
Mortgage Loans in foreclosure proceedings (and whether any such
Mortgage Loans are also included in any of the statistics described in
the foregoing clause (i));
(iii) the number and aggregate principal balances of all
Mortgage Loans relating to Mortgagors in bankruptcy proceedings (and
whether any such Mortgage Loans are also included in any of the
statistics described in the foregoing clauses (i) and (ii));
(iv) the number and aggregate principal balances of all
Mortgage Loans relating to REO Properties (and whether any such
Mortgage Loans are also included in any of the statistics described in
the foregoing clauses (i), (ii) and (iii));
(v) the number and aggregate principal balances of all
Mortgage Loans as to which foreclosure proceedings were commenced
during the prior Remittance Period;
(vi) a schedule regarding cumulative foreclosures since
the Cut-Off Date; and
(vii) the book value of any REO Property and any income
received from REO Properties during the prior Remittance Period.
The Seller, the Master Servicer and the Trustee on behalf of
Certificateholders and the Trust (the "Trust Parties") hereby authorize the
Certificate Insurer to include the information contained in reports provided to
the Certificate Insurer hereunder (the "Information") on The Bloomberg, an
on-line computer based information network maintained by Bloomberg L.P.
("Bloomberg"), or
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in other electronic or print information services. The Trust Parties agree not
to commence any actions or proceedings, or otherwise assert any claims, against
the Certificate Insurer or its affiliates or any of the Certificate Insurer's or
its affiliates' respective agents, representatives, directors, officers or
employees (collectively, the "Certificate Insurer Parties"), arising out of, or
related to or in connection with the dissemination and/or use of any Information
by the Certificate Insurer, including, but not limited to, claims based on
allegations of inaccurate, incomplete or erroneous transfer of information by
the Certificate Insurer to Bloomberg or otherwise (other than in connection with
the Certificate Insurer's gross negligence or willful misconduct). The Trust
Parties waive their rights to assert any such claims against the Certificate
Insurer Parties and fully and finally release the Certificate Insurer Parties
from any and all such claims, demands, obligations, actions and liabilities
(other than in connection with the Certificate Insurer's gross negligence or
willful misconduct). The Certificate Insurer makes no representations or
warranties, expressed or implied, of any kind whatsoever with respect to the
accuracy, adequacy, timeliness, completeness, merchantability or fitness for any
particular purpose of any Information in any form or manner. The Certificate
Insurer reserves the right at any time to withdraw or suspend the dissemination
of the Information by the Certificate Insurer. The authorizations, covenants and
obligations of the Trust Parties under this section shall be irrevocable and
shall survive the termination of this Agreement.
Section 7.7. Drawings under the Certificate Insurance Policy
and Reports by Trustee. (a) On each Determination Date the Trustee shall
determine, no later than 12:00 noon on such Determination Date, whether a Group
I Shortfall Amount or a Group II Shortfall Amount has theretofore occurred and
will remain uncured on the following Payment Date, and whether a Group I
Shortfall Amount or a Group II Shortfall Amount with respect to either the Group
I Mortgage Loans or the Group II Mortgage Loans will occur on the following
Payment Date. If the Trustee determines that a Group I Shortfall Amount or a
Group II Shortfall Amount has theretofore occurred and will remain uncured or
will occur, the Trustee shall furnish the Certificate Insurer and the Seller
with a completed Notice in the form set forth as Exhibit A to the Certificate
Insurance Policy. The Notice shall specify the amount of the Insured Payment and
shall constitute a claim for an Insured Payment pursuant to the Certificate
Insurance Policy.
(b) The Trustee shall report to the Seller, the Master
Servicer and the Certificate Insurer with respect to the amounts then held in
each Account held by the Trustee and the identity of the investments included
therein, as the Seller, the Master Servicer or the Certificate Insurer may from
time to time request. Without limiting the generality of the foregoing, the
Trustee shall, at the request of the Seller, the Master Servicer or the
Certificate Insurer transmit promptly to the Certificate Insurer,
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the Seller and the Master Servicer copies of all accountings of receipts in
respect of the Mortgage Loans furnished to it by the Master Servicer or a
Sub-Servicer.
Section 7.8. Allocation of Realized Losses. (a) If, on any
Payment Date, and following the making of all allocations, transfers and
distributions (other than as provided in this Section) on such Payment Date (x)
the sum of the Class A-1 Principal Balance, the Class A-2 Principal Balance, the
Class A-3 Principal Balance, the Class A-4 Principal Balance, the Class A-5
Principal Balance and the Class B Group I Principal Balance exceeds (y) the
Group I Pool Principal Balance as of the close of business on the last day of
the related Remittance Period (any such excess, "Group I Allocable Losses"),
such Group I Allocable Losses shall be applied as a reduction of the Class B
Group I Principal Balance until the Class B Group I Principal Balance has been
reduced to zero.
(b) If, on any Payment Date, and following the making of all
allocations, transfers and distributions (other than as provided in this
Section) on such Payment Date (x) the sum of the Class A-6 Principal Balance and
the Class B Group II Principal Balance exceeds the Group II Pool Principal
Balance as of the close of business on the last day of the related Remittance
Period (any such excess, "Group II Allocable Losses"), such Group II Allocable
Losses shall be applied as a reduction of the Class B Group II Principal Balance
until the Class B Group II Principal Balance has been reduced to zero.
Section 7.9. Supplemental Interest Payments.
(a) The parties hereto do hereby create and establish a trust,
the "Access Financial Supplemental Interest Trust _______ (the "Supplemental
Interest Trust"). The Supplemental Interest Trust shall hold two trust accounts,
the "Group I Supplemental Interest Payment Account" and the "Group II
Supplemental Interest Payment Account", each to be held by the Trustee in its
name on behalf of the Supplemental Interest Trust.
If, on any Determination Date, the Trustee determines that the
amount to be available on the next Payment Date in both the Group I Supplemental
Interest Payment Account and the Group II Supplemental Interest Payment Account
(such amounts, together, the "Supplemental Interest Payment Amount") is less
than the excess of (i) the Class A-6 Full Interest Distribution Amount over (ii)
the Class A-6 Interest Distribution Amount as of such Payment Date (the "Class
A-6 Formula Interest Shortfall"), the Trustee shall deliver a notice in the form
of Exhibit O hereto to the Designated Residual Owner demanding that the
Designated Residual Owner fund the Class A-6 Formula Interest Shortfall on the
related Payment Date. The amount so funded by the Designated Residual Owner on
any such Payment Date is the "Interest Advance" for such Payment Date. The
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Trustee shall deposit any Interest Advance received by it into the Class A-6
Distribution Account.
On each Payment Date the Trustee shall withdraw from the Group
I Supplemental Interest Payment Account and from the Group II Supplemental
Interest Payment Account and deposit in the Class A-6 Distribution Account the
lesser of (x) the Class A-6 Formula Interest Shortfall and (y) the Supplemental
Interest Payment Amount (such amount, the "Funded Amount"). Such amount shall be
withdrawn as follows:
(i) from the Group I Supplemental Interest Payment Account,
the product of (x) the Funded Amount and (y) a fraction, the numerator of which
is the amount then on deposit in the Group I Supplemental Interest Payment
Account and the denominator of which is the sum of the amount then on deposit in
the Group I Supplemental Interest Payment Account and in the Group II
Supplemental Interest Payment Account.
(ii) from the Group II Supplemental Interest Payment Account
the product of (x) the Funded Amount and (y) a fraction, the numerator of which
is the amount then on deposit in the Group II Supplemental Interest Payment
Account and the denominator of which is the sum of the amount then on deposit in
the Group I Supplemental Interest Payment Account and in the Group II
Supplemental Interest Payment Account.
(b) Any portion of the Supplemental Interest Payment Amount
after application of clause (a) above (the "Remaining Amount") shall be applied
in the following order of priority:
(i) first, to the Designated Residual Owner, as reimbursement
for unpaid Interest Advances, together with interest thereon (the
"Interest Advance Reimbursement Amount"), with the earliest Interest
Advances being deemed to be paid first, such amount to be paid as
follows:
(x) from the remaining amount then on deposit in the
Group I Supplemental Interest Payment Account, the
product of (x) the Funded Amount and (y) a fraction,
the numerator of which is the amount remaining on
deposit in the Group I Supplemental Interest Payment
Account and the denominator of which is the Remaining
Amount; and
(y) from the remaining amount then on deposit in the
Group II Supplemental Interest Payment Account, the
product of (x) the Funded Amount and (y) a fraction,
the numerator of which is the amount remaining on
deposit in the Group I Supplemental Interest Payment
Account and the denominator of which is the Remaining
Amount.
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(ii) second, to the Owners of the Class BI-S Certificates, all
remaining amounts then on deposit in the Group I Supplemental Interest
Payment Account, and to the Owners of the Class BII-S Certificates, all
remaining amounts then on deposit in the Group II Supplemental Interest
Payment Account, in each case to such Owners pro rata in accordance
with the Percentage Interests.
Section 7.10. Pre-Funding Account and Capitalized Interest
Account. (a) On the Startup Day, the Trustee will deposit, on behalf of the
Owners of the Certificates, in the Pre-Funding Account the Original Aggregate
Pre-Funded Amount in an amount equal to the Original Group I Pre-Funded Amount,
from the proceeds of the sale of the Group I Certificates.
(b) On any Subsequent Transfer Date, the Seller shall instruct
the Trustee to withdraw from the Pre-Funding Account an amount equal to 100% of
the aggregate Loan Balances of the Subsequent Mortgage Loans sold to the Trust
on such Subsequent Transfer Date and pay such amount to or upon the order of the
Seller upon satisfaction of the conditions set forth in Section 3.6 hereof with
respect to such transfer. In no event shall the Seller be permitted to instruct
the Trustee: to release from the Pre-Funding Account with respect to Subsequent
Mortgage Loans to be transferred to Group I an amount in excess of the Original
Group I Pre-Funded Amount.
(c) If (x) the Pre-Funded Amount with respect to the related
Mortgage Loan Group has not been reduced to zero by the or
(y) the Pre-Funded Amount has been reduced to $100,000 or less on either
the or the Remittance Dates, in either case after giving
effect to any reductions in the Pre-Funded Amount on such Remittance Date, the
Seller shall instruct the Trustee to withdraw from the Pre-Funding Account on
such Remittance Date and deposit in the Certificate Account with respect to
Group I, the difference, if any, between (A) the Original Aggregate Pre- Funded
Amount and (B) all amounts theretofore withdrawn from the Pre-Funding Account
with respect to Subsequent Mortgage Loans.
(d) On the Payment Dates occurring in ,
and the Trustee shall transfer the Group I Pre-Funding Earnings,
if any, applicable to each such Payment Date from the Pre-Funding Account to the
Certificate Account. On the Payment Dates occurring in , and
the Trustee shall distribute directly to the Owners of the Class R
Certificates the Excess Pre-Funding Earnings, if any, applicable to each such
Payment Date.
(e) On each Subsequent Transfer Date the Seller may instruct
the Trustee to withdraw from the Capitalized Interest Account and pay on such
Subsequent Transfer Date to the Owners of the Class R Certificates the
Overfunded Interest Amount for such
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Subsequent Transfer Date, as calculated by the Seller pursuant to Section 3.6(f)
hereof.
(f) (i) On the Payment Dates occurring in ,
and the Trustee shall transfer from the Capitalized Interest Account to
the Certificate Account with respect to Group I, the Group I Capitalized
Interest Requirement, if any, for such Payment Dates.
(ii) On the Payment Date occurring in , the
Trustee shall transfer from the Capitalized Interest Account with respect to
Group II, the Group II Capitalized Interest Requirement for such Payment Date.
(g) On the , Payment Date, any amounts remaining
in the Capitalized Interest Account after taking into account the transfers on
such Payment Date described in clause (f) above shall be paid to the Owners of
the Class R Certificates, and the Capitalized Interest Account shall be closed.
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1. Termination of Trust. The Trust created hereunder
and all obligations created by this Agreement will terminate upon the earlier of
(i) the payment to the Owners of all Certificates of all amounts held by the
Trustee and required to be paid to such Owners pursuant to this Agreement upon
the later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust Estate or (b)
the disposition of all property acquired in respect of any Mortgage Loan
remaining in the Trust Estate or (ii) at any time when a Qualified Liquidation
of the Trust is effected as described below. To effect a termination of this
Agreement pursuant to clause (b) above, the Owners of all Certificates then
Outstanding shall (x) unanimously direct the Trustee on behalf of the Trust to
adopt a plan of complete liquidation with respect to each REMIC, as contemplated
by Section 860F(a)(4) of the Code and (y) provide to the Trustee an opinion of
counsel experienced in federal income tax matters to the effect that such
liquidation constitutes a Qualified Liquidation and the Trustee either shall
sell the Mortgage Loans and distribute the proceeds of the liquidation of the
Trust Estate, or shall distribute equitably in kind all of the assets of the
Trust Estate to the remaining Owners of the Certificates each in accordance with
such plan, so that the liquidation or distribution of the Trust Estate, the
distribution of any proceeds of the liquidation and the termination of this
Agreement occur no later than the close of the 90th day after the date of
adoption of the plan of liquidation and such liquidation qualifies as a
Qualified Liquidation. In no event, however, will the Trust created by this
Agreement continue beyond the expiration
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of twenty-one (21) years from the death of the last survivor of the descendants
of _________________, the late Ambassador of the United States to the United
Kingdom, living on the date hereof. The Trustee shall give written notice of
termination of the Agreement to the Certificate Insurer and each Owner in the
manner set forth in Section 10.5 hereof.
Section 8.2. Termination Upon Option of the Seller.
(a) On any Remittance Date on or after the Remittance Date on
which the then-outstanding aggregate Principal Balances of the Mortgage Loans is
ten percent or less of the Original Pool Principal Balance, the Seller may
determine to purchase and may cause the purchase from the Trust of all (but not
fewer than all) Mortgage Loans and all property theretofore acquired in respect
of any Mortgage Loan by foreclosure, deed in lieu of foreclosure, or otherwise
then remaining in the Trust Estate at a price equal to 100% of the aggregate
Principal Balances of the related Mortgage Loans as of the day of termination
minus amounts remitted from the Principal and Interest Account to the
Certificate Account representing collections of principal on the Mortgage Loans
during the current Remittance Period, plus one month's interest on such amount
computed at the weighted average Coupon Rate for the related Mortgage Loan
Group, and plus the aggregate amount of any unreimbursed Delinquency Advances,
including amounts which would be Delinquency Advances which the Master Servicer
has theretofore failed to remit plus any amount owing to the Certificate Insurer
and the Trustee. The Seller shall pay such termination price to the Trustee for
deposit in the Certificate Account. In connection with such termination, the
Master Servicer shall remit to the Trustee all amounts (net of investment
earnings and providing for investment losses pursuant to Section 10.8(b) hereof,
net of the Master Servicing Fee and net of amounts reimbursable for Delinquency
Advances and Servicing Advances) then on deposit in the Principal and Interest
Account for deposit to the Certificate Account, which deposit shall be deemed to
have occurred immediately preceding such purchase.
(b) In connection with any such purchase, the Seller shall
provide to the Trustee an opinion of counsel experienced in federal income tax
matters to the effect that such purchase constitutes a Qualified Liquidation
with respect to each REMIC.
(c) Promptly following any such purchase, the Trustee will
release the Files, with appropriate endorsements and transfer documents, to the
Seller or otherwise upon its order.
Section 8.3. Auction Call. If the Seller fails, by the
ninetieth day following the first Remittance Date on which such option may be
exercised, to exercise its purchase option pursuant to Section 8.2 hereof, then
upon receipt of written notice and direction from the Seller, the Trustee will
notify the Representative (or, if the Representative is unable or unwilling,
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another investment banking or whole-loan trading firm selected by the Seller
(the Representative or such other investment bank or trading firm, the
"Advisor") who will solicit on behalf of the Trustee competitive bids for the
purchase of the Mortgage Loans for fair market value. Such solicitation shall be
conducted substantially in the manner described in Exhibit N hereto. In the
event that satisfactory bids are received as described below, the proceeds of
the sale of such assets shall be deposited into the Certificate Account. The
Trustee will ask the Advisor to solicit, on behalf of the Trustee, good-faith
bids from no fewer than two prospective purchasers that are considered at the
time to be competitive participants in the home equity market. The Advisor will
consult with any securities brokerage houses identified by the Seller as then
making a market in the Class A Certificates to obtain a determination as to
whether the fair market value of such assets has been offered.
Any purchaser of such Mortgage Loans must agree to the
continuation of the Master Servicer or any successor Master Servicer as servicer
of the assets on terms substantially similar to those in this Agreement.
If the highest good-faith bid received by the Advisor from a
qualified bidder is, in the judgment of the Representative, not less than the
fair market value of such Mortgage Loans and if such bid would equal the amount
set forth in the following sentence, the Trustee, following consultation with
and written direction from the Advisor and the Seller, will sell and assign such
Mortgage Loans without representation, warranty or recourse to such highest
bidder and will redeem the Class A Certificates. For the Trustee to consummate
the sale, the bid must be at least equal to the termination price set forth in
Section 8.2(a) hereof. In addition, the bid must be in an amount sufficient to
pay the fees and expenses of the Trustee owing hereunder. If such conditions are
not met, the Trustee will, following consultation with the Advisor and the
Seller, decline to consummate such sale. In addition, the Trustee will decline
to consummate such sale unless it receives from the Advisor an opinion of
counsel addressed to it and the Certificate Insurer that such sale will not give
rise either to any "prohibited transaction" tax under section 860F(a)(1) of the
Code or to any tax on contributions to the REMIC after the "startup day" under
section 860G(d)(1) of the Code. In the event such sale is not consummated in
accordance with the foregoing, the Trustee will not be under any obligation to
solicit any further bids or otherwise to negotiate any further sale of the
Mortgage Loans. In such event, however, if directed by the Seller, the Trustee
may solicit bids from time to time in the future for the purchase of the
Mortgage Loans upon the same terms described above. The Trustee may consult with
the Advisor and the advice of the Advisor shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder.
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Section 8.4. Disposition of Proceeds. The Trustee shall, upon
receipt thereof, deposit the proceeds of any liquidation or termination of the
Trust Estate pursuant to this Article VIII to the Certificate Account for
application as provided in Section 7.3 hereof.
ARTICLE IX
THE TRUSTEE
Section 9.1. Certain Duties and Responsibilities.
(a) The Trustee (i) except during the continuance of an Event
of Default, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee and (ii) in
the absence of bad faith on its part, may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished pursuant to and conforming to the
requirements of this Agreement; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Agreement.
During the continuance of an Event of Default, 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 with respect to such person's
property or affairs.
(b) Notwithstanding the retention of the Master Servicer
pursuant hereto and subject to the provisions of Section 11.1 hereof, the
Trustee is hereby empowered (but not obligated) to perform the duties of the
Master Servicer hereunder following the failure of the Master Servicer to
perform pursuant hereto. Specifically, and not in limitation of the foregoing,
the Trustee shall have the power (but not the obligation):
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into
assumption and substitution agreements as permitted
by Article X hereof;
(iv) to deliver instruments of satisfaction pursuant to
Article X hereof;
(v) to enforce the Mortgage Loans; and
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(vi) to make Delinquency Advances and Servicing Advances
and to pay Compensating Interest, all as required
hereby.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of clause (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by an Authorized Officer,
unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) 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
Seller or the Certificate Insurer or, with the
Certificate Insurer's consent, of the Owners of a
majority in Percentage Interest of the Certificates
of the affected Class or Classes 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 relating to such
Certificates;
(iv) The Trustee shall not be required to take notice or
be deemed to have notice or knowledge of any default
by the Seller or by the Master Servicer unless the
Trustee shall have received written notice thereof.
In the absence of actual receipt of such notice, the
Trustee may conclusively assume that there is no such
default; and
(v) Subject to the other provisions of this Agreement and
without limiting the generality of this Section, the
Trustee shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement,
any Mortgage or any agreement referred to herein or
any financing statement or continuation statement
evidencing a security interest, or to see to the
maintenance of any such recording or filing or
depositing or to any rerecording, refiling or
redepositing of any thereof, (B) to see to any
insurance, (C) to see the payment or discharge of any
tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect
to, assessed or levied against, any property of the
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Trust, (D) to confirm or verify the contents of any
reports or certificates of the Master Servicer or any
Sub-Servicer delivered to the Trustee pursuant to
this Agreement or any Sub-Servicing Agreement
believed by the Trustee to be genuine and to have
been signed or presented by the proper party or
parties.
(d) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
(e) No provision of this Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the Master Servicer
hereunder except during such time, if any, as the Trustee shall be the successor
to, and be vested with the rights, duties and powers and privileges of, the
Master Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions
enumerated in this Agreement shall not be construed as a duty and the Trustee
shall not be answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any
suit, or to take any remedial proceeding under this Agreement, or to take any
steps in the execution of the trusts hereby created or in the enforcement of any
rights and powers hereunder until it shall be indemnified to its reasonable
satisfaction against any and all costs and expenses, outlays and counsel fees
and other reasonable disbursements and against all liability, except liability
which is adjudicated to have resulted from its negligence or willful misconduct,
in connection with any action so taken.
Section 9.2. Removal of Trustee for Cause. (a) The Trustee may
be removed pursuant to clause (b) hereof upon the occurrence of any of the
following events (whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) the Trustee shall fail to distribute to the Owners entitled
thereto on any Payment Date amounts available for distribution
in accordance with the terms hereof; or
(2) the Trustee shall fail in the performance of, or breach, any
covenant or agreement of the Trustee in this Agreement, or if
any representation or warranty of the Trustee made in this
Agreement or in any certificate or other writing delivered
pursuant hereto or in connection herewith shall prove to be
incorrect in any material respect as of the time when the same
shall have been made, and such failure or breach shall
continue or not be cured for a period of 30 days after there
shall have been given, by registered or certified mail, to the
Trustee by the Seller or the Certificate Insurer or by the
Owners of at least 25% of the aggregate Percentage Interest
represented by any Class of Class A Certificates, or, if there
are no Class A Certificates then Outstanding, by such
Percentage Interest represented by any Class of Class B
Certificates, a written notice specifying such failure or
breach and requiring it to be remedied (unless the Trustee is
aware of such breach as evidenced by notice from the Trustee
pursuant to Section 9.2(b) in which case the 30 day cure
period shall begin at the time such notice was given); or
(3) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the Trustee, and
such decree or order shall have remained in force undischarged
or unstayed for a period of 60 days; or
(4) a conservator or receiver or liquidator or sequestrator or
custodian of the property of the Trustee is appointed in any
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the
Trustee or relating to all or substantially all of its
property; or
(5) the Trustee shall become insolvent (however insolvency is
evidenced), generally fail to pay its debts as they come due,
file or consent to the filing of a petition to take advantage
of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, voluntarily
suspend payment of its obligations, or take corporate action
for the purpose of any of the foregoing.
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(b) The Seller and the Trustee shall give notice to each
other, to the Certificate Insurer and to each Owner if it becomes aware that an
event described in Subsection (a) has occurred and is continuing.
(c) If any event described in Subsection (a) occurs and is
continuing, then and in every such case (x) the Seller or the Certificate
Insurer or (y) with the consent of the Certificate Insurer, the Owners of a
majority of the Percentage Interest represented by any Class of Class A
Certificates, or, if there are no Class A Certificates then Outstanding, by such
Percentage Interest represented by any Class of Class B Certificates then
Outstanding, may, whether or not the Trustee resigns pursuant to Section 9.9
hereof, immediately, concurrently with the giving of notice to the Trustee,
appoint a successor trustee pursuant to the terms of Section 9.9 hereof.
Section 9.3. Certain Rights of the Trustee. Except as
otherwise provided in Section 9.1 hereof:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Seller or the Owners of
any Class of Certificates mentioned herein shall be sufficiently
evidenced in writing;
(c) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel, and the written
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reasonable reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement at the request
or direction of any of the Owners pursuant to this Agreement, unless
such Owners shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(f) 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, direction,
consent, order, bond, note or other paper or document, but the Trustee
in its discretion may make such further inquiry or investigation into
such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized by the Authorized Officer of any Person or within its rights
or powers under this Agreement other than as to validity and
sufficiency of its authentication of the Certificates.
Section 9.4. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except any
such recitals relating to the Trustee, shall be taken as the statements of the
Seller and the Master Servicer and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representation as to the validity or
sufficiency of this Agreement, any offering materials relating to the
Certificates, or of the Certificates other than as to the validity and
sufficiency of its authentication of the Certificates.
Section 9.5. May Hold Certificates. The Trustee or any other
agent of the Trust, in its individual or any other capacity, may become an Owner
or pledgee of Certificates and may otherwise deal with the Trust with the same
rights it would have if it were not Trustee or such other agent.
Section 9.6. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other trust funds except to the
extent required herein or required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Seller and except to the extent of income or other gain on
investments which are deposits in or certificates of deposit of the Trustee in
its commercial capacity and income or other gain actually received by the
Trustee on Eligible Investments.
Section 9.7. Compensation and Reimbursement. The Trustee shall
receive compensation for fees and reimbursement for expenses pursuant to Section
2.5 hereof and Section 7.3(b)(i)
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hereof. The Trustee shall have no lien on the Trust Estate for the payment of
such fees and expenses.
Section 9.8. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a corporation or
association acceptable to the Certificate Insurer and organized and doing
business under the laws of the United States of America or of any State
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $100,000,000, subject to supervision or
examination by the United States of America, having a rating or ratings
acceptable to the Seller and having a long-term deposit rating of at least BBB
from S&P and Baa2 from Moody's (or such lower rating as may be acceptable to
S&P, Moody's and the Certificate Insurer). If such Trustee publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall, upon
the request of the Seller or the Certificate Insurer resign immediately in the
manner and with the effect hereinafter specified in this Article IX.
Section 9.9. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article IX shall become effective until the
acceptance of appointment by the successor trustee under Section 9.10 hereof.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may resign at any time by giving written and notice of resignation to
the Certificate Insurer, the Seller and the Master Servicer and by mailing
notice of resignation by first-class mail, postage prepaid, to the Owners at
their addresses appearing on the Register. Upon receiving notice of resignation,
the Seller shall promptly appoint a successor trustee or trustees satisfying the
eligibility requirements of Section 9.8 by written instrument, in duplicate,
executed on behalf of the Trust by an Authorized Officer of the Seller, one copy
of which instrument shall be delivered to the Trustee so resigning and one copy
to the successor trustee or trustees. If no successor trustee shall have been
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Owner may, on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribed, appoint a successor
trustee.
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(c) If at any time the Trustee shall cease to be eligible
under Section 9.8 hereof and shall fail to resign after written request therefor
by the Seller or the Certificate Insurer, the Seller or the Certificate Insurer
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, executed on behalf of the Trust by an Authorized Officer of the
Seller or the Certificate Insurer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
(d) The Owners of a majority of the Percentage Interests
represented by any Class of Class A Certificates, or, if there are no Class A
Certificates then Outstanding, by such Percentage Interest represented by any
Class of Class B Certificates then Outstanding, may at any time remove the
Trustee and appoint a successor trustee by delivering to the Trustee to be
removed, to the successor trustee so appointed, to the Seller and to the
Certificate Insurer, copies of the record of the act taken by the Owners, as
provided for in Section 12.3 hereof.
(e) If the Trustee fails to perform its duties in accordance
with the terms of this Agreement or becomes ineligible to serve as Trustee, the
Seller or the Certificate Insurer may remove the Trustee and appoint a successor
trustee by written instrument, in quadruplicate, signed by the Seller or the
Certificate Insurer duly authorized, one complete set of which instruments shall
be delivered to the Seller, one complete set to the Trustee so removed and one
complete set to the successor trustee so appointed.
(f) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Trustee
for any cause, the Seller shall promptly appoint a successor trustee satisfying
the eligibility requirements of Section 9.8.
(g) The Seller shall give notice of any removal of the Trustee
by mailing notice of such event by first-class mail, postage prepaid, to the
Owners as their names and addresses appear in the Register. Each notice shall
include the name of the successor trustee and the address of its corporate trust
office.
Section 9.10. Acceptance of Appointment by Successor Trustee.
Every successor trustee appointed hereunder shall execute, acknowledge and
deliver to the Seller on behalf of the Trust and to its predecessor Trustee an
instrument accepting such appointment hereunder and stating its eligibility to
serve as Trustee hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts, duties and obligations of its predecessor hereunder; but, on
request of the Seller or the successor trustee, such predecessor Trustee shall,
upon payment of
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its charges then unpaid, execute and deliver an instrument transferring to such
successor trustee all of the rights, powers and trusts of the Trustee so ceasing
to act, and shall duly assign, transfer and deliver to such successor trustee
all property and money held by such trustee so ceasing to act hereunder. Upon
request of any such successor trustee on behalf of the Trust shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor trustee all such rights, powers and trusts.
Upon acceptance of appointment by a successor Trustee as
provided in this Section, the Seller shall mail notice thereof by first-class
mail, postage prepaid, to the Owners at their last addresses appearing in the
Register. The Seller shall send a copy of such notice to the Rating Agencies. If
the Seller fails to mail such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Seller.
No successor trustee shall accept its appointment unless at
the time of such acceptance such successor shall be qualified and eligible under
this Article IX.
Section 9.11. Merger, Conversion, Consolidation or Succession
to Business of the Trustee. Any corporation or association into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation or association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
association succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that such corporation or
association shall be otherwise qualified and eligible under this Article IX. In
case any Certificates have been executed, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such Trustee
may adopt such execution and deliver the Certificates so executed with the same
effect as if such successor Trustee had itself executed such Certificates.
Section 9.12. Reporting; Withholding. (a) The Trustee shall
timely provide to the Owners the Internal Revenue Service's Form 1099 and any
other statement required by applicable Treasury regulations as determined by the
Seller, and shall withhold, as required by applicable law, federal, state or
local taxes, if any, applicable to distributions to the Owners, including but
not limited to backup withholding under Section 3406 of the Code and the
withholding tax on distributions to foreign investors under Sections 1441 and
1442 of the Code.
(b) The Trustee shall timely file all reports required to be
filed by the Trust with any federal, state or local
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governmental authority having jurisdiction over the Trust, including other
reports that must be filed with the Owners, such as the Internal Revenue
Service's Form 1066 and Schedule Q and the form required under Section 6050K of
the Code, if applicable. Furthermore, the Trustee shall report to Owners, if
required, with respect to the allocation of expenses pursuant to Section 212 of
the Code in accordance with the specific instructions to the Trustee by the
Seller with respect to such allocation of expenses. The Trustee shall collect
any forms or reports from the Owners determined by the Seller to be required
under applicable federal, state and local tax laws.
(c) The Trustee shall provide to the Internal Revenue Service
and to persons described in section 860(E)(e)(3) and (6) of the Code the
information described in Treasury Regulation section 1.860D-1(b)(5)(ii), or any
successor regulation thereto. Such information will be provided in the manner
described in Treasury Regulation section 1.860E-2(a)(5), or any successor
regulation thereto.
Section 9.13. Liability of the Trustee. Except during the
continuance of an Event of Default, the Trustee shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken by the Trustee herein. Neither the Trustee nor any of the directors,
officers, employees or agents of the Trustee shall be under any liability on any
Certificate or otherwise to any Account, the Seller, any Servicer or any Owner
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Trustee or any such Person against any
liability which would otherwise be imposed by reason of negligent action,
negligent failure to act or bad faith in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. Subject to the
foregoing sentence, the Trustee shall not be liable for losses on investments of
amounts in any Account (except for any losses on obligations on which the bank
serving as Trustee is the obligor). In addition, the Seller covenants and agrees
to indemnify the Trustee, and when the Trustee is acting as Master Servicer, the
Trustee in its capacity as Master Servicer, from, and hold it harmless against,
any and all losses, liabilities, damages, claims or expenses (including
reasonable and documented legal fees and expenses) other than those resulting
from the negligence or bad faith of the Trustee. The Trustee and any director,
officer, employee or agent of the Trustee may rely and shall be protected in
acting or refraining from acting in good faith on any certificate, notice or
other document of any kind prima facie properly executed and submitted by the
Authorized Officer of any Person respecting any matters arising hereunder.
Section 9.14. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of
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any jurisdiction in which any part of the Trust Estate or any Property may at
the time be located, the Master Servicer and the Trustee acting jointly and with
the consent of the Certificate Insurer shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-Trustee or co-Trustees, jointly with the Trustee, of all or
any part of the Trust Estate or separate Trustee or separate Trustees of any
part of the Trust Estate, and to vest in such Person or Persons, in such
capacity and for the benefit of the Owners, such title to the Trust Estate, or
any part thereof, and, subject to the other provisions of this Section 9.14,
such powers, duties, obligations, rights and trusts as the Master Servicer and
the Trustee may consider necessary or desirable. If the Master Servicer shall
not have joined in such appointment within 15 days after the receipt by it of a
request so to do, or in the case any event indicated in Section 9.2 of this
Agreement shall have occurred and be continuing, the Trustee alone (with the
consent of the Certificate Insurer) shall have the power to make such
appointment. No co-Trustee or separate Trustee hereunder shall be required to
meet the terms of eligibility as a successor Trustee under Section 9.8 and no
notice to Owners of the appointment of any co-Trustee or separate Trustee shall
be required under Section 9.9.
Every separate Trustee and co-Trustee shall, to the extent
permitted, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate Trustee or
co-Trustee jointly (it being understood that such separate Trustee or
co-Trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate Trustee or co-Trustee, but solely at
the direction of the Trustee;
(ii) No co-Trustee hereunder shall be held personally liable
by reason of any act or omission of any other co-Trustee hereunder;
and
(iii) The Master Servicer and the Trustee acting jointly with
the consent of the Certificate Insurer may at any time accept the
resignation of or remove any separate Trustee or co-Trustee.
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Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate Trustees and
co-Trustees, as effectively as if given to each of them. Every instrument
appointing any separate Trustee or co-Trustee shall refer to this Agreement and
the conditions of this Section 9.14. Each separate Trustee and co-Trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Master Servicer.
Any separate Trustee or co-Trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate Trustee
or co-Trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
ARTICLE X
SERVICING AND ADMINISTRATION
OF MORTGAGE LOANS
Section 10.1. General Servicing Procedures. (a) Acting
directly or through one or more Sub-Servicers as provided in Section 10.3, the
Master Servicer shall service and administer the Mortgage Loans in accordance
with this Agreement and shall have full power and authority, acting alone, to do
or cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable and consistent with the
terms of this Agreement. Notwithstanding any provision to the contrary elsewhere
in this Agreement, the Master Servicer shall not have any duties,
responsibilities, or fiduciary relationship with the parties hereto except those
expressly set forth herein, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or shall otherwise exist against the Master Servicer.
(b) The Master Servicer may, and is hereby authorized to,
perform any of its servicing responsibilities with respect to all or certain of
the Mortgage Loans through a Sub-Servicer as it may from time to time designate,
but no such designation of a Sub-Servicer shall serve to release the Master
Servicer from any of its obligations under this Agreement. Such Sub-Servicer
shall have
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all the rights and powers of the Master Servicer with respect to such Mortgage
Loans under this Agreement.
(c) Without limiting the generality of the foregoing, but
subject to the provisions of this Article X, the Master Servicer in its own name
or in the name of a Sub-Servicer hereby is authorized and empowered, which
authorization may further be evidenced, at the reasonable request of the Master
Servicer, by a power of attorney executed and delivered by the Trustee, on
behalf of itself, the Owners and the Trustee or any of them, (i) to execute and
deliver any and all instruments of satisfaction or cancellation or of partial or
full release or discharge and all other comparable instruments with respect to
the Mortgage Loans and with respect to the Properties, (ii) to institute
foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect
ownership of any Property in the name of the Trust, and (iii) to hold title in
the name of the Trust to any Property upon such foreclosure or deed in lieu of
foreclosure on behalf of the Trustee; provided, however, that to the extent any
instrument described in clause (i) preceding would be delivered by the Master
Servicer outside of its ordinary procedures for mortgage loans held for its own
account the Master Servicer shall, prior to executing and delivering such
instrument, obtain the prior written consent of the Certificate Insurer, and
provided further, however, that Section 10.14(a) shall constitute a power of
attorney from the Trustee to the Master Servicer to execute an instrument of
satisfaction (or assignment of mortgage without recourse) with respect to any
Mortgage Loan paid in full (or with respect to which payment in full has been
escrowed). Subject to Sections 10.13 and 10.14, the Trustee shall execute any
powers of attorney and other documents as the Master Servicer or such
Sub-Servicer shall reasonably request and that are provided to the Trustee to
enable the Master Servicer and such Sub-Servicer to carry out their respective
servicing and administrative duties hereunder. The costs to the Master Servicer
of delivering any satisfactions described in clause (i) above shall be paid by
the Master Servicer to the extent not recoverable from the related Mortgagor
under applicable state law.
(d) The Master Servicer, with the approval of the Seller,
shall have the right to approve requests of Mortgagors for consent to (i)
partial releases of Mortgages, (ii) alterations and (iii) removal, demolition or
division of Properties subject to Mortgages. No such request shall be approved
by the Master Servicer unless: (1) (x) the provisions of the related Note and
Mortgage have been complied with; (y) the Loan-to-Value Ratio (which may, for
this purpose, be determined at the time of any such action in a manner
reasonably acceptable to the Certificate Insurer) after any release does not
exceed the Loan-to-Value Ratio set forth for such Mortgage Loan in the Mortgage
Loan Schedule; and (z) the lien priority, monthly payment, Coupon Rate or
maturity date of the related Mortgage is not affected (except in accordance with
Section 10.2) or (2) the Certificate Insurer shall have
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approved the granting of such request and shall not unreasonably withhold such
approval.
(e) The Master Servicer shall give prompt notice to the
Seller, the Trustee and to the Certificate Insurer of any action, of which the
Master Servicer has actual knowledge, to (i) assert a claim against the Trust or
(ii) assert jurisdiction over the Trust.
(f) Servicing Advances incurred by the Master Servicer or any
Sub-Servicer in connection with the servicing of the Mortgage Loans (including
any penalties in connection with the payment of any taxes and assessments or
other charges) on any Property shall be recoverable by the Master Servicer or
such Sub-Servicer to the extent described in this Agreement.
(g) Each of the Master Servicer, each Sub-Servicer, the
Seller, the Trustee and the Certificate Insurer shall be entitled to rely, and
shall be fully protected in relying, upon any promissory note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document reasonably believed by it to be genuine and correct and to have been
signed, sent or made by the proper person or persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Mortgagor(s)), independent accountants and other experts selected by the Master
Servicer, each Sub-Servicer, the Seller, the Trustee or the Certificate Insurer.
The Master Servicer shall be fully justified in failing or refusing to take any
action under this Agreement for which it has sought and received instructions
from the Owners and has been consented to by the Certificate Insurer. The Master
Servicer shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Mortgage Loans in accordance with an
express written request of the Owners to which the Certificate Insurer has
consented, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Master Servicer, the Seller, the Trustee, the
Certificate Insurer and all Owners. In the event of any conflicting instructions
or requests, the instructions or requests delivered by the Certificate Insurer
shall prevail, unless such instructions or requests violate the express terms of
this Agreement or violate applicable law.
(h) The Master Servicer shall have no liability to the Seller,
the Trustee, the Certificate Insurer, the Owners or any other Person for any
action taken, or for refraining from the taking of any action, in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
the foregoing shall not apply to any breach of representations or warranties
made by the Master Servicer herein, or to any specific liability imposed upon
the Master Servicer pursuant to this Agreement or any liability that would
otherwise be imposed upon the Master Servicer by reason of its willful
misconduct, bad faith or negligence in the
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performance of its duties hereunder or by reason of its reckless disregard of
its obligations or duties hereunder.
Section 10.2. Collection of Certain Mortgage Loan Payments.
The Master Servicer shall generally service the Mortgage Loans in a prudent
manner consistent with the Master Servicer's Servicing and Collection Guide (the
"Servicing Standards"), and agrees to 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,
follow collection procedures for all Mortgage Loans at least as rigorous as
those the Master Servicer would take in servicing similar mortgage loans and in
collecting payments thereunder for its own account. Consistent with the
foregoing, the Master Servicer may (i) in its discretion waive or permit to be
waived any late payment charge or assumption fee or any other fee or charge
which the Master Servicer would be entitled to retain pursuant to Section 10.15
as servicing compensation, (ii) extend the due date for payments due on a Note
for a period (with respect to each payment as to which the due date is extended)
not greater than 125 days after the initially scheduled due date for such
payment and (iii) amend any Note to extend the maturity thereof, provided that
no maturity shall be extended beyond the maturity date of the Mortgage Loan with
the latest maturity date and that no more than 1.0% of the Original Pool
Principal Balance of the Mortgage Loans shall have a maturity date which has
been extended beyond the maturity date thereof at the Cut-off Date; provided
further, with respect to clauses (i), (ii) and (iii), that such action does not
violate applicable REMIC provisions. In the event the Master Servicer shall
consent to the deferment of the due dates for payments due on a Note, the Master
Servicer shall nonetheless make payment of any required Delinquency Advance with
respect to the payments so extended to the same extent as if such installment
were due, owing and Delinquent and had not been deferred, and shall be entitled
to reimbursement therefor in accordance with Sections 10.8(d)(i)(D) and 10.9(a)
hereof.
The Master Servicer may not waive prepayment charges or
penalty interest in connection with Prepayments. Any such amounts so received
shall be paid over to the Seller as received.
Section 10.3. Sub-Servicing Agreements Between Master Servicer
and Sub-Servicers. The Master Servicer may enter into Sub-Servicing Agreements
for any servicing and administration of Mortgage Loans with any institution
which is in compliance with the laws of each state necessary to enable it to
perform its obligations under such Sub-Servicing Agreement and which has been
designated an approved seller-servicer by FHLMC or FNMA for first and second
mortgage loans and (except for _______________) has equity of at least
$15,000,000, as determined in accordance with generally accepted accounting
principles. The Master Servicer shall give notice to the Seller, the Trustee,
Moody's, S&P and the Certificate Insurer of the removal or appointment of any
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Sub-Servicer. Any such Sub-Servicing Agreement shall be consistent with and not
violate the provisions of this Agreement. For purposes of this Agreement, the
Master Servicer shall be deemed to have received payments on or with respect to
Mortgage Loans when any Sub-Servicer has received such payments. For purposes of
this Agreement, the Master Servicer shall be deemed to have made a payment
required to be made by it hereunder when any Sub-Servicer has made such payment
in the manner required of the Master Servicer hereunder. For purposes of this
Agreement, the Master Servicer shall be deemed to have delivered any document
required to be delivered by it hereunder when any Sub-Servicer has delivered
such document in the manner required of the Master Servicer hereunder. As of the
Startup Day, the only Sub-Servicer is ______________.
Section 10.4. Successor Sub-Servicers. Each Sub-Servicing
Agreement shall expressly provide that the Master Servicer or the Trustee shall
be entitled to terminate any Sub-Servicing Agreement in accordance with the
terms and conditions of such Sub-Servicing Agreement and to enter into a
Sub-Servicing Agreement with a successor Sub-Servicer which qualifies under
Section 10.3. The Trustee shall have no duty or obligation hereunder to monitor
or supervise the performance of any Sub- Servicer.
Section 10.5. Liability of Master Servicer. The Master
Servicer shall not be relieved of its obligations under this Agreement
notwithstanding any Sub-Servicing Agreement or any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer and
a Sub-Servicer or otherwise, and the Master Servicer shall be obligated to the
same extent and under the same terms and conditions as if it alone were
servicing and administering the Mortgage Loans. 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 such
Sub-Servicing Agreement shall be deemed to limit or modify this Agreement.
Section 10.6. No Contractual Relationship Between Sub-Servicer
and Trustee or the Owners. Any Sub-Servicing Agreement and any other
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
shall be deemed to be between the Sub-Servicer, the Master Servicer and any
other parties thereto alone and the Trustee and the Owners shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to any Sub-Servicer except as set forth in Sections
10.4 and 10.7, unless expressly made a party thereto.
Section 10.7. Assumption or Termination of Sub-Servicing
Agreement by Trustee. In connection with the assumption of the responsibilities,
duties and liabilities and of the authority, power and rights of the Master
Servicer hereunder by the Trustee pursuant to Section 11.1, it is understood and
agreed that the
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Master Servicer's rights and obligations under any Sub-Servicing Agreement then
in force between the Master Servicer and a Sub-Servicer may be assumed or
terminated by the Trustee at its option.
The Master Servicer shall, upon request of the Trustee, but at
the expense of the Master Servicer, deliver to the assuming party documents and
records relating to each Sub-Servicing Agreement and an accounting of amounts
collected and held by it and otherwise use its best reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreements to the
assuming party.
Section 10.8. Principal and Interest Account.
(a) The Master Servicer shall establish and maintain at one or
more Designated Depository Institutions the Principal and Interest Account as a
segregated account.
Subject to Subsections (c) and (d) below, the Master Servicer
and any Sub-Servicer shall deposit all collections (other than amounts escrowed
for taxes and insurance) related to the Mortgage Loans to the Principal and
Interest Account on a daily basis (but no later than the first Business Day
after receipt).
On the Startup Day and on each Subsequent Transfer Date, the
Seller and/or the Master Servicer shall deposit to the Principal and Interest
Account all receipts related to the related Mortgage Loans received after the
Cut-Off Date or related Subsequent Cut-Off Date, as the case may be.
On or before the Startup Day, the Master Servicer shall
deposit to the Principal and Interest Account (i) all scheduled payments due and
collected (other than amounts escrowed for taxes and insurance) on the Mortgage
Loans after the Cut-Off Date and prior to the Startup Day and (ii) all
unscheduled collections (other than amounts escrowed for taxes and insurance) on
the Mortgage Loans received on or after the Cut-Off Date and prior to the
Startup Day.
(b) All funds in the Principal and Interest Account shall be
invested in Eligible Investments maturing not later than the Business Day
immediately preceding the related Remittance Date. The Principal and Interest
Account shall be held in trust in the name of the Trustee for the benefit of the
Owners. Any investment earnings on funds held in the Principal and Interest
Account shall be for the account of the Master Servicer and may only be
withdrawn from the Principal and Interest Account by the Master Servicer
immediately following the remittance of the Monthly Remittances by the Master
Servicer. Any investment losses shall be paid by the Master Servicer to the
Principal and Interest Account from the Master Servicer's own funds. Any
references herein to amounts on deposit in the Principal and Interest Account
shall refer to
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amounts net of such investment earnings. The Trustee shall have no
responsibility or liability for actions taken by the Master Servicer, including
withdrawals, with respect to the Principal and Interest Accounts.
(c) The Master Servicer shall deposit to the Principal and
Interest Account all principal and interest payments from the related Mortgagors
received by the Master Servicer (including any Prepayments), Net Proceeds, other
recoveries or amounts related to the Mortgage Loans received by the Master
Servicer, Compensating Interest, Delinquency Advances together with any amounts
which are reimbursable to the Master Servicer from the Principal and Interest
Account, the amount of any Loan Purchase Price received or paid by the Master
Servicer, the amount of any Substitution Amount received by the Master Servicer,
REO income pursuant to Section 10.13(c) hereof, and amounts required to be
deposited therein pursuant to Section 10.11 hereof in connection with blanket
insurance policies and any proceeds received by the Master Servicer in
connection with the termination of the Trust, but net of (i) the Master
Servicing Fee with respect to each Mortgage Loan and other servicing
compensation to the Master Servicer as permitted by Section 10.15 hereof, (ii)
Net Proceeds to the extent such Net Proceeds exceed the sum of (I) the Principal
Balance of the related Mortgage Loan, plus (II) accrued and unpaid interest on
such Mortgage Loan at the Coupon Rate applicable to the related Remittance
Period (net of the Master Servicing Fee) and (iii) prepayment charges and
similar amounts to be paid over to the Seller pursuant to Section 10.2 hereof.
Amounts described in clause (ii) of the preceding sentence shall be retained by
the Master Servicer as additional servicing compensation or paid over to the
related Mortgagor if required by law.
(d) (i) The Master Servicer may make withdrawals from the
Principal and Interest Account only for the following purposes:
(A) to effect the timely remittance to the Trustee of the
related Monthly Remittance due on each Remittance
Date;
(B) to withdraw investment earnings on amounts on deposit
in the Principal and Interest Account;
(C) to withdraw amounts that have been deposited to the
Principal and Interest Account in error;
(D) to reimburse itself for amounts which represent
Reimbursable Advances made by the Master Servicer
from its own funds and subsequently collected from
the related Mortgagor; and
(E) to clear and terminate the Principal and Interest
Account in connection with the termination of the
Trust.
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(ii) On the tenth day of each month (or the immediately
following Business Day if the tenth day does not fall on a Business Day), the
Master Servicer shall send to the Trustee a report, in such electronic form as
may be agreed upon by the Master Servicer, the Seller and the Trustee, detailing
the payments on the Mortgage Loans for each of the Mortgage Loan Groups during
the prior Remittance Period. Such report shall be in the form and have the
specifications as may be agreed to between the Master Servicer, the Seller, and
the Trustee from time to time and, in any event, shall have such information as
shall be necessary to enable the Trustee to perform its obligations hereunder.
In addition, on or prior to each Remittance Date, the Master
Servicer will furnish to the Trustee, the Seller and to the Certificate Insurer
the following information for each of the two Mortgage Loan Groups as of the
close of business on the first business day of the current calendar month:
(A) the total number of Mortgage Loans and the aggregate
Principal Balances thereof, together with the number
and aggregate principal balances of Mortgage Loans
(a) 30-59 days Delinquent, (b) 60-89 days Delinquent
and (c) 90 or more days Delinquent;
(B) the number and aggregate principal balances of all
Mortgage Loans in foreclosure proceedings (and
whether any such Mortgage Loans are also included in
any of the statistics described in the foregoing
clause (A));
(C) the number and aggregate principal balances of all
Mortgage Loans relating to Mortgagors in bankruptcy
proceedings (and whether any such Mortgage Loans are
also included in any of the statistics described in
the foregoing clauses (A) and (B));
(D) the number and aggregate principal balances of all
Mortgage Loans relating to REO Properties (and
whether any such Mortgage Loans are also included in
any of the statistics described in the foregoing
clauses (A), (B) and (C));
(E) the number and aggregate principal balances of all
Mortgage Loans as to which foreclosure proceedings
were commenced during the prior Remittance Period;
(F) a schedule regarding cumulative foreclosures since
the Cut-Off Date;
(G) a schedule regarding the Group I Cumulative Net
Realized Losses, the Group II Cumulative Net Realized
Losses and the Cumulative Net Realized Losses;
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(H) the book value of any REO Property and any income
received from REO Properties during the prior
Remittance Period; and
(I) such other information as the Trustee or the Seller
may reasonably request and as is produced by the
Master Servicer in the ordinary course of its
business.
(iii) On each Remittance Date the Master Servicer shall remit
the Group I Monthly Remittance and the Group II Monthly Remittance to the
Trustee by wire transfer, or otherwise make funds available in immediately
available funds.
(e) In connection with any exercise by the Seller of its
option and related termination under Article VIII hereof, upon written request
of the Seller, the Master Servicer shall remit to the Trustee all amounts (net
of investment earnings and providing for investment losses pursuant to Section
10.8(b), net of the Master Servicing Fee and net of amounts reimbursable for
Delinquency Advances and Servicing Advances) then on deposit in the Principal
and Interest Account for deposit to the Certificate Account, which deposit shall
be deemed to have occurred immediately preceding such purchase.
Section 10.9. Delinquency Advances and Servicing Advances. (a)
If the amount on deposit in the Principal and Interest Account with respect to
any Mortgage Loan Group as of any Remittance Date is less than the related
Monthly Remittance for such Remittance Date, the Master Servicer shall deposit
to the Principal and Interest Account with respect to such Mortgage Loan Group a
sufficient amount of its own funds to make such amount equal to the related
Monthly Remittance for such Remittance Date. Such amounts of the Master
Servicer's own funds so deposited are "Delinquency Advances". Any Delinquency
Advances funded by the Master Servicer from its own funds are reimbursable from
subsequent collections on or with respect to the related Mortgage Loan,
including Liquidation Proceeds, Insurance Proceeds, Released Mortgaged Property
Proceeds, and payments from the related Mortgagor. Notwithstanding anything to
the contrary contained in this Agreement, no Delinquency Advance or Servicing
Advance shall be required to be made by the Master Servicer if such Delinquency
Advance or Servicing Advance would, if made, constitute a Nonrecoverable
Advance.
The Master Servicer shall be permitted to fund its payment of
Delinquency Advances on any Remittance Date from collections on any Mortgage
Loan deposited to the Principal and Interest Account subsequent to the related
Remittance Period, and shall deposit to the Principal and Interest Account with
respect to Delinquency Advances funded from amounts on deposit in the Principal
and Interest Account (i) collections from the Mortgagor whose delinquency gave
rise to the shortfall which resulted in such
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Delinquency Advance and (ii) Net Liquidation Proceeds recovered on account of
the related Mortgage Loan to the extent of the amount of aggregate Delinquency
Advances related thereto. In any event, to the extent the Master Servicer uses
such funds, the Master Servicer must reimburse the Principal and Interest
Account by the next Remittance Date to the extent necessary to provide for the
related Monthly Remittance.
(b) The Master Servicer will pay all reasonable and customary
"out-of-pocket" costs and expenses (including reasonable legal fees) incurred in
the performance of its servicing obligations including, but not limited to, the
cost of (i) Preservation Expenses, (ii) any enforcement or judicial proceedings,
including foreclosures, (iii) the management and liquidation of REO Property
(including, without limitation, realtors' commissions) and (iv) advances made
for taxes, insurance and other charges against the Property. Each such
expenditure will constitute a "Servicing Advance". The Master Servicer may
recover Servicing Advances from the Mortgagors to the extent permitted by the
Mortgage Loans or, if not theretofore recovered from the Mortgagor on whose
behalf such Servicing Advance was made, from Liquidation Proceeds, Insurance
Proceeds and/or Released Mortgage Property Proceeds realized with respect to the
related Mortgage Loan. In no case may the Master Servicer recover Servicing
Advances from the principal and interest payments on any Mortgage Loan or from
any amounts relating to any other Mortgage Loan.
Section 10.10. Compensating Interest. A full month's interest
at the related Coupon Rate less the Master Servicing Fee is due to the Trustee
on the outstanding Principal Balance of each Mortgage Loan as of the beginning
of each Remittance Period. If a Prepayment of a Mortgage Loan occurs during any
calendar month, any difference between the interest collected from the Mortgagor
during such calendar month and the full month's interest at the related Coupon
Rate less the Master Servicing Fee with respect to such Mortgage Loan
("Compensating Interest") that is due shall be deposited prior to the Remittance
Date by the Master Servicer to the Principal and Interest Account and shall be
included in the related Monthly Remittance to be made available to the Trustee
on the next succeeding Remittance Date. The Master Servicer shall not be
entitled to reimbursement for Compensating Interest payments.
Section 10.11. Maintenance of Insurance. (a) The Master
Servicer shall cause to be maintained with respect to each Mortgage Loan a
hazard insurance policy with a carrier licensed in the state in which the
Property is located that provides for fire and extended coverage, and which
provides for a recovery by the Trust of insurance proceeds relating to such
Mortgage Loan in an amount not less than the least of (i) the outstanding
principal balance of the Mortgage Loan (together in the case of a Second
Mortgage Loan, with the outstanding principal balance of the Senior Lien), (ii)
the minimum amount required to compensate for loss or damage on a replacement
cost basis and (iii) the full insurable
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value of the premises. The Master Servicer shall indemnify the Trust out of the
Master Servicer's own funds for any loss to the Trust resulting from the Master
Servicer's failure to maintain the insurance required by this paragraph.
(b) If the Mortgage Loan at the time of origination relates to
a Property in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards, the Master Servicer
will cause to be maintained with respect thereto a flood insurance policy in a
form meeting the requirements of the current guidelines of the Federal Insurance
Administration with a generally acceptable carrier, and which provides for a
recovery by the Master Servicer on behalf of the Trust of insurance proceeds
relating to such Mortgage Loan of not less than the least of (i) the outstanding
principal balance of the Mortgage Loan, (ii) the minimum amount required to
compensate for damage or loss on a replacement cost basis and (iii) the maximum
amount of insurance that is available under the Flood Disaster Protection Act of
1973, as amended. The Master Servicer shall indemnify the Trust and the
Certificate Insurer out of the Master Servicer's own funds for any loss to the
Trust and the Certificate Insurer resulting from the Master Servicer's failure
to maintain the insurance required by this Section.
(c) In the event that the Master Servicer shall obtain and
maintain a blanket policy insuring against fire and hazards of extended coverage
on all of the Mortgage Loans, then, to the extent such policy names the Master
Servicer as loss payee and provides coverage in an amount equal to the aggregate
unpaid principal balance on the Mortgage Loans with co-insurance, and otherwise
complies with the requirements of this Section 10.11, the Master Servicer shall
be deemed conclusively to have satisfied its obligations with respect to fire
and hazard insurance coverage under this Section 10.11, it being understood and
agreed that such blanket 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 Property a policy complying with subsection (a) of
this Section 10.11, and there shall have been a loss which would have been
covered by such policy, deposit in the Principal and Interest Account from the
Master Servicer's own funds the difference, if any, between the amount that
would have been payable under a policy complying with subsection (a) of this
Section 10.11 and the amount paid under such blanket policy. Upon the request of
the Trustee, the Master Servicer shall cause to be delivered to the Trustee, a
certified true copy of such policy.
(d) The Seller shall indemnify the Master Servicer for any
loss to the Master Servicer if any Mortgage Loan does not, at the time the
Master Servicer assumed the servicing of such Mortgage Loan, have in place the
insurance described in Sections 3.2(b)(xvi) and (xvii) hereof and described
herein and, if applicable, Section 3.2(b)(xviii) hereof. The Master Servicer
shall only be required to maintain insurance on any Property if such insurance
was in
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place at the time the Master Servicer assumed the servicing of the related
Mortgage Loan.
Section 10.12. Due-on-Sale Clauses; Assumption and
Substitution Agreements. (a) When a Property has been or is about to be conveyed
by the Mortgagor, the Master Servicer shall, to the extent it has knowledge of
such conveyance or prospective conveyance, exercise its rights to accelerate the
maturity of the related Mortgage Loan under any "due on sale" clause contained
in the related Mortgage or Note; provided, however, that the Master Servicer
shall not exercise any such right if the "due on sale" clause, in the reasonable
belief of the Master Servicer, is not enforceable under applicable law; and
provided, further, that the Master Servicer may refrain from exercising any such
right if the Certificate Insurer gives its prior consent to such
non-enforcement.
(b) The Mortgage Loan, if assumed, shall conform in all
respects to the requirements, representations and warranties of this Agreement.
The Master Servicer shall notify the Trustee in writing that any applicable
assumption or substitution agreement has been completed and shall forward to the
Trustee the original recorded copy of such assumption or substitution agreement,
which copy shall be added by the Trustee in writing to the related File and
which shall, for all purposes, be considered a part of such File to the same
extent as all other documents and instruments constituting a part thereof. The
Master Servicer shall be responsible for recording any such assumption or
substitution agreements. In connection with any such assumption or substitution
agreement, the required monthly payment on the related Mortgage Loan shall not
be changed but shall remain as in effect immediately prior to the assumption or
substitution, the stated maturity or outstanding principal amount of such
Mortgage Loan shall not be changed, the Coupon Rate shall not be changed nor
shall any required monthly payments of principal or interest be deferred or
forgiven. Any fee collected by the Master Servicer or the Sub-Servicer for
consenting to any such conveyance or entering into an assumption or substitution
agreement shall be retained by or paid to the Master Servicer as additional
servicing compensation.
(c) Notwithstanding the foregoing clauses (a) and (b) 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 which
the Master Servicer may be restricted by law from preventing, for any reason
whatsoever.
Section 10.13. Realization Upon Defaulted Mortgage Loans. (a)
The Master Servicer shall foreclose upon or otherwise comparably effect the
ownership in the name of the Trust of Properties relating to defaulted Mortgage
Loans as to which no satisfactory arrangements can be made for collection of
Delinquent
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payments and which the Master Servicer has not purchased pursuant to Section
10.13(f), unless the Master Servicer reasonably believes that Net Liquidation
Proceeds with respect to such Mortgage Loan would not be increased as a result
of such foreclosure or other action, in which case such Mortgage Loan will be
charged-off and will become a Liquidated Loan. The Master Servicer shall have no
obligation to purchase any Property at any foreclosure sale. The Master Servicer
will give notice of any such charge-off to the Certificate Insurer by delivery
of a Liquidation Report in the form attached as Exhibit G hereto. In connection
with such foreclosure or other conversion, the Master Servicer shall exercise
foreclosure procedures with the same degree of care and skill in their exercise
or use, as it would exercise or use under the circumstances in the conduct of
its own affairs. Any amounts, including Liquidation Expenses, advanced by the
Master Servicer in connection with such foreclosure or other action shall
constitute "Servicing Advances" within the meaning of Section 10.9(b) hereof.
(b) The Master Servicer shall sell any REO Property within 23
months of its acquisition by the Trust, unless the Master Servicer obtains for
the Trustee an opinion of counsel experienced in federal income tax matters,
addressed to the Trustee, the Certificate Insurer and the Master Servicer, to
the effect that the holding by the Trust of such REO Property for a greater
specified period will not result in the imposition of taxes on "Prohibited
Transactions" of the Trust as defined in Section 860F of the Code or cause the
REMICs to fail to qualify under the REMIC Provisions at any time that any
Certificates are outstanding.
(c) Notwithstanding the generality of the foregoing
provisions, the Master Servicer shall manage, conserve, protect and operate each
REO Property for the Owners solely for the purpose of its prompt disposition and
sale in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by the Trust of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under the REMIC Provisions.
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 Owners and the Certificate
Insurer, rent the same, or any part thereof, as the Master Servicer deems to be
in the best interest of the Owners and the Certificate Insurer for the period
prior to the sale of such REO Property. The net income from the sale of an REO
Property shall be deposited in the Principal and Interest Account.
(d) If the Master Servicer has reason to believe that a
Property which the Master Servicer is contemplating acquiring in foreclosure or
by deed in lieu of foreclosure contains
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environmental or hazardous waste risks known to the Master Servicer, the Master
Servicer shall notify the Certificate Insurer, the Seller and the Trustee prior
to acquiring the Property. The Master Servicer shall not institute foreclosure
actions with respect to such a property if it reasonably believes that such
action would not be consistent with the Servicing Standards, and the Master
Servicer is not permitted to take any action with respect to such a Property
without the prior written approval of the Certificate Insurer, the Trustee and
the Seller, and in no event shall the Master Servicer be required to manage,
operate or take any other action with respect thereto which the Master Servicer
in good faith believes will result in "clean-up" or other liability under
applicable law, unless the Master Servicer receives an indemnity acceptable to
it in its sole discretion.
(e) The Master Servicer shall determine, with respect to each
defaulted Mortgage Loan, when it has recovered, whether through trustee's sale,
foreclosure sale or otherwise, all amounts, if any, it expects to recover from
or on account of such defaulted Mortgage Loan, whereupon such Mortgage Loan
shall become a "Liquidated Loan". The Master Servicer shall deliver to the
Trustee, the Seller and the Certificate Insurer on each Remittance Date a
Liquidation Report in the form annexed as Exhibit G hereto with respect to each
Mortgage Loan as to which the Master Servicer made a determination that such
Mortgage Loan has become a Liquidated Loan during the related Remittance Period.
(f) The Master Servicer has the right and the option, but not
the obligation, to purchase for its own account any Mortgage Loan which becomes
Delinquent, in whole or in part, as to four consecutive monthly installments or
any Mortgage Loan as to which enforcement proceedings have been brought by the
Master Servicer pursuant to this Section 10.13 or which is in default or as to
which a default is imminent. Any such Mortgage Loan so purchased shall be
purchased on a Remittance Date at a purchase price equal to the Loan Purchase
Price thereof, which purchase price shall be deposited in the Principal and
Interest Account.
(g) The Master Servicer shall consult with the Seller with
respect to its obligations under this Section 10.13.
Section 10.14. Trustee to Cooperate; Release of Files. (a)
Upon the payment in full of any Mortgage Loan (including the repurchase of any
Mortgage Loan or any liquidation of such Mortgage Loan through foreclosure or
otherwise), or the receipt by the Master Servicer of a notification that payment
in full will be escrowed in a manner customary for such purposes, the Master
Servicer shall deliver to the Trustee a Master Servicer's Trust Receipt. Upon
receipt of such Master Servicer's Trust Receipt, the Trustee shall promptly
release the related File, in trust to (i) the Master Servicer, (ii) an escrow
agent or (iii) any employee, agent or attorney of the Trustee, in each case
pending its release by the Master Servicer, such escrow agent or such employee,
agent
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or attorney of the Trustee, as the case may be. Upon any such payment in full,
or the receipt of such notification that such funds have been placed in escrow,
the Master Servicer is authorized to give, as attorney-in-fact for the Trustee
and the mortgagee under the Mortgage which secured the Note, an instrument of
satisfaction (or assignment of Mortgage without recourse) regarding the Property
relating to such Mortgage, which instrument of satisfaction or assignment, as
the case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of payment in full, it being understood and agreed that
no expense incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Principal and
Interest Account. In lieu of executing any such satisfaction or assignment, as
the case may be, the Master Servicer may prepare and submit to the Trustee, a
satisfaction (or assignment without recourse, if requested by the Person or
Persons entitled thereto) in form for execution by the Trustee with all
requisite information completed by the Master Servicer; in such event, the
Trustee shall execute and acknowledge such satisfaction or assignment, as the
case may be, and deliver the same with the related File, as aforesaid.
(b) From time to time and as appropriate in the servicing of
any Mortgage Loan, including, without limitation, foreclosure or other
comparable conversion of a Mortgage Loan or collection under any applicable
Insurance Policy, the Trustee shall (except in the case of the payment or
liquidation pursuant to which the related File is released to an escrow agent or
an employee, agent or attorney of the Trustee), promptly upon request of the
Master Servicer and delivery to the Trustee of a Master Servicer's Trust
Receipt, release the related File to the Master Servicer and shall execute such
documents as shall be reasonably necessary to the prosecution of any such
proceedings, including, without limitation, an assignment without recourse of
the related Mortgage to the Master Servicer. The Trustee shall complete in the
name of the Trustee any endorsement in blank on any Note prior to releasing such
Note to the Master Servicer. Such receipt shall obligate the Master Servicer to
return the File to the Trustee when the need therefor by the Master Servicer no
longer exists unless the Mortgage Loan shall be liquidated, in which case, upon
receipt of the liquidation information, in physical or electronic form, the
Master Servicer's Trust Receipt shall be released by the Trustee to the Master
Servicer.
Notwithstanding the foregoing, at no time shall the Trustee
release to the Master Servicer pursuant to this Section 10.14 a quantity of
Files in excess of 10% of the Pool Principal Balance, excluding Files relating
to Mortgage Loans which have been paid in full or have become Liquidated Loans
(unless otherwise approved by the Certificate Insurer).
(c) In all cases where the Master Servicer needs the Trustee
to sign any document or to release a File within a
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particular period of time, the Master Servicer shall notify an Authorized
Officer of the Trustee by telephone or telecopy of such need and the Trustee
shall thereupon use its best efforts to comply with the Master Servicer's needs,
but in any event will comply within two Business Days of such request.
Section 10.15. Master Servicing Compensation. As compensation
for its activities hereunder, the Master Servicer shall be entitled to retain
the amount of the Master Servicing Fee with respect to each Mortgage Loan.
Additional servicing compensation in the form of release and satisfaction fees
(to the extent allowed by law), bad check charges, assumption fees, late payment
charges, and any other servicing-related fees, Net Proceeds not required to be
deposited in the Principal and Interest Account pursuant to Section 10.8(c)(ii)
and similar items may, to the extent collected from Mortgagors, be retained by
the Master Servicer.
Section 10.16. Annual Statement as to Compliance. The Master
Servicer, at its own expense, will deliver to the Trustee, the Seller and the
Certificate Insurer, on or before the last day of April of each year, commencing
in 1997, an Officer's Certificate stating, as to each signer thereof, that (i) a
review of the activities of the Master Servicer during such preceding calendar
year and of performance under this Agreement has been made under such officer's
supervision, and (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement for such year, or, if there has been a default in the fulfillment of
one or more such obligations, specifying each such default known to such officer
and the nature and status thereof including the steps being taken by the Master
Servicer to remedy such default. Any Sub-Servicer which is not a Master Servicer
Affiliate also shall deliver an annual statement as to compliance in the form
described above or the Master Servicer shall cover their performance in their
statement. These statements shall be available to Owners upon written request.
Section 10.17. Annual Independent Certified Public
Accountants' Reports. On or before the last day of April of each year,
commencing in 1997, the Master Servicer, at its own expense, shall cause to be
delivered to the Trustee, Certificate Insurer, the Seller, Moody's and S&P a
letter or letters of a firm of independent, nationally recognized certified
public accountants reasonably acceptable to the Certificate Insurer stating that
such firm has, with respect to the Master Servicer's overall servicing
operations (i) performed applicable tests in accordance with the compliance
testing procedures as set forth in Appendix 3 of the "Audit Guide for Audits of
HUD Approved Non-Supervised Mortgages" or (ii) examined such operations in
accordance with the requirements of the Uniform Single Audit Program for
Mortgage Bankers, and stating such firm's conclusions relating thereto. These
reports will be made available to Owners upon written request.
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Section 10.18. Access to Certain Documentation and Information
Regarding the Mortgage Loans; Confidentiality. The Master Servicer shall provide
to the Trustee, the Seller, the Certificate Insurer, and the supervisory agents
and examiners (as required in the latter case by applicable state and federal
regulations) of each of the foregoing access to the documentation regarding the
Mortgage Loans, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the Master
Servicer designated by it.
Upon any change in the format of the computer tape maintained
by the Master Servicer in respect of the Mortgage Loans, the Master Servicer
shall deliver a copy of such computer tape to the Trustee and the Seller and in
addition shall provide a copy of such computer tape to the Trustee and the
Seller at such other times as the Trustee may request.
The Master Servicer, the Trustee, and the Certificate Insurer
shall keep confidential (including from affiliates thereof) information
concerning the Mortgage Loans and the underwriting criteria for the Mortgage
Loans, except as required by law.
Each of the Trustee, the Certificate Insurer and the Seller
acknowledges the proprietary nature of the software, software procedures,
software development tools, know-how, methodologies, processes and technologies
of the Master Servicer and any Sub-Servicer and agrees (i) that it shall use the
same means as it uses to protect its own confidential information, but in no
event less than reasonable means, to avoid disclosure by it or its agents or
employees to any third party of any confidential or proprietary information of
the Master Servicer or any Sub-Servicer, and (ii) that all such software,
software procedures, software development tools, know-how, methodologies,
process and technologies that are based upon trade secrets or proprietary
information of the Master Servicer or any Sub-Servicer shall be and remain the
property of the Master Servicer or any Sub-Servicer and that each of the
Trustee, the Certificate Insurer and the Seller will have no interest therein or
claim thereto. Each Sub-Servicer shall be a third-party beneficiary of this
paragraph.
Section 10.19. Assignment of Agreement. The Master Servicer
may not assign its obligations under this Agreement, in whole or in part, unless
it shall have first obtained (i) the written consent of the Seller, the Trustee
and Certificate Insurer and (ii) the Trustee and Certificate Insurer shall have
received a confirmation letter from one or more rating agencies confirming the
rating of the Class A Certificates as AAA or its equivalent; provided, however,
that any assignee must meet the eligibility requirements set forth in Section
11.1(g) hereof for a successor servicer.
Section 10.20. Inspections by Certificate Insurer and Account
Parties; Errors and Omissions Insurance. (a) At any
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reasonable time and from time to time upon reasonable notice, the Seller, the
Certificate Insurer, the Trustee, or any agents or representatives thereof may
inspect the Master Servicer's servicing operations and discuss the servicing
operations of the Master Servicer. The out-of-pocket costs and expenses incurred
by the Master Servicer or its agents or representatives in connection with any
such examinations or discussions shall be paid by the requesting party prior to
the occurrence and continuance of an Event of Default, and by the Master
Servicer after the occurrence and during the continuance of an Event of Default.
(b) The Master Servicer agrees to maintain or cause a
Sub-Servicer to maintain errors and omissions coverage and a fidelity bond, each
at least to the extent required by Section 305 of Part I of FNMA Guide or any
successor provision thereof or such other insurance arrangements reasonably
satisfactory to the Certificate Insurer.
Section 10.21. Financial Statements. The Master Servicer
understands that, in connection with the transfer of the Certificates, Owners
may request that the Master Servicer make available upon written request to
prospective Owners any publicly available annual audited financial statements of
the Master Servicer for one or more of the most recently completed four fiscal
years for which such statements are available, which request shall not be
unreasonably denied. Such financial statements shall also be supplied to the
Certificate Insurer.
The Master Servicer also agrees to make available on a
reasonable basis to the Seller, the Trustee, the Certificate Insurer, any Owner
or any prospective Owner a knowledgeable financial or accounting officer for the
purpose of answering reasonable questions respecting recent developments
affecting the Master Servicer or the financial statements of the Master Servicer
and to permit the Seller, the Trustee, the Certificate Insurer, any Owner or any
prospective Owner to inspect the Master Servicer's servicing facilities during
normal business hours for the purpose of satisfying the Seller, the Trustee, the
Certificate Insurer, any Owner or such prospective Owner that the Master
Servicer has the ability to service the Mortgage Loans in accordance with this
Agreement.
Each requesting party shall use the same means as it uses to
protect its own confidential information, but in no event less than reasonable
means, to avoid disclosure by it or its agents or employees to any third party
of any confidential or proprietary information of the Master Servicer.
Section 10.22. REMIC. The Master Servicer covenants and agrees
for the benefit of the Owners (i) to take no action which would result in the
termination of REMIC status for either REMIC, (ii) not to engage in any
"prohibited transaction", as such term is defined in Section 860F(a)(2) of the
Code and (iii) not to engage
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in any other action which may result in the imposition of any other taxes under
the Code.
Section 10.23. The Designated Depository Institution. The
Master Servicer shall give the Trustee, the Seller and the Certificate Insurer
(a) at least thirty days' prior written notice of any anticipated change of the
Designated Depository Institution at which the Principal and Interest Account is
maintained and (b) written notice of any change in the ratings of such
Designated Depository Institution of which the Master Servicer is aware, within
two Business Days after discovery.
Section 10.24. Appointment of Custodian. If the Master
Servicer determines that the Trustee is unable to deliver Files to the Master
Servicer as required pursuant to Section 10.14 hereof, the Master Servicer shall
so notify the Certificate Insurer, S&P, Moody's, the Seller and the Trustee, and
make request that a custodian acceptable to the Master Servicer, the Seller and
the Certificate Insurer be appointed to retain custody of the Files on behalf of
the Trustee. The Trustee and the Seller agree to co-operate reasonably with the
Master Servicer in connection with the appointment of such custodian. The
Trustee shall pay from the Trustee's Fee all reasonable fees and expenses of
such custodian, in an amount not to exceed 1 basis point.
ARTICLE XI
EVENTS OF DEFAULT; REMOVAL OF MASTER SERVICER; MERGER
Section 11.1. Removal of Master Servicer; Resignation of
Master Servicer. (a) The Certificate Insurer (or, with the consent of the
Certificate Insurer, the Seller or the Owners of Class A Certificates evidencing
at least a majority in Percentage Interest of all Class A Certificates) may
remove the Master Servicer upon the occurrence of any of the following events
(each, an "Event of Default"):
(i) The Master Servicer shall (I) apply for or consent to the
appointment of a receiver, trustee, liquidator or custodian or similar
entity with respect to itself or its property, (II) admit in writing
its inability to pay its debts generally as they become due, (III) make
a general assignment for the benefit of creditors, (IV) be adjudicated
a bankrupt or insolvent, (V) commence a voluntary case under the
federal bankruptcy laws of the United States of America or file a
voluntary petition or answer seeking reorganization, an arrangement
with creditors or an order for relief or seeking to take advantage of
any insolvency law or file an answer admitting the material allegations
of a petition filed against it in any bankruptcy, reorganization or
insolvency proceeding or (VI) cause corporate action to be taken by it
for the purpose of effecting any of the foregoing; or
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(ii) If without the application, approval or consent of the
Master Servicer, a proceeding shall be instituted in any court of
competent jurisdiction, under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking in respect of
the Master Servicer an order for relief or an adjudication in
bankruptcy, reorganization, dissolution, winding up, liquidation, a
composition or arrangement with creditors, a readjustment of debts, the
appointment of a trustee, receiver, conservator, liquidator or
custodian or similar entity with respect to the Master Servicer or of
all or any substantial part of its assets, or other like relief in
respect thereof under any bankruptcy or insolvency law, and, if such
proceeding is being contested by the Master Servicer in good faith, the
same shall (A) result in the entry of an order for relief or any such
adjudication or appointment or (B) continue undismissed or pending and
unstayed for any period of sixty (60) consecutive days; or
(iii) The Master Servicer shall fail to perform any one or
more of its obligations hereunder (other than its obligations
referenced in clauses (vi) and (vii) below) and shall continue in
default thereof for a period of thirty (30) days after the earlier to
occur of (x) the date on which an Authorized Officer of the Master
Servicer knows or reasonably should know of such failure or (y) receipt
by the Master Servicer of a written notice from the Trustee, any Owner,
the Seller or the Certificate Insurer of said failure; or
(iv) The Master Servicer shall fail to cure any breach of any
of its representations and warranties set forth in Section 3.1(c) which
materially and adversely affects the interests of the Owners or
Certificate Insurer for a period of thirty (30) days after the earlier
of (x) the date on which an Authorized Officer of the Master Servicer
knows or reasonably should know of such breach or (y) receipt by the
Master Servicer of a written notice from the Trustee, any Owner, the
Seller or the Certificate Insurer of such breach; or
(v) If the Certificate Insurer pays out any money under the
Certificate Insurance Policies, or if the Certificate Insurer otherwise
funds any shortfall with its own money, because the amounts available
to the Trustee (other than from the Certificate Insurer) are
insufficient to make required distributions on the Class A
Certificates; or
(vi) The failure by the Master Servicer to make any required
Servicing Advance for a period of 30 days following the earlier of (x)
the date on which an Authorized Officer of the Master Servicer knows or
reasonably should know of such failure or (y) receipt by the Master
Servicer of a written notice from the Trustee, any Owner, the Seller,
or the Certificate Insurer of such failure; or
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(vii) The failure by the Master Servicer to make any required
Delinquency Advance, to pay any Compensating Interest or to pay over
any Monthly Remittance or other amounts required to be remitted by the
Master Servicer pursuant to this Agreement; or
(viii) If on any Payment Date the Pool Rolling Three Month
Delinquency Rate (including all foreclosures and REO Properties)
exceeds _____ during the period ____________ through
___________________ during the period ____________ through
___________________ during the period ____________ through
___________________ during the period ____________ through
___________________ during the period _____________ through
___________, or _____ after ____________; or
(ix) If on any Payment Date occurring in May of any year,
commencing in _________ the aggregate Pool Cumulative Net Realized
Losses over the prior twelve month period exceed .75% of the average
Pool Principal Balance as of the close of business on the last day of
each of the twelve preceding Remittance Periods; or
(x) If on any Payment Date the aggregate Pool Cumulative Net
Realized Losses for all prior Remittance Periods since the Startup Day
exceed ____% of the Original Pool Principal Balance;
provided, however, that (x) prior to any removal of the Master Servicer pursuant
to clauses (ii) through (iv) and (vi) of this Section 11.1(a), any applicable
grace period granted by any such clause shall have expired prior to the time
such occurrence shall have been remedied and (y) in the event of the refusal or
inability of the Master Servicer to comply with its obligations described in
clause (vii) above, such removal shall be effective (without the requirement of
any action on the part of the Seller, the Certificate Insurer or of the Trustee)
at 4 p.m. New York City time on the second Business Day following the day on
which the Trustee notifies an Authorized Officer of the Master Servicer that a
required amount described in clause (vii) above has not been received by the
Trustee, unless the required amount described in clause (vii) above is paid by
the Master Servicer prior to such time. Upon the Trustee's obtaining actual
knowledge that a required amount described in clause (vii) above has not been
made by the Master Servicer, the Trustee shall so notify an Authorized Officer
of the Master Servicer, and the Certificate Insurer, as soon as is reasonably
practical.
(b) Upon the occurrence of an Event of Default as described in
clauses (viii), (ix) or (x) of Section 11.1(a), the Certificate Insurer may upon
consultation with the Seller, remove the Master Servicer; provided, however,
that if such occurrence of an Event of Default is the result of circumstances
beyond the Master Servicer's control, the Master Servicer shall not be
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removed, and provided further, that in the event of any disagreement between the
Seller and the Certificate Insurer, the decision of the Certificate Insurer
shall control.
(c) The Master Servicer shall not resign from the obligations
and duties hereby imposed on it, except upon determination that its duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by it,
the other activities of the Master Servicer so causing such a conflict being of
a type and nature carried on by the Master Servicer at the date of this
Agreement. Any such determination permitting the resignation of the Master
Servicer shall be evidenced by an opinion of counsel to such effect which shall
be delivered to the Trustee, the Seller and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall
become effective until the Trustee or a successor Master Servicer shall have
assumed the Master Servicer's responsibilities and obligations in accordance
with this Section.
(e) Upon removal or resignation of the Master Servicer, the
Master Servicer also shall promptly deliver or cause to be delivered to a
successor Master Servicer or the Trustee all the books and records (including,
without limitation, records kept in electronic form) that the Master Servicer
has maintained for the Mortgage Loans, including all tax bills, assessment
notices, insurance premium notices and all other documents as well as all
original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after
removal or resignation shall be endorsed by it to the Trustee and remitted
directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the
Trustee (x) may solicit bids for a successor Master Servicer as described below,
and (y) pending the appointment of a successor Master Servicer as a result of
soliciting such bids, shall serve as Master Servicer; provided, however that the
Trustee shall not be liable for any acts, omissions or obligations of the Master
Servicer prior to such succession or for any breach by the Master Servicer of
any of its representations and warranties contained in this Agreement or in any
related document or agreement. The Trustee shall, if it is unable to obtain a
qualifying bid and is prevented by law from acting as Master Servicer, appoint,
or petition a court of competent jurisdiction to appoint, any housing and home
finance institution, bank or mortgage servicing institution which has been
designated as an approved seller-servicer by FNMA or FHLMC for first and second
mortgage loans and having equity of not less than $15,000,000, as determined in
accordance with generally accepted accounting principles, and acceptable to the
Certificate Insurer as the successor to the Master Servicer
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hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder.
The compensation of any successor Master Servicer (including,
without limitation, the Trustee) so appointed shall be the aggregate Master
Servicing Fees, together with the other servicing compensation in the form of
assumption fees, late payment charges or otherwise as provided in Sections 10.8
and 10.15.
(h) In the event the Trustee solicits bids as provided above,
the Trustee shall solicit, by public announcement, bids from housing and home
finance institutions, banks and mortgage servicing institutions meeting the
qualifications set forth above. Such public announcement shall specify that the
successor Master Servicer shall be entitled to the full amount of the aggregate
Master Servicing Fees as servicing compensation (including the servicing
compensation received in the form of assumption fees, late payment charges or
otherwise) as provided in Sections 10.8 and 10.15. Within thirty days after any
such public announcement, the Trustee shall, with the consent of the Certificate
Insurer, negotiate and effect the sale, transfer and assignment of the servicing
rights and responsibilities hereunder to the qualified party submitting the
highest satisfactory bid. The Trustee shall deduct from any sum received by the
Trustee from the successor to the Master Servicer in respect of such sale,
transfer and assignment all costs and expenses of any public announcement and of
any sale, transfer and assignment of the servicing rights and responsibilities
hereunder. After such deductions, the remainder of such sum shall be paid by the
Trustee to the Master Servicer at the time of such sale, transfer and assignment
to the successor Master Servicer.
(i) The Trustee and such successor Master Servicer shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. The Master Servicer agrees to cooperate with the Trustee
and any successor Master Servicer in effecting the termination of the Master
Servicer's servicing responsibilities and rights hereunder and shall promptly
provide the Trustee or such successor Master Servicer, as applicable, all
documents and records reasonably requested by it to enable it to assume the
Master Servicer's functions hereunder and shall promptly also transfer to the
Trustee or such successor Master Servicer, as applicable, all amounts which then
have been or should have been deposited in the Principal and Interest Account by
the Master Servicer or which are thereafter received with respect to the
Mortgage Loans. Neither the Trustee nor any other successor Master Servicer
shall be held liable by reason of any failure to make, or any delay in making,
any distribution hereunder or any portion thereof caused by (i) the failure of
the Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
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(j) The Trustee or any other successor Master Servicer, upon
assuming the duties of Master Servicer hereunder, shall immediately make all
Delinquency Advances and pay all Compensating Interest which the Master Servicer
has theretofore failed to remit with respect to the Mortgage Loans; provided,
however, that if the Trustee is acting as successor Master Servicer or another
successor Master Servicer has become the Master Servicer, the Trustee or such
other successor Master Servicer, as the case may be, shall only be required to
make Delinquency Advances (including the Delinquency Advances described in this
clause (j)) if, in the Trustee's or such other successor Master Servicer's, as
the case may be, reasonable good faith judgment, such Delinquency Advances will
ultimately be recoverable from the related Mortgage Loans.
(k) The Master Servicer that is being removed or is resigning
shall give notice to the Mortgagors and to the Rating Agencies of the transfer
of the servicing to the successor Master Servicer.
(l) Any successor Master Servicer shall assume all rights and
obligations of the predecessor Master Servicer under this Agreement, except
those arising before succession (other than the obligation to make Delinquency
Advances) and under Section 3.
(m) If the Master Servicer is removed pursuant to Section
11.1(a) or the first paragraph of Section 11.1(b) hereof the Master Servicer
shall remain entitled to reimbursement for Reimbursable Advances to the extent
that the related amounts are thereafter recovered with respect to the related
Mortgage Loans.
Section 11.2. Merger, Conversion, Consolidation or Succession
to Business of Master Servicer. Subject to the immediately succeeding sentence,
any corporation into which the Master Servicer may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Master Servicer shall be a party, or
any corporation succeeding to all or substantially all of the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto provided (x) that such corporation meets the
qualifications set forth in Section 11.1(g) and (y) that any successor Master
Servicer must meet the qualifications set forth in Section 11.1(g). Any
Affiliate into which the Master Servicer may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation of the Master Servicer and an Affiliate, or any
Affiliate succeeding to all or substantially all of the business of the Master
Servicer, shall be the successor of the Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
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ARTICLE XII
MISCELLANEOUS
Section 12.1. Compliance Certificates and Opinions. Upon any
application or request by the Seller or the Owners to the Trustee to take any
action under any provision of this Agreement, the Seller or the Owners, as the
case may be, shall furnish to the Trustee a certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with, except that in the case of any such
application or request as to which the furnishing of any documents is
specifically required by any provision of this Agreement relating to such
particular application or request, no additional certificate need be furnished.
Except as otherwise specifically provided herein, each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; and
(c) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 12.2. Form of Documents Delivered to the Trustee. In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate of an Authorized Officer of the Trustee may be
based, insofar as it relates to legal matters, upon an opinion of counsel,
unless such Authorized Officer knows, or in the exercise of reasonable care
should know, that the opinion is erroneous. Any such certificate of an
Authorized Officer of the Trustee or any opinion of counsel may be based,
insofar as it relates to factual matters upon a certificate or opinion of, or
representations by, one or more Authorized Officers of the Seller
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or of the Master Servicer, stating that the information with respect to such
factual matters is in the possession of the Seller or the Master Servicer,
unless such Authorized Officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous. Any opinion of counsel may also be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an Authorized Officer of the Trustee, stating that
the information with respect to such matters is in the possession of the
Trustee, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous. Any opinion of counsel may be based on the written
opinion of other counsel, in which event such opinion of counsel shall be
accompanied by a copy of such other counsel's opinion and shall include a
statement to the effect that such counsel believes that such counsel and the
Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 12.3. Acts of Owners. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by the Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Owners in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, delivered to and with the consent of the Seller and
the Certificate Insurer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "act" of
the Owners signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee and the
Trust, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
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(c) The ownership of Certificates shall be proved by the
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Owner of any Certificate shall bind the
Owner of every Certificate issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Trust in reliance thereon, whether or
not notation of such action is made upon such Certificates.
Section 12.4. Notices, etc. to Trustee. Any request, demand,
authorization, direction, notice, consent, waiver or act of the Owners or other
documents provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with the Trustee by any Owner or by the Seller shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with and received by the Trustee at its corporate trust office as
set forth in Section 2.2 hereof.
Section 12.5. Notices and Reports to Owners; Waiver of
Notices. Where this Agreement provides for notice to Owners of any event or the
mailing of any report to Owners, such notice or report shall be sufficiently
given (unless otherwise herein expressly provided) if mailed, first-class
postage prepaid, to each Owner affected by such event or to whom such report is
required to be mailed, at the address of such Owner as it appears on the
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice or the mailing of such report. In
any case where a notice or report to Owners is mailed in the manner provided
above, neither the failure to mail such notice or report nor any defect in any
notice or report so mailed to any particular Owner shall affect the sufficiency
of such notice or report with respect to other Owners, and any notice or report
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given or provided.
Where this Agreement provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Owners shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Owners when such notice is required
to be given pursuant to any provision of this Agreement, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
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Where this Agreement provides for notice to any rating agency
that rated any Certificates, failure to give such notice shall not affect any
other rights or obligations created hereunder.
Section 12.6. Rules by Trustee and Seller. The Trustee may
make reasonable rules for any meeting of Owners. The Seller may make reasonable
rules and set reasonable requirements for its functions.
Section 12.7. Successors and Assigns. All covenants and
agreements in this Agreement by any party hereto shall bind its successors and
assigns, whether so expressed or not.
Section 12.8. Severability. In case any provision in this
Agreement or in the Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.9. Benefits of Agreement. Nothing in this Agreement
or in the Certificates, expressed or implied, shall give to any Person, other
than the Owners, the Certificate Insurer and the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
Section 12.10. Legal Holidays. In any case where the date of
any Remittance Date, any Payment Date, any other date on which any distribution
to any Owner is proposed to be paid, or any date on which a notice is required
to be sent to any Person pursuant to the terms of this Agreement shall not be a
Business Day, then (notwithstanding any other provision of the Certificates or
this Agreement) payment or mailing need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made or mailed on the nominal date of any such Remittance Date, such Payment
Date, or such other date for the payment of any distribution to any Owner or the
mailing of such notice, as the case may be, and no interest shall accrue for the
period from and after any such nominal date, provided such payment is made in
full on such next succeeding Business Day.
Section 12.11. Governing Law. This Agreement and each
Certificate shall be construed in accordance with and governed by the laws of
the State of New York applicable to agreements made and to be performed therein.
Section 12.12. Counterparts. This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
Section 12.13. Usury. The amount of interest payable or paid
on any Certificate under the terms of this Agreement shall be limited to an
amount which shall not exceed the maximum nonusurious
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rate of interest allowed by the applicable laws of the State of New York or any
applicable law of the United States permitting a higher maximum nonusurious rate
that preempts such applicable New York laws, which could lawfully be contracted
for, charged or received (the "Highest Lawful Rate"). In the event any payment
of interest on any Certificate exceeds the Highest Lawful Rate, the Trust
stipulates that such excess amount will be deemed to have been paid to the Owner
of such Certificate as a result of an error and the Owner receiving such excess
payment shall promptly, upon discovery of such error or upon notice thereof from
the Trustee on behalf of the Trust, refund the amount of such excess or, at the
option of such Owner, apply the excess to the payment of principal of such
Certificate, if any, remaining unpaid. In addition, all sums paid or agreed to
be paid to the Trustee for the benefit of Owners of Certificates for the use,
forbearance or detention of money shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread throughout the full term of
such Certificates.
Section 12.14. Amendment. The Trustee, the Seller, the Master
Servicer may at any time and from time to time, with the prior written consent
of the Certificate Insurer but without the consent of the Owners, amend this
Agreement, and the Trustee shall consent to such amendment, for the purpose of
(i) curing any ambiguity, or correcting or supplementing any provision hereof
which may be inconsistent with any other provision hereof, or to add provisions
hereto which are not inconsistent with the provisions hereof, (ii) upon receipt
of an opinion of counsel experienced in federal income tax matters to the effect
that no entity-level tax will be imposed on the Trust or upon the transferor of
a Residual Certificate as a result of the ownership of any Residual Certificate
by a Disqualified Organization, removing the restriction on transfer set forth
in Section 5.8(b) hereof or (iii) complying with the requirements of the Code
and the regulations proposed or promulgated thereunder; provided, however, that
any such action shall not, as evidenced by an opinion of counsel delivered to
the Trustee, materially and adversely affect the interests of any Owner or
materially and adversely affect (without its written consent) the rights and
interests of the Certificate Insurer.
This Agreement may also be amended by the Trustee, the Seller,
and the Master Servicer at any time and from time to time, with the prior
written approval of the Certificate Insurer and of not less than 662/3% of the
Percentage Interest represented by each affected Class of Certificates then
Outstanding, for the purpose of adding any provisions or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Owners hereunder; provided, however, that no such
amendment shall (a) change in any manner the amount of, or change the timing of,
payments which are required to be distributed to any Owner without the consent
of the Owner of such Certificate or (b) reduce the aforesaid percentages of
Percentage Interests which are required to consent to any such amendments,
without the consent of
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the Owners of all Certificates of the Class or Classes affected then
Outstanding.
The Trustee shall be entitled to receive upon request, and
shall be fully protected in relying in good faith upon, an opinion of counsel
reasonably acceptable to the Trustee stating that the execution of such
amendment is authorized or permitted by this Agreement.
Promptly after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Owner and to the Rating Agencies.
The Certificate Insurer and the Owners, if they so request,
shall be provided with copies of any amendments to this Agreement, together with
copies of any opinions or other documents or instruments executed in connection
therewith.
The Trustee shall not be required to enter into any amendment
which affects its rights or obligations hereunder.
The definitions of "Group I Specified Subordinated Amount" or
"Group II Specified Subordinated Amount" may be amended by the Seller, the
Master Servicer and the Trustee, with the consent of the Certificate Insurer, in
any respect without the consent of, or notice to, the Owners of any
Certificates; provided, (x) that the Certificate Insurer is not then in default,
(y) that the effect of such change would not be to alter materially (in the
judgment of the Seller) the weighted average life of the related Class A
Certificates and (z) the then-current ratings on the related Class A
Certificates are not thereby reduced.
Section 12.15. The Certificate Insurer. Subject to the
provisions below, the Certificate Insurer is a third party beneficiary of each
provision of this Agreement that creates a right of or benefit to the
Certificate Insurer. Any right conferred to the Certificate Insurer shall not
arise until the issuance by the Certificate Insurer of its certificate insurance
policy and shall be suspended during any period in which the Certificate Insurer
is in default in its payment obligations under such certificate insurance policy
(except that subrogation rights which have previously arisen shall not be so
suspended). During the period of any such suspension, such rights shall vest in
the Owners of the Class A Certificates, and may be exercised by the Owners of a
majority in Percentage Interest of each Class of Class A Certificates then
Outstanding or, if there are no Class A Certificates then Outstanding, by such
Percentage Interest represented by the Class B Certificates then Outstanding.
Section 12.16. REMIC Status; Taxes. (a) The Tax Matters Person
shall prepare and file or cause to be filed with the Internal Revenue Service
Federal tax or information returns with respect to each REMIC and the
Certificates containing such
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information and at the times and in such manner as may be required by the Code
or applicable Treasury regulations, and shall furnish to Owners such statements
or information at the times and in such manner as may be required thereby. For
this purpose, the Tax Matters Person may, but need not, rely on any proposed
regulations of the United States Department of the Treasury. The Tax Matters
Person shall indicate the election to treat each REMIC as a REMIC (which
election shall apply to the taxable period ending ________ ________ and each
calendar year thereafter) in such manner as the Code or applicable Treasury
regulations may prescribe. The Trustee, as Tax Matters Person appointed pursuant
to Section 12.18 hereof shall sign all tax information returns filed pursuant to
this Section 12.16. The Tax Matters Person shall provide information necessary
for the computation of tax imposed on the transfer of a Residual Certificate to
a Disqualified Organization, or an agent of a Disqualified Organization, or a
pass-through entity in which a Disqualified Organization is the record holder of
an interest. The Trustee shall not be required to file a separate tax return for
the Supplemental Interest Trust.
(b) The Tax Matters Person shall timely file all reports
required to be filed by the Trust with any federal, state or local governmental
authority having jurisdiction over the Trust, including other reports that must
be filed with the Owners, such as the Internal Revenue Service's Form 1066 and
Schedule Q and the form required under Section 6050K of the Code, if applicable
to REMICs. Furthermore, the Tax Matters Person shall report to Owners, if
required, with respect to the allocation of expenses pursuant to Section 212 of
the Code in accordance with the specific instructions to the Tax Matters Person
by the Seller with respect to such allocation of expenses. The Tax Matters
Person shall collect any forms or reports from the Owners determined by the
Seller to be required under applicable federal, state and local tax laws.
(c) The Tax Matters Person shall provide to the Internal
Revenue Service and to persons described in Section 860E(e)(3) and (6) of the
Code the information described in Treasury Regulation Section
1.860D-1(b)(5)(ii), or any successor regulation thereto. Such information will
be provided in the manner described in Treasury Regulation Section
1.860E-2(a)(5), or any successor regulation thereto.
(d) The Seller covenants and agrees that within ten Business
Days after the Startup Day it will provide to the Trustee any information
necessary to enable the Trustee to meet its obligations under subsections (b)
and (c) above.
(e) The Trustee, the Master Servicer and the Seller each
covenants and agrees for the benefit of the Owners (i) to take no action which
would result in the termination of "REMIC" status for either REMIC, (ii) not to
engage in any "prohibited transaction", as such term is defined in Section
860F(a)(2) of the Code and (iii)
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not to engage in any other action which may result in the imposition on the
Trust of any other taxes under the Code, including, without limitation, for
purposes of this paragraph any alteration, modification, amendment, extension,
waiver or forbearance with respect to any Mortgage Loan.
(f) The Trust shall, for federal income tax purposes, maintain
books on a calendar year basis and report income on an accrual basis.
(g) No Eligible Investment shall be sold prior to its stated
maturity (unless sold pursuant to a plan of liquidation in accordance with
Article VIII hereof).
(h) Neither the Seller nor the Trustee shall enter into any
arrangement by which the Trustee will receive a fee or other compensation for
services rendered pursuant to this Agreement, which fee or other compensation is
paid from the Trust Estate, other than as expressly contemplated by this
Agreement.
(i) Notwithstanding the foregoing clauses (g) and (h), the
Trustee or the Seller may engage in any of the transactions prohibited by such
clauses, provided that the Trustee shall have received an opinion of counsel
experienced in federal income tax matters to the effect that such transaction
does not result in a tax imposed on the Trustee or cause a termination of REMIC
status for either REMIC; provided, however, that such transaction is otherwise
permitted under this Agreement.
Section 12.17. Additional Limitation on Action and Imposition
of Tax. (a) Any provision of this Agreement to the contrary notwithstanding, the
Trustee shall not, without having obtained an opinion of counsel experienced in
federal income tax matters to the effect that such transaction does not result
in a tax imposed on the Trust or cause a termination of REMIC status for either
REMIC, (i) sell any assets in the Trust Estate, (ii) accept any contribution of
assets after the Startup Day or (iii) agree to any modification of this
Agreement.
(b) In the event that any tax is imposed on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" as defined in Section 860G(c) of the Code, on any
contribution to either REMIC after the Startup Day pursuant to Section 860G(d)
of the Code, or any other tax is imposed, such tax shall be paid by (i) the
Trustee, if such tax arises out of or results from the Trustee's negligence or
willful misconduct, (ii) the Master Servicer, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations under
this Agreement, or otherwise (iii) the Owners of the Residual Certificates in
proportion to their Percentage Interests. To the extent such tax is chargeable
against the Owners of the Residual Certificates, notwithstanding anything to the
contrary contained herein, the Trustee is hereby authorized to
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retain from amounts otherwise distributable to the Owners of the Residual
Certificates on any Payment Date sufficient funds for the payment of such tax.
Section 12.18. Appointment of Tax Matters Person. A Tax
Matters Person will be appointed by the Owners of the Residual Certificates for
all purposes of the Code and such Tax Matters Person will perform, or cause to
be performed, such duties and take, or cause to be taken, such actions, as are
required to be performed or taken by the Tax Matters Person under the Code. The
Trustee hereby agrees to act as the Tax Matters Person (and the Trustee is
hereby appointed by the Owners of the Residual Certificates as the Tax Matters
Person) for each REMIC held by the Trust.
Section 12.19. Notices. All notices hereunder shall be given
as follows, until any superseding instructions are given to all other Persons
listed below:
The Trustee: ________________________________
_____________
________________________________
________________________________
Attention: __________________________
Access Financial Mortgage
Loan Trust ______
Tel: ______________
Fax: ______________
The Certificate
Insurer : ____________________________________
____________
________________________
Attention: General Counsel
Tel: ______________
Fax: ______________
Underwriters: __________________________
____________
__________________________
__________________________
Tel: ____________
Fax: ____________
The Seller: Access Financial Lending Corp.
and Master 12800 Whitewater Drive
Servicer Suite 200
Minnetonka, Minnesota 55343
Attention: Operations
Tel: (612) 984-0968
Fax: (612) 984-0877
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Section 12.20. Grant of Security Interest. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans and all
other assets constituting the Trust Estate by the Seller to the Trust be, and be
construed as, a sale of the Mortgage Loans and such other assets constituting
the Trust Estate by the Seller and not a pledge by the Seller to secure a debt
or other obligation of the Seller. However, in the event that, notwithstanding
the aforementioned intent of the parties, the Mortgage Loans and other assets
constituting the Trust Estate are held to be property of the Seller, then (a) it
is the express intent of the parties that such conveyance be deemed as a pledge
of the Mortgage Loans and all other assets constituting the Trust Estate to the
Trust to secure a debt or other obligation of the Seller and this Agreement
shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code and the conveyance provided for in Section 3.3 hereof shall be
deemed a grant by the Seller to the Trust of a security interest in all of the
Seller's right, title and interest in and to the Mortgage Loans and all other
assets constituting the Trust Estate.
Accordingly, the Seller hereby grants to the Trustee a
security interest in the Mortgage Loans and all other assets constituting the
Trust Estate for the purpose of securing to the Trust the performance by the
Seller of the obligations under this Agreement. Notwithstanding the foregoing,
the parties hereto intend the conveyance pursuant to Section 3.3 to be a true,
absolute and unconditional sale of the Mortgage Loans and all other assets
constituting the Trust Estate by the Seller to the Trust, the Seller shall take
such actions, and the Trustee shall take such actions as directed by the Seller,
as may be necessary to ensure that if this Agreement were deemed to create a
security interest, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such for the term of this Agreement. Without limiting the generality of the
foregoing, the Trustee shall file, or shall cause to be filed, all filings
necessary to maintain the effectiveness of any original filings necessary under
the Uniform Commercial Code to perfect the Trustee's security interest in or
lien on the Mortgage Loans for the benefit of the Owners, including, without
limitation, (x) continuation statements and (y) such other statements as may be
occasioned by (i) any change of name of the Seller or Trustee, (ii) any change
of location of the place of business or the chief executive office of the Seller
or (iii) any transfer of any interest of the Seller in any Mortgage Loan;
provided, however, that with respect to clauses (i) through (iii) above, the
Seller shall notify the Trustee of any changes related thereto. The Trustee
shall be reimbursed by the Seller for all such filing costs.
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Section 12.21. Indemnification.
(a) The Master Servicer agrees to indemnify and hold the
Trustee, the Certificate Insurer, each Certificateholder harmless against any
and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and any other reasonable costs, fees and expenses that
were caused by (i) the failure of the Master Servicer to perform its duties and
service the Mortgage Loans in compliance with the terms of this Agreement and
the Servicing Standards and (ii) a breach of any of the Master Servicer's
representations, covenants and warranties contained in this Agreement. This
indemnity shall survive the termination of this Agreement and the payment of the
Mortgage Loans, provided, that the Master Servicer shall have no liability to
indemnify any such indemnified party under this Agreement to the extent that any
such losses, penalties, fines, forfeitures, costs, fees, judgments, liabilities,
damages, claims or expenses were caused by the negligence, willful misconduct or
bad faith of such indemnified party. If the Master Servicer shall have made any
indemnity payment pursuant to this Section 12.21(a) and the recipient thereafter
collects from another Person any amount relating to the matters covered by the
foregoing indemnity, the recipient shall promptly repay such amount to the
Master Servicer.
Promptly after receipt by any of the above-mentioned
indemnified parties of notice of any claim or commencement of any action
discussed above, such indemnified party shall, if a claim in respect thereof is
to be made against the Master Servicer, promptly notify the Master Servicer in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the Master Servicer shall not relieve it from any
liability which it may have under this Section 12.21(a) except to the extent it
has been materially prejudiced by such failure; and provided, further, that the
failure to notify the Master Servicer shall not relieve it from any liability
which it may have to the above-mentioned indemnified parties otherwise than
under this Section 12.21(a).
(b) The Seller agrees to indemnify and hold the Master
Servicer, the Certificate Insurer, the Trustee, each Certificateholder harmless
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments and other reasonable costs, fees and
expenses that were caused by (i) the failure of the Seller to perform its duties
in accordance with the terms of this Agreement or (ii) a breach of any of the
Seller's representations, covenants, and warranties contained in this Agreement.
This indemnity shall survive the termination of this Agreement and the payment
of the Mortgage Loans; provided, that the Seller shall have no liability to
indemnify
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any such indemnified party under this Agreement to the extent that any such
losses, penalties, fines, forfeitures, costs, fees and judgments, liabilities,
damages, claims or expenses were caused by the negligence, willful misconduct or
bad faith of such indemnified party. If the Seller shall have made any indemnity
payment pursuant to this Section 12.21 and the recipient thereafter collects
from another Person any amount relating to the matters covered by the foregoing
indemnity, the recipient shall promptly repay such amount to the Seller.
Promptly after receipt by any of the above-mentioned
indemnified parties of notice of any claim or commencement of any action
discussed above, such indemnified party shall, if a claim in respect thereof is
to be made against the Seller, promptly notify the Seller in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the Seller shall not relieve it from any liability which it may have
under this Section 12.21(b) except to the extent it has been materially
prejudiced by such failure; and provided, further, that the failure to notify
the Seller shall not relieve it from any liability which it may have to the
above-mentioned indemnified parties otherwise than under this Section 12.21(b).
(c) The Seller hereby covenants and agrees to indemnify,
exonerate and hold the Master Servicer, the Trustee, the Trust Estate, the
Owners, their respective directors, officers, agents and employees
(collectively, the "Indemnified Persons") harmless from and against any and all
damages, losses, liabilities, obligations, penalties, fines, claims, litigation,
demands, defenses, judgments, suits, proceedings, costs, disbursements or
expenses (including, without limitation, reasonable attorneys' and experts' fees
and disbursements as they become due and without waiting for the ultimate
outcome of the matter) of any kind or of any nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against any Indemnified
Person arising from or out of any Hazardous Substances (as defined below) on,
in, under or affecting all or any portion of any of the Properties. The matters
covered by the foregoing indemnity shall include, without limitation, all of the
following: (i) the costs of removal of any and all Hazardous Substances from all
or any portion of the Properties or any adjacent property, (ii) the costs
required to take necessary precautions to protect against the release of
Hazardous Substances on, in, under or affecting any of the Properties into the
air, ground, water, other public domain or any adjacent property to the extent
required by applicable Environmental Laws or any governmental authority,
including, without limitation, the costs and expenses of environmental testing
and assessments, and (iii) the costs incurred to comply, in connection with all
or any portion of the Properties, with all applicable Environmental Laws,
including
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without limitation fines, penalties, and administrative and overhead costs
charged by any governmental entity.
The obligations of the Seller under this Section to compensate
the Indemnified Persons and to reimburse them for expenses (including, without
limitation, litigation expenses), disbursements and advances shall survive the
termination of this Agreement and the resignation or removal of the Trustee, and
continue thereafter for so long as any liability or expenses indemnified against
may be imposed under applicable Environmental Law (as defined below) against any
Indemnified Person.
(d) In no event shall any Person be indemnified for any
losses, expenses, damages, claims or liabilities incurred by such Person by
reason of such Person's (or such Person's agents) willful malfeasance, bad faith
or negligence.
"Hazardous Substance" shall include, without limitation: (i)
those substances included within the definitions of one or more of the terms
"hazardous substances," "hazardous materials" and "toxic substances" in CERCLA,
RCRA, and the Hazardous Materials Transportation Act, as amended, 49 U.S.C.
'ss''ss' 1801 et seq., and in the regulations promulgated pursuant to said laws
under applicable law; (ii) those substances listed in the United States
Department of Transportation Table (49 CFR 172 1 01 and amendments thereto) or
by the Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); (iii) such other
substances, materials and wastes as are or become regulated under applicable
local, state or Federal laws or regulations, or which are classified as
hazardous or toxic under Federal, state, or local laws or regulations; and (iv)
any material, waste or substance which is (a) petroleum; (b) friable asbestos;
(c) polychlorinated biphenyls; (d) designated as a "Hazardous Substance"
pursuant to Section 311 of the Clean Water Act, as amended, 13 U.S.C. 'ss''ss'
1321 et seq. (33 U.S.C. 'ss''ss' 1321) or designated as "toxic pollutants"
subject to Chapter 26 of the Clean Water Act pursuant to Section 307 of the
Clean Water Act (33 U.S.C. 'ss''ss' 1317); (e) flammable explosive; or (f)
radioactive materials.
"Environmental Law" shall mean any Federal, state or local
statute, law, regulation, order, consent decree, judgment, permit, license,
code, covenant, deed restriction, common law, ordain or other requirement
relating to public health, safety or the environment, including, without
limitation, those relating to releases, discharges or emissions to air, water,
land or ground water, to the withdrawal or use of groundwater, to the use and
handling of polychlorinated biphenyls or asbestos, to the disposal, treatment,
storage or management of hazardous or solid waste,
156
or Hazardous Substances or crude oil, or any fraction thereof, or to exposure to
toxic hazardous materials, to the handling, transportation, discharge or release
of gaseous or liquid Hazardous Substances and any regulation, order, notice or
demand issued pursuant to such law, statute or ordinance, in each case
applicable to the property of Borrower or the operation, construction or
modification of any thereof, including without limitation the following: CERCLA,
the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and the Hazardous and Sold Waste Amendments of 1984, the
Hazardous Materials Transportation Act, as amended, the Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1976, the Safe Drinking Water
Control Act, the Clean Air Act of 1966, as amended, the Toxic Substances Control
Act of 1976, the Occupational Safety and Health Act of 1977, as amended, the
Emergency Planning and Community Right-to-Know Act of 1986, the National
Environmental Policy Act of 1975 and the Oil Pollution Act of 1990 and any
similar or implementing state law, and any state statute and any further
amendments to these laws, providing for financial responsibility for cleanup or
other actions with respect to the release or threatened release of Hazardous
Substances or crude oil, or any fraction thereof and all rules, regulations,
guidance documents and publication promulgated thereunder.
[Except for these words (and the accompanying punctuation) the
rest of this page has been intentionally left blank.]
157
IN WITNESS WHEREOF, ____________ the Seller, the Master
Servicer and the Trustee have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized, all as of the day and year first
above written.
__________________________
__________________________
__________________________
__________________________
ACCESS FINANCIAL LENDING CORP.,
as Seller
By:______________________________
Name: Leslie Zejdlik Foster
Title: President
ACCESS FINANCIAL LENDING CORP.,
as Master Servicer
By:______________________________
Name: Leslie Zejdlik Foster
Title: President
________________________
________________________
By:______________________________
Name: ____________________
Title: ____________________
[Pooling and Servicing Agreement]
__________________ )
: ss.:
__________________ )
On the ____ day of _________ before me personally came
________________________, to me known, who, being by me duly sworn did depose
and say that her office is located at __________________________________________
that she is a Corporate Trust Officer of ____________
________________________________ the national banking association described in
and that executed the above instrument as Trustee; and that ___ signed ___ name
thereto by order of the Board of Directors of said national banking association.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
_________________________________
Notary Public
[Pooling and Servicing Agreement]
__________________ )
: ___:
__________________ )
On the ____ day of _________, before me personally came
Kenneth M. Duncan, to me known, who, being by me duly sworn did depose and say
that his office is located at _________________________________________________,
that he is the _________________________________________________________________
________________________________________________________________________________
___________________________________________________ which is described in and
which executed the above instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
_________________________________
Notary Public
[Pooling and Servicing Agreement]
STATE OF MINNESOTA )
: ss.:
COUNTY OF HENNEPIN )
On the ____ day of __________, before me personally came
____________________, to me known, who, being by me duly sworn did depose and
say that ___ office is located at ____________________, that ___ is the
President of Access Financial Lending Corp., a Delaware corporation which is
described in and which executed the above instrument; and that ___ signed her
name thereto by order of the Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
_________________________________
Notary Public
[Pooling and Servicing Agreement]
EXHIBIT A-1
ACCESS FINANCIAL MORTGAGE LOAN TRUST ______
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-1 GROUP I
(Variable Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., __________________________, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-1-1 ________________
Date
__________________ ____________________ ________________
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp., a Delaware corporation, and held in trust by ____________________________
_________________________, a national banking association, as trustee (the
"Trustee"), on behalf of Access Financial Mortgage Loan Trust ________________
(the "Trust") pursuant to that certain Pooling and Servicing Agreement dated as
of __________________________ (the "Pooling and Servicing Agreement") by and
among Access Financial Lending Corp., as seller (the "Seller") and as master
servicer (the "Master Servicer"), and the Trustee, (ii) such amounts, including
Eligible Investments, as from time to time may be held by the Trustee in the
Accounts held by the Trustee pursuant to the Pooling and Servicing Agreement or
by the Master Servicer or any Sub-Servicer in the Principal and Interest Account
created pursuant to the Pooling and Servicing Agreement, or otherwise held by
the Master Servicer or any Sub-Servicer in trust for the Owners (except as
otherwise provided in the Pooling and Servicing Agreement), (iii) any Property,
the ownership of which has been effected in the name of the Master Servicer or
any Sub-Servicer on behalf of the Trust as a result of foreclosure or acceptance
by the Master Servicer or a Sub-Servicer of a deed in lieu of foreclosure and
that has not been withdrawn from the Trust, (iv) the rights, if any, of the
Trust in any Insurance Policy relating to the Mortgage Loans, (v) Net Proceeds
(but only to the extent such Net Proceeds do not exceed the sum of the Principal
Balance of the related Mortgage Loan plus accrued and unpaid interest on such
Mortgage Loan), and (vi) the Certificate Insurance Policy. Such Mortgage Loans
and other amounts and property enumerated above are hereinafter referred to as
the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-1 Group I Certificates on
_______________________ (the "Startup Day"), which aggregate amount on
____________________ was _____________________. The Owner hereof is entitled to
principal payments on each Payment Date, as hereinafter described, which will
fully amortize such Original Principal Amount over the period from the date of
initial delivery hereof to the final Payment Date of the Class A-1 Group I
Certificates. The Class A Certificates have been tranched into five "sequential
pay" Classes, such that the Class A-5 Group I Certificates are entitled to
receive no principal distributions until the Class A-4 Principal Balance has
been reduced to zero, the Class A-4 Group I Certificates are entitled to receive
no principal distributions until the Class A-3 Principal Balance has been
reduced to zero, the Class A-3 Group I Certificates are entitled to receive no
principal distributions until the Class A-2 Principal Balance has been
A-1-2
reduced to zero and the Class A-2 Group I Certificates are entitled to receive
no principal distributions until the Class A-1 Principal Balance has been
reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust _______________,
Mortgage Loan Pass-Through Certificates, Class A-1 Group I (the "Class A-1 Group
I Certificates") and issued under and subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Owner of this Certificate by virtue of acceptance hereof
assents and by which such Owner is bound. Also issued under the Pooling and
Servicing Agreement are Certificates designated as Access Financial Mortgage
Loan Trust __________________, _________________________ Mortgage Loan
Pass-Through Certificates, Class A-2 Group I (the "Class A-2 Group I
Certificates"), Access Financial Mortgage Loan Trust
______________________________ Mortgage Loan Pass-Through Certificates, Class
A-3 Group I (the "Class A-3 Group I Certificates"), Access Financial Mortgage
Loan Trust _______________, __________________ Mortgage Loan Pass-Through
Certificates, Class A-4 Group I (the "Class A-4 Group I Certificates"), Access
Financial Mortgage Loan Trust _____________________________ Mortgage Loan
Pass-Through Certificates, Class A-5 Group I (the "Class A-5 Group I
Certificates"), Access Financial Mortgage Loan Trust ________________________
Mortgage Loan Pass-Through Certificates, Class A-6 Group II (the "Class A-6
Group II Certificates"), Access Financial Mortgage Loan Trust
_____________________________, Mortgage Loan Pass-Through Certificates, Class B
Group I Certificates (the "Class B Group
A-1-3
I Certificates"), Access Financial Mortgage Loan Trust ___________________,
Mortgage Loan Pass-Through Certificates, Class B Group II (the "Class B Group II
Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class BI-S (the "Class BI-S
Certificates") and Class BII-S (the "Class BII-S Certificates"), and Access
Financial Mortgage Loan Trust _________________________, Mortgage Loan
Pass-Through Certificates, Class RL and Class RU (the "Residual Certificates").
The Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the
Class A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class
A-5 Group I Certificates, the Class A-6 Group II Certificates (collectively, the
"Class A Certificates"), the Class B Group I Certificates, the Class B Group II
Certificates, the Class BI-S Certificates, the Class BII-S Certificates and the
Residual Certificates are collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing
Agreement, each Class of Certificates has a specified priority to the
collections on the related Pool of Mortgage Loans which comprise the related
Available Funds. In addition, __________________________________, as Certificate
Insurer, is required pursuant to the Certificate Insurance Policy to make
available to the Trustee on each Payment Date 100% of the amount required to be
distributed to the Owners of each Class of Class A Certificates on each Payment
Date.
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing __________________________ , the Owners of the Class A-2 Group
I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing ________________________, the Owners of the Class A-1
Group I Certificates and the Class A-6 Group II Certificates as of the close of
business on the Business Day immediately preceding such Payment Date occurs (for
the Class A-1 Group I Certificates and the Class A-6 Group II Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount or
the Class A-6 Distribution Amount, respectively, relating to such Payment Date.
Distributions
A-1-4
will be made in immediately available funds to Owners of Certificates, by wire
transfer or otherwise, to the account of an Owner at a domestic bank or other
entity having appropriate facilities therefor, if such Owner has so notified the
Trustee, or by check mailed to the address of the person entitled thereto as it
appears on the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, and Class A-6 Group II Certificate
will be entitled to receive such Owner's Percentage Interest in the amounts due
on such Payment Date to the Owners of the Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, the Class A-4 Group I
Certificate, the Class A-5 Group I Certificate, and a Class A-6 Group II
Certificate, respectively.
The Percentage Interest of each Class A-1 Group I Certificate
as of any date of determination will be equal to the percentage obtained by
dividing the Original Principal Amount set forth on such Class A-1 Group I
Certificate by _______________________________.
The Class A-1 Distribution Amount for any Payment Date will be
an amount equal to the Class A-1 Interest Distribution Amount for such Payment
Date, the Class A-1 Principal Distribution for such Payment Date, the Class A-1
Interest Carry-Forward Amount for such Payment Date and the Class A-1 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy,
_____________________________________ (the "Certificate Insurer") is required,
to the extent of any insufficiency in the related Available Funds, to make
Insured Payments available to the Trustee necessary to deposit the full amount
of the related Insured Distribution Amount to the Distribution Account (other
than amounts to be paid to the Certificate Insurer) on each Payment Date.
Pursuant to the Pooling and Servicing Agreement, from amounts on deposit in the
related Distribution Account, the Class A-1 Distribution Amount will be
distributed to the Owners of the Class A-1 Group I Certificates. The Certificate
Insurer will be subrogated to the rights of the Owners of the Class A-1 Group I
Certificates with respect to the related Insured Payments.
The Owner of this Certificate is required to notify the
Trustee promptly in writing upon the receipt of a court order pursuant to which
any amount received by the Owners of the Class A-1 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
A-1-5
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., ____________________________,
any Sub-Servicer, or any of their respective subsidiaries and affiliates and are
not insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other
A-1-6
liquidation (or any advance made with respect thereto) of the last Mortgage Loan
in the Trust Estate or (b) the disposition of all property acquired in respect
of any Mortgage Loan remaining in the Trust Estate or (ii) at any time when a
Qualified Liquidation of the Upper-Tier REMIC and the Lower-Tier REMIC is
effected as described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
The Trustee is required to give written notice of termination
of the Pooling and Servicing Agreement to each Owner in the manner set forth
therein.
The Owners of a majority of the Percentage Interests
represented by any Class of Class A Certificates, or if there are no Class A
Certificates then Outstanding, by such Percentage Interest represented by the
Class B Certificates then Outstanding, upon compliance with the requirements set
forth in the Pooling and Servicing Agreement, have the right to exercise any
trust or power set forth in the Pooling and Servicing Agreement with respect to
the Certificates or the Trust Estate.
As provided in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
A-1-7
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-1 Group I Certificates are issuable only as
registered Certificates in denominations of $1,000 original principal amount and
integral multiples of $1,000 in excess thereof (except for one odd Certificate).
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-1 Group I Certificates are exchangeable
for new Class A-1 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee nor any such agent shall be affected by notice
to the contrary, except as may otherwise be specifically provided in the Pooling
and Servicing Agreement with respect to the Certificate Insurer.
A-1-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
____________________________________
____________________, as Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
______________________,
_____________________, as
Trustee
By: _________________________
Title: ______________________
Dated: ______________________
A-1-9
EXHIBIT A-2
ACCESS FINANCIAL MORTGAGE LOAN TRUST ______
__________ MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-2 GROUP I
(______ Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., ________________________________________, any
Sub-Servicer or any of their respective subsidiaries and affiliates. This
Certificate represents a fractional ownership interest in the Trust Estate
described herein, moneys in the Principal and Interest Account or otherwise held
by the Master Servicer or any Sub-Servicer in trust for the Owners (except as
otherwise provided in the Pooling and Servicing Agreement) and certain other
rights relating thereto and is payable only from amounts received by the Trustee
(i) relating to the Mortgage Loans held by the Trust and (ii) pursuant to the
Certificate Insurance Policy.)
No.: A-2-1 _____________
Date
__________________ ____________________ ________________
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp., a Delaware corporation, and held in trust by _________________________, a
national banking association, as trustee (the "Trustee"), on behalf of Access
Financial Mortgage Loan Trust __________________ (the "Trust") pursuant to that
certain Pooling and Servicing Agreement dated as of ______________________ (the
"Pooling and Servicing Agreement") by and among Access Financial Lending Corp.,
as seller (the "Seller") and as master servicer (the "Master Servicer"), and the
Trustee, (ii) such amounts, including Eligible Investments, as from time to time
may be held by the Trustee in the Accounts held by the Trustee pursuant to the
Pooling and Servicing Agreement or by the Master Servicer or any Sub-Servicer in
the Principal and Interest Account created pursuant to the Pooling and Servicing
Agreement, or otherwise held by the Master Servicer or any Sub-Servicer in trust
for the Owners (except as otherwise provided in the Pooling and Servicing
Agreement), (iii) any Property, the ownership of which has been effected in the
name of the Master Servicer or any Sub-Servicer on behalf of the Trust as a
result of foreclosure or acceptance by the Master Servicer or a Sub-Servicer of
a deed in lieu of foreclosure and that has not been withdrawn from the Trust,
(iv) the rights, if any, of the Trust in any Insurance Policies relating to the
Mortgage Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do
not exceed the sum of the Principal Balance of the related Mortgage Loan plus
accrued and unpaid interest on such Mortgage Loan), and (vi) the Certificate
Insurance Policy. Such Mortgage Loans and other amounts and property enumerated
above are hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-2 Group I Certificates on
______________________ (the "Startup Day"), which aggregate amount on
_______________________ was _____________________ . The Owner hereof is entitled
to principal payments on each Payment Date, as hereinafter described, which will
fully amortize such Original Principal Amount over the period from the date of
initial delivery hereof to the final Payment Date of the Class A-2 Group I
Certificates. The Class A Certificates have been tranched into five "sequential
pay" Classes, such that the Class A-5 Group I Certificates are entitled to
receive no principal distributions until the Class A-4 Principal Balance has
been reduced to zero, the Class A-4 Group I Certificates are entitled to receive
no principal distributions until the Class A-3 Principal Balance has been
reduced to zero, the Class A-3 Group I Certificates are entitled to receive no
principal distributions until the Class A-2 Principal Balance has been
A-2-2
reduced to zero and the Class A-2 Group I Certificates are entitled to receive
no principal distributions until the Class A-1 Principal Balance has been
reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust ______________,
_____________ Mortgage Loan Pass-Through Certificates, Class A-2 Group I (the
"Class A-2 Group I Certificates"), and issued under and subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Also issued under
the Pooling and Servicing Agreement are Certificates designated as Access
Financial Mortgage Loan Trust ____________________, Mortgage Loan Pass-Through
Certificates, Class A-1 Group I (the "Class A-1 Group I Certificates"), Access
Financial Mortgage Loan Trust _____________________ Mortgage Loan Pass-Through
Certificates, Class A-3 Group I (the "Class A-3 Group I Certificates"), Access
Financial Mortgage Loan Trust _____________________ Mortgage Loan Pass-Through
Certificates, Class A-4 Group I (the "Class A-4 Group I Certificates"), Access
Financial Mortgage Loan Trust ___________________ Mortgage Loan Pass-Through
Certificates, Class A-5 Group I (the "Class A-5 Group I Certificates"), Access
Financial Mortgage Loan Trust ____________________ Mortgage Loan Pass-Through
Certificates, Class A-6 Group II (the "Class A-6 Group II Certificates"), Access
Financial Mortgage Loan Trust _____________________, Mortgage Loan Pass-Through
Certificates, Class B Group I Certificates (the "Class B Group I Certificates"),
Access
A-2-3
Financial Mortgage Loan Trust ______________, Mortgage Loan Pass-Through
Certificates, Class B Group II (the "Class B Group II Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class BI-S (the "Class BI-S Certificates") and Class BII-S (the
"Class BII-S Certificates"), and Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class RL and Class
RU (the "Residual Certificates"). The Class A-1 Group I Certificates, the Class
A-2 Group I Certificates, the Class A-3 Group I Certificates, the Class A-4
Group I Certificates, the Class A-5 Group I Certificates, the Class A-6 Group II
Certificates (collectively, the "Class A Certificates"), the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates,
the Clas BII-S Certificates and the Residual Certificates are collectively
referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing
Agreement, each Class of Certificates has a specified priority to the
collections on the related Pool of Mortgage Loans which comprise the related
Available Funds. In addition, ___________________________ , as Certificate
Insurer, is required pursuant to the Certificate Insurance Policy to make
available to the Trustee on each Payment Date 100% of the amount required to be
distributed to the Owners of each Class of Class A Certificates on each Payment
Date.
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the _____ day of each month, or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date") commencing __________________ , the Owners of the Class A-2
Group I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing __________________, the Owners of the Class A-1 Group I
Certificates and the Class A-6 Group II Certificates as of the close of business
on the Business Day immediately preceding such Payment Date occurs (for the
Class A-1 Group I Certificates and the Class A-6 Group II Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount or
the Class A-6 Distribution Amount, respectively, relating to such Payment Date.
Distributions will be made in immediately available funds to Owners of
A-2-4
Certificates, by wire transfer or otherwise, to the account of an Owner at a
domestic bank or other entity having appropriate facilities therefor, if such
Owner has so notified the Trustee, or by check mailed to the address of the
person entitled thereto as it appears on the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, and Class A-6 Group II Certificate
will be entitled to receive such Owner's Percentage Interest in the amounts due
on such Payment Date to the Owners of the Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, the Class A-4 Group I
Certificate, the Class A-5 Group I Certificate, and a Class A-6 Group II
Certificate, respectively.
The Percentage Interest of each Class A-2 Group I Certificate
as of any date of determination will be equal to the percentage obtained by
dividing the Original Principal Amount set forth on such Class A-2 Group I
Certificate by ___________________________________.
The Class A-2 Distribution Amount for any Payment Date will be
an amount equal to the Class A-2 Interest Distribution Amount for such Payment
Date, the Class A-2 Principal Distribution for such Payment Date, the Class A-2
Interest Carry-Forward Amount for such Payment Date and the Class A-2 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy,
_______________________ (the "Certificate Insurer") is required, to the extent
of any insufficiency in the related Available Funds, to make Insured Payments
available to the Trustee necessary to deposit the full amount of the related
Insured Distribution Amount to the Distribution Account (other than amounts to
be paid to the Certificate Insurer) on each Payment Date. Pursuant to the
Pooling and Servicing Agreement, from amounts on deposit in the related
Distribution Account, the Class A-2 Distribution Amount will be distributed to
the Owners of the Class A-2 Group I Certificates. The Certificate Insurer will
be subrogated to the rights of the Owners of the Class A-2 Group I Certificates
with respect to the related Insured Payments.
The Owner of this Certificate is required to notify the
Trustee promptly in writing upon the receipt of a court order pursuant to which
any amount received by the Owners of the Class A-2 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and
A-2-5
is required to enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp.,
___________________________________, any Sub-Servicer, or any of their
respective subsidiaries and affiliates and are not insured or guaranteed by the
Federal Deposit Insurance Corporation, the Government National Mortgage
Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other liquidation
(or any advance made with respect thereto) of the
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last Mortgage Loan in the Trust Estate or (b) the disposition of all property
acquired in respect of any Mortgage Loan remaining in the Trust Estate or (ii)
at any time when a Qualified Liquidation of the Upper-Tier REMIC and the Lower-
Tier REMIC is effected as described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
The Trustee is required to give written notice of termination
of the Pooling and Servicing Agreement to each Owner in the manner set forth
therein.
The Owners of a majority of the Percentage Interests
represented by any Class of Class A Certificates, or if there are no Class A
Certificates then Outstanding, by such Percentage Interest represented by the
Class B Certificates then Outstanding, upon compliance with the requirements set
forth in the Pooling and Servicing Agreement, have the right to exercise any
trust or power set forth in the Pooling and Servicing Agreement with respect to
the Certificates or the Trust Estate.
As provided in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
A-2-7
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-2 Group I Certificates are issuable only as
registered Certificates in denominations of $1,000 original principal amount and
integral multiples of $1,000 in excess thereof (except for one odd Certificate).
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-2 Group I Certificates are exchangeable
for new Class A-2 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee nor any such agent shall be affected by notice
to the contrary, except as may otherwise be specifically provided in the Pooling
and Servicing Agreement with respect to the Certificate Insurer.
A-2-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
________________________________
_____________, as Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
______________________,
_____________________, as
Trustee
By: _________________________
Title: ______________________
Dated: ____________________
A-2-9
EXHIBIT A-3
ACCESS FINANCIAL MORTGAGE LOAN TRUST _____
________ MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-3 GROUP I
(______ Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., ___________________________________ , any Sub-
Servicer or any of their respective subsidiaries and affiliates. This
Certificate represents a fractional ownership interest in the Trust Estate
described herein, moneys in the Principal and Interest Account or otherwise held
by the Master Servicer or any Sub-Servicer in trust for the Owners (except as
otherwise provided in the Pooling and Servicing Agreement) and certain other
rights relating thereto and is payable only from amounts received by the Trustee
(i) relating to the Mortgage Loans held by the Trust and (ii) pursuant to the
Certificate Insurance Policy.)
No.: A-3-1 _______________
Date
__________________ ____________________ ________________
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp., a Delaware corporation, and held in trust by __________________ , a
national banking association, as trustee (the "Trustee"), on behalf of Access
Financial Mortgage Loan Trust __________________ (the "Trust") pursuant to that
certain Pooling and Servicing Agreement dated as of __________________ (the
"Pooling and Servicing Agreement") by and among Access Financial Lending Corp.,
as seller (the "Seller") and as master servicer (the "Master Servicer"), and the
Trustee, (ii) such amounts, including Eligible Investments, as from time to time
may be held by the Trustee in the Accounts held by the Trustee pursuant to the
Pooling and Servicing Agreement or by the Master Servicer or any Sub-Servicer in
the Principal and Interest Account created pursuant to the Pooling and Servicing
Agreement, or otherwise held by the Master Servicer or any Sub-Servicer in trust
for the Owners (except as otherwise provided in the Pooling and Servicing
Agreement), (iii) any Property, the ownership of which has been effected in the
name of the Master Servicer or a Sub-Servicer on behalf of the Trust as a result
of foreclosure or acceptance by the Master Servicer or a Sub-Servicer of a deed
in lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-3 Group I Certificates on
__________________ (the "Startup Day"), which aggregate amount on
__________________ was __________________ . The Owner hereof is entitled to
principal payments on each Payment Date, as hereinafter described, which will
fully amortize such Original Principal Amount over the period from the date of
initial delivery hereof to the final Payment Date of the Class A-3 Group I
Certificates. The Class A Certificates have been tranched into five "sequential
pay" Classes, such that the Class A-5 Group I Certificates are entitled to
receive no principal distributions until the Class A-4 Principal Balance has
been reduced to zero, the Class A-4 Group I Certificates are entitled to receive
no principal distributions until the Class A-3 Principal Balance has been
reduced to zero, the Class A-3 Group I Certificates are entitled to receive no
principal distributions until the Class A-2 Principal Balance has been
A-3-2
reduced to zero and the Class A-2 Group I Certificates are entitled to receive
no principal distributions until the Class A-1 Principal Balance has been
reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust
__________________ Mortgage Loan Pass-Through Certificates, Class A-3 Group I
(the "Class A-3 Group I Certificates"), and issued under and subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Also issued under
the Pooling and Servicing Agreement are Certificates designated as Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-1 Group I (the "Class A-1 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________ Mortgage Loan Pass-Through
Certificates, Class A-2 Group I (the "Class A-2 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________ Mortgage Loan Pass-Through
Certificates, Class A-4 Group I (the "Class A-4 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________ Mortgage Loan Pass-Through
Certificates, Class A-5 Group I (the "Class A-5 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________ Mortgage Loan Pass-Through
Certificates, Class A-6 Group II (the "Class A-6 Group II Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class B Group I Certificates (the "Class B Group I Certificates"),
Access
A-3-3
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class B Group II (the "Class B Group II Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class BI-S (the "Class BI-S Certificates") and Class BII-S
(the "Class BII-S Certificates"), and Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class RL and Class
RU (the "Residual Certificates"). The Class A-1 Group I Certificates, the Class
A-2 Group I Certificates, the Class A-3 Group I Certificates, the Class A-4
Group I Certificates, the Class A-5 Group I Certificates, the Class A-6 Group
II Certificates (collectively, the "Class A Certificates"), the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates,
the Class BII-S Certificates and the Residual Certificates are collectively
referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing
Agreement, each Class of Certificates has a specified priority to the
collections on the related Pool of Mortgage Loans which comprise the related
Available Funds. In addition, ____________________________, as Certificate
Insurer, is required pursuant to the Certificate Insurance Policy to make
available to the Trustee on each Payment Date 100% of the amount required to be
distributed to the Owners of each Class of Class A Certificates on each Payment
Date.
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the ___________ of each month, or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date") commencing __________________, the Owners of the Class A-2 Group
I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing __________________, the Owners of the Class A-1 Group I
Certificates and the Class A-6 Group II Certificates as of the close of business
on the Business Day immediately preceding such Payment Date occurs (for the
Class A-1 Group I Certificates and the Class A-6 Group II Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount or
the Class A-6 Distribution Amount, respectively, relating to such Payment Date.
Distributions will be made in immediately available funds to Owners of
Certificates, by wire transfer or
A-3-4
otherwise, to the account of an Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, and Class A-6 Group II Certificate
will be entitled to receive such Owner's Percentage Interest in the amounts due
on such Payment Date to the Owners of the Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, the Class A-4 Group I
Certificate, the Class A-5 Group I Certificate, and a Class A-6 Group II
Certificate, respectively.
The Percentage Interest of each Class A-3 Group I Certificate
as of any date of determination will be equal to the percentage obtained by
dividing the Original Principal Amount set forth on such Class A-3 Group I
Certificate by __________________.
The Class A-3 Distribution Amount for any Payment Date will be
an amount equal to the Class A-1 Interest Distribution Amount for such Payment
Date, the Class A-3 Principal Distribution for such Payment Date, the Class A-3
Interest Carry-Forward Amount for such Payment Date and the Class A-3 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy,
____________________________________ (the "Certificate Insurer") is required, to
the extent of any insufficiency in the related Available Funds, to make Insured
Payments available to the Trustee necessary to deposit the full amount of the
related Insured Distribution Amount to the Distribution Account (other than
amounts to be paid to the Certificate Insurer) on each Payment Date. Pursuant to
the Pooling and Servicing Agreement, from amounts on deposit in the related
Distribution Account, the Class A-3 Distribution Amount will be distributed to
the Owners of the Class A-3 Group I Certificates. The Certificate Insurer will
be subrogated to the rights of the Owners of the Class A-3 Group I Certificates
with respect to the related Insured Payments.
The Owner of this Certificate is required to notify the
Trustee promptly in writing upon the receipt of a court order pursuant to which
any amount received by the Owners of the Class A-3 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and
A-3-5
is required to enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp.,
____________________________________, any Sub-Servicer, or any of their
respective subsidiaries and affiliates and are not insured or guaranteed by the
Federal Deposit Insurance Corporation, the Government National Mortgage
Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other liquidation
(or any advance made with respect thereto) of the
A-3-6
last Mortgage Loan in the Trust Estate or (b) the disposition of all property
acquired in respect of any Mortgage Loan remaining in the Trust Estate or (ii)
at any time when a Qualified Liquidation of the Upper-Tier REMIC and the Lower-
Tier REMIC is effected as described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
The Trustee is required to give written notice of termination
of the Pooling and Servicing Agreement to each Owner in the manner set forth
therein.
The Owners of a majority of the Percentage Interests
represented by any Class of Class A Certificates, or if there are no Class A
Certificates then Outstanding, by such Percentage Interest represented by the
Class B Certificates then Outstanding, upon compliance with the requirements set
forth in the Pooling and Servicing Agreement, have the right to exercise any
trust or power set forth in the Pooling and Servicing Agreement with respect to
the Certificates or the Trust Estate.
As provided in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
A-3-7
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-3 Group I Certificates are issuable only as
registered Certificates in denominations of $1,000 original principal amount and
integral multiples of $1,000 in excess thereof (except for one odd Certificate).
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-3 Group I Certificates are exchangeable
for new Class A-3 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee nor any such agent shall be affected by notice
to the contrary, except as may otherwise be specifically provided in the Pooling
and Servicing Agreement with respect to the Certificate Insurer.
A-3-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
____________________________________
_____________, as Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
______________________,
_____________________, as
Trustee
By: _________________________
Title: ______________________
Dated: __________________
A-3-9
EXHIBIT A-4
ACCESS FINANCIAL MORTGAGE LOAN TRUST ______
_______% MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-4 GROUP I
(______% Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., ___________________________________ , any
Sub-Servicer or any of their respective subsidiaries and affiliates. This
Certificate represents a fractional ownership interest in the Trust Estate
described herein, moneys in the Principal and Interest Account or otherwise held
by the Master Servicer or any Sub-Servicer in trust for the Owners (except as
otherwise provided in the Pooling and Servicing Agreement) and certain other
rights relating thereto and is payable only from amounts received by the Trustee
(i) relating to the Mortgage Loans held by the Trust and (ii) pursuant to the
Certificate Insurance Policy.)
No.: A-4-1 _____________
Date
__________________ ____________________ ________________
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp., a Delaware corporation, and held in trust by
___________________________________ , a national banking association, as trustee
(the "Trustee"), on behalf of Access Financial Mortgage Loan Trust
__________________ (the "Trust") pursuant to that certain Pooling and Servicing
Agreement dated as of __________________ (the "Pooling and Servicing Agreement")
by and among Access Financial Lending Corp., as seller (the "Seller") and as
master servicer (the "Master Servicer"), and the Trustee, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Accounts held by the Trustee pursuant to the Pooling and Servicing
Agreement by the Master Servicer or any Sub-Servicer in the Principal and
Interest Account created pursuant to the Pooling and Servicing Agreement, or
otherwise held by the Master Servicer or any Sub-Servicer in trust for the
Owners (except as otherwise provided in the Pooling and Servicing Agreement),
(iii) any Property, the ownership of which has been effected in the name of the
Master Servicer or any Sub-Servicer on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer or any Sub-Servicer of a deed
in lieu of foreclosure and that has not been withdrawn from the Trust, (iv) the
rights, if any, of the Trust in any Insurance Policies relating to the Mortgage
Loans, (v) Net Proceeds (but only to the extent such Net Proceeds do not exceed
the sum of the Principal Balance of the related Mortgage Loan plus accrued and
unpaid interest on such Mortgage Loan), and (vi) the Certificate Insurance
Policy. Such Mortgage Loans and other amounts and property enumerated above are
hereinafter referred to as the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-4 Group I Certificates on
__________________ (the "Startup Day"), which aggregate amount on
__________________ was __________________. The Owner hereof is entitled to
principal payments on each Payment Date, as hereinafter described, which will
fully amortize such Original Principal Amount over the period from the date of
initial delivery hereof to the final Payment Date of the Class A-4 Group I
Certificates. The Class A Certificates have been tranched into five "sequential
pay" Classes, such that the Class A-5 Group I Certificates are entitled to
receive no principal distributions until the Class A-4 Principal Balance has
been reduced to zero, the Class A-4 Group I Certificates are entitled to receive
no principal distributions until the Class A-3 Principal Balance has been
reduced to zero, the Class A-3 Group I Certificates are entitled to receive no
principal distributions until the Class A-2 Principal Balance has been
A-4-2
reduced to zero and the Class A-2 Group I Certificates are entitled to receive
no principal distributions until the Class A-1 Principal Balance has been
reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust
__________________ Mortgage Loan Pass-Through Certificates, Class A-4 Group I
(the "Class A-4 Group I Certificates"), and issued under and subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Also issued under
the Pooling and Servicing Agreement are Certificates designated as Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-1 Group I (the "Class A-1 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-2 Group I (the "Class A-2 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-3 Group I (the "Class A-3 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, __________________, Mortgage
Loan Pass-Through Certificates, Class A-5 Group I (the "Class A-5 Group I
Certificates"), Access Financial Mortgage Loan Trust __________________ Mortgage
Loan Pass-Through Certificates, Class A-6 Group II (the "Class A-6 Group II
Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class B Group I Certificates (the
"Class B Group I Certificates"), Access
A-4-3
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class B Group II (the "Class B Group II Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class BI-S (the "Class BI-S Certificates") and Class BII-S (the
"Class BII-S Certificates"), and Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class RL and Class
RU (the "Residual Certificates"). The Class A-1 Group I Certificates, the Class
A-2 Group I Certificates, the Class A-3 Group I Certificates, the Class A-4
Group I Certificates, the Class A-5 Group I Certificates, the Class A-6 Group II
Certificates (collectively, the "Class A Certificates"), the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates,
the Class BII-S Certificates and the Residual Certificates are collectively
referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing
Agreement, each Class of Certificates has a specified priority to the
collections on the related Pool of Mortgage Loans which comprise the related
Available Funds. In addition, ____________________________________ , as
Certificate Insurer, is required pursuant to the Certificate Insurance Policy to
make available to the Trustee on each Payment Date 100% of the amount required
to be distributed to the Owners of each Class of Class A Certificates on each
Payment Date.
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the __________________ of each month, or, if such day is
not a Business Day, then the next succeeding Business Day (each such day being a
"Payment Date") commencing __________________ the Owners of the Class A-2 Group
I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing __________________, the Owners of the Class A-1 Group I
Certificates and the Class A-6 Group II Certificates as of the close of business
on the Business Day immediately preceding such Payment Date occurs (for the
Class A-1 Group I Certificates and the Class A-6 Group II Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount or
the Class A-6 Distribution Amount, respectively, relating to such Payment Date.
Distributions will be made in immediately available funds to Owners of
A-4-4
Certificates, by wire transfer or otherwise, to the account of an Owner at a
domestic bank or other entity having appropriate facilities therefor, if such
Owner has so notified the Trustee, or by check mailed to the address of the
person entitled thereto as it appears on the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, and Class A-6 Group II Certificate
will be entitled to receive such Owner's Percentage Interest in the amounts due
on such Payment Date to the Owners of the Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, the Class A-4 Group I
Certificate, the Class A-5 Group I Certificate, and a Class A-6 Group II
Certificate, respectively.
The Percentage Interest of each Class A-4 Group I Certificate
as of any date of determination will be equal to the percentage obtained by
dividing the Original Principal Amount set forth on such Class A-4 Group I
Certificate by ____________________.
The Class A-4 Distribution Amount for any Payment Date will be
an amount equal to the Class A-4 Interest Distribution Amount for such Payment
Date, the Class A-4 Principal Distribution for such Payment Date, the Class A-4
Interest Carry-Forward Amount for such Payment Date and the Class A-4 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy,
____________________________________ (the "Certificate Insurer") is required, to
the extent of any insufficiency in the related Available Funds, to make Insured
Payments available to the Trustee necessary to deposit the full amount of the
related Insured Distribution Amount to the Distribution Account (other than
amounts to be paid to the Certificate Insurer) on each Payment Date. Pursuant to
the Pooling and Servicing Agreement, from amounts on deposit in the related
Distribution Account, the Class A-4 Distribution Amount will be distributed to
the Owners of the Class A-4 Group I Certificates. The Certificate Insurer will
be subrogated to the rights of the Owners of the Class A-4 Group I Certificates
with respect to the related Insured Payments.
The Owner of this Certificate is required to notify the
Trustee promptly in writing upon the receipt of a court order pursuant to which
any amount received by the Owners of the Class A-4 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and
A-4-5
is required to enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., __________________________ any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other liquidation
(or any advance made with respect thereto) of the
A-4-6
last Mortgage Loan in the Trust Estate or (b) the disposition of all property
acquired in respect of any Mortgage Loan remaining in the Trust Estate or (ii)
at any time when a Qualified Liquidation of the Upper-Tier REMIC and the Lower-
Tier REMIC is effected as described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
The Trustee is required to give written notice of termination
of the Pooling and Servicing Agreement to each Owner in the manner set forth
therein.
The Owners of a majority of the Percentage Interests
represented by any Class of Class A Certificates, or if there are no Class A
Certificates then Outstanding, by such Percentage Interest represented by the
Class B Certificates then Outstanding, upon compliance with the requirements set
forth in the Pooling and Servicing Agreement, have the right to exercise any
trust or power set forth in the Pooling and Servicing Agreement with respect to
the Certificates or the Trust Estate.
As provided in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
A-4-7
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-4 Group I Certificates are issuable only as
registered Certificates in denominations of $1,000 original principal amount and
integral multiples of $1,000, in excess thereof (except for one odd
Certificate). As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class A-4 Group I Certificates are
exchangeable for new Class A-4 Group I Certificates of authorized denominations
evidencing the same aggregate principal amount.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee nor any such agent shall be affected by notice
to the contrary, except as may otherwise be specifically provided in the Pooling
and Servicing Agreement with respect to the Certificate Insurer.
A-4-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
_____________________________
_________________, as Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
______________________________
__________________________, as
Trustee
By: _________________________
Title: ______________________
Dated: _______________
A-4-9
EXHIBIT A-5
ACCESS FINANCIAL MORTGAGE LOAN TRUST ------
______ MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-5 GROUP I
(______ Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., ______________________ , any Sub-Servicer or any
of their respective subsidiaries and affiliates. This Certificate represents a
fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee (i) relating to the
Mortgage Loans held by the Trust and (ii) pursuant to the Certificate Insurance
Policy.)
No.: A-5-1 _______________
Date
__________________ ____________________ ________________
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp., a Delaware corporation, and held in trust by __________________,
__________________, a national banking association, as trustee (the "Trustee"),
on behalf of Access Financial Mortgage Loan Trust __________________, (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
__________________ (the "Pooling and Servicing Agreement") by and among Access
Financial Lending Corp., as seller (the "Seller") and as master servicer (the
"Master Servicer"), and the Trustee, (ii) such amounts, including Eligible
Investments, as from time to time may be held by the Trustee in the Accounts
held by the Trustee pursuant to the Pooling and Servicing Agreement by the
Master Servicer or any Sub-Servicer in the Principal and Interest Account
created pursuant to the Pooling and Servicing Agreement, or otherwise held by
the Master Servicer or any Sub-Servicer in trust for the Owners (except as
otherwise provided in the Pooling and Servicing Agreement), (iii) any Property,
the ownership of which has been effected in the name of the Master Servicer or
any Sub-Servicer on behalf of the Trust as a result of foreclosure or acceptance
by the Master Servicer or any Sub-Servicer of a deed in lieu of foreclosure and
that has not been withdrawn from the Trust, (iv) the rights, if any, of the
Trust in any Insurance Policies relating to the Mortgage Loans, (v) Net Proceeds
(but only to the extent such Net Proceeds do not exceed the sum of the Principal
Balance of the related Mortgage Loan plus accrued and unpaid interest on such
Mortgage Loan), and (vi) the Certificate Insurance Policy. Such Mortgage Loans
and other amounts and property enumerated above are hereinafter referred to as
the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-5 Group I Certificates on
__________________ (the "Startup Day"), which aggregate amount on
__________________ was __________________. The Owner hereof is entitled to
principal payments on each Payment Date, as hereinafter described, which will
fully amortize such Original Principal Amount over the period from the date of
initial delivery hereof to the final Payment Date of the Class A-5 Group I
Certificates. The Class A Certificates have been tranched into five "sequential
pay" Classes, such that the Class A-5 Group I Certificates are entitled to
receive no principal distributions until the Class A-4 Principal Balance has
been reduced to zero, the Class A-4 Group I Certificates are entitled to receive
no principal distributions until the Class A-3 Principal Balance has been
reduced to zero, the Class A-3 Group I Certificates are entitled to receive no
principal distributions until the Class A-2 Principal Balance
A-5-2
has been reduced to zero and the Class A-2 Group I Certificates are entitled to
receive no principal distributions until the Class A-1 Principal Balance has
been reduced to zero.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class A-5 Group I
(the "Class A-5 Group I Certificates"), and issued under and subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Also issued under
the Pooling and Servicing Agreement are Certificates designated as Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-1 Group I (the "Class A-1 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-2 Group I (the "Class A-2 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-3 Group I (the "Class A-3 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-4 Group I (the "Class A-4 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________ Mortgage Loan Pass-Through
Certificates, Class A-6 Group II (the "Class A-6 Group II Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class B Group
A-5-3
I Certificates (the "Class B Group I Certificates"), Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class B
Group II (the "Class B Group II Certificates"), Access Financial Mortgage Loan
Trust __________________, Mortgage Loan Pass-Through Certificates, Class BI-S
(the "Class BI-S Certificates") and Class BII-S (the "Class BII-S
Certificates"), and Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class RL and Class RU (the "Residual
Certificates"). The Class A-1 Group I Certificates, the Class A-2 Group I
Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates, the Class A-5 Group I Certificates, the Class A-6 Group II
Certificates (collectively, the "Class A Certificates"), the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates,
the Class BII-S Certificates and the Residual Certificates are collectively
referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing
Agreement, each Class of Certificates has a specified priority to the
collections on the related Pool of Mortgage Loans which comprise the related
Available Funds. In addition, ____________________________, as Certificate
Insurer, is required pursuant to the Certificate Insurance Policy to make
available to the Trustee on each Payment Date 100% of the amount required to be
distributed to the Owners of each Class of Class A Certificates on each Payment
Date.
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the ________ day of each month, or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date") commencing __________________, ____, the Owners of the Class A-2
Group I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing __________________, the Owners of the Class A-1 Group I
Certificates and the Class A-6 Group II Certificates as of the close of business
on the Business Day immediately preceding such Payment Date occurs (for the
Class A-1 Group I Certificates and the Class A-6 Group II Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount or
the Class A-6 Distribution Amount, respectively, relating to such Payment Date.
Distributions
A-5-4
will be made in immediately available funds to Owners of Certificates, by wire
transfer or otherwise, to the account of an Owner at a domestic bank or other
entity having appropriate facilities therefor, if such Owner has so notified the
Trustee, or by check mailed to the address of the person entitled thereto as it
appears on the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, and Class A-6 Group II Certificate
will be entitled to receive such Owner's Percentage Interest in the amounts due
on such Payment Date to the Owners of the Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, the Class A-4 Group I
Certificate, the Class A-5 Group I Certificate, and a Class A-6 Group II
Certificate, respectively.
The Percentage Interest of each Class A-5 Group I Certificate
as of any date of determination will be equal to the percentage obtained by
dividing the Original Principal Amount set forth on such Class A-5 Group I
Certificate by __________________________.
The Class A-1 Distribution Amount for any Payment Date will be
an amount equal to the Class A-5 Interest Distribution Amount for such Payment
Date, the Class A-5 Principal Distribution for such Payment Date, the Class A-5
Interest Carry-Forward Amount for such Payment Date and the Class A-5 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy,
_____________________________ (the "Certificate Insurer") is required, to the
extent of any insufficiency in the related Available Funds, to make Insured
Payments available to the Trustee necessary to deposit the full amount of the
related Insured Distribution Amount to the Distribution Account (other than
amounts to be paid to the Certificate Insurer) on each Payment Date. Pursuant to
the Pooling and Servicing Agreement, from amounts on deposit in the related
Distribution Account, the Class A-5 Distribution Amount will be distributed to
the Owners of the Class A-5 Group I Certificates. The Certificate Insurer will
be subrogated to the rights of the Owners of the Class A-5 Group I Certificates
with respect to the related Insured Payments.
The Owner of this Certificate is required to notify the
Trustee promptly in writing upon the receipt of a court order pursuant to which
any amount received by the Owners of the Class A-5 Group I Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
A-5-5
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., ____________________________,
any Sub-Servicer, or any of their respective subsidiaries and affiliates and are
not insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other
A-5-6
liquidation (or any advance made with respect thereto) of the last Mortgage Loan
in the Trust Estate or (b) the disposition of all property acquired in respect
of any Mortgage Loan remaining in the Trust Estate or (ii) at any time when a
Qualified Liquidation of the Upper-Tier REMIC and the Lower-Tier REMIC is
effected as described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
The Trustee is required to give written notice of termination
of the Pooling and Servicing Agreement to each Owner in the manner set forth
therein.
The Owners of a majority of the Percentage Interests
represented by any Class of Class A Certificates, or if there are no Class A
Certificates then Outstanding, by such Percentage Interest represented by the
Class B Certificates then Outstanding, upon compliance with the requirements set
forth in the Pooling and Servicing Agreement, have the right to exercise any
trust or power set forth in the Pooling and Servicing Agreement with respect to
the Certificates or the Trust Estate.
As provided in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
A-5-7
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-5 Group I Certificates are issuable only as
registered Certificates in denominations of $1,000 original principal amount and
integral multiples of $1,000 in excess thereof (except for one odd Certificate).
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-5 Group I Certificates are exchangeable
for new Class A-5 Group I Certificates of authorized denominations evidencing
the same aggregate principal amount.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee nor any such agent shall be affected by notice
to the contrary, except as may otherwise be specifically provided in the Pooling
and Servicing Agreement with respect to the Certificate Insurer.
A-5-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
_____________________________
_________________, as Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
______________________________
__________________________, as
Trustee
By: _________________________
Title: ______________________
Dated: ___________________
A-5-9
EXHIBIT A-6
ACCESS FINANCIAL MORTGAGE LOAN TRUST ______
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS A-6 GROUP II
(Variable Pass-Through Rate)
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., ______________________________, any Sub-Servicer
or any of their respective subsidiaries and affiliates. This Certificate
represents a fractional ownership interest in the Trust Estate described herein,
moneys in the Principal and Interest Account or otherwise held by the Master
Servicer or any Sub-Servicer in trust for the Owners (except as otherwise
provided in the Pooling and Servicing Agreement) and certain other rights
relating thereto and is payable only from amounts received by the Trustee (i)
relating to the Mortgage Loans held by the Trust and (ii) pursuant to the
Certificate Insurance Policy.)
No.: A-6-1 __________________
Date
__________________ ____________________ ________________
Original Principal Final Scheduled CUSIP
Amount Payment Date
Cede & Co.
- --------------------------------------------------------------------------------
Registered Owner
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp., a Delaware corporation, and held in trust by __________________,
__________________, a national banking association, as trustee (the "Trustee"),
on behalf of Access Financial Mortgage Loan Trust __________________ (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
________________________, (the "Pooling and Servicing Agreement") by and among
Access Financial Lending Corp., as seller (the "Seller") and as master servicer
(the "Master Servicer"), and the Trustee, (ii) such amounts, including Eligible
Investments, as from time to time may be held by the Trustee in the Accounts
held by the Trustee pursuant to the Pooling and Servicing Agreement by the
Master Servicer or any Sub-Servicer in the Principal and Interest Account
created pursuant to the Pooling and Servicing Agreement, or otherwise held by
the Master Servicer or any Sub-Servicer in trust for the Owners (except as
otherwise provided in the Pooling and Servicing Agreement), (iii) any Property,
the ownership of which has been effected in the name of the Master Servicer or
any Sub-Servicer on behalf of the Trust as a result of foreclosure or acceptance
by the Master Servicer or any Sub-Servicer of a deed in lieu of foreclosure and
that has not been withdrawn from the Trust, (iv) the rights, if any, of the
Trust in any Insurance Policies relating to the Mortgage Loans, (v) Net Proceeds
(but only to the extent such Net Proceeds do not exceed the sum of the Principal
Balance of the related Mortgage Loan plus accrued and unpaid interest on such
Mortgage Loan), and (vi) the Certificate Insurance Policy. Such Mortgage Loans
and other amounts and property enumerated above are hereinafter referred to as
the "Trust Estate."
The Original Principal Amount set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate original principal amount of the Class A-6 Group II Certificates
on __________________, (the "Startup Day"), which aggregate amount on
__________________, was __________________. The Owner hereof is entitled to
principal payments on each Payment Date, as hereinafter described, which will
fully amortize such Original Principal Amount over the period from the date of
initial delivery hereof to the final Payment Date of the Class A-6 Group II
Certificates.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
A-6-2
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust
__________________ Mortgage Loan Pass-Through Certificates, Class A-6 Group II
(the "Class A-6 Group II Certificates") and issued under and subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Also issued under
the Pooling and Servicing Agreement are Certificates designated as Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-1 Group I (the "Class A-1 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, 6.925% Mortgage Loan
Pass-Through Certificates, Class A-2 Group I (the "Class A-2 Group I
Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class A-3 Group I (the "Class A-3 Group
I Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class A-4 Group I (the "Class A-4 Group
I Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class A-5 Group I (the "Class A-5 Group
I Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class B Group I Certificates (the
"Class B Group I Certificates"), Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class B Group II
(the "Class B Group II Certificates"), Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class BI-S (the
"Class BI-S Certificates") and Class BII-S (the "Class BII-S Certificates"), and
Access Financial Mortgage Loan Trust __________________, Mortgage Loan
Pass-Through Certificates, Class RL and Class RU (the "Residual Certificates").
The Class A-1 Group I Certificates, the Class A-2 Group I Certificates, the
Class A-3 Group I Certificates, the Class A-4 Group I Certificates, the Class
A-5 Group I Certificates, the Class A-6 Group II
A-6-3
Certificates (collectively, the "Class A Certificates"), the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates,
the Class BII-S Certificates and the Residual Certificates are collectively
referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing
Agreement, each Class of Certificates has a specified priority to the
collections on the related Pool of Mortgage Loans which comprise the related
Available Funds. In addition, ______________________________, as Certificate
Insurer, is required pursuant to the Certificate Insurance Policy to make
available to the Trustee on each Payment Date 100% of the amount required to be
distributed to the Owners of each Class of Class A Certificates on each Payment
Date.
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the ____ day of each month, or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date") commencing __________________, the Owners of the Class A-2 Group
I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates and the Class A-5 Group I Certificates, as of the close of business
on the first Business Day of the current calendar month in which such Payment
Date occurs (for the Class A-2 through A-5 Group I Certificates, the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount, the Class
A-3 Distribution Amount, Class A-4 Distribution Amount and Class A-5
Distribution Amount, respectively, relating to such Payment Date. On each
Payment Date commencing __________________, the Owners of the Class A-1 Group I
Certificates and the Class A-6 Group II Certificates as of the close of business
on the Business Day immediately preceding such Payment Date occurs (for the
Class A-1 Group I Certificates and the Class A-6 Group II Certificates, the
"Record Date") will be entitled to receive the Class A-1 Distribution Amount or
the Class A-6 Distribution Amount, respectively, relating to such Payment Date.
Distributions will be made in immediately available funds to Owners of
Certificates, by wire transfer or otherwise, to the account of an Owner at a
domestic bank or other entity having appropriate facilities therefor, if such
Owner has so notified the Trustee, or by check mailed to the address of the
person entitled thereto as it appears on the Register.
Each Owner of record of a Class A-1 Group I Certificate, Class
A-2 Group I Certificate, Class A-3 Group I Certificate, Class A-4 Group I
Certificate, Class A-5 Group I Certificate, and Class A-6 Group II Certificate
will be entitled to receive such Owner's Percentage Interest in the
A-6-4
amounts due on such Payment Date to the Owners of the Class A-1 Group I
Certificate, Class A-2 Group I Certificate, Class A-3 Group I Certificate, the
Class A-4 Group I Certificate, the Class A-5 Group I Certificate, and a Class
A-6 Group II Certificate, respectively.
The Percentage Interest of each Class A-6 Group II Certificate
as of any date of determination will be equal to the percentage obtained by
dividing the Original Principal Amount set forth on such Class A-6 Group II
Certificate by ________________________.
The Class A-6 Distribution Amount for any Payment Date will be
an amount equal to the Class A-6 Interest Distribution Amount for such Payment
Date, the Class A-6 Principal Distribution for such Payment Date, the Class A-6
Interest Carry-Forward Amount for such Payment Date and the Class A-6 Principal
Carry-Forward Amount for such Payment Date, as such terms are defined in the
Pooling and Servicing Agreement.
Pursuant to the Certificate Insurance Policy,
___________________________ (the "Certificate Insurer") is required, to the
extent of any insufficiency in the related Available Funds, to make Insured
Payments available to the Trustee necessary to deposit the full amount of the
related Insured Distribution Amount to the Distribution Account (other than
amounts to be paid to the Certificate Insurer) on each Payment Date. Pursuant to
the Pooling and Servicing Agreement, from amounts on deposit in the related
Distribution Account, the Class A-6 Distribution Amount will be distributed to
the Owners of the Class A-6 Group II Certificates. The Certificate Insurer will
be subrogated to the rights of the Owners of the Class A-6 Group II Certificates
with respect to the related Insured Payments.
The Owner of this Certificate is required to notify the
Trustee promptly in writing upon the receipt of a court order pursuant to which
any amount received by the Owners of the Class A-6 Group II Certificates is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and is required to
enclose a copy of such order with such notice to the Trustee.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
A-6-5
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., _________________________, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other liquidation
(or any advance made with respect thereto) of the last Mortgage Loan in the
Trust Estate or (b) the disposition of all property acquired in respect of any
Mortgage Loan remaining in the Trust Estate or (ii) at any time when a Qualified
Liquidation of the Upper-Tier REMIC and the Lower-Tier REMIC is effected as
described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby
A-6-6
effect early retirement of the Certificates, on any Remittance Date when the
aggregate outstanding Principal Balance of the Mortgage Loans is ten percent or
less of the Original Pool Principal Balance. If the Seller declines to exercise
such option within ninety days following such date, the Trustee shall solicit
bids for the purchase of all Mortgage Loans remaining in the Trust. If
satisfactory bids are received as described in the Pooling and Servicing
Agreement, the Trustee shall effect early retirement of the Certificates. If
satisfactory bids are not received, the Trustee shall decline to sell the
Mortgage Loans and shall not be under any obligation to solicit any further bids
or otherwise negotiate any further sale of the Mortgage Loans. Such sale and
consequent termination of the Trust must constitute a "qualified liquidation" of
each REMIC established by the Trust under Section 860F of the Internal Revenue
Code of 1986, as amended, including, without limitation, the requirement that
the qualified liquidation takes place over a period not to exceed ninety days.
The Trustee is required to give written notice of termination
of the Pooling and Servicing Agreement to each Owner in the manner set forth
therein.
The Owners of a majority of the Percentage Interests
represented by any Class of Class A Certificates, or if there are no Class A
Certificates then Outstanding, by such Percentage Interest represented by the
Class B Certificates then Outstanding, upon compliance with the requirements set
forth in the Pooling and Servicing Agreement, have the right to exercise any
trust or power set forth in the Pooling and Servicing Agreement with respect to
the Certificates or the Trust Estate.
As provided in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-6 Group II Certificates are issuable only as
registered Certificates in denominations of $1,000 original principal amount and
integral multiples of $1,000 in excess thereof (except for one odd Certificate).
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-6 Group II Certificates
A-6-7
are exchangeable for new Class A-6 Group II Certificates of authorized
denominations evidencing the same aggregate principal amount.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee nor any such agent shall be affected by notice
to the contrary, except as may otherwise be specifically provided in the Pooling
and Servicing Agreement with respect to the Certificate Insurer.
A-6-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
_______________________________
___________________, as Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
_________________________,
_____________________, as
Trustee
By: _________________________
Title: ______________________
Dated: ____________________
A-6-9
EXHIBIT B-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ACCESS FINANCIAL MORTGAGE LOAN TRUST __________________
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS B GROUP I
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., ______________________________, any Sub-Servicer
or any of their respective subsidiaries and affiliates. This Certificate
represents a fractional ownership interest in the Trust Estate described herein,
moneys in the Principal and Interest Account or otherwise held by the Master
Servicer or any Sub-Servicer in trust for the Owners (except as otherwise
provided in the Pooling and Servicing Agreement) and certain other rights
relating thereto and is payable only from amounts received by the Trustee
relating to the Mortgage Loans held by the Trust.)
No.: B-1-1 _______________
Date
__________________ ____________________
Original Principal Final Scheduled
Amount Payment Date
- --------------------------------------------------------------------------------
Registered Owner
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp., a Delaware corporation, and held in trust by __________________,
__________________, a national banking association, as trustee (the "Trustee"),
on behalf of Access Financial Mortgage Loan Trust __________________ (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
__________________ (the "Pooling and Servicing Agreement") by and among Access
Financial Lending Corp., as seller (the "Seller") and as master servicer (the
"Master Servicer"), and the Trustee, (ii) such amounts, including Eligible
Investments, as from time to time may be held by the Trustee in the Accounts
held by the Trustee pursuant to the Pooling and Servicing Agreement by the
Master Servicer or any Sub-Servicer in the Principal and Interest Account
created pursuant to the Pooling and Servicing Agreement, or otherwise held by
the Master Servicer or any Sub-Servicer in trust for the Owners (except as
otherwise provided in the Pooling and Servicing Agreement), (iii) any Property,
the ownership of which has been effected in the name of the Master Servicer or
any Sub-Servicer on behalf of the Trust as a result of foreclosure or acceptance
by the Master Servicer or any Sub-Servicer of a deed in lieu of foreclosure and
that has not been withdrawn from the Trust, (iv) the rights, if any, of the
Trust in any Insurance Policies relating to the Mortgage Loans, (v) Net Proceeds
(but only to the extent such Net Proceeds do not exceed the sum of the Principal
Balance of the related Mortgage Loan plus accrued and unpaid interest on such
Mortgage Loan), and (vi) the Certificate Insurance Policy. Such Mortgage Loans
and other amounts and property enumerated above are hereinafter referred to as
the "Trust Estate."
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
B-1-2
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class B Group I
Certificates (the "Class B Group I Certificates") and issued under and subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Owner of this Certificate by virtue
of acceptance hereof assents and by which such Owner is bound. Also issued under
the Pooling and Servicing Agreement are Certificates designated as Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-1 Group I (the "Class A-1 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, 6.925% Mortgage Loan
Pass-Through Certificates, Class A-2 Group I (the "Class A-2 Group I
Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class A-3 Group I (the "Class A-3 Group
I Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class A-4 Group I (the "Class A-4 Group
I Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class A-5 Group I (the "Class A-5 Group
I Certificates"), Access Financial Mortgage Loan Trust Mortgage Loan
Pass-Through Certificates, Class A-6 Group II (the "Class A-6 Group II
Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class B Group II (the "Class B Group II
Certificates"), Access Financial Mortgage Loan Trust __________________,
Mortgage Loan Pass-Through Certificates, Class BI-S (the "Class BI-S
Certificates") and Class BII-S (the "Class BII-S Certificates"), and Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class RL and Class RU (the "Residual Certificates"). The Class A-1
Group I Certificates, the Class A-2 Group I Certificates, the Class A-3 Group I
Certificates, the Class A-4 Group I Certificates, the Class A-5 Group I
Certificates, the Class A-6 Group II Certificates (collectively, the "Class A
Certificates"), the Class B Group I Certificates, the Class B Group II
Certificates, the Class BI-S Certificates, the Class BII-S Certificates and the
Residual Certificates are collectively referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing
Agreement, each Class of Certificates has a specified priority to the
collections on the related Pool of Mortgage Loans which comprise the related
Available Funds.
B-1-3
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the ____ day of each month, or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date") commencing __________________, _____, the Owners of the Class B
Group I Certificates as of the close of business on the first Business Day of
the calendar month in which such Payment Date occurs (the "Record Date") will be
entitled to receive the Class B Group I Distribution Amount. Distributions will
be made in immediately available funds to Owners of Certificates, by wire
transfer or otherwise, to the account of an Owner at a domestic bank or other
entity having appropriate facilities therefor, if such Owner has so notified the
Trustee, or by check mailed to the address of the person entitled thereto as it
appears on the Register.
Each Owner of record of a Class B Group I Certificate will be
entitled to receive such Owner's Percentage Interest in the Class B Group I
Distribution Amount due on such Payment Date to the Owners of the Class B Group
I Certificates. The Class B Group I Distribution Amount as of any date of
determination will be determined as set forth in the Pooling and Servicing
Agreement.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., __________________, any
Sub-Servicer, or any of their respective subsidiaries and affiliates and are not
insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
B-1-4
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other liquidation
(or any advance made with respect thereto) of the last Mortgage Loan in the
Trust Estate or (b) the disposition of all property acquired in respect of any
Mortgage Loan remaining in the Trust Estate or (ii) at any time when a Qualified
Liquidation of the Upper-Tier REMIC and the Lower-Tier REMIC is effected as
described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
B-1-5
The Trustee is required to give written notice of termination
of the Pooling and Servicing Agreement to each Owner in the manner set forth
therein.
As provided in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class B Group I Certificates are issuable only as
registered Certificates in minimum denominations of $100,000 original principal
amount and integral multiples of $1,000 in excess thereof (except for one odd
Class B Group I Certificate). As provided in the Pooling and Servicing Agreement
and subject to certain limitations therein set forth, Class B Group I
Certificates are exchangeable for new Class B Group I Certificates evidencing
the same Percentage Interest as the Class B Group I Certificates exchanged.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee nor any such agent shall be affected by notice
to the contrary, except as may otherwise be specifically provided in the Pooling
and Servicing Agreement with respect to the Certificate Insurer.
B-1-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
________________________________,
________________________________
as Trustee
By:_____________________________
Name:
Title:
Trustee's Authentication
______________________________
as Trustee
By: _________________________
Name:
Title:
B-1-7
EXHIBIT B-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ACCESS FINANCIAL MORTGAGE LOAN TRUST __________
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS B GROUP II
Representing Certain Interests Relating to a Pool of
Mortgage Loans formed by
ACCESS FINANCIAL LENDING CORP.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., _________________________, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional ownership interest in the Trust Estate described herein, moneys in
the Principal and Interest Account or otherwise held by the Master Servicer or
any Sub-Servicer in trust for the Owners (except as otherwise provided in the
Pooling and Servicing Agreement) and certain other rights relating thereto and
is payable only from amounts received by the Trustee relating to the Mortgage
Loans held by the Trust.)
No.: B-2-1 __________________
Date
_________________________ _______________________
Original Principal Final Scheduled
Amount Payment Date
- --------------------------------------------------------------------------------
Registered Owner
The registered Owner named above is the registered Owner of a
fractional undivided interest in (i) a pool of mortgage loans, consisting of
first and second liens (the "Mortgage Loans") formed by Access Financial Lending
Corp., a Delaware corporation, and held in trust by __________________,
__________________, a national banking association, as trustee (the "Trustee"),
on behalf of Access Financial Mortgage Loan Trust __________________ (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
__________________ (the "Pooling and Servicing Agreement") by and among Access
Financial Lending Corp., as seller (the "Seller") and as master servicer (the
"Master Servicer"), and the Trustee, (ii) such amounts, including Eligible
Investments, as from time to time may be held by the Trustee in the Accounts
held by the Trustee pursuant to the Pooling and Servicing Agreement by the
Master Servicer or any Sub-Servicer in the Principal and Interest Account
created pursuant to the Pooling and Servicing Agreement, or otherwise held by
the Master Servicer or any Sub-Servicer in trust for the Owners (except as
otherwise provided in the Pooling and Servicing Agreement), (iii) any Property,
the ownership of which has been effected in the name of the Master Servicer or
any Sub-Servicer on behalf of the Trust as a result of foreclosure or acceptance
by the Master Servicer or any Sub-Servicer of a deed in lieu of foreclosure and
that has not been withdrawn from the Trust, (iv) the rights, if any, of the
Trust in any Insurance Policies relating to the Mortgage Loans, (v) Net Proceeds
(but only to the extent such Net Proceeds do not exceed the sum of the Principal
Balance of the related Mortgage Loan plus accrued and unpaid interest on such
Mortgage Loan), and (vi) the Certificate Insurance Policy. Such Mortgage Loans
and other amounts and property enumerated above are hereinafter referred to as
the "Trust Estate."
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
B-2-2
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class B Group II
(the "Class B Group II Certificates") and issued under and subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound. Also issued under
the Pooling and Servicing Agreement are Certificates designated as Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-1 Group I (the "Class A-1 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-2 Group I (the "Class A-2 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-3 Group I (the "Class A-3 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-4 Group I (the "Class A-4 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class A-5 Group I (the "Class A-5 Group I Certificates"), Access
Financial Mortgage Loan Trust __________________ Mortgage Loan Pass-Through
Certificates, Class A-6 Group II (the "Class A-6 Group II Certificates"), Access
Financial Mortgage Loan Trust __________________, Mortgage Loan Pass-Through
Certificates, Class B Group I Certificates (the "Class B Group I Certificates"),
Access Financial Mortgage Loan Trust __________________, Mortgage Loan
Pass-Through Certificates, Class BI-S (the "Class BI-S Certificates") and Class
BII-S (the "Class BII-S Certificates") and Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class RL and Class
RU (the "Residual Certificates"). The Class A-1 Group I Certificates, the Class
A-2 Group I Certificates, the Class A-3 Group I Certificates, the Class A-4
Group I Certificates, the Class A-5 Group I Certificates, the Class A-6 Group II
Certificates (collectively, the "Class A Certificates"), the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates,
the Class BII-S Certificates and the Residual Certificates are collectively
referred to herein as the "Certificates."
As more fully described in the Pooling and Servicing
Agreement, each Class of Certificates has a specified priority to the
collections on the related Pool of Mortgage Loans which comprise the related
Available Funds.
B-2-3
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the ____ day of each month, or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date") commencing __________________, _______ the Owners of the Class B
Group II Certificates as of the close of business on the first Business Day of
the calendar month in which such Payment Date occurs (the "Record Date") will be
entitled to receive the Class B Group II Distribution Amount. Distributions will
be made in immediately available funds to Owners of Certificates, by wire
transfer or otherwise, to the account of an Owner at a domestic bank or other
entity having appropriate facilities therefor, if such Owner has so notified the
Trustee, or by check mailed to the address of the person entitled thereto as it
appears on the Register.
Each Owner of record of a Class B Group II Certificate will be
entitled to receive such Owner's Percentage Interest in the Class B Group II
Distribution Amount due on such Payment Date to the Owners of the Class B Group
II Certificates. The Class B Group II Distribution Amount as of any date of
determination will be determined as set forth in the Pooling and Servicing
Agreement.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., __________________________,
any Sub-Servicer, or any of their respective subsidiaries and affiliates and are
not insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
B-2-4
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other liquidation
(or any advance made with respect thereto) of the last Mortgage Loan in the
Trust Estate or (b) the disposition of all property acquired in respect of any
Mortgage Loan remaining in the Trust Estate or (ii) at any time when a Qualified
Liquidation of the Upper-Tier REMIC and the Lower-Tier REMIC is effected as
described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
B-2-5
The Trustee is required to give written notice of termination
of the Pooling and Servicing Agreement to each Owner in the manner set forth
therein.
As provided in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and a like Percentage Interest will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class B Group II Certificates are issuable only as
registered Certificates in minimum denominations of $100,000 original principal
amount and integral multiples of $1,000 in excess thereof (except for one odd
Class B Group II Certificate). As provided in the Pooling and Servicing
Agreement and subject to certain limitations therein set forth, Class B Group II
Certificates are exchangeable for new Class B Group II Certificates evidencing
the same Percentage Interest as the Class B Group II Certificates exchanged.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee nor any such agent shall be affected by notice
to the contrary, except as may otherwise be specifically provided in the Pooling
and Servicing Agreement with respect to the Certificate Insurer.
B-2-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
_______________________________
___________________, as Trustee
By:_____________________________
Title:__________________________
Trustee Authentication
_________________________,
_____________________, as
Trustee
By: _________________________
Title: ______________________
Dated: ___________________
B-2-7
EXHIBIT B-3
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN (X) A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE AND (Y)
CERTAIN OTHER PROPERTY HELD IN THE GROUP I SUPPLEMENTAL INTEREST PAYMENT
ACCOUNT.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL
SAVINGS AND LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
TRANSFER OF THIS CLASS BI-S CERTIFICATE IS RESTRICTED AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT.
SUPPLEMENTAL INTEREST PAYMENT ACCOUNT
RELATING TO
ACCESS FINANCIAL MORTGAGE LOAN TRUST _____
CLASS BI-S
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., _________________________, any Sub-Servicer or
any Originator or any of their subsidiaries and affiliates. This Certificate
represents a fractional ownership interest in certain excess moneys of the
Supplemental Interest Payment Account described herein.
No: BI-S-1 Date: ________________
Percentage Interest: _____________ ____________________
Final Scheduled Payment Date
Registered Owner
The registered Owner named above is the registered Owner of a
fractional interest in certain excess moneys of the Group I Supplemental
Interest Payment Account pursuant to that certain Pooling and Servicing
Agreement dated as of _____________________, (the "Pooling and Servicing
Agreement") by and among the Trustee and Access Financial Lending Corp., as
Master Servicer (the "Master Servicer") and as Seller.
This Certificate is one of a Class of duly authorized
Certificates designated as Access Financial Mortgage Loan Trust _______________,
Class BI-S Certificates (the "Class BI-S Certificates") and issued under and
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Owner of this
Certificate by virtue of acceptance hereof assents and by which such Owner is
bound.
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the ____ day of each month or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date"), commencing __________________, _____, to the persons in whose
names the Class BI-S Certificates are registered at the close of business on the
last business day of the calendar month immediately preceding the calendar month
in which such Payment Date occurs (the "Record Date"), the Trustee will
distribute to each Owner of the Class BI-S Certificates such Owner's Percentage
Interest multiplied by any amounts then available to be distributed to the
Owners of the Class BI-S Certificates. Distributions will be made in immediately
available funds, by wire transfer or otherwise, to the account of such Owner at
a domestic bank or other entity having appropriate facilities therefor, if such
Owner has so notified the Trustee at least five business days prior to the
related record date, or by check mailed to the address of the person entitled
thereto as it appears on the Register.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
B-3-2
Access Financial Lending Corp., as Maser Servicer, pursuant to
the Pooling and Servicing Agreement will service the Mortgage Loans. The Pooling
and Servicing Agreement permits the Master Servicer to enter into Sub-Servicing
Agreements with certain institutions eligible for appointments as Sub-Servicers
for the servicing and administration of the Mortgage Loans. No appointment of
any Sub-Servicer shall release the Master Servicer from any of its obligations
under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., ___________________________,
any Sub-Servicer or any of their subsidiaries and affiliates and are not insured
or guaranteed by the Federal Deposit Insurance Corporation, the Government
National Mortgage Association, or any other governmental agency. This
Certificate is limited in right of payment to certain collections and recoveries
relating to the Mortgage Loans, all as more specifically set forth hereinabove
and in the Pooling and Servicing Agreement.
No Owner shall have the right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates from amounts other than those available under
the Certificate Insurance Policy of all amounts held by the Trustee and required
to be paid to such Owners pursuant to the Pooling and Servicing Agreement upon
the later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust Estate or (b)
the disposition of all property acquired in respect of any Mortgage Loan
remaining in the Trust Estate or (ii) at any time when a Qualified Liquidation
of the Upper-Tier REMIC and the Lower-Tier REMIC is effected as described in the
Pooling and Servicing Agreement.
B-3-3
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but no fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form required by the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and a
like Percentage Interest in the Trust Estate will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class BI-S Certificates are issuable only as registered
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class BI-S Certificates are exchangeable
for new Class BI-S Certificates evidencing the same Percentage Interest as the
Class BI-S Certificates exchanged.
B-3-4
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee or any such agent shall be affected by notice
to the contrary.
B-3-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
________________________________,
________________________________
as Trustee
By:_____________________________
Name:
Title:
Trustee's Authentication
______________________________
as Trustee
By: _________________________
Name:
Title:
B-3-6
EXHIBIT B-4
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN (X) A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE AND (Y)
CERTAIN OTHER PROPERTY HELD IN THE GROUP II SUPPLEMENTAL INTEREST PAYMENT
ACCOUNT.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL
SAVINGS AND LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE
ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
TRANSFER OF THIS CLASS BI-S CERTIFICATE IS RESTRICTED AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT.
SUPPLEMENTAL INTEREST PAYMENT ACCOUNT
RELATING TO
ACCESS FINANCIAL MORTGAGE LOAN TRUST ______
CLASS BII-S
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying mortgage loans insured or guaranteed by,
Access Financial Lending Corp., _________________________, any Sub-Servicer, any
Originator or any of their subsidiaries and affiliates. This Certificate
represents a fractional ownership interest in certain excess moneys of the
Supplemental Interest Payment Account described herein.
No: BII-S-1 Date: ________________________
Percentage Interest: _______________ ___________________________
Final Scheduled
Payment Date
Registered Owner
The registered Owner named above is the registered Owner of a
fractional interest in certain excess moneys of the Group II Supplemental
Interest Payment Account pursuant to that certain Pooling and Servicing
Agreement dated as of __________________ (the "Pooling and Servicing Agreement")
by and among the Trustee and Access Financial Lending Corp., as Master Servicer
(the "Master Servicer") and the Seller.
This Certificate is one of a Class of duly authorized
Certificates designated as Access Financial Mortgage Loan Trust ______________,
Class BII-S Certificates (the Class BII-S Certificates") and issued under and
subject to the terms, provisions, and conditions of the Pooling and Servicing
Agreement, to which Pooling ad Servicing Agreement the Owner of this Certificate
by virtue of acceptance hereof assents and by which such Owner is bound.
Terms capitalized herein and to otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
On the ____ day of each month or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date"), commencing __________________, to the persons in whose names
the Class BII-S Certificates are registered at the close of business on the last
business day of the calendar month immediately preceding the calendar month in
which such Payment Date occurs (the "Record Date"), the Trustee will distribute
to each Owner of the Class BII-S Certificates such Owner's Percentage Interest
multiplied by any amounts then available to be distributed to the Owners of the
Class BII-S Certificates. Distributions will be made in immediately available
funds, by wire transfer or otherwise, to the account of such Owner at a domestic
bank or other entity having appropriate facilities therefor, if such Owner has
so notified the Trustee at least five business days prior to the related record
date, or by check mailed to the address of the person entitled thereto as it
appears on the Register.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
B-4-2
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into Sub-
Servicing Agreements with certain institutions eligible for appointments as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., __________________,__________,
any Sub-Servicer or any of their subsidiaries and affiliates and are not insured
or guaranteed by the Federal Deposit Insurance Corporation, the Government
National Mortgage Association, or any other governmental agency. This
Certificate is limited in right of payment to certain collections and recoveries
relating to the Mortgage Loans, all as more specifically set forth hereinabove
and in the Pooling and Servicing Agreement.
No Owner shall have the right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates from amounts other than those available under
the Certificate Insurance Policy of all amounts held by the
B-4-3
Trustee and required to be paid to such Owners pursuant to the Pooling and
Servicing Agreement upon the later to occur of (a) the final payment or other
liquidation (or any advance made with respect thereto) of the last Mortgage Loan
in the Trust Estate or (b) the disposition of all property acquired in respect
of any Mortgage Loan remaining in the Trust Estate or (ii) at any time when a
Qualified Liquidation of the Upper-Tier REMIC and the Lower-Tier REMIC is
effected as described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but no fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form required by he Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and a
like Percentage Interest in the Trust Estate will be issued to the designated
transferee or transferees.
B-4-4
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class BII-S Certificates are issuable only as registered
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class BII-S Certificates are exchangeable
for new Class BII-S Certificates evidencing the same Percentage Interest as the
Class BII-S Certificates exchanged.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee or any such agent shall be affected by notice
to the contrary.
B-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
____________________________________
______________________________
as Trustee
By:______________________________
Name:
Title:
Trustee's Authentication
_______________________,_____________
as Trustee
By:___________________________________
Name:
Title:
B-4-6
EXHIBIT C-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G and 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
TRANSFER OF THIS CLASS RL CERTIFICATE IS RESTRICTED AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS RL
CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS DEFINED IN SECTION
860E(e)(5) OF THE CODE. SUCH TERM INCLUDES THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN
CERTAIN TAXABLE INSTRUMENTALITIES), ANY COOPERATIVE ORGANIZATION FURNISHING
ELECTRIC ENERGY OR PROVIDING TELEPHONE SERVICE TO PERSONS IN RURAL AREAS, OR ANY
ORGANIZATION (OTHER THAN A FARMERS' COOPERATIVE) THAT IS EXEMPT FROM FEDERAL
INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS
INCOME. NO TRANSFER OF THIS CLASS RL CERTIFICATE WILL BE REGISTERED BY THE
TRUSTEE UNLESS THE PROPOSED TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING,
AMONG OTHER THINGS, THAT THE PROPOSED TRANSFEREE IS NOT A DISQUALIFIED
ORGANIZATION AND IS NOT ACQUIRING THE CLASS RL CERTIFICATE FOR THE ACCOUNT OF A
DISQUALIFIED ORGANIZATION. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH
PROPOSED TRANSFEREE IS ON FILE AND AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY
GIVE RISE TO A SUBSTANTIAL TAX UPON THE TRANSFEROR OR, IN CERTAIN CASES, UPON AN
AGENT ACTING FOR THE TRANSFEREE. A PASS-THRU ENTITY THAT HOLDS THIS CLASS RL
CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY
TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE
PRODUCT OF (A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF
THIS CERTIFICATE OWNED
THROUGH SUCH PASS-THRU ENTITY BY SUCH DISQUALIFIED ORGANIZATION, AND (B) THE
HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR PURPOSES OF THE PRECEDING
SENTENCE, THE TERM "PASS-THRU" ENTITY INCLUDES REGULATED INVESTMENT COMPANIES,
REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST FUNDS, PARTNERSHIPS, TRUSTS,
ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER IT OF THE CODE APPLIES AND,
EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES.
ACCESS FINANCIAL MORTGAGE LOAN TRUST ______
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS RL
Representing Certain Interests Relating to a Pool of
Mortgage Loans Formed by
ACCESS FINANCIAL LENDING CORP.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., ___________________________, any Sub-Servicer or
any of their respective subsidiaries and affiliates. This Certificate represents
a fractional residual ownership interest in the Lower-Tier REMIC described in
the Pooling and Servicing Agreement.)
No: RL-1 Date: _________________
Percentage Interest: _______ __________________
Final Scheduled
Payment Date
- --------------------------------------------------------------------------------
Registered Owner
C-1-2
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class RL (the
"Class RL Certificates") and issued under and subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Owner of this Certificate by virtue of acceptance hereof
assents and by which such Owner is bound. Also issued under the Pooling and
Servicing Agreement are Certificates designated as Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class
A-1 Group I (the "Class A-1 Group I Certificates"), Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class
A-2 Group I (the "Class A-2 Group I Certificates"), Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class
A-3 Group I (the "Class A-3 Group I Certificates"), Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class
A-4 Group I (the "Class A-4 Group I Certificates"), Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class
A-5 Group I (the "Class A-5 Group I Certificates"), Access Financial Mortgage
Loan Trust Mortgage Loan Pass-Through Certificates, Class A-6 Group II (the
"Class A-6 Group II Certificates"), Access Financial Mortgage Loan Trust
__________________ Mortgage Loan Pass-Through Certificates, Class B Group I
Certificates (the "Class B Group I Certificates"), Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class B
Group II (the "Class B Group II Certificates"), Access Financial Mortgage Loan
Trust __________________, Mortgage Loan Pass-Through Certificates, Class BI-S
(the "Class BI-S Certificates") and Class BII-S (the "Class BII-S Certificates")
and Access Financial Mortgage Loan Trust __________________, Mortgage Loan
Pass-Through Certificates, Class RU (together with the Class RL Certificates,
the "Residual Certificates"). The Class A-1 Group I Certificates, the Class A-2
Group I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates, the Class A-5 Group I Certificates, the Class A-6 Group II
Certificates (collectively, the "Class A Certificates"), the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates,
the Class BII-S Certificates and the Residual Certificates are collectively
referred to herein as the "Certificates."
C-1-3
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the ____ day of each month, or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date"), commencing __________________, to the Owners of the Class RL
Certificates as of the close of business on the first Business Day of the
calendar month in which such Payment Date occurs (the "Record Date"), the
Trustee will distribute to each Owner of the Class RL Certificates such Owner's
Percentage Interest multiplied by the amounts then available to be distributed
to the Owners of the Class RL Certificates. No significant distributions are
anticipated to be made.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., __________________________,
any Sub-Servicer, or any of their respective subsidiaries and affiliates and are
not insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver
C-1-4
or trustee, or for any other remedy under the Pooling and Servicing Agreement
except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other liquidation
(or any advance made with respect thereto) of the last Mortgage Loan in the
Trust Estate or (b) the disposition of all property acquired in respect of any
Mortgage Loan remaining in the Trust Estate or (ii) at any time when a Qualified
Liquidation of the Upper-Tier REMIC and the Lower-Tier REMIC is effected as
described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
C-1-5
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form set forth in the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and a
like Percentage Interest will be issued to the designated transferee or
transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class RL Certificates are issuable only as registered
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class RL Certificates are exchangeable
for new Class RL Certificates evidencing the same Percentage Interest as the
Class RL Certificates exchanged.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee or any such agent shall be affected by notice
to the contrary.
C-1-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
________________________________
___________________, as Trustee
By:___________________________
Title:_____________________
Trustee's Authentication
__________________________,
__________________________,
as Trustee
By:__________________________
Title:_______________________
Dated: _________________
C-1-7
EXHIBIT C-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G and 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
TRANSFER OF THIS CLASS RU CERTIFICATE IS RESTRICTED AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS RU
CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS DEFINED IN SECTION
860E(e)(5) OF THE CODE. SUCH TERM INCLUDES THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN
CERTAIN TAXABLE INSTRUMENTALITIES), ANY COOPERATIVE ORGANIZATION FURNISHING
ELECTRIC ENERGY OR PROVIDING TELEPHONE SERVICE TO PERSONS IN RURAL AREAS, OR ANY
ORGANIZATION (OTHER THAN A FARMERS' COOPERATIVE) THAT IS EXEMPT FROM FEDERAL
INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS
INCOME. NO TRANSFER OF THIS CLASS RU CERTIFICATE WILL BE REGISTERED BY THE
TRUSTEE UNLESS THE PROPOSED TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING,
AMONG OTHER THINGS, THAT THE PROPOSED TRANSFEREE IS NOT A DISQUALIFIED
ORGANIZATION AND IS NOT ACQUIRING THE CLASS RU CERTIFICATE FOR THE ACCOUNT OF A
DISQUALIFIED ORGANIZATION. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH
PROPOSED TRANSFEREE IS ON FILE AND AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY
GIVE RISE TO A SUBSTANTIAL TAX UPON THE TRANSFEROR OR, IN CERTAIN CASES, UPON AN
AGENT ACTING FOR THE TRANSFEREE. A PASS-THRU ENTITY THAT HOLDS THIS CLASS RU
CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY
TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE
PRODUCT OF (A) THE AMOUNT OF EXCESS INCLU-
SIONS WITH RESPECT TO THE PORTION OF THIS CERTIFICATE OWNED THROUGH SUCH
PASS-THRU ENTITY BY SUCH DISQUALIFIED ORGANIZATION, AND (B) THE HIGHEST MARGINAL
FEDERAL TAX RATE ON CORPORATIONS. FOR PURPOSES OF THE PRECEDING SENTENCE, THE
TERM "PASS-THRU" ENTITY INCLUDES REGULATED INVESTMENT COMPANIES, REAL ESTATE
INVESTMENT TRUSTS, COMMON TRUST FUNDS, PARTNERSHIPS, TRUSTS, ESTATES,
COOPERATIVES TO WHICH PART I OF SUBCHAPTER IT OF THE CODE APPLIES AND, EXCEPT AS
PROVIDED IN REGULATIONS, NOMINEES.
ACCESS FINANCIAL MORTGAGE LOAN TRUST ______
MORTGAGE LOAN PASS-THROUGH CERTIFICATE
CLASS RU
Representing Certain Interests Relating to a Pool of
Mortgage Loans Formed by
ACCESS FINANCIAL LENDING CORP.
(This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Access Financial Lending Corp., ______________________________________, any
Sub-Servicer or any of their respective subsidiaries and affiliates. This
Certificate represents a fractional residual ownership interest in the
Upper-Tier REMIC described in the Pooling and Servicing Agreement.)
No: RU-1 Date: _____________________
Percentage Interest: _______ __________________
Final Scheduled
Payment Date
- --------------------------------------------------------------------------------
Registered Owner
C-2-2
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Access Financial Mortgage Loan Trust
__________________, Mortgage Loan Pass-Through Certificates, Class RU (the "RU
Certificates") and issued under and subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Owner of this Certificate by virtue of acceptance hereof
assents and by which such Owner is bound. Also issued under the Pooling and
Servicing Agreement are Certificates designated as Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class A-
1 Group I (the "Class A-1 Group I Certificates"), Access Financial Mortgage Loan
Trust __________________, Mortgage Loan Pass-Through Certificates, Class A-2
Group I (the "Class A-2 Group I Certificates"), Access Financial Mortgage Loan
Trust __________________, Mortgage Loan Pass-Through Certificates, Class A-3
Group I (the "Class A-3 Group I Certificates"), Access Financial Mortgage Loan
Trust __________________, Mortgage Loan Pass-Through Certificates, Class A-4
Group I (the "Class A-4 Group I Certificates"), Access Financial Mortgage Loan
Trust __________________, Mortgage Loan Pass-Through Certificates, Class A-5
Group I (the "Class A-5 Group I Certificates"), Access Financial Mortgage Loan
Trust __________________ Mortgage Loan Pass-Through Certificates, Class A-6
Group II (the "Class A-6 Group II Certificates"), Access Financial Mortgage Loan
Trust __________________, Mortgage Loan Pass-Through Certificates, Class B Group
I Certificates (the "Class B Group I Certificates"), Access Financial Mortgage
Loan Trust __________________, Mortgage Loan Pass-Through Certificates, Class B
Group II (the "Class B Group II Certificates"), Access Financial Mortgage Loan
Trust __________________, Mortgage Loan Pass-Through Certificates, Class BI-S
(the "Class BI-S Certificates") and Class BII-S (the "Class BII-S Certificates")
and Access Financial Mortgage Loan Trust __________________, Mortgage Loan
Pass-Through Certificates, Class RL (together with the Class RU Certificates,
the "Residual Certificates"). The Class A-1 Group I Certificates, the Class A-2
Group I Certificates, the Class A-3 Group I Certificates, the Class A-4 Group I
Certificates, the Class A-5 Group I Certificates, the Class A-6 Group II
Certificates (collectively, the "Class A Certificates"), the Class B Group I
Certificates, the Class B Group II Certificates, the Class BI-S Certificates,
the Class BII-S Certificates and the Residual Certificates are collectively
referred to herein as the "Certificates."
C-2-3
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the ____ day of each month, or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date"), commencing __________________, to the Owners of the Class RU
Certificates as of the close of business on the first Business Day of the
calendar month immediately preceding the calendar month in which such Payment
Date occurs (the "Record Date"), the Trustee will distribute to each Owner of
the Class RU Certificates such Owner's Percentage Interest multiplied by the
amounts then available to be distributed to the Owners of the Class RU
Certificates. No significant distributions are anticipated to be made.
Upon receiving the final distribution hereon, the Owner hereof
is required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
Access Financial Lending Corp., as Master Servicer, pursuant
to the Pooling and Servicing Agreement will service the Mortgage Loans. The
Pooling and Servicing Agreement permits the Master Servicer to enter into
Sub-Servicing Agreements with certain institutions eligible for appointment as
Sub-Servicers for the servicing and administration of the Mortgage Loans. No
appointment of any Sub-Servicer shall release the Master Servicer from any of
its obligations under the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, Access Financial Lending Corp., ___________________________,
any Sub-Servicer, or any of their respective subsidiaries and affiliates and are
not insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, or any other governmental agency.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling
C-2-4
and Servicing Agreement, or for the appointment of a receiver or trustee, or for
any other remedy under the Pooling and Servicing Agreement except in compliance
with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates of all amounts held by the Trustee and
required to be paid to such Owners pursuant to the Pooling and Servicing
Agreement upon the later to occur of (a) the final payment or other liquidation
(or any advance made with respect thereto) of the last Mortgage Loan in the
Trust Estate or (b) the disposition of all property acquired in respect of any
Mortgage Loan remaining in the Trust Estate or (ii) at any time when a Qualified
Liquidation of the Upper-Tier REMIC and the Lower-Tier REMIC is effected as
described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the Seller
may, at its option, purchase from the Trust all (but not fewer than all)
remaining Mortgage Loans and other property then constituting the Trust Estate,
and thereby effect early retirement of the Certificates, on any Remittance Date
when the aggregate outstanding Principal Balance of the Mortgage Loans is ten
percent or less of the Original Pool Principal Balance. If the Seller declines
to exercise such option within ninety days following such date, the Trustee
shall solicit bids for the purchase of all Mortgage Loans remaining in the
Trust. If satisfactory bids are received as described in the Pooling and
Servicing Agreement, the Trustee shall effect early retirement of the
Certificates. If satisfactory bids are not received, the Trustee shall decline
to sell the Mortgage Loans and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of the Mortgage Loans. Such
sale and consequent termination of the Trust must constitute a "qualified
liquidation" of each REMIC established by the Trust under Section 860F of the
Internal Revenue Code of 1986, as amended, including, without limitation, the
requirement that the qualified liquidation takes place over a period not to
exceed ninety days.
C-2-5
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form set forth in the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and a
like Percentage Interest will be issued to the designated transferee or
transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class RU Certificates are issuable only as registered
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class RU Certificates are exchangeable
for new Class RU Certificates evidencing the same Percentage Interest as the
Class RU Certificates exchanged.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee or any such agent shall be affected by notice
to the contrary.
C-2-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed on behalf of the Trust.
_______________________________
____________________, as Trustee
By:___________________________
Title:_____________________
Trustee's Authentication
__________________________,
__________________________,
as Trustee
By:__________________________
Title:_______________________
Dated: _______________
C-2-7
EXHIBIT D
FORM OF TRANSFER CERTIFICATE
______________________________
______________________________
______________________________
Attention: ______________________________
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
P.O. Box 26365
St. Louis Park, Minnesota 55426-0365
Attention: Operations
Ladies and Gentlemen:
The undersigned (the "Transferee") has agreed to purchase from
______________________________ (the "Transferor") the following:
Class Number
----- ------
_____ ______
_____ ______
_____ ______
A. Rule 144A "Qualified Institutional Buyers" should complete
this section
I. The Transferee is (check one):
____ (i) An insurance company, as defined in Section 2(13) of the
Securities Act of 1933, as amended (the "Securities Act"), (ii) an investment
company registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), (iii) a business development company as defined in
Section 2(a)(48) of the Securities Act, (iv) a Small Business Investment Company
licensed by the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958, as amended, (v) a plan established
and maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the benefit of its
employees, (vi) an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (vii) a
business development company as
defined in Section 202(a)(22) of the Investment Advisors Act of 1940, as
amended, (viii) an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation (other than a bank as defined in Section 3(a)(2) of
the Securities Act or a savings and loan association or other institution
referenced in Section 3(a)(2) of the Securities Act or a foreign bank or savings
and loan association or equivalent institution), partnership, or Massachusetts
or similar business trust; or (ix) an investment advisor registered under the
Investment Advisors Act of 1940, as amended, which, for each of (i) through
(ix), owns and invests on a discretionary basis at least $100 million in
securities other than securities of issuers affiliated with the Transferee,
securities issued or guaranteed by the United States or a person controlled or
supervised by and acting as an instrumentality of the government of the United
States pursuant to authority granted by the Congress of the United States, bank
deposit notes and certificates of deposit, loan participations, repurchase
agreements, securities owned but subject to a repurchase agreement, and
currency, interest rate and commodity swaps (collectively, "Excluded
Securities");
____ a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that in the aggregate owns
and invests on a discretionary basis at least $10 million of securities other
than Excluded Securities and securities constituting the whole or part of an
unsold allotment to, or subscription by, Transferee as a participant in a public
offering;
____ an investment company registered under the Investment Company
Act that is part of a family of investment companies (as defined in Rule 144A of
the Securities and Exchange Commission) which own in the aggregate at least $100
million in securities other than Excluded Securities and securities of issuers
that are part of such family of investment companies;
____ an entity, all of the equity owners of which are entities
described in this Paragraph A(I);
____ a bank as defined in Section 3(a)(2) of the Securities Act,
any savings and loan association or other institution as referenced in Section
3(a)(5)(A) of the Securities Act, or any foreign bank or savings and loan
association or equivalent institution that in the aggregate owns and invests on
a discretionary basis at least $100 million in securities other than Excluded
Securities and has an audited net worth of at least $25 million as demonstrated
in its latest annual financial statements, as of a date not more than 16 months
preceding the date of transfer of the Certificates to the Transferee in the case
of a U.S. Bank or savings and loan association, and not more than 18 months
D-2
preceding such date in the case of a foreign bank or savings association or
equivalent institution.
II. The Transferee is acquiring such Certificates solely for
its own account, for the account of one or more others, all of which are
"Qualified Institutional Buyers" within the meaning of Rule 144A, or in its
capacity as a dealer registered pursuant to Section 15 of the Exchange Act
acting in a riskless principal transaction on behalf of a "Qualified
Institutional Buyer". The Transferee is not acquiring such Certificates with a
view to or for the resale, distribution, subdivision or fractionalization
thereof which would require registration of the Certificates under the
Securities Act.
B. "Accredited Investors" should complete this Section
I. The Transferee is (check one):
____ a bank within the meaning of Section 3(a)(2) of the Securities
Act;
____ a savings and loan association or other institution defined in
Section 3(a)(5) of the Securities Act;
____ a broker or dealer registered pursuant to the Exchange Act;
an insurance company within the meaning of Section 2(13) of
the Securities Act;
____ an investment company registered under the Investment Company
Act;
____ an employee benefit plan within the meaning of Title I of
ERISA, which has total assets in excess of $5,000,000;
____ another entity which is an "accredited investor" within the
meaning of paragraph (fill in) of subsection (a) of Rule 501 of the Securities
and Exchange Commission.
II. The Transferee is acquiring such Certificates solely for
its own account, for investment, and not with a view to or for the resale,
distribution, subdivision or fractionalization thereof which would require
registration of the Certificates under the Securities Act.
C. If the Transferee is unable to complete one of paragraph
A(I) or paragraph B(I) above and is not a designated PORTAL depository
organization, the Transferee must furnish an opinion in form and substance
satisfactory to the Trustee of counsel satisfactory to the Trustee to the effect
that such
D-3
purchase will not violate any applicable federal or state securities laws.
D. The Transferee represents that either (a) it is not (i) an
employee benefit plan (as defined in section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) subject to the provisions of
Title I of ERISA, (ii) a plan described in section 4975(e)(l) of the Internal
Revenue Code of 1986, or (iii) an entity whose underlying assets are deemed to
be assets of a plan described in (i) or (ii) above by reason so such plan's
investment in the entity (any such entity described in clauses (i) through
(iii), a "Benefit Plan Entity")* or (b) it is an insurance company general
account and, pursuant to Section I of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60"), the acquisition and holding of the Class A Certificates
and, pursuant to Section III of PTCE 95-60, the servicing, management and
operation of the Trust are with respect to such Purchaser exempt form the
"prohibited transaction" provisions of ERISA and the Code or (c) if the
Purchaser is a Benefit Plan Entity, the following:
(i) the Purchaser is not a Benefit Plan Entity with respect to an
employee benefit plan sponsored by any member of the Restricted Group (as
defined in the Private Placement Memorandum);
(ii) either (A) the person who has discretionary authority or renders
investment advice to the Purchaser with respect to the investment of plan assets
in the Class A Certificates is not an Obligor (or an affiliate) with respect to
the Mortgage Loans (as defined in the Prospectus), or (B) the person who has
such discretionary authority or renders such investment advice is an Obligor (or
an affiliate) with respect to less than 5 percent of the Receivables; and,
immediately after the acquisition of the Class A Certificates,
- --------
* Do not include option (b) or (c) for acquisitions or transfers of a class of
Certificates which has not been placed or underwritten by an entity which has an
Underwriter Exemption (as described in Prohibited Transaction Class Exception
95-60) and do not include option (c) for acquisitions or transfers of
Certificates that (i) evidence rights and interests that are subordinated to the
rights and interests evidenced by other Certificates of the Trust, or (ii) occur
at any time during which the Certificates being acquired or transferred are not
rated in one of the top three rating categories of any rating agency that
satisfies the requirements of Prohibited Transaction Exemption 89-90 and that
(a) is rating the Certificates as of the date hereof and (b) has been requested
by the issuer of the Certificates to rate the Certificates.
D-4
no more than 25 percent of the assets of the Purchaser are invested in
certificates representing an interest in a trust containing assets sold or
serviced by the same entity; and
(iii) the purchaser is an "accredited investor" as defined in Rule
501(a) of Regulation D pursuant to the 1933 Act.
Very truly yours,
By: ______________________________
Title: ___________________________
Dated: _______________
D-5
EXHIBIT E
FORM OF RESIDUAL CERTIFICATE
TAX MATTERS TRANSFER CERTIFICATE
AFFIDAVIT PURSUANT TO SECTION
860(e) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of __________] [the United States], on behalf of
which he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" and will
not be a "disqualified organization" as of [date of transfer] (For this purpose,
a "disqualified organization" means the United States, any state or political
subdivision thereof, any foreign government, any international organization, any
agency or instrumentality of any of the foregoing (other than certain taxable
instrumentalities), any cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas, or any organization
(other than a farmers' cooperative) that is exempt from federal income tax
unless such organization is subject to the tax on unrelated business income);
(ii) it is not acquiring the Class RU [RL] Certificate for the account of a
disqualified organization; (iii) it consents to any amendment of the Pooling and
Servicing Agreement dated as of _________________ among Access Financial Lending
Corp., as Seller and Master Servicer, and ______________________, as Trustee
that shall be deemed necessary by the Trustee (upon advice of counsel) to
constitute a reasonable arrangement to ensure that the Class RU [RL]
Certificates will not be owned directly or indirectly by a disqualified
organization; and (iv) it will not transfer such Class RU [RL] Certificate
unless (a) it has received from the transferee an affidavit in substantially the
same form as this affidavit containing these same four representations and (b)
as of the time of the transfer, it does not have actual knowledge that such
affidavit is false.
D-1
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this ____ day of __________, ____.
[NAME OF INVESTOR]
By: _____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
Attest:
_________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of
Officer], known or proved to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Investor, and acknowledged to
me that he executed the same as his free act and deed and the free act and deed
of the Investor.
Subscribed and sworn before me this ____ day of _____________,
____.
_________________________
NOTARY PUBLIC
COUNTY OF _______________
STATE OF ________________
My commission expires the ____ day of ____________, ____.
EXHIBIT F
FORM OF MASTER SERVICER'S TRUST RECEIPT
To: _________________________
_________________________
_________________________
Attn: Corporate Trust
Date:
In connection with the administration of the mortgage loans
serviced by Access Financial Lending Corp. (the "Master Servicer") pursuant to a
Pooling and Servicing Agreement dated as of _________________________ (the
"Pooling and Servicing Agreement") by and among the Master Servicer, you, as
Trustee, and Access Financial Lending Corp., in its capacity as Seller, the
Master Servicer hereby requests a release of the File held by you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor's Name:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The Master Servicer hereby certifies that all amounts received
in connection with the loan and required to be remitted to the
Trustee have been or will be remitted to the Trustee pursuant to
the Pooling and Servicing Agreement.)
_____ 2.
Mortgage Loan repurchased pursuant to Section 3.2, 3.3 or 3.4(b) of
the Pooling and Servicing Agreement.
_____ 3. Mortgage Loan substituted.
(The Master Servicer hereby certifies that a Qualified
Replacement Mortgage has been or will be assigned and delivered
to you along with the related File pursuant to the Pooling and
Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
The undersigned acknowledges that the above File will be held
by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except (i) if the Mortgage Loan
has been paid in full, or repurchased or substituted by a Qualified Replacement
Mortgage (in which case the File will be retained by us permanently) or (ii)
except if the Mortgage Loan is being foreclosed (in which case the File will be
returned when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed
to them in the Pooling and Servicing Agreement.
ACCESS FINANCIAL LENDING CORP.
By______________________________
Name:_________________________
Title:________________________
The Trustee hereby acknowledges the above request.
____________________________________________
By:_________________________________________
Name:
Title:
F-2
EXHIBIT G
[RESERVED]
EXHIBIT H
FORM OF DELIVERY ORDER
__________
_________________________________
_________________________________, as Trustee
_________________________________
_________________________________
Attention: ______________
Dear Sirs:
Pursuant to Article IV of the Pooling and Servicing Agreement,
dated as of _________________________(the "Pooling and Servicing Agreement"), by
and among Access Financial Lending Corp., as seller (the "Seller") and master
servicer, and _________________________, as trustee (the "Trustee"), the Seller
HEREBY CERTIFIES that all conditions precedent to the issuance of Access
Financial Mortgage Loan Trust Mortgage ______________ Loan Pass-Through
Certificates, Series _______, Class A-1 Group I, Class A-2 Group I, Class A-3
Group I, Class A-4 Group I, Class A-5 Group I, Class A-6 Group II, Class B Group
I, Class B Group II, Class RL and Class RU (the "Certificates"), HAVE BEEN
SATISFIED and HEREBY REQUESTS YOU TO AUTHENTICATE AND DELIVER said Certificates,
and to RELEASE said Certificates to the Seller thereof, or otherwise upon their
order.
Very truly yours,
___________________________
___________________
By:________________________
Name:
Title:
EXHIBIT I
[RESERVED]
EXHIBIT J
FORM OF CERTIFICATE REGARDING PREPAID LOANS
I, _________________, _____________ of Access Financial
Lending Corp., a Delaware corporation, (the "Seller"), hereby certify that
between the "Cut-Off Date" (as defined in the Pooling and Servicing Agreement,
dated as of ____________________ , among Access Financial Lending Corp., as
seller (the "Seller") and master servicer, and ____________________________, as
trustee (the "Trustee") and the "Startup Day" the attached schedule of "Mortgage
Loans" (each as defined in the Pooling and Servicing Agreement) has been prepaid
in full.
Dated:
By:___________________________
Name:
Title:
EXHIBIT K
TRUSTEE'S ACKNOWLEDGEMENT OF RECEIPT
________________________________, a national banking
association, in its capacity as trustee (the "Trustee") under that certain
Pooling and Servicing Agreement, dated as of ___________________, (the "Pooling
and Servicing Agreement"), by and among Access Financial Lending Corp., as
seller (the "Seller") and master servicer, and the Trustee, hereby acknowledges
receipt of the items delivered to it by the Seller with respect to the Mortgage
Loans relating to Access Financial Mortgage Loan Trust of the Pooling and
Servicing Agreement.
The Mortgage Loan Schedule relating to Access Financial
Mortgage Loan Trust ______________ is attached to this Receipt.
The Trustee hereby additionally acknowledges that it shall
review such items as required by Section 3.4 of the Pooling and Servicing
Agreement and shall otherwise comply with Section 3.4 of the Pooling and
Servicing Agreement as required thereby.
___________________________
__________________
as Trustee
By:________________________
Name:
Title:
Dated: ______________
EXHIBIT L
FORM OF INTERIM TRUSTEE CERTIFICATION
[DATE]
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
P.O. Box 26365
St. Louis Park, Minnesota 55426-0365
Attention: Operations
___________________________
___________________________
___________________________
Attention:_________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
RE: Pooling and Servicing Agreement, dated as of
___________________________, among Access Financial Lending
Corp., as seller and master servicer, and _______
___________________________, as trustee
Ladies and Gentlemen:
In accordance with Section 3.4 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as trustee (the "Trustee"), hereby certifies that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule relating to Access Financial
Mortgage Loan Trust _________________ (except with respect to the Mortgage
Loans, if any, listed in the attached schedule), that:
(i) all documents required to be delivered to it are in
the Trustee's possession;
(ii) the Mortgage Note bears an original of an endorsement
to the Trustee purportedly from the original payee
(or a set of original endorsements evidencing a
complete chain of title from the original payee to
the Trustee);
(iii) such documents have been reviewed by it and relate to
such Mortgage Loan; and
(iv) based upon such review, the information set forth in
items (i)-(vi) of Section 3.4(a) of the Pooling and
Servicing Agreement as they relate to the Mortgage
Loan Schedule accurately reflects the information in
the Mortgage Files.
The Trustee, based on its examination of the Mortgage Loan
Files, also hereby confirms that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (except as listed in the attached schedule), that:
(i) each Mortgage Note and Mortgage bears an original
signature or signatures purporting to be that of the
person named as the maker and mortgagor/trustor;
(ii) the principal amount of the indebtedness secured by
the Mortgage is identical to the original principal
amount of the Mortgage Note;
(iii) the assignment of Mortgage to the Trustee is in the
form required by this Agreement and bears a signature
that purports to be the signature of an authorized
officer of the Servicer;
(iv) if intervening assignments are included in the
Mortgage Loan File, each such intervening assignment
bears a signature that purports to be the signature
of the mortgagee/beneficiary and/or the assignee;
(v) if either a title insurance policy or a preliminary
title report or a commitment to issue a title policy
is delivered, the address of the real property set
forth in such policy, report or commitment is
identical the real property address contained in the
Mortgage;
(vi) if either a title insurance policy or a preliminary
title report or a commitment to issue a title policy
is delivered, such policy or written commitment is
for an amount equal to the original principal amount
of the Note; and
(vii) it has received an original recorded Mortgage and
assignment, in each case, with evidence of
L-2
recordation thereon or a copy thereof certified to be
true and correct by the public recording office in
possession of such Mortgage and assignment.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Trustee makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each such Mortgage File or any
of the Mortgage Loans identified on said Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used but not defined herein
shall have the respective meanings ascribed to them in the Pooling and Servicing
Agreement.
___________________________
By:
Name:
Title:
L-3
EXHIBIT M
FORM OF FINAL TRUSTEE CERTIFICATION
[DATE]
Access Financial Lending Corp.
400 Highway 169 South, Suite 400
P.O. Box 26365
St. Louis Park, Minnesota 55426-0365
Attention: Operations
___________________________________
___________________________________
___________________________________
Attention:_________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
Re: Pooling and Servicing Agreement, dated as of
_______________________, among Access Financial
Lending Corp., as seller and master servicer,
and ___________________________________, as trustee
Ladies and Gentlemen:
In accordance with Section 3.4 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as trustee (the "Trustee"), hereby certifies that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule relating to Access Financial
Mortgage Loan Trust ______________________ (except with respect to the Mortgage
Loans, if any, listed in the attached schedule), that:
(i) all documents required to be delivered to it are in
the Trustee's possession;
(ii) the Mortgage Note bears an original of an endorsement
to the Trustee purportedly from the original payee
(or a set of original endorsements evidencing a
complete chain of title from the original payee to
the Trustee);
(iii) such documents have been reviewed by it and relate to
such Mortgage Loan; and
(iv) based upon such review, the information set forth in
items (i)-(vi) of Section 3.4(a) of the Pooling and
Servicing Agreement as they relate to the Mortgage
Loan Schedule accurately reflects the information in
the Mortgage Files.
The Trustee, based on its examination of the Mortgage Loan
Files, also hereby confirms that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (except as listed in the attached schedule), that:
(i) each Mortgage Note and Mortgage bears an original
signature or signatures purporting to be that of the
person named as the maker and mortgagor/trustor;
(ii) the principal amount of the indebtedness secured by
the Mortgage is identical to the original principal
amount of the Mortgage Note;
(iii) the assignment of Mortgage to the Trustee is in the
form required by this Agreement and bears a signature
that purports to be the signature of an authorized
officer of the Servicer;
(iv) if intervening assignments are included in the
Mortgage Loan File, each such intervening assignment
bears a signature that purports to be the signature
of the mortgagee/beneficiary and/or the assignee;
(v) if either a title insurance policy or a preliminary
title report or a commitment to issue a title policy
is delivered, the address of the real property set
forth in such policy, report or commitment is
identical the real property address contained in the
Mortgage;
(vi) if either a title insurance policy or a preliminary
title report or a commitment to issue a title policy
is delivered, such policy or written commitment is
for an amount equal to the original principal amount
of the Note; and
(vii) it has received an original recorded Mortgage and
assignment, in each case, with evidence of
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recordation thereon or a copy thereof certified to be
true and correct by the public recording office in
possession of such Mortgage and assignment.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Trustee makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each such Mortgage File or any
of the Mortgage Loans identified on said Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used but not defined herein
shall have the respective meanings ascribed to them in the Pooling and Servicing
Agreement.
___________________________
By:
Name:
Title:
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EXHIBIT N
AUCTION PROCEDURES
I. Pre-Auction Process
a. If by the ninetieth day following the Seller's
optional termination date pursuant to Section 9.02 of
the Pooling and Servicing Agreement, the Seller has
not exercised such option, then a plan of complete
liquidation with respect to the Mortgage Loans will
be adopted by the Trustee in order to satisfy REMIC
requirements, and the Trustee will notify
____________________ (or, if ____________________ is
unable or unwilling to so act, another investment
banking or whole-loan trading firm selected by the
Seller (________________________ or such other
investment bank or trading firm, the "Advisor")), as
Advisor of the assets of the proposed auction.
b. Upon receiving notice of the proposed auction, the
Advisor will initiate its general auction procedures
consisting of the following: (i) with the assistance
of the Seller, prepare a general solicitation package
along with a confidentiality agreement; (ii) prepare
a list of qualified bidders, in a commercially
reasonable manner; (iii) initiate contact with all
qualified bidders; (iv) send a confidentiality
agreement to all qualified bidders; (v) upon receipt
of a signed confidentiality agreement, send
solicitation packages to all interested bidders on
behalf of the Trustee; and (vi) notify the Seller of
all potential bidders and anticipated timetable.
c. The general solicitation package will include: (i)
the prospectus from the public offering of the Class
A Certificates ("Prospectus"); (ii) a copy of all
monthly servicing reports or a copy of all annual
servicing reports and, upon a written request, the
prior years' monthly servicing reports; (iii) a form
of a purchase and sale agreement and servicing
agreement for such sale; (iv) a description of the
minimum purchase price required to cause the Trustee
to sell the Mortgage Loans as set forth in Section
8.3 of the Pooling and Servicing
Agreement; (v) a formal bidsheet; (vi) a detailed
timetable; and (vii) a preliminary data tape of the
Mortgage Loans as of the most recent Payment Date
reflecting the same data attributes used to create
the original Cut-Off Date tables for the Prospectus.
d. The Advisor will send solicitation packages to all
bidders no later than the Payment Date preceding the
date of the auction, which date shall be fifteen (15)
Business Days before a Payment Date (the "Auction
Date"). Bidders will be required to submit any due
diligence questions in writing to the Advisor, for
determination of their relevancy, no later than ten
(10) Business Days before the Auction Date. The
Seller and the Advisor will be required to satisfy
all relevant questions at least five (5) Business
Days prior to the Auction Date and distribute the
questions and answers to all bidders.
II. Auction Process
a. The Advisor will be allowed to bid in the auction,
but will not be required to do so.
b. The Seller will also be allowed to bid in the auction
if it deems appropriate, but will not be required to
do so.
c. On the Auction Date, all bids will be due by
facsimile to such office as shall be designated by
the Trustee by 1:00 p.m. EST; with the winning bidder
to be notified by 2:00 p.m. EST. All acceptable bids
(as described in Section 8.3 of the Pooling and
Servicing Agreement) will be due on a conforming
basis on the bid sheet contained in the solicitation
package.
d. If the Trustee receives fewer than two market value
bids from competitive participants in the home equity
loan market, the Trustee may, following consultation
with the Advisor and the Seller, decline to
consummate the sale.
e. Upon notification to the winning bidder, a one
percent (1%) good faith deposit of the aggregate
balance of the unpaid principal balances of the
Mortgage Loans as of the last day of the preceding
Remittance Period will be
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required to be wired to the Trustee upon acceptance
of the bid. This deposit, along with any interest
income attributable to it, will be credited to the
purchase price, but will not be refundable. The
Trustee will establish a separate account for the
acceptance of the good faith deposit, until such time
as the account is fully funded and all monies are
transferred into the Certificate Account, such time
not to exceed one (1) Business Day before the final
Payment Date.
f. The winning bidder will receive on the Auction Date a
copy of the draft purchase and sale agreement and
servicing agreement.
g. The Advisor will provide to the Trustee a letter
concluding whether or not the winning bid is a fair
market value bid. The Advisor will also provide this
letter if it is the winning bidder. In the case where
the Advisor (or the Seller) is the winning bidder, it
will provide in its letter for market comparables and
valuations.
h. The auction will stipulate that the Master Servicer
or a successor Master Servicer be retained to service
the Mortgage Loans sold pursuant to the terms of the
purchase and sale agreement and the servicing
agreement.
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EXHIBIT O
FORM OF TRUSTEE REQUEST
FOR INTEREST ADVANCES
Access Financial Receivables Corp.
400 Highway 169 South, Suite 400
P.O. Box 26365
St. Louis Park, Minnesota 55426-0365
Re: Pooling and Servicing Agreement, dated as of
____________________ , among Access Financial
Lending Corp., as seller and master servicer,
and _____________________________ , as trustee
Ladies and Gentlemen:
In accordance with Section 7.9 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as trustee (the "Trustee"), hereby requests payment of the
following amount representing the Class A-6 Formula Interest Shortfall:
$_________________
Capitalized words and phrases used but not defined herein
shall have the respective meanings ascribed to them in the Pooling and Servicing
Agreement.
__________________________
__________________________
By:_______________________
Name:
Title:
Dated: ______________