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-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Rb86pY5v4gdkkz//DxmBPRd9bHNWlnBEw41O09sGMPnhVW0vXRzyHM8OScbi19BD +/HWVS/bUtz6Zz7awO/oZA== 0000950134-04-009855.txt : 20040709 0000950134-04-009855.hdr.sgml : 20040709 20040709102225 ACCESSION NUMBER: 0000950134-04-009855 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20040624 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20040709 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNSET FINANCIAL RESOURCES INC CENTRAL INDEX KEY: 0001270436 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 161685692 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32026 FILM NUMBER: 04907192 BUSINESS ADDRESS: STREET 1: 4231 WALNUT RD CITY: JACKSONVILLE STATE: FL ZIP: 32257 BUSINESS PHONE: 9042875310 MAIL ADDRESS: STREET 1: 4231 WALNUT RD CITY: JACKSONVILLE STATE: FL ZIP: 32257 8-K 1 d16708e8vk.htm FORM 8-K e8vk

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): June 24, 2004

SUNSET FINANCIAL RESOURCES, INC.

(Exact name of Registrant as specified in its Charter)


Maryland (State or other jurisdiction of incorporation or organization)		001-32026 (Commission file number)		16-1685692 (I.R.S. Employer Identification Number)

10245 Centurion Parkway North, Jacksonville, Florida 32256
(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (904) 425-4099

TABLE OF CONTENTS


	Item 5. Other Events and Required FD Disclosure
	Item 7. Exhibits
SIGNATURE
INDEX TO EXHIBITS
Amendment to Credit Agreement
Pooling and Servicing Agreement
Assignment, Assumption and Recognition Agreement
Assignment, Assumption and Recognition Agreement
Assignment, Assumption and Recognition Agreement
Assignment, Assumption and Recognition Agreement
Assignment, Assumption and Recognition Agreement
Indemnification Agreement
Press Release

Item 5. Other Events and Required FD Disclosure.

On June 24, 2004, the Company amended its Senior Secured Credit Agreement dated March 22, 2004 by and between the Company and JPMorgan Chase Bank, N.A. This amendment permits the Company to finance commercial bridge loans under this credit facility provided that such loans meet specific criteria. This amendment is attached to this Form 8-K as Exhibit 10.1.

On June 29, 2004, the Company securitized $219.4 million in residential mortgage loans by participating with JPMorgan in the J.P. Morgan Mortgage Trust 2004-A3.

Attached as Exhibit 99.1 is a press release issued by the registrant on July 2, 2004 discussing both of the above transactions.

Item 7. Exhibits.


10.1		6/04 Amendment To Credit Agreement among Sunset Financial Resources, Inc. and JPMorgan Chase Bank

10.2		Pooling and Servicing Agreement dated as of June 1, 2004, among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the “Depositor”), Wells Fargo Bank, N.A., as Master Servicer and Securities Administrator, and Wachovia Bank, National Association, as trustee (the “Trustee”) of J.P. Morgan Mortgage Trust 2004-A3 (the “Trust”).

10.3		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee, the Trust, the Company and Bank of America, N.A., a national banking association.

10.4		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee of the Trust, the Company, Cendant Mortgage Corporation and Bishop’s Gate Residential Mortgage Trust, with Cendant Mortgage Corporation as the servicer.

10.5		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee of the Trust, the Company, Cendant Mortgage Corporation and Bishop’s Gate Residential Mortgage Trust, with Cendant Mortgage Corporation as the servicer.

10.6		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee of the Trust, the Company, and National City Mortgage Co.

10.7		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee of the Trust, the Company, and Green point Mortgage Funding, Inc.

10.8		Indemnification Agreement dated as of June 29, 2004 between the Company and the Depositor.

99.1		Press Release issued July 2, 2004.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: July 8, 2004


		SUNSET FINANCIAL RESOURCES, INC.

		By:		/s/ Thomas G. Manuel

				Executive Vice President – Operations
				and Compliance and Secretary

INDEX TO EXHIBITS


EXHIBIT
NUMBER		DESCRIPTION
10.1		6/04 Amendment To Credit Agreement among Sunset Financial Resources, Inc. and JPMorgan Chase Bank

10.2		Pooling and Servicing Agreement dated as of June 1, 2004, among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the “Depositor”), Wells Fargo Bank, N.A., as Master Servicer and Securities Administrator, and Wachovia Bank, National Association, as trustee (the “Trustee”) of J.P. Morgan Mortgage Trust 2004-A3 (the “Trust”).

10.3		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee, the Trust, the Company and Bank of America, N.A., a national banking association.

10.4		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee of the Trust, the Company, Cendant Mortgage Corporation and Bishop’s Gate Residential Mortgage Trust, with Cendant Mortgage Corporation as the servicer.

10.5		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee of the Trust, the Company, Cendant Mortgage Corporation and Bishop’s Gate Residential Mortgage Trust, with Cendant Mortgage Corporation as the servicer.

10.6		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee of the Trust, the Company, and National City Mortgage Co.

10.7		Assignment, Assumption and Recognition Agreement dated as of June 1, 2004, among the Depositor, the Trustee of the Trust, the Company, and Green point Mortgage Funding, Inc.

10.8		Indemnification Agreement dated as of June 29, 2004 between the Company and the Depositor.

99.1		Press Release issued July 2, 2004.

EX-10.1 2 d16708exv10w1.txt AMENDMENT TO CREDIT AGREEMENT EXHIBIT 10.1 6/04 AMENDMENT TO CREDIT AGREEMENT Preamble This 6/04 Amendment to Credit Agreement dated as of June 24, 2004 (the "6/04 AMENDMENT" or, within itself only, this "AMENDMENT") amending (for the first time) the 3/04 Senior Secured Credit Agreement dated March 22, 2004 (the "3/04 CREDIT AGREEMENT" and as amended hereby and as it may be supplemented, further amended or restated from time to time, the "CURRENT CREDIT AGREEMENT"), among SUNSET FINANCIAL RESOURCES, INC. (the "COMPANY"), a Maryland corporation with its principal office at 10245 Centurion Parkway N, Suite 305, Jacksonville, FL 32256, JPMORGAN CHASE BANK ("JPMORGAN"), a New York banking corporation, acting herein as a Lender (as defined in SECTION 1.2 of the 3/04 Credit Agreement) and agent and representative of the other Lenders (in that capacity JPMorgan is called the "AGENT"), and such other Lenders as may from time to time be party to the Current Credit Agreement, recites and provides as follows: Recitals The Company has asked the Lenders and the Agent to amend the 3/04 Credit Agreement to add a sublimit for financing Commercial Mortgage Loans (up to $5,625,000 of the Aggregate Committed Sum for Commercial Mortgage Loans secured by Hospitality Property, $3,750,000 for those secured by Restaurant Property and $18,750,000 for all Commercial Mortgage Loans) and make certain changes to the sublimits for financing Single-family Mortgage Loans (increasing the sublimits for Super Jumbo Mortgage Loans to 20% of the Aggregate Committed Sum and for Non-owner Occupied Loans to 10% of the Aggregate Committed Sum and adding a sublimit for Co-op Loans of 2.5% of the Aggregate Committed Sum), capitalized terms used in these recitals being defined above, in SECTION 1 of the 3/04 Credit Agreement or in SECTION 1 of this Amendment, and the Lenders and the Agent have agreed to do so on the terms and subject to the conditions of this Amendment. If there is any conflict or inconsistency between these recitals and the following agreements, the latter shall govern and control. If there is any conflict or inconsistency between any of the terms or provisions of this Amendment and any of the other Facilities Papers, this Amendment shall govern and control. If there is any conflict between any provision of this Amendment and any later supplement, amendment, restatement or replacement of the 3/04 Credit Agreement, the latter shall govern and control. Agreements In consideration of the premises, the mutual agreements stated below and other good and valuable consideration paid by each party to each other party to this Agreement, the receipt and sufficiency of which each hereby acknowledges, the parties hereby agree as follows: 1 DEFINITIONS 1.2 Definitions of General Application. A. The following new definitions are hereby added to SECTION 1.2 of the 3/04 Credit Agreement, in alphabetical order: "APPROVED INVESTOR" means Ginnie Mae, Fannie Mae, Freddie Mac and any of the Persons listed on SCHEDULE 6/04-AI, as it may be supplemented or amended from time to time by agreement of the Company and the Agent; provided that if the Agent shall give written notice to the Company of the Agent's reasonable disapproval of any Approved Investor(s) named in the notice, the investor(s) named shall no longer be Approved Investor(s) from and after the time when the Agent sends that notice to the Company. "BOOK COMMERCIAL COLLATERAL VALUE" is defined in the definition of "Collateral Value". "CHANGE OF CONTROL" means: (a) any Person shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Exchange Act except that for purposes of this definition, a Person shall not be deemed to have acquired beneficial ownership of securities tendered pursuant to a tender or exchange offer made by or on behalf of such Person until such tendered securities are accepted for purchase or exchange), directly or indirectly, of either (i) Voting Stock of the Company (or other securities convertible into such Voting Stock) representing more than nine and nine-tenths percent (9.9%) of the combined voting power of all Voting Stock of the Company or (ii) more than nine and nine-tenths percent (9.9%) of the outstanding shares of any class or series of capital stock of the Company ; or (b) any Person shall have succeeded in having so many of such Person's nominees elected to the board of directors of the Company that such nominees, when added to any existing directors remaining on the board of directors of the Company after such election who were previously nominated by or are Affiliates of such Person, comprise a majority of the board of directors of the Company. "CO-OP LOAN" means a Single-Family Loan secured by the pledge of interests in a housing cooperative and a related cooperative housing unit lease. B. The following definitions in SECTION 1.2 are hereby amended to henceforth read as follows: "ADVANCE" means a disbursement by the Lenders under the Loan in accordance with the terms of this Agreement -- including initial disbursements, 2 readvances of funds previously advanced to the Company and repaid to the Lenders and protective advances made without any requirement for any Request for Borrowing -- and is a correlative of "Borrowing": a Borrowing from the Lenders' and the Agent's point of view. Where "Swing Line" prefaces "Advance", then it means an Advance by JPMorgan under the Swing Line. Where "Dry" prefaces "Advance", then it means an Advance to finance Dry Loans (whether Single-family Loans, Commercial Mortgage Loans or both.) Where "Wet" prefaces "Advance", then it means an Advance to finance Wet Loans (only Single-family Loans are eligible to be financed as Wet Loans.) Each Advance shall be classified by the Agent as of its initial funding date as one or the other of the following Classes of Borrowings: (i) a "SINGLE-FAMILY WAREHOUSING ADVANCE" meaning an Advance made to finance Dry Loans); (ii) a "COMMERCIAL WAREHOUSING ADVANCE". meaning an Advance made to finance Eligible Commercial Collateral. "APPRAISAL" means: (i) for Single-family Loans, an appraisal of the Mortgaged Premises that fully complies with all applicable Interagency Appraisal and Evaluation Guidelines adopted by the Federal Reserve System, the National Credit Union Administration, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision and the Office of Comptroller of the Currency made by a licensed appraiser selected in accordance with Agency guidelines and not identified to the Company as an unacceptable appraiser by an Agency, and who is experienced in estimating the value of property of that same type in the community where it is located, and who -- unless approved by the Agent on a case-by-case basis -- is not a director, officer or employee of the Company or any Affiliate of the Company, or related as a parent, sibling, child or first cousin to any of the Company's or any such Affiliate's respective directors or officers or any of their spouses, a signed copy of the written report of which appraisal is in the possession of the Company or its Servicer; and (i) for Commercial Mortgage Loans, a "market value" appraisal of the Mortgaged Premises that fully complies with all applicable Interagency Appraisal and Evaluation Guidelines adopted by the Federal Reserve System, the National Credit Union Administration, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision and the Office of Comptroller of the Currency and conforms to the Uniform Standards of Professional Appraisal Practice promulgated by the Appraisal Foundation (www.appraisalfoundation.org) and is made by a licensed appraiser designated as an MAI Appraiser by the Appraisal Foundation and who is experienced in estimating the value of property of that same type in the community where it is located, and who -- unless approved by the Agent on a case-by-case basis -- is not a director, officer or employee of the 3 Company or any Affiliate of the Company, or related as a parent, sibling, child or first cousin to any of the Company's or any such Affiliate's respective directors or officers or any of their spouses, a signed copy of the written report of which appraisal is in the possession of the Company or its Servicer. "BASIC PAPERS" means all of the Loan Papers that must be delivered to the Custodian -- in the case of Wet Loans, on or before the seventh (7th) Business Day after the related Advance -- in order for any particular item of Collateral to be Eligible Collateral and have Collateral Value. EXHIBIT C-1 to the Custody Agreement lists the Basic Papers for Single-family Collateral and EXHIBIT C-2 to the Custody Agreement lists the Basic Papers for Commercial Collateral, and reference is here made to the Custody Agreement for those listings. "BORROWING" is a correlative of "Advance": an Advance from the Company's point of view. Where "Swing Line" prefaces "Borrowing", then it means a Borrowing from JPMorgan under the Swing Line. Where "Dry" prefaces "Borrowing", then it means a Borrowing to finance Dry Loans (whether Single-family Loans, Commercial Mortgage Loans or both.) Where "Wet" prefaces "Borrowing", then it means a Borrowing to finance Wet Loans (only Single-family Loans are eligible to be financed as Wet Loans.) "CHANGE OF EXECUTIVE MANAGEMENT" means the occurrence of any event after which, without the Agent's prior written consent, any of John Bert Watson, Thomas G. Manuel, Byron L. Boston, Mike Pannell or Jeff Betros shall cease for any reason whatsoever, including death or disability, to be, and to continuously perform the duties of, President and Chief Executive Officer, Chief Operating Officer, Chief Investment Officer, Chief Financial Officer and Chief Marketing Officer, respectively, of the Company or, if such cessation shall occur as a result of death or disability, no successor satisfactory to the Agent, in its reasonable judgment, shall have become, and shall have commenced to perform the duties of, President and Chief Executive Officer, Chief Operating Officer, Chief Investment Officer, Chief Financial Officer and Chief Marketing Officer, respectively, of the Company within ninety (90) days after such cessation; provided that if any such satisfactory successor shall have been so elected and shall have commenced performance of such duties within such period, then the name of such successor or successors shall be deemed to have been inserted in place of John Bert Watson, Thomas G. Manuel, Byron L. Boston, Mike Pannell or Jeff Betros, as applicable, in this definition. "COLLATERAL" is any or all collateral (as the context requires) for the Obligations: Pledged Loans, their security, their related Loan Papers and the right to recover under the related Hazard Insurance Policies, consisting of the "SINGLE-FAMILY COLLATERAL", which means pledged Single-family Loans, their security, their related Loan Papers and the right to recover under the related Hazard Insurance Policies, and the "COMMERCIAL COLLATERAL", which means pledged Commercial Mortgage Loans, their security (including all assignments of rents 4 and assignments of leases), their related Loan Papers and the right to recover under the related Hazard Insurance Policies. "COLLATERAL VALUE" means the value of Eligible Collateral for purposes of this Agreement. Collateral (i) that is not duly Pledged to the Agent, (ii) in which the Agent does not have a first and prior perfected Lien (except that in the case of Wet Loans Pledged to the Agent for seven (7) or less Business Days, the fact that the Agent does not have possession, directly or through the Custodian, of the Basic Papers therefor shall not affect such Wet Loans' Collateral Value) or (iii) that is not Eligible Collateral because it does not satisfy in all material respects one or more of the conditions to eligibility stated for it in this Agreement, shall have zero Collateral Value, and Collateral that at one time satisfied all conditions for eligibility but for which a Disqualifier has occurred shall have zero Collateral Value from the date of that Disqualifier unless and until the Company has cured all applicable Disqualifiers or the Agent has waived them in writing; provided that the reduction for any reason of the Collateral Value of any Collateral that is Pledged to the Agent shall not itself affect or impair the Agent's security interest in that Collateral. Collateral Values of the two types of Eligible Collateral, duly Pledged to the Agent with the Agent having Lien priority and perfection as aforesaid and as to which no such uncured or unwaived Disqualifier has occurred, shall be determined as follows: (a) The "SINGLE-FAMILY COLLATERAL VALUE"on any day of any Eligible Single-family Collateral, whether a Dry Loan or a Wet Loan, shall be its "BOOK SINGLE-FAMILY COLLATERAL VALUE", which is the least of: (i) ninety-eight percent (98%) of such Pledged Loan's Principal Balance on that day; (ii) for a pledged Single-family Loan originated by any Affiliate of the Company, ninety-eight percent (98%) of the loan amount at origination less discount points received by such Affiliate, as stated on the Pledged Loan's HUD-1 Settlement Statement; (iii) for a pledged Single-family Loan directly or indirectly acquired by the Company from a mortgage broker or a correspondent that is not an Affiliate of the Company, ninety-eight percent (98%) of the net purchase price paid therefor by the Company (i.e., net of all origination fees, discounts, refunds and rebates, however and whenever credited or payable to the Company and without regard, however, to any servicing release premium paid by the Company); and (iv) (only for a pledged Single-family Loan covered by a Purchase Commitment) the purchase price that the Approved Investor has committed to pay for such Pledged Loan; 5 provided that if the Agent or the Required Lenders shall elect to mark it to market, such Pledged Loan's Collateral Value for that day shall be the lesser of (x) its Book Single-family Collateral Value or (y) ninety-seven percent (97%) of its Market Value on that day. (b) The "COMMERCIAL COLLATERAL VALUE" on any day of any Eligible Single-family Collateral, whether a Dry Loan or a Wet Loan, shall be its "BOOK COMMERCIAL COLLATERAL VALUE", which is the least of: (i) fifty percent (50%) of such pledged Commercial Mortgage Loan's Principal Balance on that day; (ii) for a pledged Commercial Mortgage Loan originated by the Company or any Affiliate of the Company, fifty percent (50%) of the loan amount at origination less discount points received by such Affiliate, as stated on such pledged Commercial Mortgage Loan's closing or settlement statement; (iii) for a pledged Commercial Mortgage Loan directly or indirectly acquired by the Company from a mortgage broker or a correspondent that is not an Affiliate of the Company, fifty percent (50%) of the net purchase price paid therefor by the Company (i.e., net of all origination fees, discounts, refunds and rebates, however and whenever credited or payable to the Company and without regard, however, to any servicing release premium paid by the Company); and (iv) (only for a pledged Commercial Mortgage Loan covered by a Purchase Commitment) fifty percent (50%) of the purchase price that the Approved Investor has committed to pay for such Pledged Loan; provided that if the Agent or the Required Lenders shall elect to mark it to market, such pledged Commercial Mortgage Loan's Collateral Value for that day shall be the lesser of (x) its Book Commercial Collateral Value or (y) fifty percent (50%) of its Market Value on that day. (c) The Collateral Value of any other type of Collateral shall be as is reasonably determined by the Agent. The applicable percentage factor (stated above) for determining the value of any particular item of Collateral is the "ADVANCE RATE" for that Collateral. Each of such values shall be as determined by the Agent -- which may accept as correct any value proposed by the Company that is not obviously and materially incorrect on its face -- and each determination by the Agent of Collateral Value (and of each element of each such determination, including Market Value) may be computed using any reasonable averaging, interpolation and attribution method and, absent manifest error, shall be conclusive and binding. "COMMERCIAL COLLATERAL" is defined in the definition of "Collateral". 6 "COMMERCIAL MORTGAGE LOAN" means a Mortgage Loan secured by a first lien Mortgage on Mortgaged Premises that are Eligible Commercial Property with a Principal Balance of at least One Million Dollars ($1,000,000) or such lesser amount as may be approved by the Agent on a case-by-case basis, and not more than Fifteen Million Dollars ($15,000,000). "CUMULATIVE LOAN-TO-VALUE RATIO" means: (i) as to any Single-family Loan, the ratio of: (x) the sum of (i) the original principal amount of the Mortgage Note that is Pledged to the Agent and (ii) the original principal sums of all other Mortgage Notes (if any) secured by a mortgage Lien on the same Mortgaged Premises as are the security for such pledged Mortgage Note; to (y) the fair market value of such Mortgaged Premises, as such value is shown in the most recent Appraisal or the most recent Current Broker's Price Opinion (whichever is less); and (ii) as to any Commercial Mortgage Loan, the ratio of: (x) the sum of (i) the original principal amount of the Mortgage Note that is Pledged to the Agent and (ii) the original principal sums of all other Mortgage Notes (if any) secured by a mortgage Lien on the same Mortgaged Premises as are the security for such pledged Mortgage Note; to (y) the fair market value of such Mortgaged Premises, as such value is shown in the most recent Appraisal. "DRY LOAN" means a Pledged Loan acquired and owned by the Company that has been closed, funded and qualifies without exception as Eligible Single-family Collateral, including satisfying the requirement that all of its Basic Papers have been delivered to the Custodian, and the adjective "DRY" means that a Pledged Loan is a Dry Loan. "ELIGIBLE COMMERCIAL COLLATERAL" is defined on SCHEDULE EC. "ELIGIBLE COMMERCIAL PROPERTY" means fee title or the ground leasehold estate in and to U.S. real property designed for use, and being currently used, as: (a) "CONDOMINIUM PROPERTY", meaning a building or buildings that has been made subject to a residential or commercial condominium regime, dividing it into individual condominium units and their common elements; (b) "HOSPITALITY PROPERTY", meaning as hotel or resort property; 7 (c) "INDUSTRIAL PROPERTY", meaning as manufacturing or other industrial use property; (d) "MULTIFAMILY PROPERTY", meaning as residential rental apartments; (e) "OFFICE PROPERTY", meaning as rental commercial office facilities; (f) "RETAIL PROPERTY", meaning as retail shopping facilities; (g) "STORAGE FACILITIES PROPERTY", meaning as warehouse facilities; or (h) "RESTAURANT PROPERTY", meaning as retail food (with beverages) service facilities. "IN DEFAULT" means that, as to any Mortgage Loan, any Mortgage Note payment or escrow payment is unpaid for one (1) day -- thirty-five (35) days for Commercial Mortgage Loans -- or more after its due date (whether or not the Company has allowed any grace period or extended the due date thereof by any means) or another material default has occurred and is continuing, including the commencement of foreclosure proceedings or the commencement of a case in bankruptcy for any Customer under such Mortgage Loan. "LIQUIDITY" means the Company's unencumbered cash and Cash Equivalents plus (x) the lesser of the book value or the par value of Eligible Collateral that has either not been pledged to the Agent or any other Person or otherwise encumbered and (y) the sum of the unused borrowing availability under this Agreement or any of the Company's other committed credit agreements to the extent (if any) that the collateral value of eligible Single-family Collateral that has been pledged to secure the Company's debt to the lenders under such credit agreements exceeds the outstanding borrowings thereunder. "LONG WAREHOUSED (AGED) LOAN" or "AGED LOAN" means a Single-family Loan whose Original Pledge Date was more than one hundred twenty (120) days, but not more than one hundred eighty (180) days, before the relevant Determination Date (being the date on or for which such Mortgage Loan's Collateral Value is being determined). A pledged Single-family Loan whose Original Pledge Date was more than one hundred eighty (180) days before the relevant Determination Date shall have zero Collateral Value. "NON-OWNER OCCUPIED LOAN" means a Single-family Loan whose Mortgaged Premises are not occupied by one of the relevant Customers as either his or her primary residence or second home. "PERMITTED ENCUMBRANCES" means in respect of the Mortgaged Premises securing a Pledged Loan, (i) tax Liens for real property taxes and government- 8 improvement assessments that are not delinquent; (ii) easements and restrictions that do not materially and adversely affect the title to or marketability of the Mortgaged Premises or prohibit or interfere with the use of the Mortgaged Premises as (for Single-family Loans) a one-to-four family residential dwelling or (for Commercial Mortgage Loans) Eligible Commercial Property use; (iii) reservations as to oil, gas or mineral rights, provided such rights do not include the right to remove buildings or other material improvements on or near the surface of the Mortgaged Premises or to mine or drill on the surface thereof or otherwise enter the surface for purposes of mining, drilling or exploring for, or producing, transporting or otherwise handling oil, gas or other minerals of any kind; (iv) agreements for the installation, maintenance or repair of public utilities, provided such agreements do not create or evidence Liens on the Mortgaged Premises or authorize or permit any Person to file or acquire claims of Liens against the Mortgaged Premises and (v) such other exceptions (if any) as are acceptable under relevant Agency guidelines. "QUALIFYING COMMERCIAL MORTGAGE LOAN GUARANTY" means the written unconditional and irrevocable guaranty of the full and timely payment of all principal of and interest on a Commercial Mortgage Loan by a Person who has a FICO score of at least 630 and whose current financial statements furnished to the Borrower show that such Person has personal liquidity sufficient for timely payment in full of such guaranteed obligation. "WET LOAN" means a pledged Single-family Loan acquired and owned by the Company: (a) that has been closed by a title agency or closing attorney, funded and would qualify without exception as Eligible Collateral except that some or all of its Basic Papers are in transit to, but have not yet been received by, the Custodian so as to satisfy all requirements to permit the Company to borrow against it pursuant to this Agreement without restriction; (b) that the Company reasonably expects to fully qualify as Eligible Collateral when the original Basic Papers have been received by the Custodian; (c) as to which the Company actually and reasonably expects that such full qualification can and will be achieved on or before seven (7) Business Days after an Advance against such item of Collateral is requested and made under this Agreement (and the Company hereby agrees to take such steps as are reasonably necessary to ensure it achieves full qualification as Eligible Collateral); and (d) for which the Company has delivered to the Custodian a Warehouse Transmission File on or before the date of the related Advance, submission of which to the Custodian shall constitute the Company's certification to the Custodian, the Agent and the Lenders that a complete File as to such item of Collateral, including the Basic Papers, exists and that such File is in the 9 possession of either the title agent or closing attorney that closed such Pledged Loan, the Company or the Company's Servicer for such Pledged Loan, or that such File has been shipped to the Custodian; and the adjective "WET" means that a Pledged Loan is a Wet Loan. Each Wet Loan that satisfies the requirements set forth in CLAUSES (a) through (d) above shall be Eligible Collateral subject to the condition subsequent of physical delivery of its Mortgage Note, Mortgage and all other Basic Papers, together with a Collateral Confirmation Agreement, to the Custodian within seven (7) Business Days after funding of the related Borrowing. Each Wet Loan against which the Company requests an Advance shall be irrevocably deemed Pledged to the Agent and shall automatically become pledged Collateral effective on the date of the related Request for Borrowing, and the Company shall take all steps necessary or appropriate to cause the pledge to the Agent and delivery to the Custodian of such Wet Loan and its Basic Papers to be completed, perfected and continued in all respects, including causing the original promissory note evidencing such pledged Collateral to be physically delivered to the Custodian within seven (7) Business Days after the funding of the Advance, whether or not the related Advance is sooner paid, and, if requested by the Agent, to give written notice to any title agent, closing attorney or other Person in possession of the Basic Papers for such Collateral of the Agent's security interest in it and its security. Upon the Custodian's receipt of the Basic Papers relative to a Wet Loan accompanied by a Collateral Confirmation Agreement, such Collateral shall no longer be subject to this Agreement's limitations applicable to Wet Loans (and, as provided in the Custody Agreement, the conversion from Wet Loan status to Dry Loan status shall be made on the same Business Day if the Basic Papers and Collateral Confirmation Agreement are received by the Custodian by 11:00 AM, or on the next Business Day if received after 11:00 AM.) C. The following definitions are hereby deleted from SECTION 1.2: "INVESTOR LOAN" "LATE PLEDGED (SEASONED) LOAN" D. EXHIBIT 6/04-B hereto replaces EXHIBIT B to the 3/04 Credit Agreement, and SCHEDULES 6/04-DQ and 6/04-EC hereto replace SCHEDULES DQ and EC to the 3/04 Credit Agreement 1.3. Definitions for Interest Calculations. A. The following new definitions are hereby added to SECTION 1.3, in alphabetical order: 10 "CLASS OF BORROWINGS" means a grouping or categorization of Borrowings by the particular Category of Collateral that they were made to finance, i.e. either (i) Single-family Warehousing Advances to finance Eligible Single-family Collateral or (ii) Commercial Warehousing Advances to finance Eligible Commercial Collateral. "MARGIN" means the interest rate margin to be added to a specified Index to determine a Rate. The margins used in this Agreement are the "LIBOR MARGIN", which is applicable to Advances for each Class of Borrowings on each day that the Loan bears interest at the Base Rate, and the "ABR MARGIN" applicable to Advances for each Class of Borrowings on each day that the Loan bears interest at the Alternate Base Rate. For each Class of Borrowings that is described on a row in the first column of the following table, the applicable interest rate Margins are stated on the same row:

B. The following definitions in SECTION 1.3 are hereby amended to henceforth read as follows: "ABR MARGIN" is defined in the definition of "Margin". "EURODOLLAR RESERVE REQUIREMENTS" means for any day or time period, the stated maximum rate (expressed as a decimal fraction) for all reserves required to be maintained for that day or during that period (including basic, supplemental, marginal and emergency reserves) against "eurocurrency liabilities", as defined in Regulation D, all as specified by any Governmental Authority, including those imposed under Regulation D. Each determination of Eurodollar Reserve Requirements by the Agent may be computed using any reasonable method and, absent manifest error, shall be conclusive and binding. "LIBOR MARGIN" is defined in the definition of "Margin". CLAUSE (d) of the definition of "Rate" is hereby amended to henceforth read as follows: (d) the "PAST DUE RATE" which means, on any day, the lesser of: (i) the Prime Rate for that day plus two percent (2%) per annum; and 11 (ii) the Ceiling Rate for that day. "STATED RATE" means, for all outstanding Borrowings for any day: (a) the Base Rate for that day, computed in accordance with the provisions of this Agreement, compounded annually, unless the Borrower has duly elected in accordance with SECTION 1.1(b) that all Loan Principal bear interest at the Alternate Base Rate; (b) if the Borrower has duly elected in accordance with SECTION 1.1(b) that all Loan Principal bear interest at the Alternate Base Rate and has not subsequently duly elected in accordance with SECTION 1.1(c) that all Loan Principal bear interest at the Base Rate, the Alternate Base Rate for that day, computed in accordance with the provisions of this Agreement, compounded annually; provided that if on any day the applicable rate for the Loan as a whole shall exceed the relevant Ceiling Rate for that day, then the Stated Rate therefor shall be reset to equal the Ceiling Rate on that day and shall be set to equal the Ceiling Rate for each day thereafter until the total amount of interest accrued at the Stated Rate on the unpaid balance of the Loan equals the total amount of interest that would have accrued on it if there were no Ceiling Rate. C. The following definitions are hereby deleted from SECTION 1.3: "ALTERNATE BASE RATE TRANCHE" "BASE RATE TRANCHE" "INTEREST RATE OPTION" "INTEREST RATE SELECTION CONFIRMATION" "TRANCHE" 3 GENERAL BORROWING PROCEDURES SECTION 3 of the 3/04 Credit Agreement is hereby amended to henceforth read as follows: 3.1 Separate Request for Each Borrowing. A separate Request for Borrowing shall be made for each Borrowing, which, when appropriately completed and, if new Collateral is being pledged, with a Submission List attached, may include requests for Borrowings to finance either of the two types of Eligible Collateral ((i) Wet or Dry Prime Loans or Alt-A Loans or (ii) Dry Commercial Mortgage Loans). 12 3.2 Funding of Single-family Advances. (a) Deadline for Requests to be Funded as Regular Advances. If a Request for Borrowing is received before 3:00 PM(1) (Central time, as stated in SECTION 1.4(c)) -- 4:00 PM(1) for any Request for Borrowing that requests only a Wet Single-family Advance and is Electronically Submitted -- on a Business Day and fully qualifies in all respects for funding as a regular Advance by the Lenders (including satisfying any applicable requirement of SECTION 3.3), it shall be funded as a regular Single-family Advance on that same Business Day. (The following provisions of this Section 3.2 are inapplicable until a Lender or Lenders in addition to JPMorgan joins this Agreement) (b) Deadline for Requests for Single-family Advances to be Funded as Swing Line Advances. If, after a Lender or Lenders in addition to JPMorgan joins this Agreement, the requirements of SECTIONS 2.6 and 3.3 are satisfied and a Request for Borrowing is received on a Business Day after 3:00 PM but before 4:00 PM, JPMorgan shall fund the Single-family Advance requested by making a Swing Line Advance on that same day. (c) Deadline for Requests for Single-family Advances to be Funded as Regular Advances. If a Request for Borrowing is received before 12:00 noon (Central time, as stated in SECTION 1.4(c) -- 1:00 PM for any Request for Borrowing that requests only a Wet Single-family Advance and is Electronically Submitted -- on a Business Day and fully qualifies in all respects for funding as a regular Advance by the Lenders (including satisfying any applicable requirement of SECTION 3.5), it shall be funded as a regular Single-family Advance on that same Business Day. (d) Late Requests. If, after a Lender or Lenders in addition to JPMorgan joins this Agreement, a Request for Borrowing is received by JPMorgan later than 4:00 PM on a Business Day, JPMorgan shall either, at its election, (i) fund the Single-family Advance requested by making a Swing Line Loan either on that same day or, at JPMorgan's election, on the next Business Day, or (ii) arrange for its funding on the next Business Day as a regular Single-family Advance. JPMorgan shall have no obligation to fund any such late-requested Single-family Advance as a Swing Line Advance if all of the requirements of SECTIONS 2.6 and 3.6 are not satisfied, although JPMorgan may elect to do so. If JPMorgan does not elect to do so, then the Lenders shall fund such requested Single-family Advance as a regular Advance on such next succeeding Business Day after the Request for Borrowing is received by the - -------------------------- (1) These times will change to 12:00 noon and 1:00 PM, respectively, if and when another Lender joins the Current Credit Agreement. 13 Agent, provided that all conditions to its funding (including the requirements of SECTION 3.6) are then satisfied. (e) Repayment of Swing Line Borrowings. Each Swing Line Advance shall be repaid on its Swing Line Borrowing Due Date by the Agent's paying over to JPMorgan out of the Note Payment Account, and JPMorgan's applying against such outstanding Swing Line Borrowing, an amount equal to the proceeds of the Funding Shares funded by all of the other Lenders on that day against the same Request for Borrowing that was initially funded by such Swing Line Advance. If at the time such Swing Line Advance was funded, JPMorgan reasonably believed that no Default or Event of Default had occurred and was then continuing and that all of the other conditions set forth in SECTION 2.6 for such Swing Line Advance were satisfied in all material respects, the other Lenders shall be unconditionally and irrevocably obligated to timely fund their respective Funding Shares of the Single-family Advance that was so initially funded as a Swing Line Advance, to repay to JPMorgan (and thereby refinance) on the relevant Swing Line Borrowing Due Date all of that Swing Line Advance except only JPMorgan's Funding Share of it, irrespective of whether in the meantime any Default or Event of Default has occurred or been discovered, and irrespective of whether in the meantime some or all of the Lenders' Commitments have lapsed, expired or been canceled, rescinded or terminated with or without cause, or have been waived, released or excused for any reason whatsoever, so that (i) the principal of the Swing Line is paid down by the required amount on each Swing Line Borrowing Due Date-- all accrued interest on Swing Line Advances shall be due and payable by the Company to the Agent (for distribution from the Note Payment Account to JPMorgan) on the later of (x) the fifteenth (15th) day of the next month (with the first interest payment due July 15, 2004) or (y) two (2) Business Days after the Agent bills the Company for such accrued interest-- (ii) all Swing Line Advances are converted to regular Advances from the Lenders and (iii) those Advances are evidenced by the Senior Credit Notes other than the Swing Line Note. If any Lender fails to provide its funds to JPMorgan to repay its share of any Swing Line Loan when due (including any such failure caused by a fed funds wire delay), then that Lender shall also be obligated to pay to JPMorgan interest on the unpaid balance of principal so due to JPMorgan at the Federal Funds Effective Rate from such due date until three (3) Business Days after such due date, and at the Federal Funds Effective Rate plus two percent (2%) from three (3) Business Days after such due date until the date of payment of such principal sum. 3.4 Funding of Commercial Advances. (a) Deadline and Requirements for Requests for Commercial Advances. Requests for Borrowing for Commercial Advances shall be submitted to the Agent at least ten (10) Business Days before the requested funding date, and will include: (1) the requested funding date; 14 (2) the purchase price to be paid for the Mortgaged Premises that will secure the related Commercial Mortgage Loan; (3) the complete underwriting package required pursuant to the Company's underwriting guidelines and requirements, including a copy of the complete Appraisal; (4) a copy of the Purchase Commitment or Qualifying Commercial Mortgage Loan Guaranty that will cover or guarantee payment of the related Commercial Mortgage Loan; (5) copies of any environmental and regulatory due diligence reports regarding the related Mortgaged Premises; and (6) the Company's narrative statement of its strategy for disposition or satisfaction of the proposed Commercial Mortgage Loan and full recovery of the amount list plus accrued interest. The Agent shall either approve or disapprove the proposed Commercial Borrowing and notify the Company of its decision on or before five (5) Business Days before the proposed funding date of the related Commercial Mortgage Loan specified in the Request for Borrowing submitted at least ten (10) Business Days before such proposed funding date, and if the Agent approves it, the Company shall confirm to the Agent in writing at least two (2) Business Days before the funding date the Company's written confirmation that such Commercial Mortgage Loan will be made, specifying any terms and conditions that are different from or in addition to those specified in the initial Request for Borrowing and stating that all conditions precedent to the transaction are consistent with this Agreement. 3.5 Syndication of Advances. (a) When a Request for Borrowing is received by the Agent, the Agent shall give notice by fax or, at the Agent's discretion, email to each Lender of that requested Advance and that Lender's Funding Share of the requested Advance by 2:00 PM on the Business Day when the requested Advance is to be funded by the Lenders, and each Lender shall cause its Funding Share thereof to be transferred to the Agent by fed funds wire transfer to: JPMorgan Chase Bank ABA number 1130-0060-9 Attention: Mortgage Warehousing -- Wanda Carr Phone: (713) 427-6391 For credit to: Sunset Financial Resources, Inc. Account No. 00100381681 JPMorgan Chase Real Estate Wire Transfer Clearing Account 15 within two (2) hours after receiving such notice from the Agent or by 4:00 PM, whichever is earlier, so that the Agent receives it in good collected Houston funds on that same Business Day, and the Agent shall deposit such Funding Shares into the Note Payment Account when received. (b) If the Agent has not already funded the requested Advance as a Swing Line Advance (Swing Line funding is available only for Single-family Advances), then (provided no Default has occurred that has not been cured by the Company or waived in writing by the Agent and no Event of Default has occurred that the Agent has not declared in writing to have been either cured or waived) the Agent shall disburse such Advance to the Company or to its designee(s) for their account. (c) If the Agent has funded the requested Advance (or any part of it) as a Swing Line Advance, then the Agent shall repay JPMorgan the related Swing Line Advance (except for JPMorgan's own Funding Share thereof) from the Note Payment Account; provided that if a Lender other than JPMorgan advises the Agent by telephone and confirms the advice by fax that the Lender has placed all of its Funding Share on the federal funds wire to the Agent, the Agent shall continue to keep the Swing Line Advance outstanding to the extent of that Lender's Funding Share so wired until the Agent has actually received such share-- whereupon the Agent shall deposit such Funding Share when received into the Note Payment Account and repay JPMorgan that still-outstanding portion of the Swing Line Advance from the Note Payment Account-- except that the Agent shall have no obligation to continue such portion of any Swing Line Advance outstanding if and to the extent, if any, that doing so would cause the total amount funded by the Agent and outstanding to exceed the Swing Line Limit. 3.6 Time When Submission List(s) and New Collateral Papers (If Any) Due. Unless the Borrowing Base already has sufficient Collateral Value to support both the requested Borrowing and all other outstanding Borrowings, the Company shall (1) deliver to the Agent with the Request for Borrowing one or more signed Submission Lists listing (i) all new Collateral then being Pledged to the Agent to support such Borrowing and (ii) the values of the elements for determining the Book Single-family Collateral Value of the new Collateral (such elements being described in clauses (i), (ii) and (iii) of the definition of "Collateral Value"), and (2) other than for Wet Loans, cause to be delivered to the Custodian all of the Basic Papers relating to the items of new Collateral listed in such Submission List(s), by the following deadlines:

16 3.7 If Outstanding Advances Would Exceed the Borrowing Base. If, after giving effect to a requested Borrowing, the outstanding Borrowings would exceed the Borrowing Base, or if the Agent or the Custodian determines (either then or on any later day in the course of reviewing the same) that any such Submission List or Basic Papers submitted to it are incomplete or incorrect in any material respect (provided that if the Custodian reasonably determines that such a condition of incompleteness or incorrectness of Basic Papers is correctable and returns the subject Basic Papers to the Company for corrective action, then the affected Pledged Loan(s) shall not be excluded from the Borrowing Base unless and until the Company fails to correct and return such Basic Papers to the Custodian within ten (10) Business Days after the Custodian sent them) then: (a) the Agent may withhold the entire Advance until the Company shall have demonstrated to the Custodian's reasonable satisfaction that all required Basic Papers submitted (if any), are in fact not (or are no longer) incomplete or incorrect in any material respect; or (b) in the case of a Borrowing Base insufficiency, unless the Company instructs the Agent in writing not to fund any of the requested Borrowing, and subject to the provisions and limitations of SECTIONS 2.1 and 2.5, the Agent will fund such lesser amount(s) as the Agent shall determine is (are) supported by the Borrowing Base and will notify the Company of such insufficiency, including the Agent's calculation of such insufficiency set forth in reasonable detail. 3.8 If a Request for Borrowing or New Collateral Papers are Received Late; Waiver of Claim for Any Late Funding. If either a Request for Borrowing or the Basic Papers for any new Collateral and its related Submission List are submitted late, the Agent will use reasonable efforts to make the requested Advance as a Swing Line Advance on the same Business Day it is requested, although neither the Company nor any other Person shall have any claim or cause of action against the Agent or any of the Lenders if for any reason that funding (or any other funding) does not occur on the same day it is requested. 5 INTEREST, PRINCIPAL AND FEES PAYMENTS SECTION 5.2 of the 3/04 Credit Agreement is hereby amended to henceforth read as follows: 5.2 Interest Rates. (a) Subject to the following rules, and as contemplated in the definition of "Stated Rate", unless the Company has made a valid election that the 17 Loan principal outstanding bear interest at the Alternate Base Rate, the principal of each Borrowing outstanding on any day when no Event of Default has occurred and is continuing shall bear interest from the date such Borrowing is funded until repaid in full at the Base Rate applicable from time to time (compounded annually). (b) The Company may elect that all Loan principal then or thereafter outstanding bear interest at the Alternate Base Rate by giving the Agent telephonic notice not later than 10:00 AM on the effective date of such election, specifying the Business Day when the election is to become effective and confirming the telephonic notice in writing by not later than the close of business on the same day. (c) If the Company has elected the Alternate Base Rate, the Company may thereafter elect that all Loan Principal again bear interest at the Base Rate by giving the Lender telephonic notice not later than 10:00 AM on the effective date of such election, specifying the Business Day when the election is to become effective and confirming the telephonic notice in writing by not later than the close of business on the same day. (1) Notwithstanding any contrary or inconsistent provision of this SECTION 5.2, all Loan principal outstanding shall bear interest at the Past Due Rate from the date of occurrence of any Event of Default and until it has been declared in a writing signed by the Lender to have been cured or waived and its material consequences (if any) have been wholly cured. SECTION 5.3(a) is hereby amended to henceforth read as follows: (a) Promptly upon the Company's becoming entitled and able to collect the proceeds of any sale or other disposition of Collateral, or upon the Company's receiving any regularly scheduled payments or prepayments of principal of any pledged Commercial Mortgage Loan, a principal amount equal to the amount so collectable or received shall be due and payable by the Company to the Agent -- although, pursuant to the provisions of SECTION 6.10, the Agent's security interest in such Collateral or its proceeds shall not be released unless and until the Agent has received for deposit into the Note Payment Account the Redemption Amount for such Collateral -- and the Company shall cause the entirety of all available Collateral disposition proceeds and all such pledged Commercial Mortgage Loan principal payments and prepayments to be paid to the Agent (or if the Company receives them, the Company shall pay them over to the Agent), with each such payment to be applied first against the principal of Borrowings outstanding under the Swing Line, then against the principal of Borrowings outstanding under the Credit Line, and with the remaining balance (if any) to be transferred from the Note Payment Account into the Company's own account with JPMorgan (unless either (i) any payment of principal or interest on the Obligations shall then be past due, in which event the Agent may first apply such excess to pay such past due amount and transfer only the balance, if any, 18 remaining after such application to the Company's own account, or (ii) an Event of Default has occurred that the Agent has not declared in writing to have been either waived or cured, in which event the Agent shall hold such excess as Collateral and apply it in accordance with the provisions of SECTION 11.4.) With or after each such payment, the Company shall furnish the Agent and the Custodian with a written reconciliation of the amounts collected by the Company with the amount received by the Agent. 6 COLLATERAL 6.1 Grant of Security Interest. As security for the payment of the Loan and for the payment and performance of all of the Obligations, the Company hereby grants to the Agent, as agent and representative of the Lenders, a first priority security interest in all of the Collateral. SECTIONS 6.1(a) and 6.1(a)(1) are hereby amended to henceforth read as follows: (a) Single-family Collateral and Commercial Collateral. (1) all Pledged Loans, including pledged Single-family Loans and pledged Commercial Mortgage Loans; 8 REPRESENTATIONS SECTION 8.15 is amended to substitute the following as the Company's address: 10245 Centurion Parkway N, Suite 305, Jacksonville, FL 32256 The second line of SECTION 8.17(m) is hereby amended to read as follows: or (for Single-family Loans) such other form of title insurance as is acceptable to Fannie Mae SECTION 8.17(t) is hereby amended to read as follows: (t) The Company's acquisition, disposition and collection practices with respect to Mortgage Loans are and have been in all material respects in accordance with industry custom and practice, and in all respects legal and proper. The first line of SECTION 8.17(z) is hereby amended to read as follows: (z) No Mortgaged Premises securing any Pledged Loan is within a SECTION 8.17(cc)(12) is hereby amended to read as follows: 19 (12) (for Single-family Loans) are secured by Single-family residential property or (for Commercial Mortgage Loans) Eligible Commercial Property; SECTION 8.17(ff) is hereby amended to read as follows: (ff) No default, and no event that with notice or lapse of time or both would become a default, has occurred and is continuing under any item of Collateral except as to which the Company has given notice to the Agent, or will give such notice in the next report of Pledged Loans that are In Default, as required by SECTION 9.4(b). A new SECTION 8.17(ii) is hereby added, reading as follows: (ii) as of the Effective Date, either (i) to the best knowledge of the Company, no Mortgaged Premises securing a Commercial Mortgage Loan are subject to an environmental hazard that would have to be eliminated under applicable law before the sale of, or which could otherwise affect the marketability of, such Mortgaged Premises or which would subject the owner or operator of such Mortgaged Premises or a lender secured by such Mortgaged Premises to liability under applicable Law, and there are no Liens that relate to the existence of any clean-up of a hazardous substance (and to the best of the Company's knowledge, no circumstances exist that under applicable Law would give rise to any such Lien) affecting the Mortgaged Premises which are or may be Liens prior to or on a parity with the lien of the related Mortgage or (ii) a secured lender's environmental insurance policy is in effect with respect to such Mortgaged Premises. 9 AFFIRMATIVE COVENANTS SECTION 9.2(b) is amended by adding the following new SECTION 9.2(b(2): (2) any management letters, management reports or other supplementary comments or reports delivered by such accountants to management or the board of directors of the Company; SECTION 9.4 is amended by adding the following new SECTION 9.4(b): (b) Monthly, if applicable, a report of Collateral that is In Default, separately listing Single-family Loans and Commercial Mortgage Loans. 13 RELATIONSHIPS AMONG THE AGENT AND THE LENDERS SECTION 13.3(j) is hereby amended to henceforth read as follows: 20 (j) cause or permit any change in the eligibility standards for Collateral hereunder or change the definition of any type of Eligible Collateral, provided that the Agent may in its discretion approve as Eligible Collateral any Collateral (without regard to any Commercial Mortgage Loans that, pursuant to the provisions of SCHEDULE DQ, item 13, the Agent has allowed to continue as Eligible Collateral even though their Original Pledge Dates were more than 270 days but not more than 364 days ago) that does not satisfy such eligibility standards and that has aggregate Collateral Value of up to Ten Million Dollars ($10,000,000) at the time of approval. SECTION 13.4 is hereby amended by adding the following new CLAUSE (c) (and relettering the current CLAUSE (c) as CLAUSE (d)): (c) approve or disapprove any additional investor proposed by the Company as an Approved Investor or disapprove any existing Approved Investor; or 14 NOTICES The Company's address for Notices is hereby amended to henceforth read as follows: Sunset Financial Resources, Inc. 10245 Centurion Parkway N, Suite 305 Jacksonville, FL 32256 Attention: Mike Pannell, Chief Financial Officer Phone: (904) 425-4349 Fax: (904) 425-4350 15 MISCELLANEOUS 15.7 Counterpart Execution. This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument. 15.12 Notice Pursuant to Tex. Bus. & Comm. Code Section 26.02. THE 3/04 CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND THE OTHER FACILITIES PAPERS TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. (The remainder of this page is intentionally blank; signature pages follow.) 21 EXECUTED as of the Effective Date. SUNSET FINANCIAL RESOURCES, INC. By: /s/ Thomas G. Manuel ------------------------------------ Name: Thomas G. Manuel Title: EVP 22 JPMORGAN CHASE BANK, as the Agent and as a Lender By: /s/ Thanh Roettele ------------------------------------ Name: /s/ Thanh Roettele ---------------------------------- Title: Vice President Exhibits: Exhibit 6/04-B - Requests for Borrowing forms with Submission List forms Schedules: Schedule 6/04-AI - list of Approved Investors Schedule 6/04-DQ - Disqualifiers Schedule 6/04-EC - Eligible Collateral 23 EXHIBIT 6/04-B TO 3/04 CREDIT AGREEMENT Request for Borrowing [Letterhead of the Company] [date] JPMorgan Chase Bank 1111 Fannin, 12th Floor Houston, Texas 77002 Attention: Wanda Carr Ladies and Gentlemen: SUNSET FINANCIAL RESOURCES, INC. (the "COMPANY") and JPMORGAN CHASE BANK as a lender and as agent (the "AGENT") for the other lender(s) who are parties to it as lenders, and such other lenders (all such lenders, including JPMorgan Chase Bank being herein called the "LENDERS") together executed a 3/04 Senior Secured Credit Agreement dated March 22, 2004 (which, as it may have been or may hereafter be supplemented, amended or restated from time to time, is called the "CURRENT CREDIT AGREEMENT"). Any term defined in the Current Credit Agreement and used in this Request for Borrowing shall have the meaning given to it in the Current Credit Agreement. The Company currently qualifies under the Current Credit Agreement for, and hereby requests, an Advance or Advances as set forth below to be made on _________________, 20___ (or, if the Agent is closed that day, on the next day when it is not). Single-family Warehousing Advance(s): Wet Advance: $________________ Dry Advance: $________________ Total Single-family Warehousing Advance: $____________ Commercial Warehousing Advance(s) $____________ Total Borrowing $____________ After giving effect as required by the Credit Agreement to the requested Advance, the Borrowing Base will equal or exceed the outstanding principal balance of the Loan and such balance will not exceed the Aggregate Committed Sum. 24 (Check the block for each of the following paragraphs that is applicable.) [ ] This Borrowing Request includes a request for a Single-family Warehousing Advance. If the Current Credit Agreement requires new Collateral to support the requested Advance, (i) the Company has attached and submits herewith the relevant Submission List(s) and (ii) the Basic Papers for all items of Collateral described or referred to therein have been submitted -- or are being submitted concurrently herewith -- to the Custodian. [ ] This Borrowing Request includes a request for a Wet Warehouse Advance (to finance Wet Single-family Loans.) If the Current Credit Agreement requires new Collateral to support the requested Advance, the Company has attached and submits herewith the relevant Submission List(s) (the Basic Papers for all such Wet Loans will be delivered to the Custodian on or before seven (7) Business Days after funding of the requested Advance). [ ] This Borrowing Request includes a request for a Commercial Warehousing Advance. If the Current Credit Agreement requires new Collateral to support the requested Advance, (i) the Company has attached and submits herewith the relevant Submission List(s) and (ii) the Basic Papers for all items of Collateral described or referred to therein have been submitted -- or are being submitted concurrently herewith -- to the Custodian. The Company hereby grants to the Agent a security interest in all such new Collateral and (as to Collateral) all related Loan Papers, and they are hereby made subject to the security interest to the Agent created by the Current Credit Agreement, for the Pro Rata benefit of the Lenders, effective immediately. The proceeds of the Advance should be deposited in the Company's Note Payment Account number 00113329123 with JPMorgan Chase Bank. The Company acknowledges that the Agent and the Lenders will rely on the truth of each statement in this request and its attachments in funding the requested Advance. No Default has occurred under the Facilities Papers that has not been cured by the Company or declared in writing by the Agent to have been waived, and no Event of Default has occurred under the Facilities Papers that the Agent has not declared in writing to have been cured or waived. There has been no material adverse change in any of the Central Elements in respect of the Company or any of its Subsidiaries since the date of the Company's most recent annual audited Financial Statements that have been delivered to the Agent. All items that the Company is required to furnish to the Agent, its designated custodian or the Lenders for this requested Advance and otherwise have been delivered, or will be delivered before this requested Advance is funded, in all respects as required by the Current Credit Agreement and the other Facilities Papers. All Collateral papers described or referred to in the Submission List(s) (if any) submitted to the Agent with this Request for Borrowing conform in all respects with all applicable requirements of the Current Credit Agreement and the other Facilities Papers. 25 There has been no change in the information furnished to the Agent or any Lender to enable it to verify the identity of the Company as required by Section 326 of the USA Patriot Act except as follows: (none). The Company hereby warrants and represents to the Agent and the Lenders that none of the Collateral (including, but not limited to, Collateral described or referred to in this request) is pledged to any Person other than the Agent or supports any borrowing or repurchase agreement funding other than Borrowings under the Current Credit Agreement. The undersigned officer hereby certifies that all of the Company's representations and warranties (a) in the Current Credit Agreement and all of the other Facilities Papers (except only to the extent that (i) such a representation or warranty speaks to a specific date or (ii) the facts on which a representation or warranty is based have been changed by transactions or conditions contemplated or expressly permitted by the Facilities Papers), (b) in this Request for Borrowing, are true and correct on the date of this Request for Borrowing and (c) that the Company qualifies for funding of the requested Advance. SUNSET FINANCIAL RESOURCES, INC. By: _____________________________ Name ____________________________ Title: __________________________ Attached (check if applicable): [] Submission List for Eligible Single-family Collateral (Dry Loans and/or Wet Loans) [] Submission List for Eligible Commercial Collateral (Dry Loans only) 26 SUBMISSION LIST FOR SINGLE FAMILY COLLATERAL Date:________ TO: JPMorgan Chase Bank 1111 Fannin, 12th Floor Houston, Texas 77002 Attention: Ms. Wanda Carr, Mortgage Banking Warehouse Services Phone: (713) 427-6391 Fax: (713) 427-6449 email: wanda.carr@jpmorganchase.com FROM: Sunset Financial Resources, Inc. 10245 Centurion Parkway N, Suite 305 Jacksonville, Florida 32256 Attention: _____________ Phone: _______________ Fax: ________________ email: _________________ Sunset Financial Resources, Inc. submits the following list of Single-family Loans in support of the Request for Borrowing dated ________ to which this Submission List is attached and hereby pledges them to the Agent (for itself and as agent for the other Lenders):

27 SUBMISSION LIST FOR COMMERCIAL COLLATERAL Date:________ TO: JPMorgan Chase Bank 1111 Fannin, 12th Floor Houston, Texas 77002 Attention: Ms. Wanda Carr, Mortgage Banking Warehouse Services Phone: (713) 427-6391 Fax: (713) 427-6449 email: wanda.carr@jpmorganchase.com FROM: Sunset Financial Resources, Inc. 10245 Centurion Parkway N, Suite 305 Jacksonville, Florida 32256 Attention: ___________ Phone: _______________ Fax: __________________ email: _________________ Sunset Financial Resources, Inc. submits the following list of Commercial Mortgage Loans in support of the Request for Borrowing dated _________ to which this Submission List is attached and hereby pledges them to the Agent (for itself and as agent for the other Lenders):

28 [SUNSET LOGO] 6/04 AMENDMENT TO CREDIT AGREEMENT DATED AS OF JUNE 24-, 2004 AMENDING (FOR THE FIRST TIME) THE 3/04 SENIOR SECURED CREDIT AGREEMENT DATED AS OF MARCH 22, 2004 BY AND AMONG SUNSET FINANCIAL RESOURCES, INC. AND JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT, COLLATERAL AGENT AND A LENDER, AND THE OTHER LENDER(S) PARTIES HERETO $250,000,000 SENIOR SECURED REVOLVING CREDIT [JPMORGAN LOGO] EX-10.2 3 d16708exv10w2.txt POOLING AND SERVICING AGREEMENT EXHIBIT 10.2 J.P. MORGAN ACCEPTANCE CORPORATION I Depositor WELLS FARGO BANK, N.A. Master Servicer and Securities Administrator and WACHOVIA BANK, NATIONAL ASSOCIATION Trustee --------------------------- POOLING AND SERVICING AGREEMENT Dated as of June 1, 2004 --------------------------- J.P. MORGAN MORTGAGE TRUST 2004-A3 MORTGAGE PASS-THROUGH CERTIFICATES TABLE OF CONTENTS

i ARTICLE VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT...................................... 70 Section 6.01 Duties of Trustee and the Securities Administrator......................................................... 70 Section 6.02 Certain Matters Affecting the Trustee and the Securities Administrator..................................... 73 Section 6.03 Trustee and Securities Administrator Not Liable for Certificates........................................... 74 Section 6.04 Trustee and the Securities Administrator May Own Certificates.............................................. 75 Section 6.05 Eligibility Requirements for Trustee....................................................................... 75 Section 6.06 Resignation and Removal of Trustee and the Securities Administrator........................................ 75 Section 6.07 Successor Trustee and Successor Securities Administrator................................................... 76 Section 6.08 Merger or Consolidation of Trustee or the Securities Administrator......................................... 77 Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian................................................... 77 Section 6.10 Authenticating Agents...................................................................................... 79 Section 6.11 Indemnification of the Trustee and the Securities Administrator............................................ 79 Section 6.12 Fees and Expenses of Securities Administrator and the Trustee.............................................. 80 Section 6.13 Collection of Monies....................................................................................... 80 Section 6.14 Events of Default; Trustee To Act; Appointment of Successor................................................ 81 Section 6.15 Additional Remedies of Trustee Upon Event of Default....................................................... 84 Section 6.16 Waiver of Defaults......................................................................................... 84 Section 6.17 Notification to Holders.................................................................................... 85 Section 6.18 Directions by Certificateholders and Duties of Trustee During Event of Default............................. 85 Section 6.19 Action Upon Certain Failures of the Master Servicer and Upon Event of Default.............................. 85 Section 6.20 Preparation of Tax Returns and Other Reports............................................................... 85 ARTICLE VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND................................................... 87 Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation of All Mortgage Loans... 87 Section 7.02 Procedure Upon Redemption Termination of Trust Fund........................................................ 88 Section 7.03 Additional Trust Fund Termination Requirements............................................................. 89 ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS.................................................................................. 90 Section 8.01 Limitation on Rights of Holders............................................................................ 90 Section 8.02 Access to List of Holders.................................................................................. 90 Section 8.03 Acts of Holders of Certificates............................................................................ 91 ARTICLE IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER........................................... 92 Section 9.01 Duties of the Master Servicer; Enforcement of Servicers' and Master Servicer's Obligations................. 92 Section 9.02 Assumption of Master Servicing by Trustee.................................................................. 94 Section 9.03 Representations and Warranties of the Master Servicer...................................................... 94

ii Section 9.04 Compensation to the Master Servicer........................................................................ 96 Section 9.05 Merger or Consolidation.................................................................................... 96 Section 9.06 Resignation of Master Servicer............................................................................. 97 Section 9.07 Assignment or Delegation of Duties by the Master Servicer.................................................. 97 Section 9.08 Limitation on Liability of the Master Servicer and Others.................................................. 97 Section 9.09 Indemnification; Third-Party Claims........................................................................ 98 ARTICLE X REMIC ADMINISTRATION............................................................................................. 98 Section 10.01 REMIC Administration....................................................................................... 98 Section 10.02 Prohibited Transactions and Activities..................................................................... 101 Section 10.03 Indemnification with Respect to Prohibited Transactions or Loss of REMIC Status............................ 101 Section 10.04 REO Property............................................................................................... 101 Section 10.05 Fidelity................................................................................................... 102 ARTICLE XI MISCELLANEOUS PROVISIONS........................................................................................ 102 Section 11.01 Binding Nature of Agreement; Assignment.................................................................... 102 Section 11.02 Entire Agreement........................................................................................... 102 Section 11.03 Amendment.................................................................................................. 103 Section 11.04 Voting Rights.............................................................................................. 104 Section 11.05 Provision of Information................................................................................... 104 Section 11.06 Governing Law.............................................................................................. 105 Section 11.07 Notices.................................................................................................... 105 Section 11.08 Severability of Provisions................................................................................. 105 Section 11.09 Indulgences; No Waivers.................................................................................... 105 Section 11.10 Headings Not To Affect Interpretation...................................................................... 106 Section 11.11 Benefits of Agreement...................................................................................... 106 Section 11.12 Special Notices to the Rating Agencies..................................................................... 106 Section 11.13 Conflicts.................................................................................................. 107 Section 11.14 Counterparts............................................................................................... 107 Section 11.15 No Petitions............................................................................................... 107

iii ATTACHMENTS Exhibit A Forms of Certificates Exhibit B Form of Residual Certificate Transfer Affidavit (Transferee) Exhibit C Form of Residual Certificate Transfer Affidavit (Transferor) Exhibit D [Reserved] Exhibit E List of Purchase and Servicing Agreements Exhibit F List of Custodial Agreements Exhibit G List of Limited Purpose Surety Bonds Exhibit H Form of Rule 144A Transfer Certificate Exhibit I Form of Purchaser's Letter for Institutional Accredited Investors Exhibit J Form of ERISA Transfer Affidavit Exhibit K Form of Letter of Representations with the Depository Trust Company Exhibit L Form of Custodian Certification Exhibit M [Reserved] Schedule A Mortgage Loan Schedule iv This POOLING AND SERVICING AGREEMENT, dated as of June 1, 2004 (the "Agreement"), by and among J.P. MORGAN ACCEPTANCE CORPORATION I, a Delaware corporation, as depositor (the "Depositor"), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the "Trustee"), and WELLS FARGO BANK, N.A., in its dual capacities as master servicer (the "Master Servicer") and securities administrator (the "Securities Administrator"), and acknowledged by J.P. MORGAN MORTGAGE ACQUISITION CORP., a Delaware corporation, as a seller ("JPMMAC" and a "Seller") and SUNSET FINANCIAL RESOURCES, INC., a Maryland corporation, as a seller ("Sunset" and a "Seller" and, together with JPMMAC, the "Sellers"), for purposes of Sections 2.04 and 2.05. PRELIMINARY STATEMENT The Depositor has acquired the Mortgage Loans from the Sellers and at the Closing Date is the owner of the Mortgage Loans and the other property being conveyed by the Depositor to the Trustee hereunder for inclusion in the Trust Fund. On the Closing Date, the Depositor will acquire the Certificates from the Trustee as consideration for the Depositor's transfer to the Trust Fund of the Mortgage Loans and the other property constituting the Trust Fund. The Depositor has duly authorized the execution and delivery of this Agreement to provide for the conveyance to the Trustee of the Mortgage Loans and the other property constituting the Trust Fund. All covenants and agreements made by the Depositor, the Master Servicer, the Securities Administrator and the Trustee herein, with respect to the Mortgage Loans and the other property constituting the Trust Fund, are for the benefit of the Holders from time to time of the Certificates. The Depositor, the Trustee, the Master Servicer and the Securities Administrator are entering into this Agreement, and the Trustee is accepting the Trust Fund created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. As provided herein, the Trustee shall elect that the Trust Fund (exclusive of the Additional Collateral) be treated for federal income tax purposes as comprising three real estate mortgage investment conduits (each, a "REMIC" or, in the alternative, the "Lower-Tier I REMIC," the "Lower-Tier II REMIC"and the "Upper-Tier (or "Master") REMIC"). Each Certificate, other than the Class A-R Certificate, will represent ownership of one or more regular interests in the Upper-Tier REMIC for purposes of the REMIC Provisions. The Class A-R represents ownership of the sole class of residual interest in each REMIC created hereunder. The Upper-Tier REMIC will hold as assets the several classes of uncertificated Lower-Tier REMIC Interests (other than the Class LT-I-A-R Interest and Class LT-II-A-R Interest). The Lower-Tier I REMIC will hold as assets Mortgage Pools 1, 2, 3 and 4 and all other property of the Trust Fund allocable to Mortgage Pools 1, 2, 3 and 4 (except for any Additional Collateral). The Lower-Tier II REMIC will hold as assets Mortgage Pools 5, 6 and 7 and all other property of the Trust Fund allocable to Mortgage Pools 5, 6 and 7 (except for any Additional Collateral) Each Lower-Tier I REMIC Interest (other than the Class LT-I-A-R Interest) is hereby designated as a regular interest in the Lower-Tier I REMIC and each Lower-Tier II REMIC Interest (other than the Class LT-II-A-R Interest) is hereby designated as a regular interest in the Lower-Tier II REMIC. The latest possible maturity date of all REMIC regular interests created in this Agreement shall be the Latest Possible Maturity Date. v THE LOWER-TIER I REMIC The Lower-Tier I REMIC Regular Interests will have the initial Class Principal Amounts, pass-through rates and Corresponding Mortgage Pools as set forth in the following table:
Initial Principal Pass-Through Corresponding Lower-Tier I REMIC Interests Amount Rate Mortgage Pool - ---------------------------- --------- ------------ ------------- A-1 (0.9% of SP Group 1) (1) (2) 1 B-1 (0.1% of SP Group 1) (1) (2) 1 C-1 (Excess of Group 1) (1) (2) 1 A-2 (0.9% of SP Group 2) (1) (2) 2 B-2 (0.1% of SP Group 2) (1) (2) 2 C-2 (Excess of Group 2) (1) (2) 2 A-3 (0.9% of SP Group 3) (1) (2) 3 B-3 (0.1% of SP Group 3) (1) (2) 3 C-3 (Excess of Group 3) (1) (2) 3 A-4 (0.9% of SP Group 4) (1) (2) 4 B-4 (0.1% of SP Group 4) (1) (2) 4 C-4 (Excess of Group 4) (1) (2) 4 LT-I-A-R (3) (3) N/A
(1) Each Class A Interest will have a principal balance initially equal to 0.9% of the Pool Subordinated Amount ("SP") of its corresponding Mortgage Pool. Each Class B Interest will have a principal balance initially equal to 0.1% of the Pool Subordinated Amount of its corresponding Mortgage Pool. The initial principal balance of each Class C Interest will equal the excess of the initial aggregate principal balance of its corresponding Mortgage Pool over the initial aggregate principal balances of the Class A and Class B Interests corresponding to such Mortgage Pool. (2) A Rate equal to the weighted average of the Net Mortgage Rates of the Mortgage Loans of the corresponding Mortgage Pool. (3) The Class LT-I-A-R Interest is the sole class of residual interest in the Lower-Tier I REMIC. It has no principal balance and pays no principal or interest. vi On each Distribution Date, the Available Funds from Mortgage Pools 1, 2, 3 and 4 shall be distributed with respect to their corresponding Lower-Tier I REMIC Interests in the following manner: (1) Interest. Interest is to be distributed with respect to each Lower-Tier I REMIC Interest at the rate, or according to the formulas, described above; (2) Principal if no Cross-Over Situation Exists. If no Cross-Over Situation exists with respect to any Class of Interests, then Principal Amounts arising with respect to each Mortgage Pool will be allocated: first to cause the Mortgage Pool's corresponding Class A and Class B to equal, respectively, 0.9% of the Pool Subordinated Amount ("SP") and 0.1% of the SP; and second to the Mortgage Pool's corresponding Class C Interest; (3) Principal if a Cross-Over Situation Exists. If a Cross-Over Situation exists with respect to the Class A and Class B Interests of a Mortgage Pool then: (a) if the Calculation Rate in respect of such outstanding Class A and Class B Interests is less than the Pool I Subordinate Net WAC, Principal Relocation Payments will be made proportionately to the outstanding Class A Interests prior to any other Principal Distributions from such Mortgage Pool; and (b) if the Calculation Rate in respect of the outstanding Class A and Class B Interests is greater than the Pool I Subordinate Net WAC, Principal Relocation Payments will be made proportionately to the outstanding Class B Interests prior to any other Principal Distributions from such Mortgage Pool. In each case, Principal Relocation Payments will be made so as to cause the Calculation Rate in respect of the outstanding Class A and Class B Interests to equal the Pool I Subordinate Net WAC. With respect to each Mortgage Pool, if (and to the extent that) the sum of (a) the principal payments comprising the Principal Remittance Amount received during the Due Period and (b) the Realized Losses, are insufficient to make the necessary reductions of principal on the Class A and Class B Interests, then interest will be added to the Mortgage Pool's other Interests that are not receiving Principal Relocation Payments, in proportion to their principal balances. (c) The outstanding aggregate Class A and Class B Interests for all Mortgage Pools will not be reduced below 1 percent of the excess of (i) the aggregate outstanding Class Principal Amounts of all Mortgage Pools as of the end of any Due Period over (ii) the Senior Certificates for all Mortgage Pools as of the related Distribution Date (after taking into account distributions of principal on such Distribution Date). If (and to the extent that) the limitation in paragraph (c) prevents the distribution of principal to the Class A and Class B Interests of a Mortgage Pool, and if the Mortgage Pool's Class C Interest has already been reduced to zero, then the excess principal from that Mortgage Pool will be paid to the Class C Interests of the other Mortgage Pools, the aggregate Class A and Class B Interests of which are less than one percent of the Pool Subordinated Amount. If the Mortgage Pool of a Class C Interest that receives such payment has a weighted average Net Mortgage Rate below the weighted average Net Mortgage Rate of the Mortgage Pool making the payment, then the payment will be treated by the Lower-Tier I REMIC as a Realized Loss. Conversely, if the Mortgage Pool of a Class C Interest that receives such payment has a weighted average Net Mortgage Rate above the weighted average Net Mortgage Rate of the Mortgage Pool making the vii payment, then the payment will be treated by the Lower-Tier I REMIC as a reimbursement for prior Realized Losses. THE LOWER-TIER II REMIC The Lower-Tier II REMIC Regular Interests will have the initial Class Principal Amounts, pass-through rates and Corresponding Mortgage Pools as set forth in the following table:
Initial Principal Pass-Through Corresponding Lower-Tier II REMIC Interests Amount Rate Mortgage Pool - ----------------------------- --------- ------------- ------------- A-5 (0.9% of SP Group 5) (1) (2) 5 B-5 (0.1% of SP Group 5) (1) (2) 5 C-5 (Excess of Group 5) (1) (2) 5 A-6 (0.9% of SP Group 6) (1) (2) 6 B-6 (0.1% of SP Group 6) (1) (2) 6 C-6 (Excess of Group 6) (1) (2) 6 A-7 (0.9% of SP Group 7) (1) (2) 7 B-7 (0.1% of SP Group 7) (1) (2) 7 C-7 (Excess of Group 7) (1) (2) 7 LT-II-A-R (3) (3) N/A
(1) Each Class A Interest will have a principal balance initially equal to 0.9% of the Pool Subordinated Amount ("SP") of its corresponding Mortgage Pool. Each Class B Interest will have a principal balance initially equal to 0.1% of the Pool Subordinated Amount of its corresponding Mortgage Pool. The initial principal balance of each Class C Interest will equal the excess of the initial aggregate principal balance of its corresponding Mortgage Pool over the initial aggregate principal balances of the Class A and Class B Interests corresponding to such Mortgage Pool. (2) A Rate equal to the weighted average of the Net Mortgage Rates of the Mortgage Loans of the corresponding Mortgage Pool. (3) The Class LT-II-A-R Interest is the sole class of residual interest in the Lower-Tier II REMIC. It has no principal balance and pays no principal or interest. On each Distribution Date, the Available Funds from Mortgage Pools 5, 6 and 7 shall be distributed with respect to their corresponding Lower-Tier II REMIC Interests in the following manner: (1) Interest. Interest is to be distributed with respect to each Lower-Tier II REMIC Interest at the rate, or according to the formulas, described above; (2) Principal if no Cross-Over Situation Exists. If no Cross-Over Situation exists with respect to any Class of Interests, then Principal Amounts arising with respect to each Mortgage Pool will be allocated: first to cause the Mortgage Pool's corresponding Class A and Class B to equal, viii respectively, 0.9% of the Pool Subordinated Amount ("SP") and 0.1% of the SP; and second to the Mortgage Pool's corresponding Class C Interest; (3) Principal if a Cross-Over Situation Exists. If a Cross-Over Situation exists with respect to the Class A and Class B Interests of a Mortgage Pool then: (a) if the Calculation Rate in respect of such outstanding Class A and Class B Interests is less than the Pool II Subordinate Net WAC, Principal Relocation Payments will be made proportionately to the outstanding Class A Interests prior to any other Principal Distributions from such Mortgage Pool; and (b) if the Calculation Rate in respect of the outstanding Class A and Class B Interests is greater than the Pool II Subordinate Net WAC, Principal Relocation Payments will be made proportionately to the outstanding Class B Interests prior to any other Principal Distributions from such Mortgage Pool. In each case, Principal Relocation Payments will be made so as to cause the Calculation Rate in respect of the outstanding Class A and Class B Interests to equal the Pool II Subordinate Net WAC. With respect to each Mortgage Pool, if (and to the extent that) the sum of (a) the principal payments comprising the Principal Remittance Amount received during the Due Period and (b) the Realized Losses, are insufficient to make the necessary reductions of principal on the Class A and Class B Interests, then interest will be added to the Mortgage Pool's other Interests that are not receiving Principal Relocation Payments, in proportion to their principal balances. (c) The outstanding aggregate Class A and Class B Interests for all Mortgage Pools will not be reduced below 1 percent of the excess of (i) the aggregate outstanding Class Principal Amounts of all Mortgage Pools as of the end of any Due Period over (ii) the Senior Certificates for all Mortgage Pools as of the related Distribution Date (after taking into account distributions of principal on such Distribution Date). If (and to the extent that) the limitation in paragraph (c) prevents the distribution of principal to the Class A and Class B Interests of a Mortgage Pool, and if the Mortgage Pool's Class C Interest has already been reduced to zero, then the excess principal from that Mortgage Pool will be paid to the Class C Interests of the other Mortgage Pools, the aggregate Class A and Class B Interests of which are less than one percent of the Pool Subordinated Amount. If the Mortgage Pool of a Class C Interest that receives such payment has a weighted average Net Mortgage Rate below the weighted average Net Mortgage Rate of the Mortgage Pool making the payment, then the payment will be treated by the Lower-Tier II REMIC as a Realized Loss. Conversely, if the Mortgage Pool of a Class C Interest that receives such payment has a weighted average Net Mortgage Rate above the weighted average Net Mortgage Rate of the Mortgage Pool making the payment, then the payment will be treated by the Lower-Tier II REMIC as a reimbursement for prior Realized Losses. ix THE CERTIFICATES AND THE UPPER-TIER REMIC The following table sets forth (or describes) the Class designation, Certificate Interest Rate, initial Class Principal Amount and minimum denomination for each Class of Certificates comprising interests in the Trust Fund created hereunder.
Minimum Certificate Initial Class Denominations or Class Designation Interest Rate Principal Amount Percentage Interest - ----------------- ------------- ---------------- ------------------- Class 1-A-1 (1) $ 182,151,800 $ 25,000.00 Class 2-A-1 (2) $ 44,601,100 $ 25,000.00 Class 3-A-1 (3) $ 25,000,000 $ 25,000.00 Class 3-A-2 (3) $ 41,305,600 $ 25,000.00 Class 3-A-3 (3) $ 22,207,100 $ 25,000.00 Class 4-A-1 (4) $ 58,752,400 $ 25,000.00 Class 4-A-2 (4) $ 2,005,000 $ 25,000.00 Class S-F-1 (5) $ 11,415,500 $ 25,000.00 Class S-F-2 (6) $ 87,901,300 $ 25,000.00 Class S-F-3 (7) $ 112,490,000 $ 25,000.00 Class A-R (1) $ 100 100% Class I-B-1 (8) $ 5,249,500 $ 25,000.00 Class I-B-2 (8) $ 3,110,800 $ 25,000.00 Class I-B-3 (8) $ 1,360,900 $ 25,000.00 Class I-B-4 (8) $ 1,166,500 $ 100,000.00 Class I-B-5 (8) $ 777,700 $ 100,000.00 Class I-B-6 (8) $ 1,167,101 $ 100,000.00 Class S-B-1 (9) $ 3,619,600 $ 25,000.00 Class S-B-2 (9) $ 1,535,600 $ 25,000.00 Class S-B-3 (9) $ 767,800 $ 25,000.00 Class S-B-4 (9) $ 767,800 $ 100,000.00 Class S-B-5 (9) $ 329,000 $ 100,000.00 Class S-B-6 (9) $ 548,725 $ 100,000.00
- ---------- (1) The Certificate Interest Rate with respect to any Distribution Date (and the related Accrual Period) for the Class 1-A-1 and Class A-R Certificates will equal the Pool 1 Net WAC. (2) The Certificate Interest Rate with respect to any Distribution Date (and the related Accrual Period) for the Class 2-A-1 Certificates will equal the Pool 2 Net WAC. (3) The Certificate Interest Rate with respect to any Distribution Date (and the related Accrual Period) for the Class 3-A-1, Class 3-A-2 and Class 3-A-3 Certificates will equal the Pool 3 Net WAC. (4) The Certificate Interest Rate with respect to any Distribution Date (and the related Accrual Period) for the Class 4-A-1 and Class 4-A-2 Certificates will equal the Pool 4 Net WAC. (5) The Certificate Interest Rate with respect to any Distribution Date (and the related Accrual Period) for the Class S-F-1 Certificates will equal the Pool 5 Net WAC. (6) The Certificate Interest Rate with respect to any Distribution Date (and the related Accrual Period) for the Class S-F-2 Certificates will equal the Pool 6 Net WAC. x (7) The Certificate Interest Rate with respect to any Distribution Date (and the related Accrual Period) for the Class S-F-3 Certificates will equal the Pool 7 Net WAC. (8) The Certificate Interest Rates with respect to any Distribution Date (and the related Accrual Period) for the Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4, Class I-B-5 and Class I-B-6 Certificates will be equal to the Pool I Subordinate Net WAC. (9) The Certificate Interest Rates with respect to any Distribution Date (and the related Accrual Period) for the Class S-B-1, Class S-B-2, Class S-B-3, Class S-B-4, Class S-B-5 and Class S-B-6 Certificates will be equal to the Pool II Subordinate Net WAC. As of the Cut-off Date, the Mortgage Loans in Aggregate Pool I and Aggregate Pool II had an Aggregate Stated Principal Balance of $388,855,601.64 and $219,375,325.31, respectively. The foregoing REMIC structure is intended to cause all of the cash from the Mortgage Loans to flow through to the Upper-Tier REMIC as cash flow on a REMIC regular interest, without creating any shortfall--actual or potential (other than for credit losses) to any REMIC regular interest. To the extent that the structure is believed to diverge from such intention the Trustee will resolve ambiguities to accomplish such result and will to the extent necessary rectify any drafting errors or seek clarification to the structure without Certificateholder approval (but with guidance of Counsel) to accomplish such intention. xi In consideration of the mutual agreements herein contained, the Depositor, the Master Servicer, the Securities Administrator and the Trustee hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01 Definitions. The following words and phrases, unless the context otherwise requires, shall have the following meanings: Accountant: A Person engaged in the practice of accounting who (except when this Agreement provides that an Accountant must be Independent) may be employed by or affiliated with the Depositor or an Affiliate of the Depositor. Accrual Period: With respect to any Distribution Date and any Class of Certificates, the calendar month preceding the month in which the Distribution Date occurs. Interest shall accrue on all Classes of Certificates and on all Lower-Tier Interests on the basis of a 360-day year consisting of twelve 30-day months. Acknowledgements: The Assignment, Assumption and Recognition Agreements, each dated as of June 1, 2004, assigning from the Sellers their respective rights in the related Purchase and Servicing Agreements to the Depositor and from the Depositor to the Trustee, for the benefit of the Certificateholders. Act: The Securities Act of 1933, as amended. Additional Collateral: With respect to any Additional Collateral Mortgage Loan, the marketable securities and other acceptable collateral pledged as collateral pursuant to the related pledge agreements. Additional Collateral Mortgage Loan: Each Mortgage Loan identified as such in the Mortgage Loan Schedule. Adjustment Date: As to any Mortgage Loan, the date on which the related Mortgage Rate adjusts in accordance with the terms of the related Mortgage Note. Advance: With respect to a Mortgage Loan, the payments required to be made by the Master Servicer or the applicable Servicer with respect to any Distribution Date pursuant to this Agreement or the applicable Purchase and Servicing Agreement, as applicable, the amount of any such payment being equal to the aggregate of the payments of principal and interest (net of the applicable Servicing Fee, in the case of the applicable Servicer, or the Master Servicing Fee and the applicable Servicing Fee, in the case of the Master Servicer, and net of any net income in the case of any REO Property) on the Mortgage Loans that were due on the related Due Date and not received as of the close of business on the related Determination Date, less the aggregate amount of any such delinquent payments that the Master Servicer or the applicable Servicer has determined would constitute Nonrecoverable Advances if advanced. 1 Adverse REMIC Event: Either (i) loss of status as a REMIC, within the meaning of Section 860D of the Code, for any group of assets identified as a REMIC in the Preliminary Statement to this Agreement, or (ii) imposition of any tax, including the tax imposed under Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section 860G(d) on certain contributions to a REMIC, on any REMIC created hereunder to the extent such tax would be payable from assets held as part of the Trust Fund. Affiliate: With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. Aggregate Expense Rate: With respect to any Mortgage Loan, the sum of the Master Servicing Fee Rate and the applicable Servicing Fee Rate. Aggregate Pool: Aggregate Pool I or Aggregate Pool II, as the context requires. Aggregate Pool I: Pool 1, Pool 2, Pool 3 and Pool 4. Aggregate Pool II: Pool 5, Pool 6 and Pool 7. Aggregate Senior Percentage: As to any Distribution Date and (x) Aggregate Pool I, the percentage equivalent of a fraction, the numerator of which is the aggregate of the Class Principal Amounts of the Pool I Senior Certificates and the denominator of which is the Aggregate Stated Principal Balance for Aggregate Pool I for such date, but in no event greater than 100%, and (y) Aggregate Pool II, the percentage equivalent of a fraction, the numerator of which is the aggregate of the Class Principal Amounts of the Pool II Senior Certificates and the denominator of which is the Aggregate Stated Principal Balance for Aggregate Pool II for such date, but in no event greater than 100%. Aggregate Subordinate Percentage: As to any Distribution Date and either Aggregate Pool, the difference between 100% and the related Aggregate Senior Percentage for such Distribution Date, but in no event less than zero. Aggregate Stated Principal Balance: As to any Distribution Date, the aggregate of the Stated Principal Balances for all Mortgage Loans in Aggregate Pool I or Aggregate Pool II, as applicable, (and when such term is used with respect to a particular Mortgage Pool, the aggregate of the Stated Principal Balances of the Mortgage Loans in such Mortgage Pool) which were outstanding on the Due Date in the month preceding the month of such Distribution Date. Aggregate Voting Interests: The aggregate of the Voting Interests of all the Certificates under this Agreement. Agreement: This Pooling and Servicing Agreement and all amendments and supplements hereto. 2 Allocable Share: With respect to each Class of Subordinated Certificates related to an Aggregate Pool and any Distribution Date, the percentage equivalent of a fraction, the numerator of which is the Class Principal Amount of such Class and the denominator of which is the aggregate of the Class Principal Amounts of each related Class of Subordinate Certificates. Applicable Credit Support Percentage: As to any Class of Subordinate Certificates related to an Aggregate Pool and any Distribution Date, the sum of the related Class Subordination Percentage of such Class and of all related Classes of Subordinate Certificates that rank lower in priority than such Class. Apportioned Principal Balance: As to any Distribution and each Class of Subordinate Certificates related to an Aggregate Pool, the Class Principal Amount thereof multiplied by a fraction, the numerator of which is the applicable Pool Subordinate Amount (i.e., the Pool 1 Subordinate Amount, the Pool 2 Subordinate Amount, the Pool 3 Subordinate Amount, the Pool 4 Subordinate Amount, the Pool 5 Subordinate Amount, the Pool 6 Subordinate Amount or the Pool 7 Subordinate Amount, as the case may require), and the denominator of which is the sum of the Pool Subordinate Amounts related to that Aggregate Pool, in each case, on such date. Appraised Value: With respect to any Mortgage Loan, the Appraised Value of the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of the Mortgaged Property based upon the appraisal made at the time of the origination of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the time of the origination of such Mortgage Loan; and (ii) with respect to a Refinancing Mortgage Loan, the value of the Mortgaged Property based upon the appraisal made at the time of the origination of such Refinancing Mortgage Loan. Assignment: Each Assignment, dated as of June 1, 2004 between the related Seller and the Custodian, pursuant to which such Seller assigns to the Trustee all of its rights, title and interest under the related Custodial Agreement to the extent relating to certain specified mortgage loans. Assignment of Mortgage: An assignment of the Mortgage, notice of transfer or equivalent instrument, in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the sale of the Mortgage to the Trustee, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering the Mortgage Loans secured by Mortgaged Properties located in the same jurisdiction, if permitted by law; provided, however, that the Trustee shall not be responsible for determining whether any such assignment is in recordable form. Assignment of Proprietary Lease: With respect to a Cooperative Mortgage Loan, an assignment of the Proprietary Lease sufficient under the laws of the jurisdiction wherein the related Cooperative Unit is located to reflect the assignment of such Proprietary Lease. Assignment of Recognition Agreement: With respect to a Cooperative Mortgage Loan, an assignment of the Recognition Agreement sufficient under the laws of the jurisdiction wherein the related Cooperative Unit is located to reflect the assignment of such Recognition Agreement. 3 Authenticating Agent: Any authenticating agent appointed by the Trustee pursuant to Section 6.10 until any successor authenticating agent for the Certificates is named, and thereafter "Authenticating Agent" shall mean any such successor. The Authenticating Agent shall be Wells Fargo Bank, N.A. for so long as it is acting as Securities Administrator under this Agreement. Authorized Officer: Any Person who may execute an Officer's Certificate on behalf of the Depositor. Available Distribution Amount: With respect to any Distribution Date and each Mortgage Pool, the total amount of all cash received by the Master Servicer on the Mortgage Loans in such Mortgage Pool from each Servicer or otherwise for deposit into the Distribution Account in respect of such Distribution Date, including (1) all scheduled installments of interest (net of the related Servicing Fees and Master Servicing Fees) and principal collected on the related Mortgage Loans and due during the Due Period related to such Distribution Date, together with any Advances in respect thereof, (2) all Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and the proceeds of any Additional Collateral from the related Mortgage Loans, in each case for such Distribution Date, (3) all partial or full Principal Prepayments, together with any accrued interest thereon, identified as having been received from the related Mortgage Loans during the related Prepayment Period, (4) any amounts paid by the Master Servicer and/or received from the Servicers in respect of Prepayment Interest Shortfalls with respect to the related Mortgage Loans; and (5) the aggregate Purchase Price of all Defective Mortgage Loans in such Mortgage Pool purchased from the Trust Fund during the related Prepayment Period, minus: (A) with respect to the Mortgage Loans in that Mortgage Pool (or, if not related to the Mortgage Pool, that Mortgage Pool's pro rata share of), all related fees, charges and other amounts payable or reimbursable to the Master Servicer, the Securities Administrator, the Custodian or the Trustee under this Agreement or to the related Servicers under the applicable Purchase and Servicing Agreements; (B) in the case of (2), (3), (4) and (5) above, any related unreimbursed expenses incurred by the related Servicers in connection with a liquidation or foreclosure and any unreimbursed Advances or Servicing Advances due to the Master Servicer or the related Servicers; (C) any related unreimbursed Nonrecoverable Advances due to the Master Servicer or the Servicers; (D) in the case of (1) through (4) above, any related amounts collected which are determined to be attributable to a subsequent Due Period or Prepayment Period; and (E) with respect to the Sunset Mortgage Loans, any payments in the nature of prepayment penalties received by the Master Servicer to be paid to Sunset. 4 Bankruptcy: As to any Person, the making of an assignment for the benefit of creditors, the filing of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent, the entry of an order for relief in a bankruptcy or insolvency proceeding, the seeking of reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief, or seeking, consenting to or acquiescing in the appointment of a trustee, receiver or liquidator, dissolution, or termination, as the case may be, of such Person pursuant to the provisions of either the Bankruptcy Code or any other similar state laws. Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended. Bankruptcy Coverage Termination Date: As to any Aggregate Pool, the point in time at which the related Bankruptcy Loss Coverage Amount is reduced to zero. Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not be deemed a Bankruptcy Loss hereunder so long as the related Servicer has notified the Master Servicer in writing that the related Servicer is diligently pursuing any remedies that may exist in connection with the related Mortgage Loan and either (A) the related Mortgage Loan is not in default with regard to payments due thereunder or (B) delinquent payments of principal and interest under the related Mortgage Loan and any related escrow payments in respect of such Mortgage Loan are being advanced on a current basis by the Master Servicer or the related Servicer, in either case without giving effect to any Debt Service Reduction or Deficient Valuation, as reported by the related Servicer to the Master Servicer. Bankruptcy Loss Coverage Amount: As of any date of determination, the Bankruptcy Loss Coverage Amount for Aggregate Pool I or Aggregate Pool II shall equal the related Initial Bankruptcy Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy Losses in the related Aggregate Pool allocated to the related Certificates since the Cut-off Date and (ii) any permissible reductions in the related Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating Agency to the Trustee to the effect that any such reduction will not result in a downgrading of the then current ratings assigned to the related Classes of Certificates rated by it. BofA: Bank of America, N.A. BofA Mortgage Loan: Each Mortgage Loan originated by Bank of America, N.A. and listed on the Mortgage Loan Schedule. BofA Purchase and Servicing Agreement: The Flow Mortgage Loan Flow Sale and Servicing Agreement, dated October 1, 2003, as amended by Amendment No. 1 thereto dated as of February 24, 2004, between Morgan Stanley Mortgage Capital Inc. and Bank of America, N.A. and listed in Exhibit E hereto. Book-Entry Certificates: Beneficial interests in Certificates designated as "Book-Entry Certificates" in this Agreement, ownership and transfers of which shall be evidenced or made through book entries by a Clearing Agency as described in Section 3.09; provided, that after the occurrence of a Book-Entry Termination whereupon book-entry registration and transfer are no longer permitted and Definitive Certificates are to be issued to Certificate Owners, such Book-Entry Certificates shall no longer be "Book-Entry Certificates." As of the Closing Date, the 5 following Classes of Certificates constitute Book-Entry Certificates: Class 1-A-1, Class 2-A-1, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 4-A-1, Class 4-A-2, Class S-F-1, Class S-F-2, Class S-F-3, Class I-B-1, Class I-B-2, Class I-B-3, Class S-B-1, Class S-B-2 and Class S-B-3. Book-Entry Termination: The occurrence of any of the following events: (i) the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Book Entry Certificates, and the Depositor is unable to locate a qualified successor; or (ii) the Depositor at its option advises the Trustee and the Certificate Registrar in writing that it elects to terminate the book-entry system through the Clearing Agency. Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day on which banking institutions in New York, New York or, if other than New York, the city in which the Corporate Trust Office of the Trustee is located, or the States of Maryland or Minnesota, are authorized or obligated by law or executive order to be closed. Calculation Rate: For each Distribution Date, in the case of the Class A and Class B Interests, the product of (i) 10 and (ii) the weighted average rate of the outstanding Class A and Class B Interests, treating each Class A Interest as capped at zero or reduced by a fixed percentage of 100% of the interest accruing on such Class. Cendant: Cendant Mortgage Corporation. Cendant/JPMMAC Mortgage Loan: Each Mortgage Loan originated by Cendant Mortgage Corporation, sold under the Cendant/JPMMAC Purchase and Servicing Agreement and listed on the Mortgage Loan Schedule. Cendant/JPMMAC Purchase and Servicing Agreement: The Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of April 29, 2003, as amended by Amendment No. 1 thereto dated as of September 1, 2003, among JPMMAC, Cendant Mortgage Corporation and Bishop's Gate Residential Mortgage Trust (formerly known as Cendant Residential Mortgage Trust) and listed in Exhibit E hereto. Cendant/MS Mortgage Loan: Each Mortgage Loan originated by Cendant Mortgage Corporation, sold under the Cendant/MS Purchase and Servicing Agreement and listed on the Mortgage Loan Schedule. Cendant/MS Purchase and Servicing Agreement: The Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of November 13, 2003, among Morgan Stanley Mortgage Capital Inc., Cendant Mortgage Corporation and Bishop's Gate Residential Mortgage Trust (formerly known as Cendant Residential Mortgage Trust) and listed in Exhibit E hereto. Certificate: Any one of the certificates signed by the Trustee, or the Securities Administrator on the Trustee's behalf, and authenticated by the Securities Administrator as Authenticating Agent in substantially the forms attached hereto as Exhibit A. Certificate Group: Each of the Group 1 Certificates, the Group 2 Certificates, the Group 3 Certificates, the Group 4 Certificates, the Group 5 Certificates, the Group 6 Certificates and the Group 7 Certificates. 6 Certificate Interest Rate: With respect to each Class of Certificates and any Distribution Date, the applicable per annum rate described in the Preliminary Statement hereto. Certificate Owner: With respect to a Book-Entry Certificate, the Person who is the owner of such Book-Entry Certificate, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency). Certificate Principal Amount: With respect to any Certificate, at the time of determination, the maximum specified dollar amount of principal to which the Holder thereof is then entitled hereunder, such amount being equal to the initial principal amount set forth on the face of such Certificate, (A) plus any Subsequent Recoveries added to the Certificate Principal Amount of such Certificate pursuant to Section 5.03 (B) minus (i) the amount of all principal distributions previously made with respect to such Certificate; (ii) all Realized Losses allocated to such Certificate; and (iii) in the case of a Subordinate Certificate, any Subordinate Certificate Writedown Amount allocated to such Certificates. For purposes of Article V hereof, unless specifically provided to the contrary, Certificate Principal Amounts shall be determined as of the close of business of the immediately preceding Distribution Date, after giving effect to all distributions made on such date. Certificate Register and Certificate Registrar: The register maintained and the registrar appointed pursuant to Section 3.02. Wells Fargo Bank, N.A. will act as Certificate Registrar for so long as it is the Securities Administrator under this Agreement. Certificateholder: The meaning provided in the definition of "Holder." Civil Relief Act: The Servicemembers Civil Relief Act and any similar state laws. Class: Collectively, Certificates bearing the same class designation. In the case of a Lower-Tier REMIC, the term "Class" refers to all Lower-Tier Interests having the same alphanumeric designation. Class Notional Amount: Not applicable. Class Principal Amount: With respect to each Class of Certificates, the aggregate of the Certificate Principal Amounts of all Certificates of such Class at the date of determination. With respect to any Lower-Tier Interest, the initial Class Principal Amount as shown or described in the table set forth in the Preliminary Statement for the issuing REMIC, as reduced by principal distributed with respect to such Lower-Tier Interest and Realized Losses allocated to such Lower-Tier Interest at the date of determination. Class Subordination Percentage: With respect to each Class of Subordinate Certificates related to an Aggregate Pool, for each Distribution Date, the percentage obtained by dividing the Class Principal Amount of such Class immediately prior to such Distribution Date by the sum of the Class Principal Amounts of all related Classes of Certificates immediately prior to such Distribution Date. 7 Class A-R Certificate: The Class A-R Certificate executed by the Trustee, and authenticated and delivered by the Authenticating Agent, substantially in the form annexed hereto as Exhibit A, and evidencing the ownership of the residual interest in the Upper-Tier REMIC. Clearing Agency: An organization registered as a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As of the Closing Date, the Clearing Agency shall be The Depository Trust Company. Clearing Agency Participant: A broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. Closing Date: June 29, 2004. CMMC Mortgage Loan: Each Mortgage Loan originated by Chase Manhattan Mortgage Corporation and listed on the Mortgage Loan Schedule. CMMC Purchase and Servicing Agreement: The Flow Mortgage Loan Purchase, Warranties and Servicing Agreement, dated as of January 1, 2004, as amended by Amendment No. 1 thereto dated as of June 1, 2004, between JPMMAC and Chase Manhattan Mortgage Corporation and listed in Exhibit E hereto. Code: The Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form. Compensating Interest Payment: As to any Distribution Date, the lesser of (1) the Master Servicing Fee for such date and (2) any Prepayment Interest Shortfall for such date, to the extent required by Section 5.05. Consent: A document executed by the Cooperative Corporation (i) consenting to the sale of the Cooperative Unit to the Mortgagor and (ii) certifying that all maintenance charges relating to the Cooperative Unit have been paid. Cooperative Corporation: The entity that holds title (fee or an acceptable leasehold estate) to the real property and improvements constituting the Cooperative Property and which governs the Cooperative Property, which Cooperative Corporation must qualify as a Cooperative Housing Corporation under Section 216 of the Code. Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and a Proprietary Lease. Cooperative Property: The real property and improvements owned by the Cooperative Corporation, that includes the allocation of individual dwelling units to the holders of the shares of the Cooperative Corporation. Cooperative Shares: Shares issued by a Cooperative Corporation. 8 Cooperative Unit: With respect to any Cooperative Mortgage Loan, a specific unit in a Cooperative Property. Corporate Trust Office: With respect to the Trustee, the principal corporate trust office of the Trustee located at 401 South Tryon Street, Charlotte, North Carolina, 28288-1179 Attention: Structured Finance Trust Services, J.P. Morgan Mortgage Trust 2004-A3, or at such other address as the Trustee may designate from time to time by notice to the Certificateholders, the Depositor, the Master Servicer and the Securities Administrator or the principal corporate trust office of any successor Trustee. With respect to the Certificate Registrar and presentment of Certificates for registration of transfer, exchange or final payment, Wells Fargo Bank, N.A., Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479, Attention: Corporate Trust, J.P. Morgan Mortgage Trust 2004-A3. Countrywide Mortgage Loan: Each Mortgage Loan originated by Countrywide Home Loans, Inc. and listed on the Mortgage Loan Schedule. Countrywide Purchase and Servicing Agreement: The Master Mortgage Loan Purchase and Servicing Agreement, dated as of August 28, 2003, as amended by Amendment No. 1 thereto dated as of June 1, 2004, between JPMMAC and Countrywide Home Loans, Inc. and listed in Exhibit E hereto. Credit Support Depletion Date: With respect to an Aggregate Pool, the first Distribution Date, if any, on which the aggregate Certificate Principal Amount of the related Subordinate Certificates have been reduced to zero. Cross-Over Situation: For any Distribution Date and for any Mortgage Pool (after taking into account principal distributions on such Distribution Date) a Cross-Over Situation exists with respect to the Class A and Class B Interests of the Mortgage Pool if such Interests in the aggregate are less than 1% of the Subordinated Portion of the Mortgage Pool. Current Interest: With respect to each Class of Certificates and any Distribution Date, the aggregate amount of interest accrued at the applicable Certificate Interest Rate during the related Accrual Period on the Class Principal Amount of such Class immediately prior to such Distribution Date. Custodial Accounts: Each custodial account (other than an Escrow Account) established and maintained by a Servicer pursuant to a Purchasing and Servicing Agreement. Custodian: A Person who is at anytime appointed by the Trustee and the Depositor as a custodian of the Mortgage Documents and the Trustee Mortgage Files. The initial Custodian is JPMorgan Chase Bank. Custodial Agreements: The Custodial Agreements, listed in Exhibit F hereof, as each such agreement may be amended or supplemented from time to time as permitted hereunder. Cut-off Date: June 1, 2004. 9 Debt Service Reduction: With respect to any Mortgage Loan, a reduction by a court of competent jurisdiction in a proceeding under the Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became final and non-appealable, except such a reduction resulting from a Deficient Valuation or any reduction that results in a permanent forgiveness of principal. Defective Mortgage Loan: The meaning specified in Section 2.05. Deficient Valuation: With respect to any Mortgage Loan, a valuation of the related Mortgaged Property by a court of competent jurisdiction in an amount less than the then outstanding indebtedness under the Mortgage Loan, or any reduction in the amount of principal to be paid in connection with any Scheduled Payment that results in a permanent forgiveness of principal, which valuation or reduction results from an order of such court which is final and non-appealable in a proceeding under the Bankruptcy Code. Definitive Certificate: A Certificate of any Class issued in definitive, fully registered, certificated form. Deleted Mortgage Loan: A Mortgage Loan which is repurchased, or replaced or to be replaced with a Qualified Substitute Mortgage Loan. Delinquent: Any Mortgage Loan with respect to which the Scheduled Payment due on a Due Date is not received. Depositor: J.P. Morgan Acceptance Corporation I, a Delaware corporation having its principal place of business in New York, or its successors in interest. Determination Date: With respect to each Distribution Date and Servicer, the date specified as such in the related Purchase and Servicing Agreement. Disqualified Organization: A "disqualified organization" as defined in Section 860E(e)(5) of the Code. Distribution Account: The separate Eligible Account created and maintained by the Securities Administrator, on behalf of the Trustee, pursuant to Section 4.01. Funds in the Distribution Account (exclusive of any earnings on investments made with funds deposited in the Distribution Account) shall be held in trust for the Trustee and the Certificateholders for the uses and purposes set forth in this Agreement. Distribution Account Deposit Date: The 18th day of each calendar month after the initial issuance of the Certificates or, if such 18th day is not a Business Day, the immediately preceding Business Day, commencing in July 2004. Distribution Date: The 25th day of each month or, if such 25th day is not a Business Day, the next succeeding Business Day, commencing in July 2004. Due Date: With respect to any Mortgage Loan, the date on which a Scheduled Payment is due under the related Mortgage Note as indicated in the applicable Purchase and Servicing Agreement. 10 Due Period: As to any Distribution Date, the period beginning on the second day of the month preceding the month of such Distribution Date, and ending on the first day of the month of such Distribution Date. Effective Loan-to-Value Ratio: A fraction, expressed as a percentage, the numerator of which is the original Stated Principal Balance of the Mortgage Loan, less the amount of Additional Collateral required to secure such Mortgage Loan at the time of origination, if any, and the denominator of which is the Appraised Value of the related Mortgage Property at such date. Eligible Account: Any of (i) an account or accounts maintained with a federal or state chartered depository institution or trust company the short-term unsecured debt obligations of which (or, in the case of a depository institution or trust company that is the principal subsidiary of a holding company, the debt obligations of such holding company) have the highest short-term ratings of each Rating Agency at the time any amounts are held on deposit therein, or (ii) an account or accounts in a depository institution or trust company in which such accounts are insured by the FDIC or the SAIF (to the limits established by the FDIC or the SAIF) and the uninsured deposits in which accounts are otherwise secured such that, as evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating Agency, the Certificateholders have a claim with respect to the funds in such account or a perfected first priority security interest against any collateral (which shall be limited to Permitted Investments) securing such funds that is superior to claims of any other depositors or creditors of the depository institution or trust company in which such account is maintained, or (iii) a trust account or accounts maintained with the trust department of a federal or state chartered depository institution or trust company that is subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal Regulation Section 9.10(b), which, in either case, has corporate trust powers and is acting in its fiduciary capacity or (iv) any other account acceptable to each Rating Agency, as evidenced by a signed writing delivered by each Rating Agency. Eligible Accounts may bear interest, and may include, if otherwise qualified under this definition, accounts maintained with the Trustee, the Paying Agent, the Securities Administrator or the Master Servicer. ERISA: The Employee Retirement Income Security Act of 1974, as amended. ERISA-Qualifying Underwriting: A best efforts or firm commitment underwriting or private placement that meets the requirements of an Underwriter's Exemption. ERISA-Restricted Certificate: The Class A-R, Class LT-R, Class I-B-4, Class I-B-5, Class I-B-6, Class S-B-4, Class S-B-5 or Class S-B-6 Certificates, and any Certificate that does not satisfy the applicable rating requirement under the Underwriter's Exemption. Escrow Account: As defined in Article I of each Purchase and Servicing Agreement. Estoppel Letter: A document executed by the Cooperative Corporation certifying, with respect to a Cooperative Unit, (i) the appurtenant Proprietary Lease will be in full force and effect as of the date of issuance thereof, (ii) the related stock certificate was registered in the Mortgagor's name and the Cooperative Corporation has not been notified of any lien upon, 11 pledge of, levy of execution on or disposition of such stock certificate, and (iii) the Mortgagor is not in default under the appurtenant Proprietary Lease and all charges due the Cooperative Corporation have been paid. Event of Default: Any one of the conditions or circumstances enumerated in Section 6.14. Excess Loss: The amount of any (i) Fraud Loss on a Mortgage Loan in any Mortgage Pool in Aggregate Pool I or Aggregate Pool II realized after the related Fraud Loss Coverage Termination Date, (ii) Special Hazard Loss on a Mortgage Loan in any Mortgage Pool in Aggregate Pool I or Aggregate Pool II realized after the related Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss on a Mortgage Loan in any Mortgage Pool in Aggregate Pool I or Aggregate Pool II realized after the related Bankruptcy Coverage Termination Date. Fannie Mae: The entity formerly known as the Federal National Mortgage Association, a federally chartered and privately owned corporation organized and existing under the Federal National Mortgage Association Charter Act, or any successor thereto. FDIC: The Federal Deposit Insurance Corporation or any successor thereto. FHLMC: The Federal Home Loan Mortgage Corporation, a corporate instrumentality of the United States created and existing under Title III of the Emergency Home Finance Act of 1970, as amended, or any successor thereto. Fitch Ratings: Fitch, Inc., or any successor in interest. Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has occurred, as reported by the related Servicer to the Master Servicer. Fraud Loss Coverage Amount: As of the Closing Date, (x) $3,888,556, with respect to the Pool I Certificates and (y) 2,193,753, with respect to the Pool II Certificates, in each case, subject to reduction from time to time by the amount of Fraud Losses allocated to the related Certificates. In addition, on each anniversary of the Cut-off Date, each Fraud Loss Coverage Amount will be reduced as follows: (a) on the first, second, third and fourth anniversaries of the Cut-off Date, to an amount equal to the lesser of (i) 1%, in the case of the first anniversary, and 0.5%, in the case of the second, third and fourth anniversaries, of the then current Aggregate Stated Principal Balance for the related Aggregate Pool and (ii) the excess of such Fraud Loss Coverage Amount as of the preceding anniversary of the Cut-off Date over the cumulative amount of Fraud Losses allocated to the related Certificates since such preceding anniversary; and (b) on the fifth anniversary of the Cut-off Date, to zero. Fraud Loss Coverage Termination Date: As to either Fraud Loss Coverage Amount, the point in time at which such Fraud Loss Coverage Amount is reduced to zero. Global Securities: The global certificates representing the Book-Entry Certificates. 12 GreenPoint Mortgage Loan: Each Mortgage Loan originated by GreenPoint Mortgage Funding, Inc. and listed on the Mortgage Loan Schedule. GreenPoint Purchase and Servicing Agreement: The Mortgage Loan Sale and Servicing Agreement, dated as of September 1, 2003, among Morgan Stanley Mortgage Capital Inc. and GreenPoint Mortgage Funding, Inc. and listed in Exhibit E hereto. Group 1: All of the Group 1 Certificates. Group 1 Certificate: Any Class 1-A-1 and Class A-R Certificate. Group 2: All of the Group 2 Certificates. Group 2 Certificate: Any Class 2-A-1 Certificate. Group 3: All of the Group 3 Certificates. Group 3 Certificate: Any Class 3-A-1, Class 3-A-2 and Class 3-A-3 Certificate. Group 4: All of the Group 4 Certificates. Group 4 Certificate: Any Class 4-A-1 and Class 4-A-2 Certificate. Group 5: All of the Group 4 Certificates. Group 5 Certificate: Any Class S-F-1 Certificate. Group 6: All of the Group 6 Certificates. Group 6 Certificate: Any Class 6-A-1 Certificate. Group 7: All of the Group 7 Certificates. Group 7 Certificate: Any Class 7-A-1 Certificate. Holder or Certificateholder: The registered owner of any Certificate as recorded on the books of the Certificate Registrar except that, solely for the purposes of taking any action or giving any consent pursuant to this Agreement, any Certificate registered in the name of the Depositor, the Trustee, the Master Servicer, the Securities Administrator and any Servicer, or any Affiliate thereof shall be deemed not to be outstanding in determining whether the requisite percentage necessary to effect any such consent has been obtained, except that, in determining whether the Trustee shall be protected in relying upon any such consent, only Certificates which a Responsible Officer of the Trustee knows to be so owned shall be disregarded. The Trustee may request and conclusively rely on certifications by the Depositor, the Master Servicer, the Securities Administrator or any Servicer in determining whether any Certificates are registered to an Affiliate of the Depositor, the Master Servicer, the Securities Administrator or any Servicer. HUD: The United States Department of Housing and Urban Development, or any successor thereto. 13 Independent: When used with respect to any Accountants, a Person who is "independent" within the meaning of Rule 2-01(b) of the Securities and Exchange Commission's Regulation S-X. When used with respect to any other Person, a Person who (a) is in fact independent of another specified Person and any Affiliate of such other Person, (b) does not have any material direct financial interest in such other Person or any Affiliate of such other Person, and (c) is not connected with such other Person or any Affiliate of such other Person as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions. Index: As to each Mortgage Loan, the index from time to time in effect for adjustment of the Mortgage Rate as set forth as such on the related Mortgage Note. Initial Bankruptcy Coverage Amount: With respect to the Pool I Certificates, $100,000. With respect to the Pool II Certificates, $100,000. Insurance Policy: With respect to any Mortgage Loan, any insurance policy, including all names and endorsements thereto in effect, including any replacement policy or policies for any Insurance Policies. Insurance Proceeds: Proceeds paid by any Insurance Policy (excluding proceeds required to be applied to the restoration and repair of the related Mortgaged Property or released to the Mortgagor), in each case other than any amount included in such Insurance Proceeds in respect of Insured Expenses and the proceeds from any Limited Purpose Surety Bond. Insured Expenses: Expenses covered by an Insurance Policy or any other insurance policy with respect to the Mortgage Loans. Interest Distribution Amount: For each Class of Certificates, on any Distribution Date, the Current Interest for such Class, as reduced by (i) such Class's share of Net Prepayment Interest Shortfalls and (ii) the related Class' allocable share of (A) after the related Special Hazard Coverage Termination Date, with respect to each Mortgage Loan in the related Mortgage Pool (or after the related Credit Support Depletion Date, any Mortgage Loan in the related Aggregate Pool) that became a Special Hazard Mortgage Loan during the calendar month preceding the month of such Distribution Date, the excess of one month's interest at the related Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of the Due Date in such month over the amount of Liquidation Proceeds applied as interest on such Mortgage Loan with respect to such month, (B) after the related Bankruptcy Coverage Termination Date, with respect to each Mortgage Loan in the related Mortgage Pool (or after the related Credit Support Depletion Date, any Mortgage Loan in the related Aggregate Pool) that became subject to a Bankruptcy Loss during the calendar month preceding the month of such Distribution Date, the interest portion of the related Debt Service Reduction or Deficient Valuation, (C) each related Relief Act Shortfall for the Mortgage Loans in the related Mortgage Pool (or after the related Credit Support Depletion Date, any Mortgage Loan in the related Aggregate Pool) incurred during the calendar month preceding the month of such Distribution Date and (D) after the related Fraud Loss Coverage Termination Date, with respect to each Mortgage Loan in the related Mortgage Pool (or after the related Credit Support Depletion Date, any Mortgage Loan in the related Aggregate Pool) that became a Fraud Loan during the calendar month preceding the 14 month of such Distribution Date, the excess of one month's interest at the related Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of the Due Date in such month over the amount of Liquidation Proceeds applied as interest on such Mortgage Loan with respect to such month. Any such shortfalls and reductions shall be allocated among all related Classes of Senior Certificates (or in the case of the shortfalls and reductions set forth in clause (ii) of the preceding sentence and prior to the related Credit Support Depletion Date, among all Classes of Senior Certificates of the Related Certificate Group) proportionately on the basis of the Interest Distribution Amount otherwise payable thereon and among the related Subordinate Certificates on the basis of their Apportioned Principal Balances before taking into account any of the foregoing reductions. Interest-Only Certificates: Not applicable. Interest Shortfall: As to any Class of Certificates and any Distribution Date, (i) the amount by which the Interest Distribution Amount for such Class on such Distribution Date and all prior Distribution Dates exceeds (ii) amounts distributed in respect thereof to such Class on prior Distribution Dates. Interest Transfer Amount: For any Distribution Date and for any Undercollateralized Group, an amount equal to one month's interest on the applicable Principal Transfer Amount at the weighted average Certificate Interest Rate of the applicable Undercollateralized Group, plus any interest accrued on such Undercollateralized Group remaining unpaid from prior Distribution Dates. Intervening Assignments: The original intervening assignments of the Mortgage, notices of transfer or equivalent instrument. JPMMAC Mortgage Loans: The CMMC Mortgage Loans, the Countrywide Mortgage Loans and the Cendant/JPMMAC Mortgage Loans assigned by JPMMAC to the Depositor. Latest Possible Maturity Date: The Distribution Date occurring in (x) June 2034, with respect to Aggregate Pool I, and (y) May 2034, with respect to Aggregate Pool II. LIBOR: Not applicable. LIBOR Business Day: Any day on which banks in London, England and The City of New York are open and conducting transactions in foreign currency and exchange. LIBOR Certificate: Not applicable. LIBOR Determination Date: Not applicable. Limited Purpose Surety Bond: Any Limited Purpose Surety Bond listed in Exhibit G. Liquidated Mortgage Loan: With respect to any Distribution Date, a defaulted Mortgage Loan (including any REO Property) which was liquidated in the calendar month preceding the month of such Distribution Date and as to which the related Servicer has certified (in accordance with its Purchase and Servicing Agreement) that it has received all amounts it expects to receive 15 in connection with the liquidation of such Mortgage Loan including the final disposition of an REO Property. Liquidation Proceeds: Amounts, including Insurance Proceeds, received in connection with the partial or complete liquidation of defaulted Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or amounts received in connection with any condemnation or partial release of a Mortgaged Property and any other proceeds received in connection with an REO Property. Loan-To-Value Ratio: With respect to any Mortgage Loan and as to any date of determination, the fraction (expressed as a percentage) the numerator of which is the principal balance of the related Mortgage Loan at such date of determination and the denominator of which is the Appraised Value of the related Mortgaged Property. Lower-Tier Interest: Any one of the interests in the Lower-Tier REMICs as described in the Preliminary Statement. Lower-Tier REMICs: As described in the Preliminary Statement. Margin: As to each Mortgage Loan, the percentage amount set forth on the related Mortgage Note added to the Index in calculating the Mortgage Rate thereon. Master Servicer: Wells Fargo Bank, N.A., a national banking association organized under the laws of the United States in its capacity as Master Servicer and any Person succeeding as Master Servicer hereunder or any successor in interest, or if any successor master servicer shall be appointed as herein provided, then such successor master servicer. Master Servicing Fee: With respect to any Distribution Date, an amount equal to the product of one-twelfth of the Master Servicing Fee Rate and the Stated Principal Balance of each Mortgage Loan as of the first day of the related Due Period. Master Servicing Fee Rate: 0.0075% per annum. Maximum Rate: As to any Mortgage Loan, the maximum rate set forth on the related Mortgage Note at which interest can accrue on such Mortgage Loan. MERS: Mortgage Electronic Registration Systems, Inc., a corporation organized and existing under the laws of the State of Delaware, or any successor to Mortgage Electronic Registration Systems, Inc. MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS(R) System. MERS(R) System: The system of recording transfers of mortgages electronically maintained by MERS. MIN: The mortgage identification number for any MERS Mortgage Loan. 16 MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for the originator of such Mortgage Loan and its successors and assigns. Moody's: Moody's Investors Service, Inc., or any successor in interest. Mortgage: A mortgage, deed of trust or other instrument encumbering a fee simple interest in real property securing a Mortgage Note, together with improvements thereto. Mortgage Documents: With respect to each Mortgage Loan, the mortgage documents required to be delivered to the Custodian pursuant to each Custodial Agreement. Mortgage Loan: A Mortgage and the related notes or other evidences of indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned to or deposited with the Trustee pursuant to Section 2.01 (including any Replacement Loan and REO Property), including without limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as amended from time to time. Mortgage Loan Schedule: The schedule attached hereto as Schedule A, which shall identify each Mortgage Loan, as such schedule may be amended by the Depositor or a Servicer from time to time to reflect the addition of Replacement Mortgage Loans to, or the deletion of Deleted Mortgage Loans from, the Trust Fund. Such schedule shall, among other things (i) designate the Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate; (ii) identify the designated Mortgage Pool in which such Mortgage Loan is included; and (iii) separately identify Additional Collateral Mortgage Loans. Mortgage Note: The original executed note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage under a Mortgage Loan. Mortgage Pool: Each of Pool 1, Pool 2, Pool 3, Pool 4, Pool 5, Pool 6 and Pool 7. Mortgaged Property: The underlying property, including any Additional Collateral, securing a Mortgage Loan which, with respect to a Cooperative Loan, is the related Cooperative Shares and Property Lease. Mortgage Rate: As to any Mortgage Loan, the annual rate of interest borne by the related Mortgage Notes. Mortgagor: The obligor on a Mortgage Note. National City Mortgage Loans: Each Mortgage Loan originated by National City Mortgage Co. and listed on the Mortgage Loan Schedule. National City Purchase and Servicing Agreement: The Flow Master Seller's Warranties and Servicing Agreement, dated as of February 24, 2004, between JPMMAC and National City Mortgage Co. and listed in Exhibit E hereto. Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan or any other disposition of related Mortgaged Property, the related Liquidation Proceeds net of Advances, 17 Servicer Advances, Servicing Fees and/or Master Servicing Fees and any other accrued and unpaid servicing fees received and retained in connection with the liquidation of such Mortgage Loan or Mortgaged Property. Net Mortgage Rate: With respect to any Mortgage Loan and any Distribution Date, the related Mortgage Rate as of the Due Date in the month preceding the month of such Distribution Date reduced by the Aggregate Expense Rate for such Mortgage Loan. Net Prepayment Interest Shortfall: With respect to any Mortgage Loan and any Distribution Date, the amount by which any Prepayment Interest Shortfall for such date exceeds the amount payable by the Master Servicer and/or the related Servicer in respect of such shortfall. Net WAC: As to any Distribution Date, the weighted average of the Net Mortgage Rates of the Mortgage Loans as of the Due Date of the month preceding the month of such Distribution Date, weighted on the basis of their outstanding Stated Principal Balances (after giving effect to the Scheduled Payments due on or before such Due Date and Principal Prepayments received prior to such Due Date) at such time. Net WAC Shortfall: Not applicable. Non-Book-Entry Certificate: Any Certificate other than a Book-Entry Certificate. Non-permitted Foreign Holder: As defined in Section 3.03(f). Non-U.S. Person: Any person other than a "United States person" within the meaning of Section 7701(a)(30) of the Code. Nonrecoverable Advance: Any portion of an Advance or Servicer Advance previously made or proposed to be made by the Master Servicer and/or a Servicer (as certified in an Officer's Certificate of such Servicer), which in the good faith judgment of such party, shall not be ultimately recoverable by such party from the related Mortgagor, related Liquidation Proceeds or otherwise. Notional Amount: Not applicable. Notional Certificate: Not applicable. Offering Document: The Prospectus. Officer's Certificate: A certificate signed by two Authorized Officers of the Depositor or the Chairman of the Board, any Vice Chairman, the President, any Vice President or any Assistant Vice President of the Master Servicer or the Securities Administrator, and in each case delivered to the Trustee. Officer's Certificate of a Servicer: A certificate (i) signed by the Chairman of the Board, the Vice Chairman of the Board, the President, a Managing Director, a Vice President (however denominated), an Assistant Vice President, the Treasurer, the Secretary, or one of the Assistant 18 Treasurers or Assistant Secretaries of a Servicer, or (ii) if provided for herein, signed by a Servicing Officer, as the case may be, and delivered to the Trustee or the Master Servicer, as required hereby. Opinion of Counsel: A written opinion of counsel, reasonably acceptable in form and substance to the Trustee, the Securities Administrator or the Master Servicer, as required hereby, and who may be in-house or outside counsel to the Depositor, the Master Servicer, the Securities Administrator or the Trustee but which must be Independent outside counsel with respect to any such opinion of counsel concerning the transfer of any Residual Certificate or concerning certain matters with respect to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the taxation, or the federal income tax status, of each REMIC. Original Applicable Credit Support Percentage: With respect to each Class of Pool I Subordinate Certificates and Pool II Subordinate Certificates, the corresponding percentage set forth opposite its Class designation:
Pool I Subordinated Certificates - -------------------------------- Class I-B-1....................... 3.30% Class I-B-2....................... 1.95% Class I-B-3....................... 1.15% Class I-B-4....................... 0.80% Class I-B-5....................... 0.50% Class I-B-6....................... 0.30%

Pool II Subordinated Certificates - --------------------------------- Class S-B-1....................... 3.45% Class S-B-2....................... 1.80% Class S-B-3....................... 1.10% Class S-B-4....................... 0.75% Class S-B-5....................... 0.40% Class S-B-6....................... 0.25%
Original Subordinate Principal Amount: For the Pool I Certificates, on or prior to the third Senior Termination Date, with respect to a Mortgage Pool in Aggregate Pool I, the portion of the aggregate of the initial Class Principal Amounts of the Classes of Pool I Subordinated Certificates related to that Mortgage Pool; or if such date is after the third Senior Termination Date, the aggregate of the initial Class Principal Amounts of the Classes of Pool I Subordinated Certificates. For the Pool II Certificates, on or prior to the second Senior Termination Date, with respect to a Mortgage Pool in Aggregate Pool II, the portion of the aggregate of the initial Class Principal Amounts of the Classes of Pool II Subordinated Certificates related to that Mortgage Pool; or if such date is after the second Senior Termination Date, the aggregate of the initial Class Principal Amounts of the Classes of Pool II Subordinated Certificates. Originator: Any one of Cendant Mortgage Corporation, Countrywide Home Loans, Inc., Chase Manhattan Mortgage Corporation, National City Mortgage Co., Bank of America, N.A. or GreenPoint Mortgage Funding, Inc., as applicable. 19 Overcollateralized Group: On any Distribution Date, any Certificate Group which is not an Undercollateralized Group. Paying Agent: Any paying agent appointed pursuant to Section 3.08. The initial Paying Agent shall be Wells Fargo Bank, N.A., for so long as it is acting as Securities Administrator under this Agreement. Percentage Interest: With respect to any Certificate, its percentage interest in the undivided beneficial ownership interest in the Trust Fund evidenced by all Certificates of the same Class as such Certificate. With respect to any Certificate other than the Class A-R and Class LT-R Certificates, the Percentage Interest evidenced thereby shall equal the initial Certificate Principal Amount thereof divided by the initial Class Principal Amount of all Certificates of the same Class. With respect to each of the Class A-R and Class LT-R Certificates, the Percentage Interest evidenced thereby shall be as specified on the face thereof, or otherwise, be equal to 100%. Permitted Investments: At any time, any one or more of the following obligations and securities: (i) obligations of the United States or any agency thereof, provided that such obligations are backed by the full faith and credit of the United States; (ii) general obligations of or obligations guaranteed by any state of the United States or the District of Columbia receiving the highest long-term debt rating of each Rating Agency, or such lower rating as shall not result in the downgrading or withdrawal of the ratings then assigned to the Certificates by the Rating Agencies, as evidenced by a signed writing delivered by each Rating Agency; (iii) commercial or finance company paper which is then receiving the highest commercial or finance company paper rating of each Rating Agency rating such paper, or such lower rating as shall not result in the downgrading or withdrawal of the ratings then assigned to the Certificates by the Rating Agencies, as evidenced by a signed writing delivered by each Rating Agency; (iv) certificates of deposit, demand or time deposits, or bankers' acceptances issued by any depository institution or trust company incorporated under the laws of the United States or of any state thereof and subject to supervision and examination by federal and/or state banking authorities, provided that the commercial paper and/or long-term unsecured debt obligations of such depository institution or trust company (or in the case of the principal depository institution in a holding company system, the commercial paper or long-term unsecured debt obligations of such holding company, but only if Moody's is not the applicable Rating Agency) are then rated one of the two highest long-term and the highest short-term ratings of each Rating Agency for such securities, or such lower ratings as shall not result in the downgrading or withdrawal of the ratings then assigned to the Certificates by the Rating Agencies, as evidenced by a signed writing delivered by each Rating Agency; 20 (v) demand or time deposits or certificates of deposit issued by any bank or trust company or savings institution to the extent that such deposits are fully insured by the FDIC; (vi) guaranteed reinvestment agreements issued by any bank, insurance company or other corporation acceptable to the Rating Agencies at the time of the issuance of such agreements, as evidenced by a signed writing delivered by each Rating Agency; (vii) repurchase obligations with respect to any security described in clauses (i) and (ii) above, in either case entered into with a depository institution or trust company (acting as principal) described in clause (iv) above; (viii) securities (other than stripped bonds, stripped coupons or instruments sold at a purchase price in excess of 115% of the face amount thereof) bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States or any state thereof which, at the time of such investment, have one of the two highest ratings of each Rating Agency (except if the Rating Agency is Moody's, such rating shall be the highest commercial paper rating of Moody's for any such series), or such lower rating as shall not result in the downgrading or withdrawal of the ratings then assigned to the Certificates by the Rating Agencies, as evidenced by a signed writing delivered by each Rating Agency; (ix) interests in any money market fund which at the date of acquisition of the interests in such fund and throughout the time such interests are held in such fund has the highest applicable rating by each Rating Agency rating such fund or such lower rating as shall not result in a change in the rating then assigned to the Certificates by each Rating Agency, as evidenced by a signed writing delivered by each Rating Agency, including funds for which the Trustee, the Master Servicer, the Securities Administrator or any of its Affiliates is investment manager or adviser; (x) short-term investment funds sponsored by any trust company or national banking association incorporated under the laws of the United States or any state thereof which on the date of acquisition has been rated by each applicable Rating Agency in their respective highest applicable rating category or such lower rating as shall not result in a change in the rating then specified stated maturity and bearing interest or sold at a discount acceptable to each Rating Agency as shall not result in the downgrading or withdrawal of the ratings then assigned to the Certificates by the Rating Agencies, as evidenced by a signed writing delivered by each Rating Agency; and (xi) such other investments having a specified stated maturity and bearing interest or sold at a discount acceptable to the Rating Agencies as shall not result in the downgrading or withdrawal of the ratings then assigned to the Certificates by the Rating Agencies, as evidenced by a signed writing delivered by each Rating Agency; provided, that no such instrument shall be a Permitted Investment if (i) such instrument evidences the right to receive interest only payments with respect to the obligations underlying 21 such instrument or (ii) such instrument would require the Depositor to register as an investment company under the Investment Company Act of 1940, as amended. Person: Any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof. Pool 1: The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 1. Pool 1 Mortgage Loans: Any Mortgage Loan in Pool 1. Pool 1 Net WAC: With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 1 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances. Pool 1 Subordinate Amount: For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 1 Mortgage Loans over the sum of the Class Principal Amounts of the Class 1-A-1 and Class A-R Certificates immediately before such Distribution Date. Pool 2: The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 2. Pool 2 Mortgage Loans: Any Mortgage Loan in Pool 2. Pool 2 Net WAC: With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 2 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances. Pool 2 Subordinate Amount: For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 2 Mortgage Loans over the Class Principal Amount of the Class 2-A-1 Certificates immediately before such Distribution Date. Pool 3: The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 3. Pool 3 Mortgage Loans: Any Mortgage Loan in Pool 3. Pool 3 Net WAC: With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 3 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances. Pool 3 Subordinate Amount: For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 3 Mortgage Loans over the sum of the Class Principal 22 Amounts of the Class 3-A-1, Class 3-A-2 and Class 3-A-3 Certificates immediately before such Distribution Date. Pool 4: The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 4. Pool 4 Mortgage Loans: Any Mortgage Loan in Pool 4. Pool 4 Net WAC: With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 4 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances. Pool 4 Subordinate Amount: For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool 4 Mortgage Loans over the sum of the Class Principal Amounts of the Class 4-A-1 and Class 4-A-2 Certificates immediately before such Distribution Date. Pool 5: The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 5. Pool 5 Mortgage Loans: Any Mortgage Loan in Pool 5. Pool 5 Net WAC: With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 5 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances. Pool 5 Subordinate Amount: For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool Mortgage Loans over the Class Principal Amount of the Class S-F-1 Certificates immediately before such Distribution Date. Pool 6: The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 6. Pool 6 Mortgage Loans: Any Mortgage Loan in Pool 6. Pool 6 Net WAC: With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 6 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances. Pool 6 Subordinate Amount: For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool Mortgage Loans over the Class Principal Amount of the Class S-F-2 Certificates immediately before such Distribution Date. Pool 7: The aggregate of Mortgage Loans identified on the Mortgage Loan Schedule as being included in Pool 7. 23 Pool 7 Mortgage Loans: Any Mortgage Loan in Pool 7. Pool 7 Net WAC: With respect to any Distribution Date, the weighted average of the Net Mortgage Rates of the Pool 7 Mortgage Loans as of the first day of the calendar month immediately preceding the calendar month of such Distribution Date, weighted on the basis of their Stated Principal Balances. Pool 7 Subordinate Amount: For any Distribution Date, the excess of the Aggregate Stated Principal Balance of the Pool Mortgage Loans over the Class Principal Amount of the Class S-F-3 Certificates immediately before such Distribution Date. Pool I Certificates: The Pool I Senior Certificates and Pool I Subordinate Certificates. Pool I Cut-off Date Balance: With respect to the Mortgage Loans in Aggregate Pool I on the Closing Date, the Aggregate Stated Principal Balance of Aggregate Pool I as of the Cut-off Date. Pool I Initial Optional Purchase Date: With respect to Aggregate Pool I, the first Distribution Date following the date on which the Aggregate Stated Principal Balance of Aggregate Pool I is equal to or less than 5.00% of the Aggregate Stated Principal Balance of Aggregate Pool I as of the Cut-off Date. Pool I Senior Certificates: Group 1 Certificates, Group 2 Certificates, Group 3 Certificates and Group 4 Certificates. Pool I Step Down Conditions: As of the first Distribution Date as to which any decrease in any Senior Prepayment Percentage applies, with respect to each Mortgage Pool in Aggregate Pool I (i) the outstanding Stated Principal Balance of all Mortgage Loans in a Mortgage Pool in Aggregate Pool I 60 days or more Delinquent (including Mortgage Loans in foreclosure, REO Property or bankruptcy status) (averaged over the preceding six month period), as a percentage of (a) if such date is on or prior to the third Senior Termination Date, the portion of the aggregate Class Principal Amount of the Pool I Subordinated Certificates related to that Mortgage Pool on such Distribution Date, or (b) if such date is after the third Senior Termination Date, the aggregate Class Principal Amount of the Pool I Subordinate Certificates on such Distribution Date, does not equal or exceed 50% and (ii) cumulative Realized Losses with respect to the Mortgage Loans in each Mortgage Pool in Aggregate Pool I do not exceed (a) with respect to each Distribution Date from July 2011 through June 2012, 30% of the related Original Subordinate Principal Amount, (b) with respect to each Distribution Date from July 2012 through June 2013, 35% of the related Original Subordinate Principal Amount, (c) with respect to each Distribution Date from July 2013 through June 2014, 40% of the related Original Subordinate Principal Amount, (d) with respect to each Distribution Date from July 2014 through June 2015, 45% of the related Original Subordinate Principal Amount and (e) with respect to each Distribution Date from and after July 2015, 50% of the related Original Subordinate Principal Amount. Pool I Subordinate Certificates: Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4, Class I-B-5 and Class I-B-6 Certificates. 24 Pool I Subordinate Net WAC: For any Distribution Date, the weighted average of the Pool 1 Net WAC, the Pool 2 Net WAC, the Pool 3 Net WAC and the Pool 4 Net WAC, in each case weighted on the basis of the relative Pool Subordinate Amounts for Pool 1, Pool 2, Pool 3 and Pool 4, respectively, for such Distribution Date. For federal income tax purposes, Pool I Subordinate Net WAC will equal the Calculation Rate following the allocation of Principal Amounts or Principal Relocation Payments for such Distribution Date as provided in the Preliminary Statement. Pool II Certificates: The Pool II Senior Certificates and Pool II Subordinate Certificates. Pool II Cut-off Date Balance: With respect to the Mortgage Loans in Aggregate Pool II on the Closing Date, the Aggregate Stated Principal Balance of Aggregate Pool II as of the Cut-off Date. Pool II Initial Optional Purchase Date: With respect to Aggregate Pool II, the first Distribution Date following the date on which the Aggregate Stated Principal Balance of Aggregate Pool II is equal to or less than 5.00% of the Aggregate Stated Principal Balance of Aggregate Pool II as of the Cut-off Date. Pool II Senior Certificates: Group 5 Certificates, Group 6 Certificates and Group 7 Certificates. Pool II Step Down Conditions: As of the first Distribution Date as to which any decrease in any Senior Prepayment Percentage applies, with respect to each Mortgage Pool in Aggregate Pool II (i) the outstanding Stated Principal Balance of all Mortgage Loans in a Mortgage Pool in Aggregate Pool II 60 days or more Delinquent (including Mortgage Loans in foreclosure, REO Property or bankruptcy status) (averaged over the preceding six month period), as a percentage of (a) if such date is on or prior to the second Senior Termination Date, the portion of the aggregate Class Principal Amount of the Pool II Subordinated Certificates related to that Mortgage Pool on such Distribution Date, or (b) if such date is after the second Senior Termination Date, the aggregate Class Principal Amount of the Pool II Subordinate Certificates on such Distribution Date, does not equal or exceed 50% and (ii) cumulative Realized Losses with respect to the Mortgage Loans in each Mortgage Pool in Aggregate Pool II do not exceed (a) with respect to each Distribution Date from July 2011 through June 2012, 30% of the related Original Subordinate Principal Amount, (b) with respect to each Distribution Date from July 2012 through June 2013, 35% of the related Original Subordinate Principal Amount, (c) with respect to each Distribution Date from July 2013 through June 2014, 40% of the related Original Subordinate Principal Amount, (d) with respect to each Distribution Date from July 2014 through June 2015, 45% of the related Original Subordinate Principal Amount and (e) with respect to each Distribution Date from and after July 2015, 50% of the related Original Subordinate Principal Amount. Pool II Subordinate Certificates: Class S-B-1, Class S-B-2, Class S-B-3, Class S-B-4, Class S-B-5 and Class S-B-6 Certificates. Pool II Subordinate Net WAC: For any Distribution Date, the weighted average of the Pool 5 Net WAC, the Pool 6 Net WAC and the Pool 7 Net WAC, in each case weighted on the 25 basis of the relative Pool Subordinate Amounts for Pool 5, Pool 6 and Pool 7, respectively, for such Distribution Date. For federal income tax purposes, Pool II Subordinate Net WAC will equal the Calculation Rate following the allocation of Principal Amounts or Principal Relocation Payments for such Distribution Date as provided in the Preliminary Statement. Pool Percentage: With respect to each Mortgage Pool in an Aggregate Pool and any Distribution Date, a fraction, expressed as a percentage, the numerator of which is the Aggregate Stated Principal Balance of such Mortgage Pool, and the denominator of which is the Aggregate Stated Principal Balance of the related Aggregate Pool as of such Due Date. Pool Subordinate Amount: Any of the Pool 1, Pool 2, Pool 3, Pool 4, Pool 5, Pool 6 or Pool 7 Subordinate Amounts. Prepayment Interest Shortfall: With respect to any full or partial Principal Prepayment of a Mortgage Loan, the excess, if any, of (i) one full month's interest at the applicable Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan immediately prior to such Principal Prepayment over (ii) the amount of interest actually received with respect to such Mortgage Loan in connection with such Principal Prepayment. Prepayment Period: With respect to each Distribution Date, the calendar month immediately preceding the month in which the Distribution Date occurs. Primary Mortgage Insurance Policy: Each policy of primary mortgage guaranty insurance or any replacement policy therefor with respect to any Mortgage Loan. Principal Distribution Amount: With respect to any Mortgage Pool and any Distribution Date, the sum of (a) each Scheduled Payment of principal collected or advanced on the related Mortgage Loans (before taking into account any Deficient Valuations or Debt Service Reductions) and due during the related Due Period, (b) that portion of the Purchase Price representing principal of any Mortgage Loans in such Mortgage Pool purchased in accordance with Section 2.05 hereof and received during the related Prepayment Period, (c) the principal portion of any related Substitution Amount received during the related Prepayment Period, (d) the principal portion of all Insurance Proceeds received during the related Prepayment Period with respect to Mortgage Loans in such Mortgage Pool that are not yet Liquidated Mortgage Loans, (e) the principal portion of all Net Liquidation Proceeds received during the related Prepayment Period with respect to Liquidated Mortgage Loans in such Mortgage Pool, (f) the principal portion of the proceeds of any Additional Collateral with respect to the Mortgage Loans in such Mortgage Pool, (g) the principal portion of all partial and full principal prepayments of Mortgage Loans in such Mortgage Pool applied by the Servicers during the related Prepayment Period, (h) any Subsequent Recoveries received during the related Prepayment Period and (i) on the Distribution Date on which the Trust Fund or a portion thereof relating to Aggregate Pool I or Aggregate Pool II, as applicable, is to be terminated pursuant to Article X hereof, that portion of the related Redemption Price in respect of principal for such Mortgage Pool. Principal Prepayment: Any Mortgagor payment of principal or other recovery of principal on a Mortgage Loan that is recognized as having been received or recovered in advance of its scheduled Due Date and applied to reduce the principal balance of the Mortgage Loan in 26 accordance with the terms of the Mortgage Note or the related Purchase and Servicing Agreement. Principal Prepayment In Full: Any Principal Prepayment of the entire principal balance of the Mortgage Loans. Principal Relocation Payment: A payment from any Mortgage Pool to Lower-Tier REMIC Regular Interests that correspond to a different Mortgage Pool as provided in the Preliminary Statement. Principal Relocation Payments shall be made of principal allocations comprising the Principal Remittance Amount from a Mortgage Pool. Principal Transfer Amount: For any Distribution Date and for any Undercollateralized Group, the excess, if any, of the aggregate Class Principal Amount of such Undercollateralized Group immediately prior to such Distribution Date, over the Aggregate Stated Principal Balance of the related Mortgage Pool immediately prior to such Distribution Date. Proceeding: Any suit in equity, action at law or other judicial or administrative proceeding. Proprietary Lease: With respect to any Cooperative Property, a lease or occupancy agreement between a Cooperative Corporation and a holder of related Cooperative Shares. Prospectus: The prospectus supplement dated June 24, 2004, together with the accompanying prospectus dated February 19, 2004, relating to the Certificates. Purchase and Servicing Agreements: The mortgage loan purchase and servicing agreements, listed in Exhibit E hereto, as each such agreement may be amended or supplemented from time to time as permitted hereunder. Purchase Price: With respect to any Mortgage Loan required or permitted to be purchased by a Seller or the Depositor pursuant to this Agreement, or by the related Originator or Servicer pursuant to the related Purchase and Servicing Agreement, an amount equal to the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the date of such purchase and (ii) accrued interest thereon at the applicable Net Mortgage Rate from the date through which interest was last paid by the Mortgagor to the Due Date in the month in which the Purchase Price is to be distributed to Certificateholders, or such other amount as may be specified in the related Purchase and Servicing Agreement. Rapid Prepayment Conditions: As to any Distribution Date, if (1) the Aggregate Subordinate Percentage for Aggregate Pool I or Aggregate Pool II, as applicable, on such date is less than 200% of the related Aggregate Subordinate Percentage on the Closing Date; or (2) the outstanding Stated Principal Balance of the Mortgage Loans in any Mortgage Pool in the related Aggregate Pool delinquent 60 days or more (including Mortgage Loans in REO and foreclosure) (averaged over the preceding six-month period), as a percentage of such Mortgage Pool's Pool Subordinate Amount, is greater than or equal to 50%. Rating Agency: Each of S&P and Fitch Ratings. 27 Realized Loss: With respect to each Liquidated Mortgage Loan, an amount (not less than zero or more than the Stated Principal Balance of the Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated Principal Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus (ii) interest at the Net Mortgage Rate from the Due Date as to which interest was last paid or advanced (and not reimbursed) to Certificateholders up to the Due Date in the month in which Liquidation Proceeds are required to be distributed on the Stated Principal Balance of such Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation Proceeds and the proceeds of any Additional Collateral, if any, received during the month in which such liquidation occurred, to the extent applied as recoveries of interest at the Net Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect to each Mortgage Loan which has become the subject of a Deficient Valuation, if the principal amount due under the related Mortgage Note has been reduced, the difference between the principal balance of the Mortgage Loan outstanding immediately prior to such Deficient Valuation and the principal balance of the Mortgage Loan as reduced by the Deficient Valuation. Recognition Agreement: An agreement among a Cooperative Corporation, a lender and a Mortgagor with respect to a Cooperative Mortgage Loan whereby such parties (i) acknowledge that such lender may make, or intends to make, such Cooperative Mortgage Loan, and (ii) make certain agreements with respect to such Cooperative Mortgage Loan. Record Date: As to any Distribution Date, the last Business Day of the month preceding the month of each Distribution Date. Redemption Date: Any Distribution Date on which Certificates may be redeemed. Redemption Price: With respect to any Class of Certificates to be redeemed, an amount equal to 100% of the related Class Principal Amount of the Certificates to be so redeemed, together with interest on such amount at the applicable Certificate Interest Rate through the related Accrual Period (as increased by any Interest Shortfalls), and including, in the case of the Redemption Price payable in connection with the redemption and retirement of all of the Certificates or all of the Certificates related to an Aggregate Pool, the payment of all amounts (including, without limitation, all previously unreimbursed Advances and Servicing Advances and accrued and unpaid Servicing Fees) payable or reimbursable to the Trustee, the Master Servicer and the Servicers pursuant to this Agreement and the related Purchase and Servicing Agreements, or to the Custodian under the related Custodial Agreements (to the extent such amounts are not paid to the Custodian by the related Seller). Refinancing Mortgage Loan: Any Mortgage Loan originated in connection with the refinancing of an existing mortgage loan. Regular Certificates: Each Class of Certificates other than the Class A-R Certificates. Related Certificate Group: The Certificate Group related to a particular Mortgage Pool as indicated by the same numerical designation (i.e., Group 1 Certificates are related to Pool 1, Group 2 Certificates are related to Pool 2, Group 3 Certificates are related to Pool 3, Group 4 Certificates are related to Pool 4, Group 5 Certificates are related to Pool 5, Group 6 Certificates are related to Pool 6 and Group 7 Certificates are related to Pool 7). 28 Relief Act Shortfalls: With respect to any Distribution Date and any Mortgage Loan as to which there has been a reduction in the amount of interest collectible thereon for the most recently ended calendar month as a result of the application of the Civil Relief Act, the amount, if any, by which (i) interest collectible on such Mortgage Loan for the most recently ended calendar month is less than (ii) interest accrued thereon for such month pursuant to the Mortgage Note. REMIC: Each pool of assets in the Trust Fund designated as a REMIC as described in the Preliminary Statement. REMIC Provisions: The provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at sections 860A through 860G of the Code, and related provisions, and regulations, including proposed regulations and rulings, and administrative pronouncements promulgated thereunder, as the foregoing may be in effect from time to time. REO Property: A Mortgaged Property acquired by the Trust Fund through foreclosure or deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan or otherwise treated as having been acquired pursuant to the REMIC Provisions. Replacement Mortgage Loan: A mortgage loan substituted by an Originator or a Seller for a Deleted Mortgage Loan which must, on the date of such substitution, as confirmed in a request for release, substantially in the form attached to the related Custodial Agreement, (i) have a Stated Principal Balance, after deduction of the principal portion of the Scheduled Payment due in the month of substitution, not in excess of, and not more than 10% less than, the Stated Principal Balance of the Deleted Mortgage Loan; (ii) have a Maximum Rate not less than (and not more than two percentage points greater than) the Maximum Rate of the Deleted Mortgage Loan; (iii) have a gross margin not less than that of the Deleted Mortgage Loan; (iv) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (v) have a remaining term to maturity no greater than (and not more than one year less than that of) the Deleted Mortgage Loan; (vi) have the same Adjustment Date as that of the Deleted Mortgage Loan; (vii) have a Minimum Rate not less than that of the Deleted Mortgage Loan; (viii) not permit conversion of the related Mortgage Rate to a permanent fixed Mortgage Rate; (ix) have the same Index as that of the Deleted Mortgage Loan; (x) comply with each representation and warranty set forth in the related Purchase and Servicing Agreement; and (xii) if applicable, shall be accompanied by an Opinion of Counsel that such Replacement Mortgage Loan would not adversely affect the REMIC status of any REMIC created hereunder or would not otherwise be prohibited by this Pooling and Servicing Agreement. Residual Certificate: The Class A-R Certificates. Responsible Officer: With respect to the Trustee, any officer in the corporate trust department or similar group of the Trustee with direct responsibility for the administration of this Agreement and also, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. 29 Restricted Certificate: Any Class I-B-4, Class I-B-5, Class I-B-6, Class S-B-4, Class S-B-5 or Class S-B-6 Certificate. Restricted Global Security: As defined in Section 3.01(c). S&P: Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor in interest. SAIF: The Saving's Association Insurance Fund, or any successor thereto. Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on any Due Date allocable to principal and/or interest on such Mortgage Loan which, unless otherwise specified in the related Purchase and Servicing Agreement, shall give effect to any related Debt Service Reduction and any Deficient Valuation that affects the amount of the monthly payment due on such Mortgage Loan. Securities Administrator: Wells Fargo Bank, N.A., not in its individual capacity but solely as Securities Administrator, or any successor in interest, or if any successor Securities Administrator shall be appointed as herein provided, then such successor Securities Administrator. Seller: J.P. Morgan Mortgage Acquisition Corp., a Delaware corporation, or Sunset Financial Resources, Inc., a Maryland corporation, as applicable. Senior Certificate: Any one of the Class 1-A-1, Class 2-A-1, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 4-A-1, Class 4-A-2, Class S-F-1, Class S-F-2, Class S-F-3 or Class A-R Certificates. Senior Percentage: With respect to each Distribution Date and each Mortgage Pool, the percentage equivalent of a fraction, the numerator of which is the aggregate Class Principal Amount of the Class or Classes of Senior Certificates of the Related Certificate Group immediately prior to such Distribution Date, and the denominator of which is the Aggregate Stated Principal Balance of the related Mortgage Pool for such Distribution Date; provided, however, that (x) with respect to the Pool I Senior Certificates, on any Distribution Date after the third Senior Termination Date, the Senior Percentage of the remaining Pool I Senior Certificates is the percentage equivalent of a fraction, the numerator of which is the aggregate of the Class Principal Amounts of the remaining Classes of Pool I Senior Certificates immediately prior to such date, and the denominator of which is the aggregate Class Principal Amount of all Classes of Pool I Certificates immediately prior to such date, and (y) with respect to the Pool II Senior Certificates, on any Distribution Date after the second Senior Termination Date, the Senior Percentage of the remaining Pool II Senior Certificates is the percentage equivalent of a fraction, the numerator of which is the aggregate of the Class Principal Amounts of the remaining Classes of Pool II Senior Certificates immediately prior to such date, and the denominator of which is the aggregate Class Principal Amount of all Classes of Pool II Certificates immediately prior to such date. Senior Prepayment Percentage: With respect to any Distribution Date and each Mortgage Pool in an Aggregate Pool, during the period beginning on the first Distribution Date and ending 30 on the Distribution Date in July 2011, 100%. Except as provided herein, the Senior Prepayment Percentage for each Mortgage Pool and any Distribution Date occurring on or after July 2011 shall be as follows: (i) from July 2011 through June 2012, the related Senior Percentage plus 70% of the related Subordinate Percentage for that Distribution Date; (ii) from July 2012 through June 2013, the related Senior Percentage plus 60% of the related Subordinate Percentage for that Distribution Date; (iii) from July 2013 through June 2014, the related Senior Percentage plus 40% of the related Subordinate Percentage for that Distribution Date; (iv) from July 2014 through June 2015, the related Senior Percentage plus 20% of the related Subordinate Percentage for that Distribution Date; and (v) from and after July 2015, the related Senior Percentage for that Distribution Date; provided, however, that there shall be no reduction in the Senior Prepayment Percentage for any Mortgage Pool in an Aggregate Pool unless the Pool I Step Down Conditions or Pool II Step Down Conditions, as applicable, are satisfied with respect to all of the Mortgage Pools in that Aggregate Pool; and provided, further, that if on any such Distribution Date the Senior Percentage for a Mortgage Pool in an Aggregate Pool exceeds the related Senior Percentage on the Closing Date, the Senior Prepayment Percentage for all Mortgage Pools in that Aggregate Pool for that Distribution Date shall again equal 100% Notwithstanding the above, if on any Distribution Date the Two Times Test is satisfied, (a) on or prior to the Distribution Date in June 2007, the related Senior Prepayment Percentage with respect to any Mortgage Pool in an Aggregate Pool shall equal the related Senior Percentage plus 50% of an amount equal to 100% minus the related Senior Percentage and (b) on or after the Distribution Date in July 2007, the related Senior Prepayment Percentage with respect to any Mortgage Pool in that Aggregate Pool shall equal the related Senior Percentage. In addition, if on any Distribution Date the allocation to the Senior Certificates then entitled to distributions of principal of full and partial principal prepayments and other amounts in the percentage required above would reduce the sum of the Class Principal Amounts of those Certificates to below zero, the related Senior Prepayment Percentage for such Distribution Date shall be limited to the percentage necessary to reduce that Class Principal Amount to zero. Senior Principal Distribution Amount: With respect to each Mortgage Pool and any Distribution Date, the sum of: (1) the related Senior Percentage of all amounts described in clause (a) of the definition of "Principal Distribution Amount" for that Distribution Date; (2) with respect to each Mortgage Loan which became a Liquidated Mortgage Loan during the related Prepayment Period, the lesser of (x) the related Senior Percentage of the Stated Principal Balance of that Mortgage Loan and (y) the related Senior Prepayment Percentage of the Net Liquidation Proceeds allocable to principal received with respect to that Mortgage Loan. (3) the related Senior Prepayment Percentage of the amounts described in clauses (b), (c), (d), (g) and (h) of the definition of "Principal Distribution Amount" for that Mortgage Pool; 31 (4) any amounts described in clauses (1) through (3) above that remain unpaid with respect to the related Certificate Group from prior Distribution Dates; provided, however, that on any Distribution Date after (x) the third Senior Termination Date, with respect to the Pool I Senior Certificates, and (y) the second Senior Termination Date, with respect to the Pool II Senior Certificates, the Senior Principal Distribution Amount for the remaining Certificate Group related to that Aggregate Pool will be calculated pursuant to the above formula based on all Mortgage Loans in that Aggregate Pool rather than the Mortgage Loans in the related Mortgage Pool only. Senior Termination Date: For each Certificate Group, the Distribution Date when the aggregate of the Class Principal Balances of that Certificate Group has been reduced to zero. Servicer: Each Servicer under a Purchase and Servicing Agreement. Servicer Advance: A "Servicing Advance" as defined in the applicable Purchase and Servicing Agreement. Servicing Fee: As to any Distribution Date and each Mortgage Loan, an amount equal to the product of (a) one-twelfth of the Servicing Fee Rate and (b) the Stated Principal Balance of such Mortgage Loan as of the first day of the related Due Period. Servicing Fee Rate: With respect to each Mortgage Loan and any Distribution Date, the rate specified in the related Purchase and Servicing Agreement. Servicing Officer: Any officer of the related Servicer involved in, or responsible for, the administration and servicing of the related Mortgage Loans whose name and facsimile signature appear on a list of servicing officers furnished to the Master Servicer by the related Servicer on the Closing Date pursuant to the related Purchase and Servicing Agreement, as such list may from time to time be amended. Special Hazard Coverage Termination Date: As to either Special Hazard Loss Coverage Amount, the point in time at which the related Special Hazard Loss Coverage Amount is reduced to zero. Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property on account of direct physical loss, as reported by the Servicer to the Master Servicer, but not including (i) any loss of a type covered by a hazard insurance policy or a flood insurance policy required to be maintained with respect to such Mortgaged Property to the extent of the amount of such loss covered thereby, or (ii) any loss caused by or resulting from: (a) normal wear and tear; (b) fraud, conversion or other dishonest act on the part of the Trustee, the Master Servicer or any of their agents or employees (without regard to any portion of the loss not covered by any errors and omissions policy); 32 (c) errors in design, faulty workmanship or faulty materials, unless the collapse of the property or a part thereof ensues and then only for the ensuing loss; (d) nuclear or chemical reaction or nuclear radiation or radioactive or chemical contamination, all whether controlled or uncontrolled, and whether such loss be direct or indirect, proximate or remote or be in whole or in part caused by, contributed to or aggravated by a peril covered by the definition of the term "Special Hazard Loss;" (e) hostile or warlike action in time of peace and war, including action in hindering, combating or defending against an actual, impending or expected attack: 1. by any government or sovereign power, de jure or de facto, or by any authority maintaining or using military, naval or air forces; or 2. by military, naval or air forces; or 3. by an agent of any such government, power, authority or forces; (f) any weapon of war employing nuclear fission, fusion or other radioactive force, whether in time of peace or war; or (g) insurrection, rebellion, revolution, civil war, usurped power or action taken by governmental authority in hindering, combating or defending against such an occurrence, seizure or destruction under quarantine or customs regulations, confiscation by order of any government or public authority or risks of contraband or illegal transportation or trade. Special Hazard Loss Coverage Amount: With respect to the first Distribution Date and (x) the Pool I Certificates, $4,117,458 and (y) the Pool II Certificates, $3,697,465. With respect to any Distribution Date after the first Distribution Date, the lesser of (a) the greatest of (i) 1% of the aggregate of the principal balances of the Mortgage Loans in the applicable Aggregate Pool, (ii) twice the principal balance of the largest Mortgage Loan in the applicable Aggregate Pool and (iii) the aggregate of the principal balances of all Mortgage Loans in the applicable Aggregate Pool secured by Mortgaged Properties located in the single California postal zip code area having the highest aggregate principal balance of any such zip code area and (b) such Special Hazard Loss Coverage Amount as of the Closing Date less the amount, if any, of Special Hazard Losses allocated to the related Certificates since the Closing Date. All principal balances for the purpose of this definition will be calculated as of the first day of the calendar month preceding the month of such Distribution Date after giving effect to Scheduled Payments on the Mortgage Loans then due, whether or not paid. Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a Special Hazard Loss has occurred. Startup Day: The day designated as such pursuant to Section 10.01(b) hereof. Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid principal balance of such Mortgage Loan as of such Due Date as specified in the amortization schedule at 33 the time relating thereto (before any adjustment to such amortization schedule by reason of any moratorium or similar waiver or grace period) after giving effect to any previous partial Principal Prepayments and Liquidation Proceeds allocable to principal (other than with respect to any Liquidated Mortgage Loan) and to the payment of principal due on such Due Date and irrespective of any delinquency in payment by the related Mortgagor. Sub-account: Not applicable. Subordinate Certificate: Any of the Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4, Class I-B-5, Class I-B-6, Class S-B-1, Class S-B-2, Class S-B-3, Class S-B-4, Class S-B-5 or Class S-B-6 Certificates. Subordinate Certificate Writedown Amount: The amount described in Section 5.03(d). Subordinate Class Percentage: As to any Distribution Date and any Class of Subordinate Certificates related to an Aggregate Pool, a fraction, expressed as a percentage, the numerator of which is the Class Principal Amount of such Class on such date, and the denominator of which is the aggregate Class Principal Amount of all related Classes of Subordinate Certificates on such date. Subordinate Percentage: With respect to each Mortgage Pool in an Aggregate Pool and any Distribution Date, the difference between 100% and the related Senior Percentage for such Mortgage Pool for such Distribution Date; provided, however, that on any Distribution after the occurrence of (x) the third Senior Termination Date, with respect to Aggregate Pool I, and (y) the second Senior Termination Date, with respect to Aggregate Pool II, the Subordinate Percentage will represent the entire interest of the Subordinate Certificates in the Mortgage Loans in that Aggregate Pool and will be equal to the difference between the 100% and the Senior Percentage related to all the Mortgage Loans in that Aggregate Pool for such Distribution Date. Subordinate Prepayment Percentage: With respect to any Distribution Date and for each Mortgage Pool, the difference between 100% and the related Senior Prepayment Percentage for such Mortgage Pool for that Distribution Date. Subordinate Principal Distribution Amount: With respect to any Distribution Date and each Mortgage Pool in an Aggregate Pool, an amount equal to the sum of: (1) the related Subordinate Percentage of all amounts described in clause (a) of the definition of "Principal Distribution Amount" for that Distribution Date; (2) with respect to each Mortgage Loan in the related Mortgage Pool that became a Liquidated Mortgage Loan during the related Prepayment Period the amount of the Net Liquidation Proceeds allocated to principal received with respect thereto remaining after application thereof pursuant to clause (2) of the definition of "Senior Principal Distribution Amount" for that Distribution Date, up to the Subordinate Percentage of the Stated Principal Balance of such Mortgage Loan; 34 (3) the related Subordinate Prepayment Percentage of all amounts described in clauses (b), (c), (d), (g) and (h) of the definition of "Principal Distribution Amount" for that Mortgage Pool and that Distribution Date; and (4) any amounts described in clauses (1) through (3) for any previous Distribution Date that remain unpaid; minus the sum of: (A) any Principal Transfer Amount paid from the Available Distribution Amount of the Related Certificate Group to an Undercollateralized Group in the related Aggregate Pool; and (B) the amount of principal distributions made to the related Senior Certificates pursuant to Section 5.02(h). provided, however, that on any Distribution Date after the occurrence of (x) the third Senior Termination Date, with respect to Aggregate Pool I, and (y) the second Senior Termination Date, with respect to Aggregate Pool II, the Subordinate Principal Distribution Amount from the applicable Aggregate Pool will not be calculated with respect to a Mortgage Pool, but instead will equal the amount calculated as above based on a Subordinate Percentage or Subordinate Prepayment Percentage, as applicable, for the related Subordinate Certificates for such Distribution Date with respect to all of the Mortgage Loans in that Aggregate Pool. Subsequent Recoveries: With respect to any Distribution Date, with respect to a Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar month, amounts received by the Master Servicer from the related Servicer specifically related to such Liquidated Mortgage Loan. Substitution Amount: As defined in the second paragraph of Section 2.05(c). Sunset Mortgage Loans: The BofA Mortgage Loans, the GreenPoint Mortgage Loans, the National City Mortgage Loans and the Cendant/JPMMAC Mortgage Loans assigned by Sunset to the Depositor. Tax Matters Person: The "tax matters person" as specified in the REMIC Provisions which shall initially be the Holder of the Class LT-R Certificate. Trust Fund: The corpus of the trust created pursuant to this Agreement, consisting of the Mortgage Loans and all interest and principal received thereon on or after the Cut-off Date (other than Scheduled Payments due on or prior to the Cut-off Date and any prepayment penalties received by the Master Servicer with respect to the Sunset Mortgage Loans), the Depositor's rights assigned to the Trustee under the Purchase and Servicing Agreements, as modified by the Acknowledgements, the Insurance Policies relating to the Mortgage Loans, all cash, instruments or property held or required to be held in the Custodial Accounts, the Distribution Account, property that secured a Mortgage Loan, the pledge, control and guaranty agreements and Limited Purpose Surety Bond relating to the Additional Collateral Mortgage Loans. 35 Trustee: Wachovia Bank, National Association, a national banking association, organized under the laws of the United States and any Person succeeding the Trustee hereunder, or if any successor trustee or any co-trustee shall be appointed as herein provided, then such successor trustee and such co-trustee, as the case may be. Trustee Mortgage Files: With respect to each Mortgage Loan, the Mortgage Documents to be retained in the custody and possession of the Trustee or Custodian on behalf of the Trustee. Two Times Test: As to any Distribution Date and the Pool I Subordinate Certificates, (i) the Aggregate Subordinate Percentage for the Pool I Subordinate Certificates is at least two times the related Aggregate Subordinate Percentage as of the Closing Date; (ii) the aggregate of the Stated Principal Balances of all Mortgage Loans in Aggregate Pool I Delinquent 60 days or more (including Mortgage Loans in REO and foreclosure) (averaged over the preceding six-month period), as a percentage of the aggregate of the Class Principal Amount of the Pool I Subordinate Certificates on such Distribution Date, does not equal or exceed 50%; and (iii) on or prior to the Distribution Date in June 2007, cumulative Realized Losses with respect to the Mortgage Loans in Aggregate Pool I do not exceed 20% of the related Original Subordinate Principal Amount, and thereafter, cumulative Realized Losses with respect to the Mortgage Loans in Aggregate Pool I do not exceed 30% of the related Original Subordinate Principal Amount. As to any Distribution Date and the Pool II Subordinate Certificates, (i) the Aggregate Subordinate Percentage for the Pool II Subordinate Certificates is at least two times the related Aggregate Subordinate Percentage as of the Closing Date; (ii) the aggregate of the Stated Principal Balances of all Mortgage Loans in Aggregate Pool II Delinquent 60 days or more (including Mortgage Loans in REO and foreclosure) (averaged over the preceding six-month period), as a percentage of the aggregate of the Class Principal Amount of the Pool II Subordinate Certificates on such Distribution Date, does not equal or exceed 50%; and (iii) on or prior to the Distribution Date in June 2007, cumulative Realized Losses with respect to the Mortgage Loans in Aggregate Pool II do not exceed 20% of the related Original Subordinate Principal Amount, and thereafter, cumulative Realized Losses with respect to the Mortgage Loans in Aggregate Pool II do not exceed 30% of the related Original Subordinate Principal Amount. UCC: The Uniform Commercial Code as enacted in the relevant jurisdiction. Undercollateralized Group: With respect to any Distribution Date, any Certificate Group, with respect to which the aggregate Class Principal Amount of such Certificate Group is greater than the aggregate Stated Principal Balance of the Mortgage Loans in the related Mortgage Pool immediately prior to such Distribution Date. Underwriter: J.P. Morgan Securities Inc. Underwriter's Exemption: The prohibited transaction exemption granted to the Underwriter, or its affiliate, and most recently amended and restated by PTE 2002-19, or any substantially similar administrative exemption granted by the U.S. Department of Labor to the Underwriter. 36 Underwriting Agreement: The Underwriting Agreement, dated June 24, 2004, between the Depositor and the Underwriter. Uniform Commercial Code: The Uniform Commercial Code as in effect in any applicable jurisdiction from time to time. Upper-Tier REMIC: As described in the Preliminary Statement. Voting Interests: The portion of the voting rights of all the Certificates that is allocated to any Certificate for purposes of the voting provisions of this Agreement. At all times during the term of this Agreement, 95.00% of all Voting Interests shall be allocated to each Class of the Pool I Certificates (other than the Class A-R Certificates) and the Pool II Certificates. Voting Interests shall be allocated among such Certificates based on the product of (i) 95% and (ii) the fraction, expressed as a percentage, the numerator of which is the aggregate Class Principal Amounts for each Class then outstanding and the denominator of which is the Aggregate Stated Principal Balance outstanding. At all times during the term of this Agreement, 5.00% of all Voting Interests shall be allocated to the Class A-R Certificates. Voting Interests shall be allocated among the Certificates within each such Class in proportion to their Certificate Principal Amounts or Percentage Interests. Section 1.02 Calculations Respecting Mortgage Loans. Calculations required to be made pursuant to this Agreement with respect to any Mortgage Loan in the Trust Fund shall be made based upon current information as to the terms of the Mortgage Loans and reports of payments received from the Mortgagor on such Mortgage Loans and payments to be made to the Securities Administrator as supplied to the Securities Administrator by the Master Servicer. The Securities Administrator shall not be required to recompute, verify or recalculate the information supplied to it by the Master Servicer or any Servicer. ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES Section 2.01 Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans. (a) Concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with and otherwise convey to the Trustee, without recourse, subject to Sections 2.02 and 2.05, in trust, all the right, title and interest of the Depositor in and to the Trust Fund. Such conveyance includes, without limitation, (i) the Mortgage Loans, including the right to all payments of principal and interest received on or with respect to the Mortgage Loans on and after the Cut-off Date (other than Scheduled Payments due on or before such date), and all such payments due after such date but received prior to such date and intended by the related Mortgagors to be applied after such date; (ii) all of the Depositor's right, title and interest in and to all amounts from time to time credited to and the proceeds of the Distribution Account, any Custodial Accounts or any Escrow Account established with respect to the Mortgage Loans; (iii) all of the rights of the Depositor as assignee of the Sellers with 37 respect to the Sellers' respective rights under the Purchase and Servicing Agreements pursuant to the Acknowledgements; (iv) all of the Depositor's right, title or interest in REO Property and the proceeds thereof; (v) all of the Depositor's rights under any Insurance Policies related to the Mortgage Loans; and (vi) if applicable, the Depositor's security interest in any collateral pledged to secure the Mortgage Loans, including the Mortgaged Properties and any Additional Collateral relating to the Additional Collateral Mortgage Loans, including, but not limited to, the pledge, control and guaranty agreements and the Limited Purpose Surety Bond to have and to hold, in trust; and the Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Fund, as trustee, in trust, for the benefit and use of the Holders of the Certificates and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, has caused to be executed, authenticated and delivered to or upon the order of the Depositor, in exchange for the Trust Fund, Certificates in the authorized denominations evidencing the entire ownership of the Trust Fund. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in the creation or assumption by the Trustee of any obligation of the Depositor, the Sellers or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth therein. In connection with such transfer and assignment of the Mortgage Loans, the Custodian acting on the Trustee's behalf, will hold or continue to hold the documents or instruments listed below with respect to each Mortgage Loan (each, a "Trustee Mortgage File") so transferred and assigned. On the Closing Date, the Custodian shall deliver to the Trustee and the Depositor certification ("Custodian Certification") substantially in the form attached hereto as Exhibit L certifying that, pursuant to each related Custodial Agreement, the applicable Originator or Seller delivered and released to the Custodian, subject to and in accordance with the relevant section of each related Purchase and Servicing Agreement or Custodial Agreement, the following documents pertaining to each of the Mortgage Loans identified in the Mortgage Loan Schedule (provided, however, that the Custodian shall not be required nor does it intend to re-examine the contents of the Trustee Mortgage File for any of the Mortgage Loans in connection with entering into this Agreement or providing the Custodian Certification required pursuant to this Section 2.01): (i) with respect to each Mortgage Loan, the original Mortgage Note endorsed without recourse in proper form to the order of the Trustee, or in blank (in each case, with all necessary intervening endorsements, as applicable); (ii) with respect to each Mortgage Loan (other than a Cooperative Loan) that is not a MERS Mortgage Loan, the original Mortgage with evidence of recording thereon and in the case of the each MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN of the Mortgage Loans and either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon; 38 (iii) with respect to each Mortgage Loan (other than a Cooperative Loan) that is not a MERS Mortgage Loan, the Assignment of Mortgage in form and substance acceptable for recording in the relevant jurisdiction, such assignment being either (A) in blank, without recourse, or (B) endorsed to "Wachovia Bank, National Association, as Trustee of J.P. Morgan Mortgage Trust 2004-A3, Mortgage Pass-Through Certificates, without recourse"; (iv) with respect to each Mortgage Loan (other than a Cooperative Loan) that is not a MERS Mortgage Loan, the originals of all intervening assignments of the Mortgage, if any, with evidence of recording thereon, or if the original intervening assignment has not yet been returned from the recording office, a copy of such assignment certified by the applicable Seller to be a true copy of the original of the assignment which has been sent for recording in the appropriate jurisdiction in which the Mortgaged Property is located; (v) if applicable, with respect to each Mortgage Loan (other than a Cooperative Loan), the originals of all assumption, modification, consolidation or extension agreements, if any, with evidence of recording thereon; (vi) if applicable, with respect to each Mortgage Loan (other than a Cooperative Loan), the original policy of title insurance (or a true copy thereof) with respect to any such Mortgage Loan, or, if such policy has not yet been delivered by the insurer, the title commitment or title binder to issue same; (vii) if applicable, with respect to each Mortgage Loan (other than a Cooperative Loan), the original power of attorney and guaranty agreement with respect to such Mortgage Loan; (viii) if applicable, the original or certified copy of the certificates evidencing ownership of the Cooperative Shares issued by the Cooperative Corporation and related assignment of such certificates or an assignment of such Cooperative Shares, in blank, executed by the Mortgagor with such signature guaranteed; (ix) with respect to each Mortgage Loan which constitutes a Cooperative Mortgage Loan: (a) the original of any security agreement or similar document executed in connection with the Cooperative Mortgage Loan; (b) the original Recognition Agreement; (c) UCC-1 financing statements with recording information thereon from the appropriate governmental recording offices if necessary to perfect the security interest of the Cooperative Mortgage Loan under the Uniform Commercial Code in the jurisdiction in which the Cooperative Property is located, accompanied by UCC-3 financing statements executed in blank for recordation of the change in the secured party thereunder; 39 (d) the original Proprietary Lease and the Assignment of Proprietary Lease executed by the Mortgagor in blank or if the Proprietary Lease has been assigned by the Mortgagor to the related Seller, then the related Seller must execute an assignment of the Assignment of Proprietary Lease in blank; (x) if applicable, with respect to each Additional Collateral Mortgage Loan, the related pledge agreement, the UCC financing statement, if applicable, and such other document related thereto as may be required under the related Custodial Agreement; and (xi) any other document or instruments required to be delivered under the related Custodial Agreement. In addition, in connection with the assignment of any MERS Mortgage Loan, it is understood that the related Originator will cause the MERS(R) System to indicate that such Mortgage Loans have been assigned by the related Originator to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files the information required by the MERS(R) System to identify the series of Certificates issued in connection with such Mortgage Loans. It is further understood that the related Originator will not, and the Master Servicer hereby agrees that it will not, alter the information referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. (b) [Reserved]. (c) In instances where a title insurance policy is required to be delivered to the Trustee or the Custodian on behalf of the Trustee and is not so delivered, the Depositor will provide a copy of such title insurance policy to the Trustee, or to the Custodian on behalf of the Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date. (d) For Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Trustee, or to the Custodian on behalf of the Trustee, an Officer's Certificate which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account pursuant to Section 4.01 have been so deposited. All original documents that are not delivered to the Trustee or the Custodian on behalf of the Trustee shall be held by the Master Servicer or the related Servicer in trust for the benefit of the Trustee and the Certificateholders. (e) The Depositor and the Trustee hereto agree and understand that it is not intended that any Mortgage Loan be included in the Trust Fund that is (i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003 and (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004. The Trustee shall be entitled to indemnification from the Depositor and the Trust Fund for any loss, liability or expense arising out of, or in connection with, the provisions of this Section 2.01(e), including, without limitation, all costs, liabilities and expenses (including reasonable 40 legal fees and expenses) of investigating and defending itself against any claim, action or proceeding, pending or threatened, relating to such provisions. Section 2.02 Acceptance of Trust Fund by Trustee; Review of Documentation for Trust Fund. (a) The Trustee, by execution and delivery hereof, acknowledges receipt by it or by the Custodian on its behalf of the Trustee Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage Loan Schedule. (b) With respect to the Cendant/JPMMAC Mortgage Loans, within two Business Days after the delivery to the Custodian of the documents set forth in clauses (i), (iv), (v), (vii), (ix) and (xi), which shall be delivered within 120 days after the Closing Date (the "Follow-up Delivery Date") pursuant to the related Custodial Agreement, the Custodian shall, on behalf of the Trustee, ascertain that the original Assignment and Notice of Transfer with respect to each Additional Collateral Mortgage Loan is in its possession, and shall deliver an intermediate certification to the Trustee and the Depositor to the effect that, as to each Additional Collateral Mortgage Loan listed in the related Mortgage Loan Schedule (other than any Additional Collateral Mortgage Loan paid in full or any Additional Collateral Mortgage Loan specifically identified in such certification as not covered by such certification), the Assignment and Notice of Transfer is in its possession. With respect to the Cendant/JPMMAC Mortgage Loans, within 30 days after the Follow-up Delivery Date, the Custodian on behalf of the Trustee shall, for the benefit of Holders of the Certificates, review each Trustee Mortgage File and deliver a final certification, with any applicable exceptions noted thereon, to the Trustee and the Depositor to the effect that (i) all documents required to be delivered under the related Custodial Agreement are in its possession, (ii) such documents have been reviewed by it and appear regular on their face and relate to such Mortgage Loan, and (iii) each Mortgage Note has been endorsed as required under the related Custodial Agreement. (c) With respect to the Countrywide Mortgage Loans and the CMMC Mortgage Loans, in the event there exist exceptions noted on the related Custodian Certification, not later than 120 days, with respect to the Countrywide Mortgage Loans, and 270 Business Days, with respect to the CMMC Mortgage Loans, after the Closing Date, the Custodian shall deliver to the Trustee and the Depositor a further certification with any applicable exceptions noted thereon. (d) With respect to the Sunset Mortgage Loans, not later than 90 days following the Closing Date, in the event there exist exceptions noted on the related Custodian Certification, the Custodian shall deliver to the Trustee and the Depositor a final certification, with any applicable exceptions noted thereon. (e) Nothing in this Agreement shall be construed to constitute an assumption by the Trust Fund, the Trustee, any Custodian or the Certificateholders of any unsatisfied duty, claim or other liability on any Mortgage Loan or to any Mortgagor. (f) Each of the parties hereto acknowledges that (i) the Custodian has performed the applicable review of the Mortgage Loans and has delivered the Custodian Certification as provided herein and in the Custodial Agreements on the Closing Date and (ii) thereafter, if 41 applicable, the Custodian shall perform the applicable review of the Mortgage Loans and deliver the further certifications as provided herein and in the applicable Custodial Agreements. (g) Upon execution of this Agreement, the Depositor hereby delivers to the Trustee and the Trustee acknowledges receipt of the Acknowledgements, together with the related Purchase and Servicing Agreements. Section 2.03 Representations and Warranties of the Depositor. (a) The Depositor hereby represents and warrants to the Trustee, for the benefit of the Certificateholders, and to the Master Servicer and the Securities Administrator as of the Closing Date or such other date as is specified, that: (i) the Depositor is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, to enter into and perform its obligations under this Agreement, and to create the trust pursuant hereto; (ii) the execution and delivery by the Depositor of this Agreement have been duly authorized by all necessary corporate action on the part of the Depositor; neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Depositor or its properties or the certificate of incorporation or bylaws of the Depositor; (iii) the execution, delivery and performance by the Depositor of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof; (iv) this Agreement has been duly executed and delivered by the Depositor and, assuming due authorization, execution and delivery by the Trustee, the Master Servicer and the Securities Administrator, constitutes a valid and binding obligation of the Depositor enforceable against it in accordance with its terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; (v) there are no actions, suits or proceedings pending or, to the knowledge of the Depositor, threatened or likely to be asserted against or affecting the Depositor, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Depositor will be determined adversely to the Depositor and will if determined adversely to 42 the Depositor materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement; (vi) immediately prior to the transfer and assignment of the Mortgage Loans to the Trustee, the Depositor was the sole owner of record and holder of each Mortgage Loan, and the Depositor had good and marketable title thereto, and had full right to transfer and sell each Mortgage Loan to the Trustee free and clear, subject only to (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender's title insurance policy or attorney's opinion of title and abstract of title delivered to the originator of such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign each Mortgage Loan pursuant to this Agreement; (vii) This Agreement creates a valid and continuing security interest (as defined in the applicable Uniform Commercial Code (the "UCC")), in the Mortgage Loans in favor of the Trustee, which security interest is prior to all other liens, and is enforceable as such against creditors of and purchasers from the Depositor; (viii) The Mortgage Loans constitute "instruments" within the meaning of the applicable UCC; (ix) Other than the security interest granted to the Trustee pursuant to this Agreement, the Depositor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Mortgage Loans. The Depositor has not authorized the filing of and is not aware of any financing statement against the Depositor that includes a description of the collateral covering the Mortgage Loans other than a financing statement relating to the security interest granted to the Trustee hereunder or that has been terminated. The Depositor is not aware of any judgment or tax lien filings against the Depositor; (x) None of the Mortgage Loans have any marks or notations indicating that such Mortgage Loans have been pledged, assigned or otherwise conveyed to any Person other than the Trustee; and (xi) The Depositor has received all consents and approvals required by the terms of the Mortgage Loans to convey the Mortgage Loans hereunder to the Trustee. 43 The foregoing representations made in this Section 2.03 shall survive the termination of this Agreement and shall not be waived by any party hereto Section 2.04 Representations and Warranties as to the Mortgage Loans. (a) Representations and Warranties of the Depositor as to the Mortgage Loans. The Depositor hereby represents and warrants to the Trustee with respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as of the date hereof or such other date set forth herein that as of the Closing Date: (i) Immediately prior to the transfer and assignment contemplated herein, the Depositor was the sole owner and holder of the Mortgage Loans. The Mortgage Loans were not assigned or pledged by the Depositor and the Depositor had good and marketable title thereto, and the Depositor had full right to transfer and sell the Mortgage Loans to the Trustee free and clear of any encumbrance, participation interest, lien, equity, pledge, claim or security interest and had full right and authority subject to no interest or participation in, or agreement with any other party to sell or otherwise transfer the Mortgage Loans. (ii) As of the Closing Date, the Depositor has transferred all right, title and interest in the Mortgage Loans to the Trustee on behalf of the Trust. (iii) As of the Closing Date, the Depositor has not transferred the Mortgage Loans to the Trustee on behalf of the Trust with any intent to hinder, delay or defraud an of its creditors. It is understood and agreed that the representations and warranties set forth in this Section 2.04(a) shall survive the delivery of the respective Mortgage Files to the Trustee or the Custodian and shall inure to the benefit of the Trustee, notwithstanding any restrictive or qualified endorsement or assignment. (b) Representations and Warranties of JPMMAC as to the JPMMAC Mortgage Loans. (i) The representations and warranties of Cendant with respect to the Cendant/JPMMAC Mortgage Loans in the Cendant/JPMMAC Purchase and Servicing Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Cendant/JPMMAC Purchase and Servicing Agreement. With respect to the Cendant/JPMMAC Mortgage Loans, JPMMAC hereby restates, as of the Closing Date, the representations and warranties contained in clauses (4), (20), (21), (25), (31) and (57) of Section 3.03 of the Cendant/JPMMAC Purchase and Servicing Agreement with respect to each of the Cendant/JPMMAC Mortgage Loans assigned by it to the Depositor to and for the benefit of the Depositor, the Trustee and the Trust Fund. (ii) The representations and warranties of Countrywide with respect to the Countrywide Mortgage Loans in the Countrywide Purchase and Servicing Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in 44 the Countrywide Purchase and Servicing Agreement. With respect to the Countrywide Mortgage Loans, JPMMAC hereby restates, as of the Closing Date, the representations and warranties contained in Section 3.02 of the Countrywide Purchase and Servicing Agreement with respect to each of the Countrywide Mortgage Loans to and for the benefit of the Depositor, the Trustee and the Trust Fund. (iii) The representations and warranties of CMMC with respect to the CMMC Mortgage Loans in the CMMC Purchase and Servicing Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the CMMC Purchase and Servicing Agreement. With respect to the CMMC Mortgage Loans, JPMMAC hereby restates, as of the Closing Date, the representations and warranties contained in Section 3.02 of the CMMC Purchase and Servicing Agreement with respect to each of the CMMC Mortgage Loans to and for the benefit of the Depositor, the Trustee and the Trust Fund. (iv) In addition, with respect to the JPMMAC Mortgage Loans, JPMMAC hereby represents and warrants that, as of the Closing Date, (A) no JPMMAC Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or any applicable, similar federal, state or local statutes or regulations related to "high cost" mortgage loans or "predatory," "high cost," "threshold" or "covered" lending (as such terms are defined in the applicable statute or regulation); (B) no JPMMAC Mortgage Loan is (w) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003, (x) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004, (y) a "High Cost Loan" or "Covered Loan" (as such terms are defined in the current S&P's LEVELS(R)Glossary), or (z) governed by the Georgia Fair Lending Act, if such JPMMAC Mortgage Loan was originated on or after October 1, 2002 through March 6, 2003, (C) each JPMMAC Mortgage Loan at origination complied in all material respects with applicable local, state and federal laws, including, but not limited to, applicable anti-predatory and abusive lending laws, and (D) each JPMMAC Mortgage Loan is a "qualified mortgage" within the meaning of 860G(a)(3) of the Code. JPMMAC hereby agrees to comply with the provisions of Section 2.05 hereof in respect of a breach of any of such representations and warranties. (c) Representations and Warranties of Sunset as to the Sunset Mortgage Loans. (i) The representations and warranties of Cendant with respect to the Cendant/JPMMAC Mortgage Loans in the Cendant/JPMMAC Purchase and Servicing Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Cendant/JPMMAC Purchase and Servicing Agreement. With respect to the Cendant/JPMMAC Mortgage Loans, Sunset hereby restates, as of the Closing Date, the representations and warranties contained in clauses (4), (20), (21), (25), (31) and (57) of Section 3.03 of the Cendant/JPMMAC Purchase and Servicing Agreement with respect to each of the Cendant/JPMMAC Mortgage Loans assigned by it to the Depositor to and for the benefit of the Depositor, the Trustee and the Trust Fund. To the extent that any fact, condition or event with respect to a Cendant/JPMMAC Mortgage Loan 45 constitutes a breach of both (i) a representation or warranty of Cendant under the Cendant/JPMMAC Purchase and Servicing Agreement and (ii) a representation and warranty of Sunset pursuant to this Section 2.04(c), the only right or remedy of the Depositor, the Trustee or the Trust Fund shall be their rights to enforce the obligations of Cendant under any applicable representation or warranty made by it. The Depositor and the Trustee acknowledge that Sunset shall not have any obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Cendant/JPMMAC Mortgage Loans sold by it if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by Cendant in the Cendant/JPMMAC Purchase and Servicing Agreement, without regard to whether Cendant fulfills its contractual obligations in respect of such representation or warranty. (ii) The representations and warranties of Cendant with respect to the Cendant/MS Mortgage Loans in the Cendant/MS Purchase and Servicing Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the Cendant/MS Purchase and Servicing Agreement. With respect to the Cendant/MS Mortgage Loans, Sunset hereby restates, as of the Closing Date, the representations and warranties contained in clauses (4), (20), (21), (25), (31) and (58) of Section 3.03 of the Cendant/MS Purchase and Servicing Agreement with respect to each of the Cendant/MS Mortgage Loans to and for the benefit of the Depositor, the Trustee and the Trust Fund. To the extent that any fact, condition or event with respect to a Cendant/MS Mortgage Loan constitutes a breach of both (i) a representation or warranty of Cendant under the Cendant/MS Purchase and Servicing Agreement and (ii) a representation and warranty of Sunset pursuant to this Section 2.04(c), the only right or remedy of the Depositor, the Trustee or the Trust Fund shall be their rights to enforce the obligations of Cendant under any applicable representation or warranty made by it. The Depositor and the Trustee acknowledge that Sunset shall not have any obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Cendant/MS Mortgage Loans sold by it if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by Cendant in the Cendant/MS Purchase and Servicing Agreement, without regard to whether Cendant fulfills its contractual obligations in respect of such representation or warranty. (iii) The representations and warranties of BofA with respect to the BofA Mortgage Loans in the BofA Purchase and Servicing Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the BofA Purchase and Servicing Agreement. With respect to the BofA Mortgage Loans, Sunset hereby restates, as of the Closing Date, the representations and warranties contained in Section 7.01 of the BofA Purchase and Servicing Agreement with respect to each of the BofA Mortgage Loans to and for the benefit of the Depositor, the Trustee and the Trust Fund. To the extent that any fact, condition or event with respect to a BofA Mortgage Loan constitutes a breach of both (i) a representation or warranty of BofA under the BofA Purchase and Servicing Agreement and (ii) a representation and warranty of Sunset pursuant to this Section 2.04(c), the only right or remedy of the Depositor, the Trustee or the Trust Fund shall be their rights to enforce the obligations of BofA under any applicable representation or warranty made by it. The Depositor and the Trustee acknowledge that BofA shall not have any obligation or liability with respect to any 46 breach of a representation or warranty made by it with respect to the BofA Mortgage Loans sold by it if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by BofA in the BofA Purchase and Servicing Agreement, without regard to whether BofA fulfills its contractual obligations in respect of such representation or warranty. (iv) In addition, with respect to the Sunset Mortgage Loans, Sunset hereby represents and warrants that, as of the Closing Date, (A) no Sunset Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or any applicable, similar federal, state or local statutes or regulations related to "high cost" mortgage loans or "predatory," "high cost," "threshold" or "covered" lending (as such terms are defined in the applicable statute or regulation); (B) no Sunset Mortgage Loan is (w) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, 2003, (x) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004, (y) a "High Cost Loan" or "Covered Loan" (as such terms are defined in the current S&P's LEVELS(R)Glossary), or (z) governed by the Georgia Fair Lending Act, if such Sunset Mortgage Loan was originated on or after October 1, 2002 through March 6, 2003, (C) each Sunset Mortgage Loan at origination complied in all material respects with applicable local, state and federal laws, including, but not limited to, applicable anti-predatory and abusive lending laws, and (D) each Sunset Mortgage Loan is a "qualified mortgage" within the meaning of 860G(a)(3) of the Code. Sunset hereby agrees to comply with the provisions of Section 2.05 hereof in respect of a breach of any of such representations and warranties. Notwithstanding the foregoing, if there is a breach of the representations and warranties made by Sunset with respect to a Sunset Mortgage Loan, and Sunset fails to perform its obligations with respect thereto as provided in Section 2.05, JPMMAC hereby agrees to perform Sunset's obligations under Section 2.05 with respect to that Sunset Mortgage Loan. (c) The representations and warranties of GreenPoint with respect to the GreenPoint Mortgage Loans in the GreenPoint Purchase and Servicing Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the GreenPoint Purchase and Servicing Agreement. (d) The representations and warranties of National City with respect to the National City Mortgage Loans in the National City Purchase and Servicing Agreement, which have been assigned to the Trustee hereunder, were made as of the date specified in the National City Purchase and Servicing Agreement. Section 2.05 Discovery of Breach; Repurchase or Substitution of Mortgage Loans. (a) Upon discovery by the Depositor, the related Seller or the related Originator or receipt of written notice of any materially defective document in, or, following the date of delivery to the Trustee of the Custodian's certifications as required under the related Custodial Agreements, that a document is missing from, a Trustee Mortgage File, or discovery by the Trustee, the Depositor, the related Seller or Originator of the breach by such Originator or Seller 47 of any representation or warranty under the related Purchase and Servicing Agreement, as modified by the Acknowledgement, in the case of an Originator, or under this Agreement, in the case of a Seller, in respect of any Mortgage Loan which materially adversely affects the value of that Mortgage Loan or the interest therein of the Certificateholders (a "Defective Mortgage Loan") (each of the Depositor, the related Seller and the related Originator hereby agreeing to give written notice thereof to the Trustee and the other of such parties), the Trustee, or its designee, shall promptly notify the Depositor and the related Seller or Originator, as applicable, in writing of such defective or missing document or breach and request that the related Seller or Originator deliver such missing document or cure or cause the cure of such defect or breach within a period of time specified in the related Purchase and Servicing Agreement (or, in the case of a breach by a Seller, within 90 days from the earlier of its discovery or its receipt of notice of such breach), and if the related Seller or Originator, as applicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of the related Originator under the related Purchase and Servicing Agreement, as modified by the Acknowledgement, or the related Seller under this Agreement, as applicable, and cause the related Originator or Seller, as the case may be, to repurchase that Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the Determination Date following the expiration of such specified period (subject to Section 2.05(b) below); provided, however, that, in connection with any such breach that could not reasonably have been cured within such specified period (unless permitted a greater period of time to cure under the related Purchase and Servicing Agreement), subject to Section 2.05(c) below, if the related Originator or Seller, as applicable, shall have commenced to cure such breach within such specified period, the related Originator or Seller shall be permitted to proceed thereafter diligently and expeditiously to cure the same within such additional time as is reasonably determined by the Trustee to cure such breach. To the extent that any costs and damages are incurred by the Trust Fund as a result of any violation of any applicable federal, state, or local predatory or abusive lending law arising from or in connection with the origination of any Mortgage Loan repurchased by the related Originator or Seller, such costs and damages shall be included in the Purchase Price of such repurchased Mortgage Loan and shall be borne by (x) JPMMAC, with respect to the JPMMAC Mortgage Loans, or (y) Sunset, with respect to the Sunset Mortgage Loans; provided, however, that if Sunset fails to remit the costs and damages incurred by the Trust Fund as a result of any violation of any applicable federal, state, or local predatory or abusive lending law arising from or in connection with the origination of any Sunset Mortgage Loan repurchased by Sunset, such costs and damages shall be borne by JPMMAC. The Purchase Price for the repurchased Mortgage Loan shall be deposited in the related Distribution Account, and the Trustee, or its designee, upon receipt of written certification from the Securities Administrator of such deposit, shall release or cause the Custodian to release to the related Originator or Seller, as applicable, the related Trustee Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranties, as either party shall furnish to it and as shall be necessary to vest in such party any Mortgage Loan released pursuant hereto and the Trustee, or its designee, shall have no further responsibility with regard to such Trustee Mortgage File (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). If pursuant to the foregoing provisions the related Originator or Seller repurchases a Mortgage Loan that is a MERS Mortgage Loan, the related Servicer shall cause MERS to designate on the MERS(R) System the related Originator or Seller, as applicable, as the beneficial holder of such Mortgage 48 Loan. In lieu of repurchasing any such Mortgage Loan as provided above, either party may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Replacement Mortgage Loans in the manner and subject to the limitations set forth in Section 2.05(b) below. It is understood and agreed that the obligations of the Originators and the Sellers to cure or to repurchase (or to substitute for) any related Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the such party respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. (b) Any substitution of Replacement Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.05(a) above must be effected prior to the last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the related Originator or Seller substitutes a Replacement Mortgage Loan or Loans, such substitution shall be effected by delivering to the Custodian, on behalf of the Trustee, for such Replacement Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, together with an Officers' Certificate stating that each such Replacement Mortgage Loan satisfies the definition thereof and specifying the Substitution Amount (as described below), if any, in connection with such substitution. Monthly Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be included as part of the Trust Fund and shall be retained by the related Originator or Seller, as applicable. For the month of substitution, distributions to the related Certificateholders shall reflect the collections and recoveries in respect of such Deleted Mortgage in the Due Period preceding the month of substitution and the related Originator or Seller, as applicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. Upon such substitution, such Replacement Mortgage Loan shall constitute part of the Trust Fund and shall be subject in all respects to the terms of this Agreement and the related Purchase and Servicing Agreement, as modified by the related Acknowledgement, including all representations and warranties thereof included in such Purchase and Servicing Agreement, as modified by the Acknowledgement, in each case as of the date of substitution. For any month in which an Originator or Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer shall determine the excess (each, a "Substitution Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate Stated Principal Balance of the Replacement Mortgage Loans replacing such Deleted Mortgage Loans, together with one month's interest on such excess amount at the applicable Net Mortgage Rate. On the date of such substitution, the related Originator or Seller, as applicable, shall deliver or cause to be delivered to the related Servicer for deposit in the related Custodial Account an amount equal to the related Substitution Amount, if any, and the Custodian, on behalf of the Trustee, upon receipt of the related Replacement Mortgage Loan or Loans and certification by such Servicer of such deposit, shall release to the related Originator or Seller, as applicable, the related Trustee Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, 49 in each case without recourse, as the related Originator or Seller shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator or Seller, as applicable, shall obtain at its own expense and deliver to the Trustee and the Securities Administrator an Opinion of Counsel to the effect that such substitution (either specifically or as a class of transactions) shall not cause an Adverse REMIC Event. If such Opinion of Counsel can not be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given. (c) Upon discovery by the related Originator, the related Seller, the Depositor or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the applicable party shall repurchase or, subject to the limitations set forth in Section 2.05(b), substitute one or more Replacement Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.05(a) above. The Trustee shall re-convey to the related Originator or Seller, as applicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty. Section 2.06 Grant Clause. (a) It is intended that the conveyance of the Depositor's right, title and interest in and to property constituting the Trust Fund pursuant to this Agreement shall constitute, and shall be construed as, a sale of such property and not a grant of a security interest to secure a loan. However, if such conveyance is deemed to be in respect of a loan, it is intended that: (1) the rights and obligations of the parties shall be established pursuant to the terms of this Agreement; (2) the Depositor hereby grants to the Trustee for the benefit of the Holders of the Certificates a first priority security interest in all of the Depositor's right, title and interest in, to and under, whether now owned or hereafter acquired, the Trust Fund and all proceeds of any and all property constituting the Trust Fund to secure payment of the Certificates; and (3) this Agreement shall constitute a security agreement under applicable law. If such conveyance is deemed to be in respect of a loan and the trust created by this Agreement terminates prior to the satisfaction of the claims of any Person holding any Certificate, the security interest created hereby shall continue in full force and effect and the Trustee shall be deemed to be the collateral agent for the benefit of such Person, and all proceeds shall be distributed as herein provided. (b) The Depositor shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the other property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. The Depositor will, at its own expense, make all initial filings on or about the Closing Date and shall forward a copy of such filing or filings to the Trustee. Without limiting the generality of the foregoing, the Depositor shall prepare and forward for filing, or shall cause to be forwarded for filing, at the expense of the Depositor, all filings necessary to maintain the effectiveness of any original 50 filings necessary under the relevant UCC to perfect the Trustee's security interest in or lien on the Mortgage Loans, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of an Originator, the Depositor or the Trustee, (2) any change of location of the place of business or the chief executive office of a Seller or the Depositor, (3) any transfer of any interest of an Originator or the Depositor in any Mortgage Loan or (4) any change under the relevant UCC or other applicable laws. Neither the Originators nor the Depositor shall organize under the law of any jurisdiction other than the State under which each is organized as of the Closing Date (whether changing its jurisdiction of organization or organizing under an additional jurisdiction) without giving 30 days prior written notice of such action to its immediate and intermediate transferee, including the Trustee. Before effecting such change, any Originator or the Depositor proposing to change its jurisdiction of organization shall prepare and file in the appropriate filing office any financing statements or other statements necessary to continue the perfection of the interests of its immediate and mediate transferees, including the Trustee, in the Mortgage Loans. In connection with the transactions contemplated by this Agreement, each of the Originators and the Depositor authorizes its immediate or mediate transferee to file in any filing office any initial financing statements, any amendments to financing statements, any continuation statements, or any other statements or filings described in this paragraph (b). ARTICLE III THE CERTIFICATES Section 3.01 The Certificates. (a) The Certificates shall be issuable in registered form only and shall be securities governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry Certificates will be evidenced by one or more certificates, beneficial ownership of which will be held in the dollar denominations in Certificate Principal Amount or in the Percentage Interests, specified herein. Each Class of Book-Entry Certificates will be issued in the minimum denominations in Certificate Principal Amount specified in the Preliminary Statement hereto and in integral multiples of $1 in excess thereof. Each Class of Non-Book-Entry Certificates other than the Residual Certificates shall be issued in definitive, fully registered form in the minimum denominations in Certificate Principal Amount specified in the Preliminary Statement hereto and in integral multiples of $1 in excess thereof. The Residual Certificates shall be issued as single Certificates and maintained in definitive, fully registered form in a denomination equal to 100% of the Percentage Interest of each such Class. (b) The Certificates shall be executed by manual or facsimile signature on behalf of the Trustee by an authorized officer of the Trustee or of the Securities Administrator on its behalf. Each Certificate shall, on original issue, be authenticated by the Authenticating Agent upon the order of the Depositor upon receipt by the Trustee of the Trustee Mortgage Files described in Section 2.01. No Certificate shall be entitled to any benefit under this Agreement, or be valid for any purpose, unless there appears on such Certificate a certificate of authentication substantially in the form provided for herein, executed by an authorized officer of the Authenticating Agent, by manual signature, and such certification upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated 51 and delivered hereunder. All Certificates shall be dated the date of their authentication. At any time and from time to time after the execution and delivery of this Agreement, the Depositor may deliver Certificates executed by the Trustee to the Authenticating Agent for authentication and the Authenticating Agent shall authenticate and deliver such Certificates as in this Agreement provided and not otherwise. (c) The Class I-B-4, Class I-B-5, Class I-B-6, Class S-B-4, Class S-B-5, Class S-B-6 and Class A-R Certificates offered and sold in reliance on the exemption from registration under Rule 144A under the Act shall be issued initially in definitive, fully registered form without interest coupons with the applicable legends set forth in Exhibit A added to the forms of such Certificates (each, a "Restricted Global Security"). Section 3.02 Registration. The Securities Administrator is hereby appointed, and the Securities Administrator hereby accepts its appointment as, initial Certificate Registrar in respect of the Certificates and shall maintain books for the registration and for the transfer of Certificates (the "Certificate Register"). The Trustee may appoint a bank or trust company to act as successor Certificate Registrar. A registration book shall be maintained for the Certificates collectively. The Certificate Registrar may resign or be discharged or removed and a new successor may be appointed in accordance with the procedures and requirements set forth in Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or removal of the Securities Administrator and the appointment of a successor Securities Administrator. The Certificate Registrar may appoint, by a written instrument delivered to the Holders and the Master Servicer, any bank or trust company to act as co-registrar under such conditions as the Certificate Registrar may prescribe; provided, however, that the Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. Section 3.03 Transfer and Exchange of Certificates. (a) A Certificate (other than Book-Entry Certificates which shall be subject to Section 3.09 hereof) may be transferred by the Holder thereof only upon presentation and surrender of such Certificate at the office of the Certificate Registrar duly endorsed or accompanied by an assignment duly executed by such Holder or his duly authorized attorney in such form as shall be satisfactory to the Certificate Registrar. Upon the transfer of any Certificate in accordance with the preceding sentence, the Trustee shall execute, and the Authenticating Agent shall authenticate and deliver to the transferee, one or more new Certificates of the same Class and evidencing, in the aggregate, the same aggregate Certificate Principal Amount as the Certificate being transferred. No service charge shall be made to a Certificateholder for any registration of transfer of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any registration of transfer of Certificates. (b) A Certificate may be exchanged by the Holder thereof for any number of new Certificates of the same Class, in authorized denominations, representing in the aggregate the same Certificate Principal Amount as the Certificate surrendered, upon surrender of the Certificate to be exchanged at the office of the Certificate Registrar duly endorsed or 52 accompanied by a written instrument of transfer duly executed by such Holder or his duly authorized attorney in such form as is satisfactory to the Certificate Registrar. Certificates delivered upon any such exchange will evidence the same obligations, and will be entitled to the same rights and privileges, as the Certificates surrendered. No service charge shall be made to a Certificateholder for any exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any exchange of Certificates. Whenever any Certificates are so surrendered for exchange, the Trustee shall execute, and the Authenticating Agent shall authenticate, date and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. (c) By acceptance of a Restricted Certificate, whether upon original issuance or subsequent transfer, each Holder of such a Certificate acknowledges the restrictions on the transfer of such Certificate set forth thereon and agrees that it will transfer such a Certificate only as provided herein. The following restrictions shall apply with respect to the transfer and registration of transfer of a Restricted Certificate to a transferee that takes delivery in the form of a Definitive Certificate: (i) The Certificate Registrar shall register the transfer of a Restricted Certificate if the requested transfer is (x) to the Depositor or an affiliate (as defined in Rule 405 under the 1933 Act) of the Depositor or (y) being made to a "qualified institutional buyer" (a "QIB") as defined in Rule 144A under the Securities Act of 1933, as amended (the "Act") by a transferor that has provided the Certificate Registrar with a certificate in the form of Exhibit H hereto; and XXX (ii) The Certificate Registrar shall register the transfer of a Restricted Certificate if the requested transfer is being made to an "accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the Act, or to any Person all of the equity owners in which are such accredited investors, by a transferor who furnishes to the Certificate Registrar a letter of the transferee substantially in the form of Exhibit I hereto. (d) No transfer of an ERISA-Restricted Certificate in the form of a Definitive Certificate shall be made to any Person or shall be effective unless the Certificate Registrar, on behalf of the Trustee, has received (A) a certificate substantially in the form of Exhibit J hereto (or Exhibit B, in the case of a Residual Certificate) from such transferee or (B) an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that the purchase and holding of such a Certificate will not constitute or result in any nonexempt prohibited transactions under Title I of ERISA or Section 4975 of the Code and will not subject the Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the Securities Administrator to any obligation in addition to those undertaken in the Agreement; provided, however, that the Certificate Registrar will not require such certificate or opinion in the event that, as a result of a change of law or otherwise, counsel satisfactory to the Certificate Registrar has rendered an opinion to the effect that the purchase and holding of an ERISA-Restricted Certificate by a Plan or a Person that is purchasing or holding such a Certificate with the assets of a Plan will not constitute or result in a prohibited transaction under Title I of ERISA or Section 4975 of the Code and will not subject the Certificate Registrar, the Trustee, the Master Servicer, the Depositor, the Securities 53 Administrator or any Servicer to any obligation in addition to those undertaken in this Agreement. Each Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate shall be deemed to have made the representations set forth in Exhibit J. The preparation and delivery of the certificate and opinions referred to above shall not be an expense of the Trust Fund, the Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the Securities Administrator. Notwithstanding the foregoing, no opinion or certificate shall be required for the initial issuance of the ERISA-Restricted Certificates to the Underwriter. The Certificate Registrar shall have no obligation to monitor transfers of Book-Entry Certificates that are ERISA-Restricted Certificates and shall have no liability for transfers of such Certificates in violation of the transfer restrictions. The Certificate Registrar shall be under no liability to any Person for any registration of transfer of any ERISA-Restricted Certificate that is in fact not permitted by this Section 3.03(d) and none of the Securities Administrator, the Trustee or the Paying Agent shall have any liability for making any payments due on such Certificate to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the transfer was registered by the Certificate Registrar in accordance with the foregoing requirements. The Securities Administrator, on behalf of the Trustee, shall be entitled, but not obligated, to recover from any Holder of any ERISA-Restricted Certificate that was in fact a Plan or a Person acting on behalf of a Plan any payments made on such ERISA-Restricted Certificate at and after either such time. Any such payments so recovered by the Securities Administrator, on behalf of the Trustee, shall be paid and delivered by the Securities Administrator, on behalf of the Trustee, to the last preceding Holder of such Certificate that is not such a Plan or Person acting on behalf of a Plan. (e) As a condition of the registration of transfer or exchange of any Certificate, the Certificate Registrar may require the certified taxpayer identification number of the owner of the Certificate and the payment of a sum sufficient to cover any tax or other governmental charge imposed in connection therewith; provided, however, that the Certificate Registrar shall have no obligation to require such payment or to determine whether or not any such tax or charge may be applicable. No service charge shall be made to the Certificateholder for any registration, transfer or exchange of a Certificate. (f) Notwithstanding anything to the contrary contained herein, no Residual Certificate may be owned, pledged or transferred, directly or indirectly, by or to (i) a Disqualified Organization or (ii) an individual, corporation or partnership or other person unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or successor form at the time and in the manner required by the Code (any such person who is not covered by clause (A) or (B) above is referred to herein as a "Non-permitted Foreign Holder"). Prior to and as a condition of the registration of any transfer, sale or other disposition of a Residual Certificate, the proposed transferee shall deliver to the Trustee and the Certificate Registrar an affidavit in substantially the form attached hereto as Exhibit B representing and warranting, among other things, that such transferee is neither a Disqualified Organization, an 54 agent or nominee acting on behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder (any such transferee, a "Permitted Transferee"), and the proposed transferor shall deliver to the Trustee and the Certificate Registrar an affidavit in substantially the form attached hereto as Exhibit C. In addition, the Trustee or the Certificate Registrar may (but shall have no obligation to) require, prior to and as a condition of any such transfer, the delivery by the proposed transferee of an Opinion of Counsel, addressed to the Trustee and the Certificate Registrar, that such proposed transferee or, if the proposed transferee is an agent or nominee, the proposed beneficial owner, is not a Disqualified Organization, agent or nominee thereof, or a Non-permitted Foreign Holder. Notwithstanding the registration in the Certificate Register of any transfer, sale, or other disposition of a Residual Certificate to a Disqualified Organization, an agent or nominee thereof, or Non-permitted Foreign Holder, such registration shall be deemed to be of no legal force or effect whatsoever and such Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Residual Certificate. The Depositor, the Certificate Registrar and the Trustee shall be under no liability to any Person for any registration or transfer of a Residual Certificate to a Disqualified Organization, agent or nominee thereof or Non-permitted Foreign Holder or for the Paying Agent making any payments due on such Residual Certificate to the Holder thereof or for taking any other action with respect to such Holder under the provisions of the Agreement, so long as the transfer was effected in accordance with this Section 3.03(f), unless the Certificate Registrar shall have actual knowledge at the time of such transfer or the time of such payment or other action that the transferee is a Disqualified Organization, or an agent or nominee thereof, or Non-permitted Foreign Holder. The Certificate Registrar shall be entitled to recover from any Holder of a Residual Certificate that was a Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign Holder at the time it became a Holder or any subsequent time it became a Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign Holder, all payments made on such Residual Certificate at and after either such times (and all costs and expenses, including but not limited to attorneys' fees, incurred in connection therewith). Any payment (not including any such costs and expenses) so recovered by the Certificate Registrar shall be paid and delivered to the last preceding Holder of such Residual Certificate. If any purported transferee shall become a registered Holder of a Residual Certificate in violation of the provisions of this Section 3.03(f), then upon receipt of written notice to the Trustee that the registration of transfer of such Residual Certificate was not in fact permitted by this Section 3.03(f), the last preceding Permitted Transferee shall be restored to all rights as Holder thereof retroactive to the date of such registration of transfer of such Residual Certificate. The Depositor, the Certificate Registrar and the Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.03(f), or for the Paying Agent making any payment due on such Certificate to the registered Holder thereof or for taking any other action with respect to such Holder under the provisions of this Agreement so long as the transfer was registered upon receipt of the affidavit described in the preceding paragraph of this Section 3.03(f). (g) Each Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted Certificate or Residual Certificate, or an interest therein, by such Holder's or Owner's acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this section. 55 Section 3.04 Cancellation of Certificates. Any Certificate surrendered for registration of transfer or exchange shall be cancelled and retained in accordance with normal retention policies with respect to cancelled certificates maintained by the Trustee or the Certificate Registrar. Section 3.05 Replacement of Certificates. If (i) any Certificate is mutilated and is surrendered to the Trustee or the Certificate Registrar or (ii) the Trustee or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate, and there is delivered to the Trustee and the Certificate Registrar such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Depositor, the Trustee or the Certificate Registrar that such destroyed, lost or stolen Certificate has been acquired by a protected purchaser, the Trustee shall execute and the Authenticating Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and Certificate Principal Amount. Upon the issuance of any new Certificate under this Section 3.05, the Trustee, the Depositor or the Certificate Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee, the Depositor or the Certificate Registrar) connected therewith. Any replacement Certificate issued pursuant to this Section 3.05 shall constitute complete and indefeasible evidence of ownership in the applicable Trust Fund, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time. If after the delivery of such new Certificate, a protected purchaser of the original Certificate in lieu of which such new Certificate was issued presents for payment such original Certificate, the Depositor, the Certificate Registrar and the Trustee or any agent shall be entitled to recover such new Certificate from the Person to whom it was delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expenses incurred by the Depositor, the Certificate Registrar, the Trustee or any agent in connection therewith. Section 3.06 Persons Deemed Owners. Subject to the provisions of Section 3.09 with respect to Book-Entry Certificates, the Depositor, the Master Servicer, the Trustee, the Certificate Registrar, the Paying Agent and any agent of any of them shall treat the Person in whose name any Certificate is registered upon the books of the Certificate Registrar as the owner of such Certificate for the purpose of receiving distributions pursuant to Sections 5.01 and 5.02 and for all other purposes whatsoever, and neither the Depositor, the Master Servicer, the Trustee, the Certificate Registrar, the Paying Agent nor any agent of any of them shall be affected by notice to the contrary. Section 3.07 Temporary Certificates. (a) Pending the preparation of definitive Certificates, upon the order of the Depositor, the Trustee shall execute and the Authenticating Agent shall authenticate and deliver temporary Certificates that are printed, lithographed, typewritten, mimeographed or otherwise produced, in 56 any authorized denomination, substantially of the tenor of the definitive Certificates in lieu of which they are issued and with such variations as the authorized officers executing such Certificates may determine, as evidenced by their execution of such Certificates. (b) If temporary Certificates are issued, the Depositor will cause definitive Certificates to be prepared without unreasonable delay. After the preparation of definitive Certificates, the temporary Certificates shall be exchangeable for definitive Certificates upon surrender of the temporary Certificates at the office or agency of the Certificate Registrar without charge to the Holder. Upon surrender for cancellation of any one or more temporary Certificates, the Trustee shall execute and the Authenticating Agent shall authenticate and deliver in exchange therefor a like aggregate Certificate Principal Amount of definitive Certificates of the same Class in the authorized denominations. Until so exchanged, the temporary Certificates shall in all respects be entitled to the same benefits under this Agreement as definitive Certificates of the same Class. Section 3.08 Appointment of Paying Agent. The Trustee may appoint a Paying Agent (which may be the Trustee) for the purpose of making distributions to the Certificateholders hereunder. The Trustee hereby appoints the Securities Administrator as the initial Paying Agent. The Trustee shall cause any Paying Agent, other than the Securities Administrator, to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee that such Paying Agent will hold all sums held by it for the payment to the Certificateholders in an Eligible Account (which shall be the Distribution Account) in trust for the benefit of the Certificateholders entitled thereto until such sums shall be paid to the Certificateholders. All funds remitted by the Trustee to any such Paying Agent for the purpose of making distributions shall be paid to the Certificateholders on each Distribution Date and any amounts not so paid shall be returned on such Distribution Date to the Trustee. If the Paying Agent is not the Trustee or the Securities Administrator, the Trustee shall cause to be remitted to the Paying Agent on or before the Business Day prior to each Distribution Date, by wire transfer in immediately available funds, the funds to be distributed on such Distribution Date. Any Paying Agent shall be either a bank or trust company or otherwise authorized under law to exercise corporate trust powers. Section 3.09 Book-Entry Certificates. (a) Each Class of Book-Entry Certificates, upon original issuance, shall be issued in the form of one or more typewritten Certificates representing the Book-Entry Certificates. The Book-Entry Certificates shall initially be registered on the Certificate Register in the name of the nominee of the Clearing Agency, and no Certificate Owner will receive a definitive certificate representing such Certificate Owner's interest in the Book-Entry Certificates, except as provided in Section 3.09(c). Unless Definitive Certificates have been issued to Certificate Owners of Book-Entry Certificates pursuant to Section 3.09(c): (i) the provisions of this Section 3.09 shall be in full force and effect; (ii) the Certificate Registrar, the Paying Agent and the Trustee shall deal with the Clearing Agency for all purposes (including the making of distributions on the Book- 57 Entry Certificates) as the authorized representatives of the Certificate Owners and the Clearing Agency and shall be responsible for crediting the amount of such distributions to the accounts of such Persons entitled thereto, in accordance with the Clearing Agency's normal procedures; (iii) to the extent that the provisions of this Section 3.09 conflict with any other provisions of this Agreement, the provisions of this Section 3.09 shall control; and (iv) the rights of Certificate Owners shall be exercised only through the Clearing Agency and the Clearing Agency Participants and shall be limited to those established by law and agreements between such Certificate Owners and the Clearing Agency and/or the Clearing Agency Participants. Unless and until Definitive Certificates are issued pursuant to Section 3.09(c), the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit distributions of principal of and interest on the Book-Entry Certificates to such Clearing Agency Participants. (b) Whenever notice or other communication to the Certificateholders is required under this Agreement, unless and until Definitive Certificates shall have been issued to Certificate Owners pursuant to Section 3.09(c), the Securities Administrator shall give all such notices and communications specified herein to be given to Holders of the Book-Entry Certificates to the Clearing Agency. (c) If (i) (A) the Clearing Agency or the Depositor advises the Paying Agent in writing that the Clearing Agency is no longer willing or able to discharge properly its responsibilities with respect to the Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified successor satisfactory to the Depositor and the Paying Agent, (ii) the Depositor, at its option, advises the Paying Agent in writing that it elects to terminate the book-entry system through the Clearing Agency or (iii) after the occurrence of an Event of Default, Certificate Owners representing beneficial interests aggregating not less than 50% of the Class Principal Amount of a Class of Book-Entry Certificates advise the Paying Agent and the Clearing Agency through the Clearing Agency Participants in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interests of the Certificate Owners of a Class of Book-Entry Certificates, the Certificate Registrar shall notify the Clearing Agency to effect notification to all Certificate Owners, through the Clearing Agency, of the occurrence of any such event and of the availability of Definitive Certificates to Certificate Owners requesting the same. Upon surrender to the Certificate Registrar of the Book-Entry Certificates by the Clearing Agency, accompanied by registration instructions from the Clearing Agency for registration, the Certificate Registrar shall issue the Definitive Certificates. Neither the Depositor, the Certificate Registrar nor the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Clearing Agency shall be deemed to be imposed upon and performed by the Certificate Registrar, to the extent applicable, with respect to such Definitive Certificates and the Certificate Registrar shall recognize the holders of the Definitive Certificates as Certificateholders hereunder. Notwithstanding the foregoing, the 58 Certificate Registrar, upon the instruction of the Depositor, shall have the right to issue Definitive Certificates on the Closing Date in connection with credit enhancement programs. ARTICLE IV ADMINISTRATION OF THE TRUST FUND Section 4.01 Custodial Accounts; Distribution Account. (a) On or prior to the Closing Date, the Master Servicer shall have caused each Servicer to establish and maintain one or more Custodial Accounts, as provided in the related Purchase and Servicing Agreement, into which all Scheduled Payments and unscheduled payments with respect to the related Mortgage Loans, net of any deductions or reimbursements permitted under the related Purchase and Servicing Agreement, shall be deposited. On each Distribution Account Deposit Date, the Servicers shall remit to the Securities Administrator for deposit into the Distribution Account, all amounts so required to be deposited into such account in accordance with the terms of the related Purchase and Servicing Agreements. (b) The Securities Administrator, as Paying Agent for the Trustee, shall establish and maintain an Eligible Account entitled "Distribution Account of Wachovia Bank, National Association, as Trustee for the benefit of J.P. Morgan Mortgage Trust 2004-A3, Holders of Mortgage Pass-Through Certificates." The Securities Administrator shall, promptly upon receipt from the Servicers on each Distribution Account Deposit Date, deposit into the Distribution Account and retain on deposit until the related Distribution Date the following amounts: (i) the aggregate of collections with respect to the Mortgage Loans remitted by the Servicers from the related Custodial Accounts in accordance with the Purchase and Servicing Agreements; (ii) any amounts required to be deposited by the Master Servicer with respect to the Mortgage Loans for the related Due Period pursuant to this Agreement, including the amount of any Advances or Compensation Interest Payments with respect to the Mortgage Loans not paid by the Servicers; and (iii) any other amounts so required to be deposited in the Distribution Account in the related Due Period pursuant to this Agreement. (c) In the event the Master Servicer or a Servicer has remitted in error to the Distribution Account any amount not required to be remitted in accordance with the definition of Available Distribution Amount, it may at any time direct the Securities Administrator to withdraw such amount from the Distribution Account for repayment to the Master Servicer or Servicer, as applicable, by delivery of an Officer's Certificate to the Securities Administrator and the Trustee which describes the amount deposited in error. (d) On each Distribution Date and Redemption Date, the Securities Administrator, as Paying Agent, shall withdraw from funds available in the Distribution Account and distribute the Available Distribution Amount to the Certificateholders and any other parties entitled thereto in the amounts and priorities set forth in Section 5.02. The Securities Administrator may from time 59 to time withdraw from the Distribution Account and pay the Master Servicer, the Trustee, the Securities Administrator, Sunset or any Servicer any amounts permitted to be paid or reimbursed to such Person from funds in the Distribution Account pursuant to the clauses (A) through (E) of the definition of Available Distribution Amount. (e) Funds in the Distribution Account may be invested in Permitted Investments selected by and at the written direction of the Securities Administrator, which shall mature not later than one Business Day prior to the Distribution Date (except that if such Permitted Investment is an obligation of the Securities Administrator, then such Permitted Investment shall mature not later than such applicable Distribution Date) and any such Permitted Investment shall not be sold or disposed of prior to its maturity. All such Permitted Investments shall be made in the name of the Trustee (in its capacity as such) or its nominee. All income and gain realized from any Permitted Investment shall be for the benefit of the Securities Administrator, as additional compensation for its duties hereunder, and shall be subject to its withdrawal or order from time to time, and shall not be part of the Trust Fund. The amount of any losses incurred in respect of any such investments shall be deposited in such Distribution Account by the Securities Administrator out of its own funds, without any right of reimbursement therefor, immediately as realized. Section 4.02 [Reserved]. Section 4.03 [Reserved]. Section 4.04 Reports to Trustee and Certificateholders. On each Distribution Date, the Securities Administrator shall have prepared and shall make available to the Trustee, the Depositor and each Certificateholder a written report setting forth the following information (on the basis of Mortgage Loan level information obtained from the Master Servicer and the Servicers): (a) the amount of the distributions, separately identified, with respect to each Class of Certificates; (b) the amount of the distributions set forth in the clause (a) allocable to principal, separately identifying the aggregate amount of any Principal Prepayments or other unscheduled recoveries of principal included in that amount; (c) the amount of the distributions set forth in the clause (a) allocable to interest and how it was calculated; (d) the amount of any unpaid Interest Shortfall and the related accrued interest thereon, with respect to each Class of Certificates; (e) the Class Principal Amount of each Class of Certificates after giving effect to the distribution of principal on that Distribution Date; (f) the Aggregate Stated Principal Balance of the Mortgage Loans in each Mortgage Pool and in each Aggregate Pool at the end of the related Prepayment Period and the applicable 60 Net WAC of the Mortgage Loans in each Mortgage Pool at the beginning of the related Due Period; (g) the Senior Percentage and the Subordinate Percentage for each Mortgage Pool for the following Distribution Date; (h) the Senior Prepayment Percentage and Subordinate Prepayment Percentage for each Mortgage Pool for the following Distribution Date; (i) with respect to each Mortgage Pool and each Aggregate Pool, the amount of the Master Servicing Fee and the Servicing Fee paid to or retained by the Master Servicer and by each Servicer, respectively; (j) with respect to each Mortgage Pool and each Aggregate Pool, the amount of Advances for the related Due Period; (k) with respect to each Mortgage Pool and each Aggregate Pool, the number and Stated Principal Balance of the Mortgage Loans that were (A) Delinquent (exclusive of Mortgage Loans in foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) in foreclosure and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days and (C) in bankruptcy as of the close of business on the last day of the calendar month preceding that Distribution Date; (l) with respect to each Mortgage Pool and each Aggregate Pool, for any Mortgage Loan as to which the related Mortgaged Property was an REO Property during the preceding calendar month, the principal balance of that Mortgage Loan as of the close of business on the last day of the related Due Period; (m) with respect to each Mortgage Pool and each Aggregate Pool, the amount of Realized Losses incurred during the preceding calendar month; (n) with respect to each Mortgage Pool and each Aggregate Pool, the cumulative amount of Realized Losses incurred since the Closing Date; (o) the Realized Losses, if any, allocated to each Class of Certificates on that Distribution Date; (p) each Special Hazard Loss Coverage Amount, each Fraud Loss Coverage Amount and each Bankruptcy Loss Coverage Amount, in each case as of the related Determination Date; (q) the Certificate Interest Rate for each Class of Certificates for that Distribution Date; and (r) with respect to each Aggregate Pool, the amount of any Principal Transfer Amounts or Interest Transfer Amounts paid to a related Undercollateralized Group or Principal Transfers between related Groups in the event of Rapid Prepayment Conditions. 61 The Securities Administrator shall make such reports available each month via the Master Servicer's website at http://www.ctslink.com. Assistance in using the website may be obtained by calling the Master Servicer's customer service desk at (301) 815-6600. Certificateholders and other parties that are unable to use the website are entitled to have a paper copy mailed to them via first class mail by contacting the Securities Administrator and indicating such. In preparing or furnishing the foregoing information to the Trustee, the Securities Administrator shall be entitled to rely conclusively on the accuracy of the information or data regarding the Mortgage Loans and the related REO Properties that has been provided to the Securities Administrator by the Master Servicer and the Servicers, and the Securities Administrator shall not be obligated to verify, recompute, reconcile or recalculate any such information or data. Upon the reasonable advance written request of any Certificateholder that is a savings and loan, bank or insurance company, which request, if received by the Trustee or any agent thereof, shall be promptly forwarded to the Securities Administrator, the Securities Administrator shall provide, or cause to be provided, (or, to the extent that such information or documentation is not required to be provided by a Servicer under the applicable Purchase and Servicing Agreement, shall use reasonable efforts to obtain such information and documentation from such Servicer, and provide) to such Certificateholders such reports and access to information and documentation regarding the Mortgage Loans as such Certificateholders may reasonably deem necessary to comply with applicable regulations of the Office of Thrift Supervision or its successor or other regulatory authorities with respect to an investment in the Certificates; provided, however, that the Securities Administrator shall be entitled to be reimbursed by such Certificateholders for the Securities Administrator's actual expenses incurred in providing such reports and access. ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES Section 5.01 Distributions Generally. (a) Subject to Section 7.01 respecting the final distribution on the Certificates, on each Distribution Date the Trustee or the Paying Agent shall make distributions in accordance with this Article V. Such distributions shall be made by check mailed to each Certificateholder's address as it appears on the Certificate Register of the Certificate Registrar or, upon written request made to the Securities Administrator at least five Business Days prior to the related Record Date by any Certificateholder owning an aggregate initial Certificate Principal Amount of at least $1,000,000, or in the case of a Residual Certificate, a Percentage Interest of not less than 100%, by wire transfer in immediately available funds to an account specified in the request and at the expense of such Certificateholder; provided, however, that the final distribution in respect of any Certificate shall be made only upon presentation and surrender of such Certificate at the Certificate Registrar's Corporate Trust Office; provided, further, that the foregoing provisions shall not apply to any Class of Certificates as long as such Certificate remains a Book-Entry Certificate in which case all payments made shall be made through the Clearing Agency and its Clearing Agency Participants. Wire transfers will be made at the expense of the Holder requesting such wire transfer by deducting a wire transfer fee from the related distribution. Notwithstanding such final payment of principal of any of the Certificates, each Residual 62 Certificate will remain outstanding until the termination of each REMIC and the payment in full of all other amounts due with respect to the Residual Certificates and at such time such final payment in retirement of any Residual Certificate will be made only upon presentation and surrender of such Certificate at the Certificate Registrar's Corporate Trust Office. If any payment required to be made on the Certificates is to be made on a day that is not a Business Day, then such payment will be made on the next succeeding Business Day. (b) All distributions or allocations made with respect to the Certificateholders within each Class on each Distribution Date shall be allocated among the outstanding Certificates in such Class equally in proportion to their respective initial Class Principal Amounts (or Percentage Interests). Section 5.02 Distributions from the Distribution Account. (a) Subject to Sections 5.02(h) and (i), on each Distribution Date, the Available Distribution Amount for the related Mortgage Pool (in the case of the Senior Certificates) and the Mortgage Pools in the related Aggregate Pool (in the case of the Subordinate Certificates) shall be withdrawn by the Securities Administrator from funds on deposit in the Distribution Account allocated among the related Classes of Senior Certificates and the related Classes of Subordinate Certificates in the following order of priority: (i) Concurrently, from the related Available Distribution Amount, to the payment of the Interest Distribution Amount and any Interest Shortfalls for each Class of Senior Certificates; (ii) Concurrently, to the Senior Certificates from the Available Distribution Amount remaining in the related Mortgage Pool after application of amounts pursuant to clause (i) above, as follows: (a) sequentially, to the Class A-R and Class 1-A-1 Certificates, in that order, the Senior Principal Distribution Amount for Pool 1, until their respective Class Principal Amounts have been reduced to zero; (b) to the Class 2-A-1 Certificates, the Senior Principal Distribution Amount for Pool 2, until its Class Principal Amount has been reduced to zero; (c) to the Class 3-A-1, Class 3-A-2 and Class 3-A-3 Certificates, the Senior Principal Distribution Amount for Pool 3, sequentially, in the following order of priority: (I) concurrently, 65.5837478226% to the Class 3-A-1 Certificates and 34.4162521774% to the Class 3-A-2 Certificates, until the Class Principal Amount of the Class 3-A-1 Certificates has been reduced to zero; and (II) sequentially, to the Class 3-A-2 and Class 3-A-3 Certificates, in that order, until their respective Class Principal Amounts have been reduced to zero; 63 (d) concurrently, to the Class 4-A-1 and Class 4-A-2 Certificates, pro rata, the Senior Principal Distribution Amount for Pool 4, until their respective Class Principal Amounts have been reduced to zero; (e) to the Class S-F-1 Certificates, the Senior Principal Distribution Amount for Pool 5, until its Class Principal Amount has been reduced to zero; (f) to the Class S-F-2 Certificates, the Senior Principal Distribution Amount for Pool 6, until its Class Principal Amount has been reduced to zero; and (g) to the Class S-F-3 Certificates, the Senior Principal Distribution Amount for Pool 7, until its Class Principal Amount has been reduced to zero; (iii) Concurrently, to the Subordinate Certificates, as follows: (a) Sequentially, to the Pool I Subordinate Certificates, as follows: (A) to the Class I-B-1 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (B) to the Class I-B-1 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool I, until its Class Principal Amount has been reduced to zero; (C) to the Class I-B-2 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (D) to the Class I-B-2 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool I, until its Class Principal Amount has been reduced to zero; (E) to the Class I-B-3 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (F) to the Class I-B-3 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool I, until its Class Principal Amount has been reduced to zero; (G) to the Class I-B-4 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (H) to the Class I-B-4 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool I, until its Class Principal Amount has been reduced to zero; 64 (I) to the Class I-B-5 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (J) to the Class I-B-5 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool I, until its Class Principal Amount has been reduced to zero; (K) to the Class I-B-6 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; and (L) to the Class I-B-6 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool I, until its Class Principal Amount has been reduced to zero; (b) Sequentially, to the Pool II Subordinate Certificates, as follows: (A) to the Class S-B-1 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (B) to the Class S-B-1 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool II, until its Class Principal Amount has been reduced to zero; (C) to the Class S-B-2 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (D) to the Class S-B-2 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool II, until its Class Principal Amount has been reduced to zero; (E) to the Class S-B-3 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (F) to the Class S-B-3 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool II, until its Class Principal Amount has been reduced to zero; (G) to the Class S-B-4 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (H) to the Class S-B-4 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for 65 each Mortgage Pool in Aggregate Pool II, until its Class Principal Amount has been reduced to zero; (I) to the Class S-B-5 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; (J) to the Class S-B-5 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool II, until its Class Principal Amount has been reduced to zero; (K) to the Class S-B-6 Certificates, the Interest Distribution Amount and any Interest Shortfalls, in each case, for such Class and date; and (L) to the Class S-B-6 Certificates, such Class' Subordinate Class Percentage of the Subordinate Principal Distribution Amount for each Mortgage Pool in Aggregate Pool II, until its Class Principal Amount has been reduced to zero; (iv) To the Class A-R Certificates, any remaining amount of the Available Distribution Amount from the Mortgage Pools in Aggregate Pool I and Aggregate Pool II. (b) On each Distribution Date on and after the related Credit Support Depletion Date for an Aggregate Pool, the Available Distribution Amount for each Mortgage Pool in the applicable Aggregate Pool shall be combined and distributed to the remaining related Classes of Certificates, on a pro rata basis, first, to pay the Interest Distribution Amount and any accrued but unpaid Interest Shortfalls; second, in reduction of the Certificate Principal Amounts of such Certificates, pro rata (on the basis of their Class Principal Amounts), until such Certificate Principal Amounts have been reduced to zero; and third, to the Class A-R Certificate, any remaining Available Distribution Amount from such Mortgage Pool. (c) Notwithstanding the priorities and allocations set forth in Sections 5.02(a)(iii)(a) and 5.02(a)(iii)(b) above, if with respect to any Class of Subordinate Certificates related to an Aggregate Pool on any Distribution Date the sum of the related Class Subordination Percentages of such Class and of all other Classes of Subordinate Certificates related to that Aggregate Pool which have a higher numerical Class designation than such Class is less than the Original Applicable Credit Support Percentage for such Class, no distribution of Principal Prepayments shall be made to any such Classes and the amount of such Principal Prepayment otherwise distributable to such Classes shall be distributed to any related Classes of Subordinate Certificates having lower numerical Class designations than such Class, pro rata, based on the Class Principal Amounts of the respective Classes immediately prior to such Distribution Date and shall be distributed in the sequential order provided in Sections 5.02(a)(iii)(a) or 5.02(a)(iii)(b) above, as applicable. (d) Amounts distributed to the Residual Certificates pursuant to subparagraph (a)(iv) of this Section 5.02 on any Distribution Date shall be allocated among the REMIC residual 66 interests represented thereby such that each such interest is allocated the excess of funds available to the related REMIC over required distributions to the regular interests in such REMIC on such Distribution Date. (e) For purposes of distributions provided in paragraph (a), each Mortgage Pool shall "relate" to the Senior Class or Classes of the applicable Related Certificate Group. (f) [Reserved]. (g) For purposes of distributions of interest in paragraph (a) such distributions to a Class of Certificates on any Distribution Date shall be made first, in respect of Current Interest; and second, in respect of Interest Shortfalls. (h) Notwithstanding the priority of distributions set forth in paragraph (a) above, if on any Distribution Date prior to the related Credit Support Depletion Date for an Aggregate Pool (1) either one of the applicable Rapid Prepayment Conditions is satisfied on such date and (2) the Certificate Principal Amount of the Senior Certificates relating to one of the Mortgage Pools in that Aggregate Pool have been reduced to zero, then that portion of the Available Distribution Amount for each Mortgage Pool in that Aggregate Pool described in Section 5.02(a)(ii) that represents principal collections on the Mortgage Loans shall be applied as an additional distribution to the remaining related Classes of Senior Certificates in reduction of, and in proportion to, the Class Principal Amounts thereof. (i) If, on any Distribution Date, any Certificate Group in an Aggregate Pool would constitute an Undercollateralized Group and any other Certificate Group in that Aggregate Pool constitutes an Overcollateralized Group, then notwithstanding Section 5.02(a)(ii), the Available Distribution Amount for such Overcollateralized Group, to the extent remaining following distributions of interest and principal to the related Senior Certificates of that Certificate Group, shall be distributed up to the sum of the Interest Transfer Amount and the Principal Transfer Amount for such Undercollateralized Group to the Senior Certificates related to that Undercollateralized Group in payment of accrued but unpaid interest, if any, and then to such Senior Certificates as principal, in the same order and priority as such Certificates would receive other distributions of principal. If more than one Undercollateralized Group in an Aggregate Pool exists on any Distribution Date, the sum of the Interest Transfer Amounts and the Principal Transfer Amounts shall be allocated among such Undercollateralized Groups, pro rata, on the basis of the amount by which the aggregate Class Principal Amount of the related Senior Certificates immediately prior to such Distribution Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans in that Undercollateralized Group. If more than one Overcollateralized Group in an Aggregate Pool exists on any Distribution Date, reductions in the Available Distribution Amount for such Overcollateralized Groups to make the payments required to be made pursuant to this Section 5.02(i) on such Distribution Date shall be made pro rata, on the basis of the Class Principal Amount of the related Senior Certificates. 67 Section 5.03 Allocation of Losses. (a) On or prior to each Distribution Date, the Master Servicer shall aggregate the information provided by each Servicer with respect to the total amount of Realized Losses, including Excess Losses, experienced on the Mortgage Loans in an Aggregate Pool for the related Distribution Date. (b) On each Distribution Date, the principal portion of Realized Losses (other than Excess Losses) shall be allocated as follows: first, to the related Classes of Subordinate Certificates in reverse order of their respective numerical Class designations (beginning with the related Class of Subordinate Certificates with the highest numerical Class designation) until the Class Principal Amount of each such Class is reduced to zero; and second, to each Class of Senior Certificates relating to the Mortgage Pool which sustained such loss (allocated among the related Senior Classes on a pro rata basis), in each case, until the Class Principal Amount of each such Class of Senior Certificates is reduced to zero; provided that any Realized Losses (other than Excess Losses) in Pool 4 otherwise allocable to the Class 4-A-1 Certificates shall be allocated to the Class 4-A-2 Certificates, until their respective Class Principal Amounts are reduced to zero; (c) (i) On each Distribution Date, any Excess Losses on the Mortgage Loans in a Mortgage Pool in an Aggregate Pool shall be allocated to the Classes of Senior Certificates of the related Certificate Group and the related Classes of Subordinate Certificates then outstanding, pro rata, on the basis of, with respect to such Senior Certificates, their respective Class Principal Amounts and, with respect to each related Class of Subordinate Certificates, the applicable Apportioned Principal Balance for each such Class relating to the Mortgage Pool in which such Excess Losses occurs; provided, however, on any Distribution Date after (x) the third Senior Termination Date for a Certificate Group in Aggregate Pool I and (y) the second Senior Termination Date for a Certificate Group in Aggregate Pool II, such Excess Losses on the Mortgage Loans in the related Mortgage Pool will be allocated to the related Senior Certificates and related Subordinate Certificates on the basis of their respective Class Principal Amounts; and provided, further, that after the related Credit Support Depletion Date for an Aggregate Pool, such Excess Losses shall be allocated pro rata to all Senior Certificates related to that Aggregate Pool, regardless of Certificate Group, on the basis of their respective Class Principal Amounts immediately prior to the related Distribution Date, until the respective Class Principal Amounts of each such Class are reduced to zero. (ii) Notwithstanding the foregoing, if, on any Distribution Date after the related Credit Support Depletion Date with respect to an Aggregate Pool, a Special Hazard Loss on a Mortgage Loan in that Aggregate Pool is allocated to the related Classes of Senior Certificates, such Special Hazard Loss shall be allocated among such related Classes of Senior Certificates and the outstanding Classes of Subordinate Certificates related to the other Aggregate Pool in reverse order of their respective numerical Class designations (beginning with the Class of Subordinate Certificates with the highest numerical Class designation), pro rata, based on their respective Class Principal Amounts; provided, however, that any such Special 68 Hazard Loss allocated to the Classes of Subordinate Certificates related to the other Aggregate Pool shall not exceed the remaining Special Hazard Loss Coverage Amount for such other Aggregate Pool. (d) On each Distribution Date, the Class Principal Amount of the Class of Subordinate Certificates related to an Aggregate Pool then outstanding with the highest numerical Class designation shall be reduced by the amount, if any, by which the aggregate of the Class Principal Amounts of all outstanding related Classes of Certificates (after giving effect to the distribution of principal on such Distribution Date) exceeds the Aggregate Stated Principal Balance for that Aggregate Pool for the following Distribution Date (such amount for any Distribution Date, the "Subordinate Certificate Write-down Amount"). (e) With the exception of Section 5.03(c)(ii) hereof, any allocation of a loss pursuant to this Section 5.03 to a Class of Certificates shall be achieved by reducing the Class Principal Amount thereof by the amount of such loss. Any allocation of a Special Hazard Loss pursuant to Section 5.03(c)(ii) shall be achieved through cash flow diversions and entitlements to carry-forward amounts from the non-related Class or Classes of Subordinate Certificates to which such Special Hazard Loss was allocated, to the extent of principal distributions made on such Subordinate Certificates. (f) If Subsequent Recoveries have been received with respect to a Liquidated Mortgage Loan, the amount of such Subsequent Recoveries will be applied sequentially, in the order of payment priority, to increase the Class Principal Amount of each Class of Certificates to which Realized Losses have been allocated, but in each case by not more than the amount of Realized Losses previously allocated to that Class of Certificates pursuant to this Section 5.03. Holders of such Certificates will not be entitled to any payment in respect of the Interest Distribution Amount on the amount of such increases for any Accrual Period preceding the Distribution Date on which such increase occurs. Any such increases shall be applied pro rata to the Principal Amount of each Certificate of such Class. Section 5.04 Advances by Master Servicer. If any Servicer fails to remit any Advance required to be made under the applicable Purchase and Servicing Agreement, the Master Servicer shall itself make, or shall cause the successor Servicer to make, such Advance. If the Master Servicer determines that an Advance is required, it shall on the Business Day preceding the related Distribution Date immediately following such Determination Date remit to the Securities Administrator from its own funds (or funds advanced by the applicable Servicer) for deposit in the Distribution Account immediately available funds in an amount equal to such Advance. The Master Servicer and each Servicer shall be entitled to be reimbursed for all Advances made by it. Notwithstanding anything to the contrary herein, in the event the Master Servicer determines in its reasonable judgment that an Advance is non-recoverable, the Master Servicer shall be under no obligation to make such Advance. If the Master Servicer determines that an Advance is non-recoverable, it shall, on or prior to the related Distribution Date, deliver an Officer's Certificate to the Trustee to such effect. 69 Section 5.05 Compensating Interest Payments. The amount of the aggregate Master Servicing Fees payable to the Master Servicer in respect of any Distribution Date shall be reduced (but not below zero) by the amount of any Compensating Interest Payment for such Distribution Date, but only to the extent that Prepayment Interest Shortfalls relating to such Distribution Date are required to be paid by the Servicers pursuant to the Purchase and Servicing Agreements, as amended by the Acknowledgements, but not actually paid by the Servicers. Such amount shall not be treated as an Advance and shall not be reimbursable to the Master Servicer. ARTICLE VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT Section 6.01 Duties of Trustee and the Securities Administrator. (a) The Trustee, except during the continuance of an Event of Default, and the Securities Administrator undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Any permissive right of the Trustee or the Securities Administrator provided for in this Agreement shall not be construed as a duty of the Trustee or the Securities Administrator. If an Event of Default has occurred and has not otherwise been cured or waived, the Trustee or the Securities Administrator shall exercise such of the rights and powers vested in it by this Agreement and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person's own affairs, unless the Trustee is acting as master servicer, in which case it shall use the same degree of care and skill as a master servicer hereunder. (b) Each of the Trustee and the Securities Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Securities Administrator which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they are in the form required by this Agreement; provided, however, that neither the Trustee nor the Securities Administrator shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer or any Servicer to the Trustee or the Securities Administrator pursuant to this Agreement, and shall not be required to recalculate or verify any numerical information furnished to the Trustee or the Securities Administrator pursuant to this Agreement. Subject to the immediately preceding sentence, if any such resolution, certificate, statement, opinion, report, document, order or other instrument is found not to conform to the form required by this Agreement in a material manner the Securities Administrator shall take such action as it deems appropriate to cause the instrument to be corrected, and if the instrument is not corrected to the Securities Administrator 's satisfaction, the Securities Administrator will provide notice thereof to the Certificateholders and will, at the expense of the Trust Fund, which expense shall be reasonable given the scope and nature of the required action, take such further action as directed by the Certificateholders. 70 (c) Neither the Trustee nor the Securities Administrator shall have any liability arising out of or in connection with this Agreement, except for its negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, neither the Trustee nor the Securities Administrator shall be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits). No provision of this Agreement shall be construed to relieve the Trustee or the Securities Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that: (i) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Holders of Certificates as provided in Section 6.18 hereof; (ii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Holders of the Certificates and this Agreement; (iii) For all purposes under this Agreement, the Securities Administrator shall not be deemed to have notice of any Event of Default (other than resulting from a failure by the Master Servicer (i) to remit funds (or to make Advances) or (ii) to furnish information to the Securities Administrator when required to do so) unless a Responsible Officer of the Securities Administrator has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Securities Administrator at the address provided in Section 11.07, and such notice references the Holders of the Certificates and this Agreement; (iv) No provision of this Agreement shall require the Trustee or the Securities Administrator 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 or the Securities Administrator to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer under this Agreement; (v) Neither the Trustee nor the Securities Administrator shall be responsible for any act or omission of the Master Servicer, the Depositor, either Seller, any Servicer or any Custodian. (d) The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered to or served upon it by the parties as a consequence of the assignment of any Mortgage Loan hereunder; provided, however, that the Trustee shall promptly remit to the Master Servicer upon receipt any such complaint, claim, demand, notice or other document (i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has actual knowledge, 71 and (iii) which contains information sufficient to permit the Trustee to make a determination that the real property to which such document relates is a Mortgaged Property. (e) Neither the Trustee nor the Securities Administrator shall be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Securities Administrator or exercising any trust or power conferred upon the Trustee or the Securities Administrator, as applicable, under this Agreement. (f) Neither the Trustee nor the Securities Administrator shall be required to perform services under this Agreement, or to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the timely payment of its fees and expenses or the 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 or the Securities Administrator, as applicable, to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer or any Servicer under this Agreement or any Purchase and Servicing Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer in accordance with the terms of this Agreement. (g) The Trustee shall not be held liable by reason of any insufficiency in the Distribution Account resulting from any investment loss on any Permitted Investment included therein (except to the extent that the Trustee is the obligor and has defaulted thereon). (h) Except as otherwise provided herein, neither the Trustee nor the Securities Administrator shall have any duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Distribution Account, or (D) to confirm or verify the contents of any reports or certificates of the Master Servicer or any Servicer delivered to the Trustee or the Securities Administrator pursuant to this Agreement believed by the Trustee or the Securities Administrator, as applicable, to be genuine and to have been signed or presented by the proper party or parties. (i) Neither the Securities Administrator nor the Trustee shall be liable in its individual capacity for an error of judgment made in good faith by a Responsible Officer or other officers of the Trustee or the Securities Administrator, as applicable, unless it shall be proved that the Trustee or the Securities Administrator, as applicable, was negligent in ascertaining the pertinent facts. 72 (j) Notwithstanding anything in this Agreement to the contrary, neither the Securities Administrator nor the Trustee shall be liable for special, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee or the Securities Administrator, as applicable, has been advised of the likelihood of such loss or damage and regardless of the form of action. (k) Neither the Securities Administrator nor the Trustee shall be responsible for the acts or omissions of the other, it being understood that this Agreement shall not be construed to render them agents of one another, or of any Servicer. Section 6.02 Certain Matters Affecting the Trustee and the Securities Administrator. Except as otherwise provided in Section 6.01: (i) Each of the Trustee and the Securities Administrator may request, and may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (ii) Each of the Trustee and the Securities Administrator may consult with counsel and any advice of its counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (iii) Neither the Trustee nor the Securities Administrator shall be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement; (iv) Unless an Event of Default shall have occurred and be continuing, neither the Trustee nor the Securities Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document (provided the same appears regular on its face), unless requested in writing to do so by the Holders of at least a majority in Class Principal Amount (or Percentage Interest) of each Class of Certificates; provided, however, that, if the payment within a reasonable time to the Trustee or the Securities Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Securities Administrator, as applicable, not reasonably assured to the Trustee or the Securities Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Securities Administrator, as applicable, may require reasonable indemnity against such expense or liability or payment of such estimated expenses from the Certificateholders as a condition to proceeding. The reasonable expense thereof shall be paid by the party requesting such investigation and if 73 not reimbursed by the requesting party shall be reimbursed to the Trustee by the Trust Fund; (v) Each of the Trustee and the Securities Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians or attorneys, which agents, custodians or attorneys shall have any and all of the rights, powers, duties and obligations of the Trustee and the Securities Administrator conferred on them by such appointment, provided that each of the Trustee and the Securities Administrator shall continue to be responsible for its duties and obligations hereunder to the extent provided herein, and provided further that neither the Trustee nor the Securities Administrator shall be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by the Trustee or the Securities Administrator, as applicable; (vi) Neither the Trustee nor the Securities Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto, in each case at the request, order or direction of any of the Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Securities Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; (vii) The right of the Trustee and the Securities Administrator to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Securities Administrator shall be answerable for other than its negligence or willful misconduct in the performance of such act; and (viii) Neither the Trustee nor the Securities Administrator shall be required to give any bond or surety in respect of the execution of the Trust Fund created hereby or the powers granted hereunder. Section 6.03 Trustee and Securities Administrator Not Liable for Certificates. The Trustee and the Securities Administrator make no representations as to the validity or sufficiency of this Agreement or of the Certificates (other than, in the case of the Securities Administrator, the certificate of authentication on the Certificates) or of any Mortgage Loan, or related document save that the Trustee and the Securities Administrator represent that, assuming due execution and delivery by the other parties hereto, this Agreement has been duly authorized, executed and delivered by it and constitutes its valid and binding obligation, enforceable against it in accordance with its terms except that such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally, and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law. The Trustee and the Securities Administrator shall not be accountable for the use or application by the Depositor of funds paid to the Depositor in consideration of the assignment of the Mortgage Loans to the Trust Fund by the Depositor or for the use or application of any funds deposited into the Distribution Account or any other fund or account maintained with respect to the Certificates. The Trustee and the 74 Securities Administrator shall not be responsible for the legality or validity of this Agreement or the validity, priority, perfection or sufficiency of the security for the Certificates issued or intended to be issued hereunder. Except as otherwise provided herein, the Trustee and the Securities Administrator shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder or to record this Agreement. Section 6.04 Trustee and the Securities Administrator May Own Certificates. The Trustee and the Securities Administrator and any Affiliate or agent of either of them in its individual or any other capacity may become the owner or pledgee of Certificates and may transact banking and trust business with the other parties hereto and their Affiliates with the same rights it would have if it were not Trustee, Securities Administrator or such agent. Section 6.05 Eligibility Requirements for Trustee. The Trustee hereunder shall at all times be (i) an institution insured by the FDIC, (ii) a corporation or national banking association, organized and doing business under the laws of any State or the United States of America, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority and (iii) not an Affiliate of the Master Servicer or any Servicer. If such corporation or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such corporation or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 6.06. Section 6.06 Resignation and Removal of Trustee and the Securities Administrator. (a) Each of the Trustee and the Securities Administrator may at any time resign and be discharged from the trust hereby created by giving written notice thereof to the Trustee or the Securities Administrator, as applicable, the Depositor and the Master Servicer. Upon receiving such notice of resignation, the Depositor will promptly appoint a successor trustee or a successor securities administrator, as applicable, by written instrument, one copy of which instrument shall be delivered to the resigning Trustee or resigning Securities Administrator, as applicable, one copy to the successor trustee or successor securities administrator, as applicable, and one copy to the Master Servicer. If no successor trustee or successor securities administrator shall have been so appointed and shall have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Trustee or resigning Securities Administrator, as applicable, may petition any court of competent jurisdiction for the appointment of a successor trustee or successor securities administrator, as applicable. (b) If at any time (i) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.05 and shall fail to resign after written request therefor by the Depositor, (ii) the Trustee or the Securities Administrator shall become incapable of acting, or shall be 75 adjudged a bankrupt or insolvent, or a receiver of the Trustee or the Securities Administrator of its property shall be appointed, or any public officer shall take charge or control of the Trustee or the Securities Administrator or of either of their property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust Fund by any state in which the Trustee or the Trust Fund held by the Trustee is located, or (iv) the continued use of the Trustee or Securities Administrator would result in a downgrading of the rating by any Rating Agency of any Class of Certificates with a rating, then the Depositor shall remove the Trustee or the Securities Administrator, as applicable, and the Depositor shall appoint a successor trustee or successor securities administrator, as applicable, acceptable to the Master Servicer by written instrument, one copy of which instrument shall be delivered to the Trustee or Securities Administrator so removed, one copy each to the successor trustee or successor securities Administrator, as applicable, and one copy to the Master Servicer. (c) The Holders of more than 50% of the Class Principal Amount (or Percentage Interest) of each Class of Certificates may at any time upon 30 days' written notice to the Trustee or the Securities Administrator, as applicable, and to the Depositor remove the Trustee or the Securities Administrator, as applicable, by such written instrument, signed by such Holders or their attorney-in-fact duly authorized, one copy of which instrument shall be delivered to the Depositor, one copy to the Trustee or Securities Administrator, as applicable and one copy to the Master Servicer; the Depositor shall thereupon appoint a successor trustee or successor securities administrator, as applicable, in accordance with this Section. (d) Any resignation or removal of the Trustee or the Securities Administrator, as applicable, and appointment of a successor trustee or successor securities administrator pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee or the successor securities administrator, as applicable, as provided in Section 6.07. Section 6.07 Successor Trustee and Successor Securities Administrator. (a) Any successor trustee or successor securities administrator appointed as provided in Section 6.06 shall execute, acknowledge and deliver to the Depositor and to its predecessor trustee or predecessor securities administrator, as applicable, an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee or predecessor securities administrator, as applicable, shall become effective and such successor trustee or successor securities administrator, as applicable, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as trustee or securities administrator, as applicable, herein. The predecessor trustee or predecessor securities administrator, as applicable, shall deliver to the successor trustee (or assign to the Trustee its interest under the Custodial Agreements, to the extent permitted thereunder) or successor securities administrator, as applicable, all Trustee Mortgage Files and documents and statements related to each Trustee Mortgage File held by it hereunder, and shall duly assign, transfer, deliver and pay over to the successor trustee the entire Trust Fund, together with all necessary instruments of transfer and assignment or other documents properly executed necessary to effect such transfer and such of the records or copies thereof maintained by the predecessor trustee in the administration hereof as may be requested by the successor trustee and shall thereupon be 76 discharged from all duties and responsibilities under this Agreement. In addition, the Depositor and the predecessor trustee or predecessor securities administrator, as applicable, shall execute and deliver such other instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in the successor trustee or successor securities administrator, as applicable, all such rights, powers, duties and obligations. (b) No successor trustee shall accept appointment as provided in this Section unless at the time of such appointment such successor trustee shall be eligible under the provisions of Section 6.05. (c) Upon acceptance of appointment by a successor trustee or successor securities administrator, as applicable, as provided in this Section, the predecessor trustee or predecessor securities administrator, as applicable, shall mail notice of the succession of such trustee or securities administrator, as applicable, hereunder to all Holders of Certificates at their addresses as shown in the Certificate Register and to any Rating Agency. Section 6.08 Merger or Consolidation of Trustee or the Securities Administrator. Any Person into which the Trustee or Securities Administrator may be merged or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee or Securities Administrator shall be a party, or any Persons succeeding to the business of the Trustee or Securities Administrator, shall be the successor to the Trustee or Securities Administrator hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding, provided that, in the case of the Trustee, such Person shall be eligible under the provisions of Section 6.05. Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian. (a) Notwithstanding any other provisions hereof, at any time, the Trustee, the Depositor or the Certificateholders evidencing more than 50% of the Class Principal Amount (or Percentage Interest) of every Class of Certificates shall have the power from time to time to appoint one or more Persons, approved by the Trustee, to act either as co-trustees jointly with the Trustee, or as separate trustees, or as custodians, for the purpose of holding title to, foreclosing or otherwise taking action with respect to any Mortgage Loan outside the state where the Trustee has its principal place of business where such separate trustee or co-trustee is necessary or advisable (or the Trustee has been advised by the Master Servicer that such separate trustee or co-trustee is necessary or advisable) under the laws of any state in which a property securing a Mortgage Loan is located or for the purpose of otherwise conforming to any legal requirement, restriction or condition in any state in which a property securing a Mortgage Loan is located or in any state in which any portion of the Trust Fund is located. The separate Trustees, co-trustees, or custodians so appointed shall be trustees or custodians for the benefit of all the Certificateholders and shall have such powers, rights and remedies as shall be specified in the instrument of appointment; provided, however, that no such appointment shall, or shall be deemed to, constitute the appointee an agent of the Trustee. The obligation of the Master Servicer to make Advances pursuant to Section 5.04 hereof shall not be affected or assigned by the appointment of a co-trustee. 77 (b) Every separate trustee, co-trustee, and custodian shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all powers, duties, obligations and rights conferred upon the Trustee in respect of the receipt, custody and payment of moneys shall be exercised solely by the Trustee; (ii) all other rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee, co-trustee, or custodian jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations, including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction, shall be exercised and performed by such separate trustee, co-trustee, or custodian; (iii) no trustee or custodian hereunder shall be personally liable by reason of any act or omission of any other trustee or custodian hereunder; and (iv) the Trustee may at any time, by an instrument in writing executed by it, with the concurrence of the Depositor, accept the resignation of or remove any separate trustee, co-trustee or custodian, so appointed by it or them, if such resignation or removal does not violate the other terms of this Agreement. (c) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee, co-trustee or custodian shall refer to this Agreement and the conditions of this Article VI. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee and a copy given to the Master Servicer. (d) Any separate trustee, co-trustee or custodian may, at any time, constitute the Trustee its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee, co-trustee or custodian shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee. (e) No separate trustee, co-trustee or custodian hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 6.05 hereunder and no notice to the Certificateholders of the appointment shall be required under Section 6.07 hereof. 78 (f) The Trustee agrees to instruct the co-trustees, if any, to the extent necessary to fulfill the Trustee's obligations hereunder. (g) The Trust shall pay the reasonable compensation of the co-trustees (which compensation shall not reduce any compensation payable to the Trustee under such Section). Section 6.10 Authenticating Agents. (a) The Trustee may appoint one or more Authenticating Agents which shall be authorized to act on behalf of the Trustee in authenticating Certificates. The Trustee hereby appoints the Securities Administrator as initial Authenticating Agent, and the Securities Administrator accepts such appointment. Wherever reference is made in this Agreement to the authentication of Certificates by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent must be a corporation organized and doing business under the laws of the United States of America or of any state, having a combined capital and surplus of at least $15,000,000, authorized under such laws to do a trust business and subject to supervision or examination by federal or state authorities. (b) Any Person into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any Person succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. (c) Any Authenticating Agent may at any time resign by giving at least 30 days' advance written notice of resignation to the Trustee and the Depositor. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and the Depositor. Upon receiving a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.10, the Trustee may appoint a successor authenticating agent, shall give written notice of such appointment to the Depositor and shall mail notice of such appointment to all Holders of Certificates. Any successor authenticating agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. No successor authenticating agent shall be appointed unless eligible under the provisions of this Section 6.10. No Authenticating Agent shall have responsibility or liability for any action taken by it as such at the direction of the Trustee. Section 6.11 Indemnification of the Trustee and the Securities Administrator. The Trustee and the Securities Administrator and their respective directors, officers, employees and agents shall be entitled to indemnification from the Depositor and the Trust Fund (provided that the Trust Fund's indemnification under this Section 6.11 is limited by Section 4.01(d) for any loss, liability or expense (including, without limitation, reasonable 79 attorneys' fees and disbursements (and, in the case of the Trustee, in connection with the Custodial Agreements, including the reasonable compensation and the expenses and disbursements of its agents or counsel), incurred without negligence or willful misconduct on their part, arising out of, or in connection with, the acceptance or administration of the trusts created hereunder or in connection with the performance of their duties hereunder including the costs and expenses of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder, provided that: (i) with respect to any such claim, the Trustee or the Securities Administrator, as applicable, shall have given the Depositor written notice thereof promptly after the Trustee, the Securities Administrator, as applicable, shall have knowledge thereof; (ii) while maintaining control over its own defense, the Trustee or the Securities Administrator, as applicable, shall cooperate and consult fully with the Depositor in preparing such defense; and (iii) notwithstanding anything to the contrary in this Section 6.11, the Trust Fund shall not be liable for settlement of any such claim by the Trustee or the Securities Administrator, as applicable, entered into without the prior consent of the Depositor, which consent shall not be unreasonably withheld. The provisions of this Section 6.11 shall survive any termination of this Agreement and the resignation or removal of the Trustee or the Securities Administrator, as applicable, and shall be construed to include, but not be limited to any loss, liability or expense under any environmental law. Section 6.12 Fees and Expenses of Securities Administrator and the Trustee. (a) Compensation for the services of the Securities Administrator hereunder shall be paid by the Master Servicer. The Securities Administrator shall be entitled to all disbursements and advancements incurred or made by the Securities Administrator in accordance with this Agreement (including fees and expenses of its counsel and all persons not regularly in its employment), except any such expenses arising from its negligence, bad faith or willful misconduct. (b) As compensation for its services hereunder, the Trustee shall be entitled to receive a Trustee fee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) which shall be paid by the Master Servicer pursuant to a separate agreement between the Trustee and the Master Servicer. Any expenses incurred by the Trustee shall be reimbursed in accordance with Section 6.11. Section 6.13 Collection of Monies. Except as otherwise expressly provided in this Agreement, the Trustee may demand payment or delivery of, and shall receive and collect, all money and other property payable to or receivable by the Trustee pursuant to this Agreement. The Trustee shall hold all such money and property received by it as part of the Trust Fund and shall distribute it as provided in this Agreement. 80 Section 6.14 Events of Default; Trustee To Act; Appointment of Successor. (a) The occurrence of any one or more of the following events shall constitute an "Event of Default": (i) Any failure by the Master Servicer to furnish the Securities Administrator the Mortgage Loan data sufficient to prepare the reports described in Section 4.04 which continues unremedied for a period of one Business Day after the date upon which written notice of such failure shall have been given to such Master Servicer by the Trustee or the Securities Administrator or to such Master Servicer, the Securities Administrator and the Trustee by the Holders of not less than 25% of the Class Principal Amount of each Class of Certificates affected thereby; or (ii) Any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of the covenants or agreements (other than those referred to in (viii) and (ix) below) on the part of the Master Servicer contained in this Agreement which continues unremedied for a period of 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Trustee or the Securities Administrator, or to the Master Servicer, the Securities Administrator and the Trustee by the Holders of more than 50% of the Aggregate Voting Interests of the Certificates; or (iii) A decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days or any Rating Agency reduces or withdraws or threatens to reduce or withdraw the rating of the Certificates because of the financial condition or loan servicing capability of such Master Servicer; or (iv) The Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of its property; or (v) The Master Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or (vi) The Master Servicer shall be dissolved, or shall dispose of all or substantially all of its assets, or consolidate with or merge into another entity or shall permit another entity to consolidate or merge into it, such that the resulting entity does not meet the criteria for a successor servicer as specified in Section 9.05 hereof; or (vii) If a representation or warranty set forth in Section 9.03 hereof shall prove to be incorrect as of the time made in any respect that materially and adversely affects the 81 interests of the Certificateholders, and the circumstance or condition in respect of which such representation or warranty was incorrect shall not have been eliminated or cured within 30 days after the date on which written notice of such incorrect representation or warranty shall have been given to the Master Servicer by the Trustee or the Securities Administrator, or to the Master Servicer, the Securities Administrator and the Trustee by the Holders of more than 50% of the Aggregate Voting Interests of the Certificates; or (viii) A sale or pledge of any of the rights of the Master Servicer hereunder or an assignment of this Agreement by the Master Servicer or a delegation of the rights or duties of the Master Servicer hereunder shall have occurred in any manner not otherwise permitted hereunder and without the prior written consent of the Trustee and Certificateholders holding more than 50% of the Aggregate Voting Interests of the Certificates; or (ix) After receipt of notice from the Trustee, any failure of the Master Servicer to make any Advances required to be made hereunder. If an Event of Default described in clauses (i) through (ix) of this Section shall occur, then, in each and every case, subject to applicable law, so long as any such Event of Default shall not have been remedied within any period of time prescribed by this Section, the Trustee, by notice in writing to the Master Servicer may, and shall, if so directed by Certificateholders evidencing more than 50% of the Class Principal Amount of each Class of Certificates, terminate all of the rights and obligations of the Master Servicer hereunder and in and to the Mortgage Loans and the proceeds thereof. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer, and only in its capacity as Master Servicer under this Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee; and the Trustee is hereby authorized and empowered to execute and deliver, on behalf of the defaulting Master Servicer as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Mortgage Loans and related documents or otherwise. The defaulting Master Servicer agrees to cooperate with the Trustee and the Securities Administrator in effecting the termination of the defaulting Master Servicer's responsibilities and rights hereunder as Master Servicer including, without limitation, notifying the Servicers of the assignment of the master servicing function and providing the Trustee or its designee all documents and records in electronic or other form reasonably requested by it to enable the Trustee or its designee to assume the defaulting Master Servicer's functions hereunder and the transfer to the Trustee for administration by it of all amounts which shall at the time be or should have been deposited by the defaulting Master Servicer in the Distribution Account and any other account or fund maintained with respect to the Certificates or thereafter received with respect to the Mortgage Loans. The Master Servicer being terminated shall bear all reasonable out-of-pocket costs of a master servicing transfer, including but not limited to those of the Trustee or Securities Administrator reasonably allocable to legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending the Agreement, if necessary. 82 Notwithstanding the termination of its activities as Master Servicer, each terminated Master Servicer shall continue to be entitled to reimbursement under this Agreement to the extent such reimbursement relates to the period prior to such Master Servicer's termination. If any Event of Default shall occur, the Trustee, upon becoming aware of the occurrence thereof, shall promptly notify the Securities Administrator and each Rating Agency of the nature and extent of such Event of Default. The Trustee or the Securities Administrator shall immediately give written notice to the Master Servicer upon the Master Servicer's failure to make Advances as required under this Agreement. (b) On and after the time the Master Servicer receives a notice of termination from the Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation of the Master Servicer evidenced by an Opinion of Counsel pursuant to Section 9.06, the Trustee, unless another master servicer shall have been appointed, shall be the successor in all respects to the Master Servicer in its capacity as such under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject to all the responsibilities, duties and liabilities relating thereto and arising thereafter placed on the Master Servicer hereunder, including the obligation to make Advances; provided, however, that any failure to perform such duties or responsibilities caused by the Master Servicer's failure to provide information required by this Agreement shall not be considered a default by the Trustee hereunder. In addition, the Trustee shall have no responsibility for any act or omission of the Master Servicer prior to the issuance of any notice of termination. The Trustee shall have no liability relating to the representations and warranties of the Master Servicer set forth in Section 9.03. In the Trustee's capacity as such successor, the Trustee shall have the same limitations on liability herein granted to the Master Servicer. As compensation therefor, the Trustee shall be entitled to receive all compensation payable to the Master Servicer under this Agreement, including the Master Servicing Fee. (c) Notwithstanding the above, the Trustee may, if it shall be unwilling to continue to so act, or shall, if it is unable to so act, petition a court of competent jurisdiction to appoint, or appoint on its own behalf any established housing and home finance institution servicer, master servicer, servicing or mortgage servicing institution having a net worth of not less than $15,000,000 and meeting such other standards for a successor master servicer as are set forth in this Agreement, as the successor to such Master Servicer in the assumption of all of the responsibilities, duties or liabilities of a master servicer, like the Master Servicer. Any entity designated by the Trustee as a successor master servicer may be an Affiliate of the Trustee; provided, however, that, unless such Affiliate meets the net worth requirements and other standards set forth herein for a successor master servicer, the Trustee, in its individual capacity shall agree, at the time of such designation, to be and remain liable to the Trust Fund for such Affiliate's actions and omissions in performing its duties hereunder. In connection with such appointment and assumption, the Trustee may make such arrangements for the compensation of such successor out of payments on Mortgage Loans as it and such successor shall agree; provided, however, that no such compensation shall be in excess of that permitted to the Master Servicer hereunder. The Trustee and such successor shall take such actions, consistent with this Agreement, as shall be necessary to effectuate any such succession and may make other arrangements with respect to the servicing to be conducted hereunder which are not inconsistent herewith. The Master Servicer shall cooperate with the Trustee and any successor master 83 servicer in effecting the termination of the Master Servicer's responsibilities and rights hereunder including, without limitation, notifying Mortgagors of the assignment of the master servicing functions and providing the Trustee and successor master servicer, as applicable, all documents and records in electronic or other form reasonably requested by it to enable it to assume the Master Servicer's functions hereunder and the transfer to the Trustee or such successor master servicer, as applicable, all amounts which shall at the time be or should have been deposited by the Master Servicer in the Distribution Account and any other account or fund maintained with respect to the Certificates or thereafter be received with respect to the Mortgage Loans. Neither the Trustee nor any other successor master servicer shall be deemed to be in default hereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Master Servicer to deliver, or any delay in delivering, cash, documents or records to it, (ii) the failure of the Master Servicer to cooperate as required by this Agreement, (iii) the failure of the Master Servicer to deliver the Mortgage Loan data to the Trustee as required by this Agreement or (iv) restrictions imposed by any regulatory authority having jurisdiction over the Master Servicer. No successor master servicer shall be deemed to be in default hereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Trustee to deliver, or any delay in delivering cash, documents or records to it related to such distribution, or (ii) the failure of Trustee to cooperate as required by this Agreement. Section 6.15 Additional Remedies of Trustee Upon Event of Default. During the continuance of any Event of Default, so long as such Event of Default shall not have been remedied, the Trustee, in addition to the rights specified in Section 6.14, shall have the right, in its own name and as trustee of the Trust Fund, to take all actions now or hereafter existing at law, in equity or by statute to enforce its rights and remedies and to protect the interests, and enforce the rights and remedies, of the Certificateholders (including the institution and prosecution of all judicial, administrative and other proceedings and the filings of proofs of claim and debt in connection therewith). Except as otherwise expressly provided in this Agreement, no remedy provided for by this Agreement shall be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to any other remedy, and no delay or omission to exercise any right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any Event of Default. Section 6.16 Waiver of Defaults. More than 50% of the Aggregate Voting Interests of the Certificateholders may waive any default or Event of Default by the Master Servicer in the performance of its obligations hereunder, except that a default in the making of any required deposit to the Distribution Account that would result in a failure of the Trustee or Securities Administrator to make any required payment of principal of or interest on the Certificates may only be waived with the consent of 100% of the affected Certificateholders. Upon any such waiver of a past default, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. 84 Section 6.17 Notification to Holders. Upon termination of the Master Servicer or appointment of a successor to the Master Servicer, in each case as provided herein, the Trustee shall promptly mail notice thereof by first class mail to the Securities Administrator and the Certificateholders at their respective addresses appearing on the Certificate Register. The Trustee shall also, within 45 days after the occurrence of any Event of Default known to the Trustee, give written notice thereof to the Securities Administrator and the Certificateholders, unless such Event of Default shall have been cured or waived prior to the issuance of such notice and within such 45-day period. Section 6.18 Directions by Certificateholders and Duties of Trustee During Event of Default. Subject to the provisions of Section 8.01 hereof, during the continuance of any Event of Default, Holders of Certificates evidencing not less than 25% of the Class Principal Amount (or Percentage Interest) of each Class of Certificates affected thereby may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; provided, however, that the Trustee shall be under no obligation to pursue any such remedy, or to exercise any of the trusts or powers vested in it by this Agreement (including, without limitation, (i) the conducting or defending of any administrative action or litigation hereunder or in relation hereto and (ii) the terminating of the Master Servicer or any successor master servicer from its rights and duties as master servicer hereunder) at the request, order or direction of any of the Certificateholders, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which may be incurred therein or thereby; and, provided further, that, subject to the provisions of Section 8.01, the Trustee shall have the right to decline to follow any such direction if the Trustee, in accordance with an Opinion of Counsel, determines that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith determines that the action or proceeding so directed would involve it in personal liability for which it is not indemnified to its satisfaction or be unjustly prejudicial to the non-assenting Certificateholders. Section 6.19 Action Upon Certain Failures of the Master Servicer and Upon Event of Default. In the event that the Trustee shall have actual knowledge of any action or inaction of the Master Servicer that would become an Event of Default upon the Master Servicer's failure to remedy the same after notice, the Trustee shall give notice thereof to the Master Servicer. Section 6.20 Preparation of Tax Returns and Other Reports. (a) The Securities Administrator shall prepare or cause to be prepared on behalf of the Trust Fund, based upon information calculated in accordance with this Agreement pursuant to instructions given by the Depositor, and the Securities Administrator shall file federal tax returns, all in accordance with Article X hereof. If the Trustee notifies the Securities Administrator in writing that a state tax return or other return is required, then, at the sole expense of the Trust Fund, the Securities Administrator shall prepare and file such state income 85 tax returns and such other returns as may be required by applicable law relating to the Trust Fund, and, if required by state law, shall file any other documents to the extent required by applicable state tax law (to the extent such documents are in the Securities Administrator's possession). The Securities Administrator shall forward copies to the Depositor of all such returns and Form 1099 supplemental tax information and such other information within the control of the Securities Administrator as the Depositor may reasonably request in writing, and shall forward to each Certificateholder such forms and furnish such information within the control of the Securities Administrator as are required by the Code and the REMIC Provisions to be furnished to them, and will prepare and forward to Certificateholders Form 1099 (supplemental tax information) (or otherwise furnish information within the control of the Securities Administrator) to the extent required by applicable law. The Master Servicer will indemnify the Securities Administrator and the Trustee for any liability of or assessment against the Securities Administrator or the Trustee, as applicable, resulting from any error in any of such tax or information returns directly resulting from errors in the information provided by such Master Servicer. (b) The Securities Administrator shall prepare and file with the Internal Revenue Service ("IRS"), on behalf of the Trust Fund and each REMIC created hereunder, an application for an employer identification number on IRS Form SS-4 or by any other acceptable method. The Securities Administrator shall also file a Form 8811 as required. The Securities Administrator, upon receipt from the IRS of the Notice of Taxpayer Identification Number Assigned, shall upon request promptly forward a copy of such notice to the Trustee and the Depositor. The Securities Administrator shall furnish any other information that is required by the Code and regulations thereunder to be made available to the Certificateholders. The Master Servicer shall cause the Servicer to provide the Securities Administrator with such information as is necessary for the Securities Administrator to prepare such reports. (c) Within 15 days after each Distribution Date, the Securities Administrator shall, on behalf of the Trust and in accordance with industry standards, file with the Securities and Exchange Commission (the "Commission") via the Electronic Data Gathering and Retrieval System (EDGAR), a Form 8-K with a copy of the report to the Certificateholders for such Distribution Date as an exhibit thereto. Prior to March 30, 2004 (and, if applicable, prior to March 30 of each year), the Securities Administrator shall, on behalf of the Trust and in accordance with industry standards, file with the Commission via EDGAR a Form 10-K with respect to the Trust Fund. In addition, the Securities Administrator will cause its senior officer in charge of securitization to execute the certification (the "Form 10-K Certification") required pursuant to Rule 13a-14 under the Securities Exchange Act of 1934, as amended, and to file the same with the Commission prior to March 30, 2004 (and, if applicable, prior to March 30 of each year). To the extent any information or exhibits required to be included in the Form 10-K are not timely received by the Securities Administrator prior to March 30, the Securities Administrator shall, on behalf of the Trust, file one or more amended Form 10-Ks to include such missing information or exhibits promptly after receipt thereof by the Securities Administrator. Promptly following the first date legally permissible under applicable regulations and interpretations of the Commission, the Securities Administrator shall, on behalf of the Trust and in accordance with industry standards, file with the Commission via EDGAR a Form 15 Suspension Notification with respect to the Trust Fund, if applicable. Each of the Master Servicer and the Trustee agree to furnish to the Securities Administrator promptly, from time to time upon request, such further 86 information, reports and financial statements within its control related to this Agreement and the Mortgage Loans as the Securities Administrator reasonably deems appropriate to prepare and file all necessary reports with the Commission. The Securities Administrator shall have no responsibility to file any items with the Commission other than those specified in this section. ARTICLE VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation of All Mortgage Loans. (a) The respective obligations and responsibilities of the Trustee, the Securities Administrator and the Master Servicer created hereby (other than the obligation of the Securities Administrator to make payments to the Certificateholders as set forth in Section 7.02), shall terminate on the earliest of (i) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust Fund and the disposition of all REO Property, (ii) the sale of the property relating to both Aggregate Pool I and Aggregate Pool II held by the Trust Fund in accordance with Section 7.01(c) and (iii) the Latest Possible Maturity Date; provided, however, that in no event shall the Trust Fund created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James's, living on the date hereof. Any termination of the Trust Fund shall be carried out in such a manner so that the termination of each REMIC included therein shall qualify as a "qualified liquidation" under the REMIC Provisions. (b) [Reserved]. (c) On any Distribution Date occurring on or after the Pool I Initial Optional Purchase Date, the Depositor has the option to cause the Trust Fund to adopt a plan of complete liquidation pursuant to Sections 7.02 and 7.03 hereof to sell all of its property related to Aggregate Pool I. If the Depositor elects to exercise such option, it shall no later than 30 days prior to the Distribution Date selected for purchase of the related assets of the Trust Fund (the "Purchase Date") deliver written notice to the Trustee and the Securities Administrator and either (a) deposit in the Distribution Account the related Redemption Price or (b) state in such notice that the related Redemption Price shall be deposited in the Distribution Account not later than 10:00 a.m., New York City time, on the applicable Purchase Date. Upon exercise of such option, the property of the Trust Fund related to Aggregate Pool I shall be sold to the Depositor at a price equal to the related Redemption Price. On any Distribution Date occurring on or after the Pool II Initial Optional Purchase Date, Sunset has the option to cause the Trust Fund to adopt a plan of complete liquidation pursuant to Sections 7.02 and 7.03 hereof to sell all of its property related to Aggregate Pool II. If Sunset elects to exercise such option, it shall no later than 30 days prior to the Distribution Date selected for purchase of the related assets of the Trust Fund (the "Purchase Date") deliver written notice to the Trustee and the Securities Administrator and either (a) deposit in the Distribution Account the related Redemption Price or (b) state in such notice 87 that the related Redemption Price shall be deposited in the Distribution Account not later than 10:00 a.m., New York City time, on the applicable Purchase Date. Upon exercise of such option, the property of the Trust Fund related to Aggregate Pool II shall be sold to the Depositor at a price equal to the related Redemption Price. (d) The Depositor, the Master Servicer, each Servicer, the Securities Administrator, the Trustee and the Custodian shall be reimbursed from the related Redemption Price for any Advances, Servicer Advances, accrued and unpaid Servicing Fees and Master Servicing Fees or other amounts with respect to the Mortgage Loans in the applicable Aggregate Pool that are reimbursable to such parties under this Agreement, the related Purchase and Servicing Agreement or the related Custodial Agreement. Section 7.02 Procedure Upon Redemption Termination of Trust Fund. (a) Notice of any redemption termination pursuant to the provisions of Section 7.01, specifying the Distribution Date upon which the final distribution shall be made or the Redemption Date of the applicable Certificates, shall be given promptly by the Trustee by first class mail to the related Certificateholders mailed in the case of a redemption of any Certificates, no later than (i) the first day of the month in which the Distribution Date selected for redemption of such Certificates shall occur or (ii) upon (x) the sale of all of the related property of the Trust Fund by the Trustee or in the case of a sale of assets of the Trust Fund, or (y) upon the final payment or other liquidation of the last Mortgage Loan or REO Property in the Trust Fund. Such notice shall specify (A) the related Redemption Date, Distribution Date upon which final distribution on the applicable Certificates of all amounts required to be distributed to the related Certificateholders pursuant to Section 5.02 will be made upon presentation and surrender of the Certificates at the Certificate Registrar's Corporate Trust Office, and (B) that the Record Date otherwise applicable to such Distribution Date is not applicable, distribution being made only upon presentation and surrender of such Certificates at the office or agency of the Trustee therein specified. The Trustee shall give such notice to the Securities Administrator, the Master Servicer and the Certificate Registrar at the time such notice is given to Holders of such Certificates. Upon the final payment or other liquidation of the last Mortgage Loan or REO Property in the Trust Fund, the duties of the Certificate Registrar with respect to the Certificates shall terminate and the Trustee shall terminate or request the Securities Administrator to terminate, the Distribution Account and any other account or fund maintained with respect to the Certificates, subject to the Securities Administrator's obligation hereunder to hold all amounts payable to Certificateholders in trust without interest pending such payment. (b) In the event that any of the affected Holders do not surrender their Certificates for cancellation within three months after the time specified in the above-mentioned written notice, the Trustee shall give a second written notice to the remaining Certificateholders to surrender their Certificates for cancellation and receive the final distribution with respect thereto. If within one year after the second notice any applicable Certificates shall not have been surrendered for cancellation, the Trustee may take appropriate steps to contact the remaining Certificateholders concerning surrender of such Certificates, and the cost thereof shall be paid out of the amounts distributable to such Holders. If within two years after the second notice any Certificates shall not have been surrendered for cancellation, the Securities Administrator shall deliver any remaining funds being held by it to the Depositor and the Depositor shall, subject to applicable 88 state law relating to escheatment, hold all amounts distributable to such Holders for the benefit of such Holders. No interest shall accrue on any amount held by the Trustee and not distributed to a Certificateholder due to such Certificateholder's failure to surrender its Certificate(s) for payment of the final distribution thereon in accordance with this Section. (c) Any reasonable expenses incurred by the Trustee in connection with any redemption or termination or liquidation of the Trust Fund or a portion thereof shall be reimbursed from proceeds received from such liquidation of the Trust Fund. Section 7.03 Additional Trust Fund Termination Requirements. (a) On the termination of the Trust Fund under Section 7.01 (a), or on the exercise of a right to purchase all of the Mortgage Loans of an Aggregate Pool under Section 7.01(c), the Trustee shall comply with requirements of this Section 7.03 with respect to each Lower Tier REMIC relating to the assets to be sold (the "Affected REMIC") and with respect to the Certificates corresponding to the Affected REMIC (the "Corresponding Certificates"), unless the party having the right to purchase the assets of the Affected REMIC (the "Purchaser") delivers to the Trustee, an Opinion of Counsel (at the expense of the Purchaser), addressed to the Trustee to the effect that the failure of the Trustee to comply with the requirements of this Section 7.03 will not result in an Adverse REMIC Event: (i) Within 89 days prior to the time of the making the final payment on the Corresponding Certificates, (and upon notification by the Purchaser in the case of a purchase under Section 7.01(c)) the Trustee shall adopt on behalf of the Affected REMIC, a plan of complete liquidation, meeting the requirements of a qualified liquidation under the REMIC Provisions; (ii) Any sale of the assets of the Affected REMIC shall be for cash and shall occur at or after the time the plan of complete liquidation is adopted and prior to the time the final payments on the Corresponding Certificates are made; (iii) On the date specified for final payment of the Corresponding Certificates, the Securities Administrator shall make final distributions of principal and interest on the Corresponding Certificates in accordance with Section 5.02 and, after payment of, or provision for any outstanding expenses, distribute or credit, or cause to be distributed or credited, to the Holders of the Residual Certificates all cash on hand after such final payment (other than cash retained to meet claims), and the portion of the Trust Fund (and the Affected REMIC) shall terminate at that time; and (iv) In no event may the final payment on the Corresponding Certificates or the final distribution or credit to the Holders of the Residual Certificates be made after the 89th day from the date on which the plan of complete liquidation is adopted. (b) By its acceptance of a Residual Certificate, each Holder thereof hereby agrees to accept the plan (or plans) of complete liquidation adopted by the Trustee under this Section and to take such other action in connection therewith as may be reasonably requested by the Trustee, the Securities Administrator or any Servicer. 89 ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS Section 8.01 Limitation on Rights of Holders. (a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or this Trust Fund, nor entitle such Certificateholder's legal representatives or heirs to claim an accounting or take any action or proceeding in any court for a partition or winding up of this Trust Fund, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them. Except as otherwise expressly provided herein, no Certificateholder, solely by virtue of its status as a Certificateholder, shall have any right to vote or in any manner otherwise control the Master Servicer or the operation and management of the Trust Fund, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association, nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof. (b) No Certificateholder, solely by virtue of its status as Certificateholder, shall have any right by virtue or by availing of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, unless such Holder previously shall have given to the Trustee a written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of Certificates evidencing not less than 25% of the Class Principal Amount (or Percentage Interest) of Certificates of each Class affected thereby shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the cost, expenses and liabilities to be incurred therein or thereby, and the Trustee, for sixty days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request has been given such Trustee during such sixty-day period by such Certificateholders; it being understood and intended, and being expressly covenanted by each Certificateholder with every other Certificateholder, the Securities Administrator and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatever by virtue or by availing of any provision of this Agreement to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Agreement, except in the manner herein provided and for the benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity. Section 8.02 Access to List of Holders. (a) If the Trustee is not acting as Certificate Registrar, the Certificate Registrar will furnish or cause to be furnished to the Trustee, within fifteen days after receipt by the Certificate Registrar of a request by the Trustee in writing, a list, in such form as the Trustee may 90 reasonably require, of the names and addresses of the Certificateholders of each Class as of the most recent Record Date. (b) If three or more Holders or Certificate Owners (hereinafter referred to as "Applicants") apply in writing to the Trustee, and such application states that the Applicants desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, afford such Applicants reasonable access during the normal business hours of the Trustee to the most recent list of Certificateholders held by the Trustee or shall, as an alternative, send, at the Applicants' expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register. (c) Every Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving and holding a Certificate, agrees with the Depositor, the Master Servicer, the Securities Administrator, the Certificate Registrar and the Trustee that neither the Depositor, the Master Servicer, the Securities Administrator, the Certificate Registrar nor the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Certificateholders hereunder, regardless of the source from which such information was derived. Section 8.03 Acts of Holders of Certificates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders or Certificate Owners, if the Holder is a Clearing Agency, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and the Securities Administrator and, where expressly required herein, to the Master Servicer. Such instrument or instruments (as the action embodies therein and evidenced thereby) are herein sometimes referred to as an "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agents shall be sufficient for any purpose of this Agreement and conclusive in favor of the Trustee, the Securities Administrator and the Master Servicer, if made in the manner provided in this Section. Each of the Trustee, the Securities Administrator and the Master Servicer shall promptly notify the others of receipt of any such instrument by it, and shall promptly forward a copy of such instrument to the others. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments or deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Whenever such execution is by an officer of a corporation or a member of a partnership on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or 91 writing, or the authority of the individual executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The ownership of Certificates (whether or not such Certificates shall be overdue and notwithstanding any notation of ownership or other writing thereon made by anyone other than the Trustee) shall be proved by the Certificate Register, and neither the Trustee, the Securities Administrator, the Master Servicer, nor the Depositor shall be affected by any notice to the contrary. (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Certificate shall bind every future Holder of the same Certificate and the Holder of every Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Trustee or the Master Servicer in reliance thereon, whether or not notation of such action is made upon such Certificate. ARTICLE IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER Section 9.01 Duties of the Master Servicer; Enforcement of Servicers' and Master Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the Depositor and the Certificateholders shall monitor the performance of the Servicers under the Purchase and Servicing Agreements, and shall use its reasonable good faith efforts to cause the Servicers duly and punctually to perform all of their respective duties and obligations thereunder. Upon the occurrence of a default of which an Authorized Officer of the Master Servicer has actual knowledge under a Purchase and Servicing Agreement, the Master Servicer shall promptly notify the Trustee thereof, and shall specify in such notice the action, if any, the Master Servicer is taking in respect of such default. So long as any such default shall be continuing, the Master Servicer may, and shall if it determines such action to be in the best interests of Certificateholders, (i) terminate all of the rights and powers of such Servicer pursuant to the applicable provisions of the related Purchase and Servicing Agreement; (ii) exercise any rights it may have to enforce the related Purchase and Servicing Agreement against such Servicer; and/or (iii) waive any such default under the related Purchase and Servicing Agreement or take any other action with respect to such default as is permitted thereunder. Notwithstanding any provision of this Agreement or any Purchase and Servicing Agreement to the contrary, the Master Servicer shall have no duty or obligation to supervise, monitor or oversee the activities of, or to enforce the obligations of, a Servicer under its Purchase and Servicing Agreement with respect to any Additional Collateral or any Limited Purpose Surety Bond relating thereto, including, without limitation, the collection of any amounts owing to the Trust Fund in respect thereof (unless and until the Master Servicer shall have assumed the obligations of such Servicer as successor servicer under the related Purchase and Servicing Agreement pursuant to this Section 9.01, in which case, as successor servicer, it shall be bound to serve and administer the 92 Additional Collateral and any related Limited Purpose Surety Bond in accordance with the provisions of the such Purchase and Servicing Agreement). (b) Upon any termination by the Master Servicer of a Servicer's rights and powers pursuant to its Purchase and Servicing Agreement, the rights and powers of such Servicer with respect to the related Mortgage Loans shall vest in the Master Servicer and the Master Servicer shall be the successor in all respects to such Servicer in its capacity as Servicer with respect to such Mortgage Loans under the related Purchase and Servicing Agreement, unless or until the Master Servicer shall have appointed, with the consent of the Trustee and the Rating Agencies, such consent not to be unreasonably withheld, and in accordance with the applicable provisions of the related Purchase and Servicing Agreement, a new Fannie Mae- or FHLMC-approved Person to serve as successor to the Servicer; provided, however, that it is understood and agreed by the parties hereto that there will be a period of transition (not to exceed 90 days) before the actual servicing functions can be fully transferred to a successor servicer (including the Master Servicer). With such consent, the Master Servicer may elect to continue to serve as successor servicer under the Purchase and Servicing Agreement. Upon appointment of a successor servicer, as authorized under this Section 9.01(b), unless the successor servicer shall have assumed the obligations of the terminated Servicer under such Purchase and Servicing Agreement, the Trustee and such successor servicer shall enter into a servicing agreement in a form substantially similar to the affected Purchase and Servicing Agreement. In connection with any such appointment, the Master Servicer may make such arrangements for the compensation of such successor servicer as it and such successor servicer shall agree, but in no event shall such compensation of any successor servicer (including the Master Servicer) be in excess of that payable to the Servicer under the affected Purchase and Servicing Agreement. The Master Servicer shall pay the costs of such enforcement (including the termination of a Servicer, the appointment of a successor servicer or the transfer and assumption of the servicing by the Master Servicer) at its own expense and shall be reimbursed therefor initially (i) by the terminated Servicer, (ii) from a general recovery resulting from such enforcement only to the extent, if any, that such recovery exceeds all amounts due in respect of the related Mortgage Loans, (iii) from a specific recovery of costs, expenses or attorney's fees against the party against whom such enforcement is directed, or (iv) to the extent that such amounts described in (i)-(iii) above are insufficient to reimburse the Master Servicer for such costs of enforcement, from the Trust Fund, as provided in Section 9.04. If the Master Servicer assumes the servicing with respect to any of the Mortgage Loans, it will not assume liability for the representations and warranties of any Servicer it replaces or for the errors or omissions of such Servicer. (c) Upon any termination of a Servicer's rights and powers pursuant to its Purchase and Servicing Agreement, the Master Servicer shall promptly notify the Trustee and the Rating Agencies, specifying in such notice that the Master Servicer or any successor servicer, as the case may be, has succeeded such Servicer under the related Purchase and Servicing Agreement, which notice shall also specify the name and address of any such successor servicer. (d) Neither the Depositor nor the Trustee shall consent to the assignment by any Servicer of such Servicer's rights and obligations under the related Purchase and Servicing 93 Agreement without the prior written consent of the Master Servicer, which consent shall not be unreasonably withheld. Section 9.02 Assumption of Master Servicing by Trustee. (a) In the event the Master Servicer shall for any reason no longer be the Master Servicer (including by reason of any Event of Default under this Agreement), the Trustee shall thereupon assume all of the rights and obligations of such Master Servicer hereunder and under each Purchase and Servicing Agreement entered into with respect to the Mortgage Loans or shall appoint a Fannie-Mae or FHLMC-approved server as successor with servicer acceptable to the Depositor and the Rating Agencies. The Trustee, its designee or any successor master servicer appointed by the Trustee shall be deemed to have assumed all of the Master Servicer's interest herein and therein to the same extent as if such Purchase and Servicing Agreement had been assigned to the assuming party, except that the Master Servicer shall not thereby be relieved of any liability or obligations of the Master Servicer under such Purchase and Servicing Agreement accruing prior to its replacement as Master Servicer, and shall be liable to the Trustee, and hereby agrees to indemnify and hold harmless the Trustee from and against all costs, damages, expenses and liabilities (including reasonable attorneys' fees) incurred by the Trustee as a result of such liability or obligations of the Master Servicer and in connection with the Trustee's assumption (but not its performance, except to the extent that costs or liability of the Trustee are created or increased as a result of negligent or wrongful acts or omissions of the Master Servicer prior to its replacement as Master Servicer) of the Master Servicer's obligations, duties or responsibilities thereunder. (b) The Master Servicer that has been terminated shall, upon request of the Trustee but at the expense of such Master Servicer, deliver to the assuming party all documents and records relating to each Purchase and Servicing Agreement, this Agreement and the related Mortgage Loans and an accounting of amounts collected and held by it and otherwise use its best efforts to effect the orderly and efficient transfer of each Purchase and Servicing Agreement and this Agreement to the assuming party. Section 9.03 Representations and Warranties of the Master Servicer. (a) The Master Servicer hereby represents and warrants to the Depositor, the Securities Administrator and the Trustee, for the benefit of the Certificateholders, as of the Closing Date that: (i) it is validly existing and in good standing under the laws of the United States of America as a national banking association, and as Master Servicer has full power and authority to transact any and all business contemplated by this Agreement and to execute, deliver and comply with its obligations under the terms of this Agreement, the execution, delivery and performance of which have been duly authorized by all necessary corporate action on the part of the Master Servicer; (ii) the execution and delivery of this Agreement by the Master Servicer and its performance and compliance with the terms of this Agreement will not (A) violate the Master Servicer's charter or bylaws, (B) violate any law or regulation or any 94 administrative decree or order to which it is subject or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Master Servicer is a party or by which it is bound or to which any of its assets are subject, which violation, default or breach would materially and adversely affect the Master Servicer's ability to perform its obligations under this Agreement; (iii) this Agreement constitutes, assuming due authorization, execution and delivery hereof by the other respective parties hereto, a legal, valid and binding obligation of the Master Servicer, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors' rights in general, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); (iv) the Master Servicer is not in default with respect to any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency to the extent that any such default would materially and adversely affect its performance hereunder; (v) the Master Servicer is not a party to or bound by any agreement or instrument or subject to any charter provision, bylaw or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that may materially and adversely affect its ability as Master Servicer to perform its obligations under this Agreement or that requires the consent of any third person to the execution of this Agreement or the performance by the Master Servicer of its obligations under this Agreement; (vi) no litigation is pending or, to the best of the Master Servicer's knowledge, threatened against the Master Servicer which would prohibit its entering into this Agreement or performing its obligations under this Agreement; (vii) the Master Servicer, or an affiliate thereof the primary business of which is the servicing of conventional residential mortgage loans, is a Fannie Mae- or FHLMC-approved seller/servicer; (viii) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Master Servicer of or compliance by the Master Servicer with this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations and orders (if any) as have been obtained; and (ix) the consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Master Servicer. (b) It is understood and agreed that the representations and warranties set forth in this Section shall survive the execution and delivery of this Agreement. The Master Servicer shall indemnify the Depositor, the Securities Administrator and the Trustee and hold them harmless 95 against any loss, damages, penalties, fines, forfeitures, legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a material breach of the Master Servicer's representations and warranties contained in Section 9.03(a). It is understood and agreed that the enforcement of the obligation of the Master Servicer set forth in this Section to indemnify the Depositor, the Securities Administrator and the Trustee as provided in this Section constitutes the sole remedy (other than as set forth in Section 6.14) of the Depositor, the Securities Administrator and the Trustee, respecting a breach of the foregoing representations and warranties. Such indemnification shall survive any termination of the Master Servicer as Master Servicer hereunder, and any termination of this Agreement. Any cause of action against the Master Servicer relating to or arising out of the breach of any representations and warranties made in this Section shall accrue upon discovery of such breach by either the Depositor, the Master Servicer or the Trustee or notice thereof by any one of such parties to the other parties. Section 9.04 Compensation to the Master Servicer. The Master Servicer shall be entitled to be paid by the Trust Fund, and either retain or withdraw from the Distribution Account, (i) its Master Servicing Fee with respect to each Distribution Date, (ii) amounts necessary to reimburse itself for any previously unreimbursed Advances, Servicer Advances and Nonrecoverable Advances in accordance with the definition of "Available Distribution Amount" and (iii) amounts representing assumption fees, late payment charges or other ancillary income not included in the definition of "Available Distribution Amount" and which are not required to be remitted by the Servicers to the Securities Administrator or deposited by the Securities Administrator into the Distribution Account. The Master Servicer shall be required to pay all expenses incurred by it in connection with its activities hereunder and shall not be entitled to reimbursement therefor except as provided in this Agreement. In addition, the Master Servicer shall be entitled to reimbursement from the Distribution Account for all reasonable expenses, disbursements and advances incurred or made by the Master Servicer in connection with the performance of its duties hereunder and under the Purchase and Servicing Agreements, as modified by the Acknowledgements (including the reasonable compensation and the expenses and disbursements of its agents and counsel), to the extent not otherwise reimbursed pursuant to this Agreement, except any such expense, disbursement or advance as may be attributable to its willful misfeasance, bad faith or negligence. Section 9.05 Merger or Consolidation. Any Person into which the Master Servicer may be merged or consolidated, or any Person resulting from any merger, conversion, other change in form or consolidation to which the Master Servicer shall be a party, or any Person succeeding to the business of the Master Servicer, shall be the successor to the Master Servicer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that the successor or resulting Person to the Master 96 Servicer shall be a Person that shall be qualified and approved to service mortgage loans for Fannie Mae or FHLMC and shall have a net worth of not less than $15,000,000. Section 9.06 Resignation of Master Servicer. Except as otherwise provided in Sections 9.05 and 9.07 hereof, the Master Servicer shall not resign from the obligations and duties hereby imposed on it unless the Master Servicer's duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it and cannot be cured. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an Opinion of Counsel that shall be Independent to such effect delivered to the Trustee. No such resignation shall become effective until the Trustee shall have assumed, or a successor master servicer shall have been appointed by the Trustee and until such successor shall have assumed, the Master Servicer's responsibilities and obligations under this Agreement. Notice of such resignation shall be given promptly by the Master Servicer and the Depositor to the Trustee. If, at any time, the Master Servicer resigns under this Section 9.06, or transfers or assigns its rights and obligations under Section 9.07, or is removed as Master Servicer pursuant to Section 6.14, then at such time as Wells Fargo Bank, N.A. also shall resign (and shall be entitled to resign) as Securities Administrator, Paying Agent, Authenticating Agent and Certificate Registrar under this Agreement. In such event, the obligations of each such party shall be assumed by the Trustee or such successor master servicer appointed by the Trustee (subject to the provisions of Section 9.02(a)). Section 9.07 Assignment or Delegation of Duties by the Master Servicer. Except as expressly provided herein, the Master Servicer shall not assign or transfer any of its rights, benefits or privileges hereunder to any other Person, or delegate to or subcontract with, or authorize or appoint any other Person to perform any of the duties, covenants or obligations to be performed by the Master Servicer hereunder; provided, however, that the Master Servicer shall have the right with the prior written consent of the Trustee and the Depositor (which consent shall not be unreasonably withheld), and upon delivery to the Trustee and the Depositor of a letter from each Rating Agency to the effect that such action shall not result in a downgrading of the Certificates, to delegate or assign to or subcontract with or authorize or appoint any qualified Person to perform and carry out any duties, covenants or obligations to be performed and carried out by the Master Servicer hereunder. Notice of such permitted assignment shall be given promptly by the Master Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof, the duties of the Master Servicer are transferred to a successor master servicer, the entire amount of the Master Servicing Fees and other compensation payable to the Master Servicer pursuant hereto shall thereafter be payable to such successor master servicer. Such successor Master Servicer shall also pay the fees of the Trustee and the Securities Administrator, as provided herein. Section 9.08 Limitation on Liability of the Master Servicer and Others. Neither the Master Servicer nor any of the directors, officers, employees or agents of the Master Servicer shall be under any liability to the Trustee or the Certificateholders for any action 97 taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Master Servicer or any such person against any liability that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of its duties or by reason of reckless disregard for its obligations and duties under this Agreement. The Master Servicer and any director, officer, employee or agent of the Master Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Master Servicer shall be under no obligation to appear in, prosecute or defend any legal action that is not incidental to its duties to master service the Mortgage Loans in accordance with this Agreement and that in its opinion may involve it in any expenses or liability; provided, however, that the Master Servicer may in its sole discretion undertake any such action that it may deem necessary or desirable in respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders hereunder. In such event, the legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor out of the Distribution Account. The Master Servicer shall not be liable for any acts or omissions of the Servicers except to the extent that damages or expenses are incurred as a result of such act or omissions and such damages and expenses would not have been incurred but for the negligence, willful misfeasance, bad faith or recklessness of the Master Servicer in supervising, monitoring and overseeing the obligations of the Servicers in this Agreement and the Purchase and Servicing Agreements. Section 9.09 Indemnification; Third-Party Claims. The Master Servicer agrees to indemnify the Depositor, the Securities Administrator and the Trustee, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liability, fees and expenses that the Depositor, the Securities Administrator or the Trustee may sustain as a result of the Master Servicer's willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of its reckless disregard for its obligations and duties under this Agreement and the Purchase and Servicing Agreements. The Depositor, the Securities Administrator and the Trustee shall immediately notify the Master Servicer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Depositor, the Securities Administrator or the Trustee to indemnification under this Section 9.09, whereupon the Master Servicer shall assume the defense of any such claim and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. ARTICLE X REMIC ADMINISTRATION Section 10.01 REMIC Administration. (a) REMIC elections as set forth in the Preliminary Statement shall be made on Forms 1066 or other appropriate federal tax or information return for the taxable year ending on 98 the last day of the calendar year in which the Certificates are issued. The regular interests and residual interest in each REMIC shall be as designated in the Preliminary Statement. (b) The Closing Date is hereby designated as the "Startup Day" of each REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the Latest Possible Maturity Date. (c) The Securities Administrator shall represent the Trust Fund in any administrative or judicial proceeding relating to an examination or audit by any governmental taxing authority with respect thereto. The Securities Administrator shall pay any and all tax related expenses (not including taxes) of each REMIC, including but not limited to any professional fees or expenses related to audits or any administrative or judicial proceedings with respect to such REMIC that involve the Internal Revenue Service or state tax authorities, but only to the extent that (i) such expenses are ordinary or routine expenses, including expenses of a routine audit but not expenses of litigation (except as described in (ii)); or (ii) such expenses or liabilities (including taxes and penalties) are attributable to the negligence or willful misconduct of the Securities Administrator in fulfilling its duties hereunder (including its duties as tax return preparer). The Securities Administrator shall be entitled to reimbursement of expenses to the extent provided in clause (i) above from the Distribution Account, provided, however, the Securities Administrator shall not be entitled to reimbursement for expenses incurred in connection with the preparation of tax returns and other reports as required by Section 6.20 and this Section. (d) The Securities Administrator shall prepare, and the Trustee shall sign and file, as instructed by the Securities Administrator, all of each REMIC's federal and appropriate state tax and information returns as such REMIC's direct representative. The expenses of preparing and filing such returns shall be borne by the Securities Administrator. In preparing such returns, the Securities Administrator shall, with respect to each Lower-Tier REMIC: (i) treat the accrual period for interests in the Lower-Tier REMIC as the calendar month; (ii) account for distributions made from the Lower-Tier REMIC as made on the first day of each succeeding calendar month; (iii) account for income under the all-OID method at the Net WAC; (iv) use the aggregation method provided in Treasury Regulation section 1.1275-2(c); and (v) account for income and expenses related to the Lower-Tier REMIC in the manner resulting in the lowest amount of excess inclusion income possible accruing to the Holder of the residual interest in the Lower-Tier REMIC. (e) The Securities Administrator or its designee shall perform on behalf of each REMIC all reporting and other tax compliance duties that are the responsibility of such REMIC under the Code, the REMIC Provisions, or other compliance guidance issued by the Internal Revenue Service or any state or local taxing authority. Among its other duties, if required by the Code, the REMIC Provisions, or other such guidance, the Securities Administrator shall provide, upon receipt of additional reasonable compensation, (i) to the Treasury or other governmental authority such information as is necessary for the application of any tax relating to the transfer of a Residual Certificate to any disqualified person or organization pursuant to Treasury Regulation 1.860E-2(a)(5) and any person designated in Section 860E(e)(3) of the Code and (ii) to the Certificateholders and the Trustee such information or reports as are required by the Code or REMIC Provisions. 99 (f) To the extent within their control, the Trustee, the Securities Administrator, the Master Servicer and the Holders of Certificates shall take any action or cause any REMIC to take any action necessary to maintain the status of any REMIC as a REMIC under the REMIC Provisions and shall assist each other as necessary to create or maintain such status. Neither the Trustee, the Securities Administrator, the Master Servicer nor the Holder of any Residual Certificate shall knowingly take any action, cause any REMIC to take any action or fail to take (or fail to cause to be taken) any action that, under the REMIC Provisions, if taken or not taken, as the case may be, could result in an Adverse REMIC Event unless the Trustee, the Securities Administrator and the Master Servicer have received an Opinion of Counsel (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such a tax. In addition, prior to taking any action with respect to any REMIC or the assets therein, or causing any REMIC to take any action, which is not expressly permitted under the terms of this Agreement, any Holder of a Residual Certificate will consult with the Trustee, the Securities Administrator, the Master Servicer or their respective designees, in writing, with respect to whether such action could cause an Adverse REMIC Event to occur with respect to any REMIC, and no such Person shall take any such action or cause any REMIC to take any such action as to which the Trustee, the Securities Administrator or the Master Servicer has advised it in writing that an Adverse REMIC Event could occur; provided, however, that if no Adverse REMIC Event would occur but such action could result in the imposition of additional taxes on the Residual Certificateholders, no such Person shall take any such action, or cause any REMIC to take any such action without the written consent of the Residual Certificateholders. (g) Each Holder of a Residual Certificate shall pay when due any and all taxes imposed on the related REMIC by federal or state governmental authorities. To the extent that such taxes are not paid by a Residual Certificateholder, the Trustee or the Paying Agent shall pay any remaining REMIC taxes out of current or future amounts otherwise distributable to the Holder of the Residual Certificate in any such REMIC or, if no such amounts are available, out of other amounts held in the Distribution Account, and shall reduce amounts otherwise payable to holders of regular interests in any such REMIC, as the case may be. (h) The Securities Administrator shall, for federal income tax purposes, maintain books and records with respect to each REMIC on a calendar year and on an accrual basis. (i) No additional contributions of assets shall be made to any REMIC, except as expressly provided in this Agreement. (j) Neither the Securities Administrator nor the Master Servicer shall enter into any arrangement by which any REMIC will receive a fee or other compensation for services. (k) [Reserved]. (l) The Class A-R Holder shall act as "tax matters person" with respect to each REMIC created hereunder and the Securities Administrator shall act as agent for the Class A-R Holder in such roles, unless and until another party is so designated by the Class A-R Holder. 100 Section 10.02 Prohibited Transactions and Activities. Neither the Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or substitute for any of the Mortgage Loans, except in a disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination of each REMIC pursuant to Article VII of this Agreement, (iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any assets for any REMIC, nor sell or dispose of any investments in the Distribution Account for gain, nor accept any contributions to any REMIC after the Closing Date, unless it has received an Opinion of Counsel (at the expense of the party causing such sale, disposition, substitution or acceptance) that such disposition, acquisition, substitution, or acceptance will not (a) result in an Adverse REMIC Event, (b) affect the distribution of interest or principal on the Certificates or (c) result in the encumbrance of the assets transferred or assigned to the Trust Fund (except pursuant to the provisions of this Agreement). Section 10.03 Indemnification with Respect to Prohibited Transactions or Loss of REMIC Status. Upon the occurrence of an Adverse REMIC Event due to the negligent performance by the Securities Administrator of its duties and obligations set forth herein, the Securities Administrator shall indemnify the Certificateholders of the related Residual Certificate against any and all losses, claims, damages, liabilities or expenses ("Losses") resulting from such negligence; provided, however, that the Securities Administrator shall not be liable for any such Losses attributable to the action or inaction of the Depositor, the Trustee or the Holder of the Residual Certificate, nor for any such Losses resulting from misinformation provided by any of the foregoing parties on which the Securities Administrator has relied. Notwithstanding the foregoing, however, in no event shall the Securities Administrator have any liability (1) for any action or omission that is taken in accordance with and in compliance with the express terms of, or which is expressly permitted by the terms of, this Agreement or under any Purchase and Servicing Agreements or under any Acknowledgement, (2) for any Losses other than arising out of malfeasance, willful misconduct or negligent performance by the Service Administrator of its duties and obligations set forth herein, and (3) for any special or consequential damages to Certificateholders of the related Residual Certificate (in addition to payment of principal and interest on the Certificates). Section 10.04 REO Property. (a) Notwithstanding any other provision of this Agreement, the Master Servicer, acting on behalf of the Trustee hereunder, shall not, except to the extent provided in the applicable Purchase and Servicing Agreement, knowingly permit any Servicer to, rent, lease, or otherwise earn income on behalf of any REMIC with respect to any REO Property which might cause an Adverse REMIC Event unless the applicable Servicer has provided to the Trustee an Opinion of Counsel concluding that, under the REMIC Provisions, such action would not adversely affect the status of any REMIC as a REMIC and any income generated for any REMIC by the REO Property would not result in an Adverse REMIC Event. 101 (b) The Depositor shall cause the applicable Servicer (to the extent provided in its Purchase and Servicing Agreement) to make reasonable efforts to sell any REO Property for its fair market value. In any event, however, the Depositor shall, or shall cause the applicable Servicer (to the extent provided in its Purchase and Servicing Agreement) to, dispose of any REO Property within three years of its acquisition by the Trust Fund unless the Depositor or the applicable Servicer (on behalf of the Trust Fund) has received a grant of extension from the Internal Revenue Service to the effect that, under the REMIC Provisions and any relevant proposed legislation and under applicable state law, the REMIC may hold REO Property for a longer period without causing an Adverse REMIC Event. If such an extension has been received, then the Depositor, acting on behalf of the Trustee hereunder, shall, or shall cause the applicable Servicer to, continue to attempt to sell the REO Property for its fair market value for such period longer than three years as such extension permits (the "Extended Period"). If such an extension has not been received and the Depositor or the applicable Servicer, acting on behalf of the Trust Fund hereunder, is unable to sell the REO Property within 33 months after its acquisition by the Trust Fund or if such an extension, has been received and the Depositor or the applicable Servicer is unable to sell the REO Property within the period ending three months before the close of the Extended Period, the Depositor shall cause the applicable Servicer, before the end of the three year period or the Extended Period, as applicable, to (i) purchase such REO Property at a price equal to the REO Property's fair market value or (ii) auction the REO Property to the highest bidder (which may be the applicable Servicer) in an auction reasonably designed to produce a fair price prior to the expiration of the three-year period or the Extended Period, as the case may be. Section 10.05 Fidelity. The Master Servicer, at its expense, shall maintain in effect a blanket fidelity bond and an errors and omissions insurance policy, affording coverage with respect to all directors, officers, employees and other Persons actin on such Master Servicer's behalf, and covering errors and omissions in the performance of the Master Servicer's obligations hereunder. The errors and omissions insurance policy and the fidelity bond shall be in such form and amount generally acceptable for entities serving as master servicers and trustees. ARTICLE XI MISCELLANEOUS PROVISIONS Section 11.01 Binding Nature of Agreement; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Section 11.02 Entire Agreement. This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof 102 control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. Section 11.03 Amendment. (a) This Agreement may be amended from time to time by the Depositor, the Master Servicer, the Securities Administrator, and the Trustee, without notice to or the consent of any of the Holders, (i) to cure any ambiguity or mistake, (ii) to cause the provisions herein to conform to or be consistent with or in furtherance of the statements made with respect to the Certificates, the Trust Fund or this Agreement in any Offering Document, or to correct or supplement any provision herein which may be inconsistent with any other provisions herein or with the provisions of any Purchase and Servicing Agreement, (iii) to make any other provisions with respect to matters or questions arising under this Agreement or (iv) to add, delete, or amend any provisions to the extent necessary or desirable to comply with any requirements imposed by the Code and the REMIC Provisions. No such amendment effected pursuant to the preceding sentence shall, as evidenced by an Opinion of Counsel, result in an Adverse REMIC Event, nor shall such amendment effected pursuant to clause (iii) of such sentence adversely affect in any material respect the interests of any Holder. Prior to entering into any amendment without the consent of Holders pursuant to this paragraph, the Trustee shall be provided with an Opinion of Counsel (at the expense of the party requesting such amendment) to the effect that such amendment is permitted under this Section. Any such amendment shall be deemed not to adversely affect in any material respect any Holder, if the Trustee receives written confirmation from each Rating Agency that such amendment will not cause such Rating Agency to reduce the then current rating assigned to the Certificates. (b) This Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Securities Administrator and the Trustee, with the consent of the Holders of not less than 66-2/3% of the Class Principal Amount (or Percentage Interest) of each Class of Certificates affected thereby for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders; provided, however, that no such amendment shall be made unless the Trustee receives an Opinion of Counsel, at the expense of the party requesting the change, that such change will not cause an Adverse REMIC Event; and provided further, that no such amendment may (i) reduce in any manner the amount of, or delay the timing of, payments received on Mortgage Loans which are required to be distributed on any Certificate, without the consent of the Holder of such Certificate or (ii) reduce the aforesaid percentages of Class Principal Amount (or Percentage Interest) of Certificates of each Class, the Holders of which are required to consent to any such amendment without the consent of the Holders of 100% of the Class Principal Amount (or Percentage Interest) of each Class of Certificates affected thereby. For purposes of this paragraph, references to "Holder" or "Holders" shall be deemed to include, in the case of any Class of Book-Entry Certificates, the related Certificate Owners. (c) Promptly after the execution of any such amendment, the Trustee shall furnish written notification of the substance of such amendment to each Holder, the Depositor and the Rating Agencies. 103 (d) It shall not be necessary for the consent of Holders under this Section 11.03 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Holders shall be subject to such reasonable regulations as the Trustee may prescribe. (e) Notwithstanding anything to the contrary in any Purchase and Servicing Agreement, the Trustee shall not consent to any amendment of any Purchase and Servicing Agreement except pursuant to the standards provided in this Section with respect to amendment of this Agreement. With respect to any amendment that relates to the servicing of the Mortgage Loans or a Servicer, the Trustee shall not consent to any such amendment without the prior written consent of the Master Servicer. Section 11.04 Voting Rights. Except to the extent that the consent of all affected Certificateholders is required pursuant to this Agreement, with respect to any provision of this Agreement requiring the consent of Certificateholders representing specified percentages of aggregate outstanding Certificate Principal Amount (or Percentage Interest), Certificates owned by the Depositor, the Master Servicer, the Securities Administrator, the Trustee, any Servicer or any Affiliates thereof are not to be counted so long as such Certificates are owned by the Depositor, the Master Servicer, the Securities Administrator, the Trustee, any Servicer or any Affiliate thereof. Section 11.05 Provision of Information. (a) For so long as any of the Certificates of any Class are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, each of the Depositor, the Master Servicer and the Trustee agree to cooperate with each other to provide to any Certificateholders and to any prospective purchaser of Certificates designated by such holder, upon the request of such holder or prospective purchaser, any information required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee, the Master Servicer or the Securities Administrator in providing such information shall be reimbursed by the Depositor. (b) The Securities Administrator shall provide to any person to whom a Prospectus was delivered, upon the request of such person specifying the document or documents requested, a copy (excluding exhibits) of any report on Form 8-K or Form 10-K filed with the Securities and Exchange Commission pursuant to Section 6.20(b). Any reasonable out-of-pocket expenses incurred by the Securities Administrator in providing copies of such documents shall be reimbursed by the Depositor. (c) On each Distribution Date, the Securities Administrator shall deliver or cause to be delivered by first class mail or make available on its website to the Depositor, Attention: Contract Finance, a copy of the report delivered to Certificateholders pursuant to Section 4.02. 104 Section 11.06 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK. Section 11.07 Notices. All requests, demands, notices, authorizations, directions, consents, waivers and communications hereunder shall be in writing and shall be deemed to have been duly given when received by (a) in the case of the Depositor, J.P Morgan Acceptance Corporation I, 270 Park Avenue, New York, New York 10017, telecopy number: (212) 834-3850, Attention: J.P. Morgan Mortgage Trust 2004-A3, (b) in the case of JPMMAC, J.P. Morgan Mortgage Acquisition Corp., 270 Park Avenue, New York, New York 10017, telecopy number: (212) 834-3850, Attention: J.P. Morgan Mortgage Trust 2004-A3, (c) in the case of the Master Servicer or the Securities Administrator, Wells Fargo Bank, N.A., P.O. Box 98, Columbia, Maryland 21046 (or, for overnight deliveries, 9062 Old Annapolis Road, Columbia, Maryland 21045), telecopy number (410) 715-2380, Attention: J.P. Morgan Mortgage Trust 2004-A3, (d) in the case of Sunset, Sunset Financial Resources, Inc., 10245 Centurion Parkway North, Suite 305, Jacksonville, Florida 32256, telecopy number: (904) 425-4351, Attention: Byron Boston, and (e) with respect to the Trustee or the Certificate Registrar, its respective Corporate Trust Office, or as to each party such other address as may hereafter be furnished by such party to the other parties in writing. All demands, notices and communications to a party hereunder shall be in writing and shall be deemed to have been duly given when delivered to such party at the relevant address, facsimile number or electronic mail address set forth above or at such other address, facsimile number or electronic mail address as such party may designate from time to time by written notice in accordance with this Section 11.07. Section 11.08 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof. Section 11.09 Indulgences; No Waivers. Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. 105 Section 11.10 Headings Not To Affect Interpretation. The headings contained in this Agreement are for convenience of reference only, and they shall not be used in the interpretation hereof. Section 11.11 Benefits of Agreement. Nothing in this Agreement or in the Certificates, express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder and the Holders of the Certificates, any benefit or any legal or equitable right, power, remedy or claim under this Agreement, except to the extent specified in Section 11.15. Section 11.12 Special Notices to the Rating Agencies. (a) The Depositor shall give prompt notice to the Rating Agencies of the occurrence of any of the following events of which it has notice: (i) any amendment to this Agreement pursuant to Section 11.03; (ii) any Assignment by the Master Servicer of its rights hereunder or delegation of its duties hereunder; (iii) the occurrence of any Event of Default described in Section 6.14; (iv) any notice of termination given to the Master Servicer pursuant to Section 6.14 and any resignation of the Master Servicer hereunder; (v) the appointment of any successor to any Master Servicer pursuant to Section 6.14; (vi) the making of a final payment pursuant to Section 7.02; and (vii) any termination of the rights and obligations of any Servicer under the applicable Purchase and Servicing Agreement. (b) All notices to the Rating Agencies provided for this Section shall be in writing and sent by first class mail, telecopy or overnight courier, as follows: If to Moody's, to: Moody's Investors Service, Inc. 99 Church Street New York, New York 10007 Attention: Residential Mortgages 106 If to S&P, to: Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. 55 Water Street New York, New York 10041 Attention: Residential Mortgages If to Fitch Ratings, to: Fitch, Inc. One State Street Plaza New York, New York 10004 Attention: Residential Mortgages (c) The Securities Administrator shall provide or make available to the Rating Agencies reports prepared pursuant to Section 4.02. In addition, the Securities Administrator shall, at the expense of the Trust Fund, make available to each Rating Agency such information as such Rating Agency may reasonably request regarding the Certificates or the Trust Fund, to the extent that such information is reasonably available to the Securities Administrator. (d) The Depositor hereby represents to S&P that, to the Depositor's knowledge, the information provided to such Rating Agency, including the loan level detail, is true and correct according to such Rating Agency's requirements. Section 11.13 Conflicts. To the extent that the terms of this Agreement conflict with the terms of any Purchase and Servicing Agreement, the related Purchase and Servicing Agreement shall govern. Section 11.14 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. Section 11.15 No Petitions. The Trustee and the Master Servicer (not in its individual corporate capacity, but solely as Master Servicer hereunder), by entering into this Agreement, hereby covenant and agree that they shall not at any time institute against the Depositor, or join in any institution against the Depositor of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to this Agreement or any of the documents entered into by the Depositor in connection with the transactions contemplated by this Agreement. 107 IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers hereunto duly authorized as of the day and year first above written. J.P MORGAN ACCEPTANCE CORPORATION I, as Depositor By: /s/ Jonathan Davis ---------------------------------- Name: Jonathan Davis Title: Vice President WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee By: /s/ Stephanie J. Aronovitch ---------------------------------- Name: Stephanie J. Aronovitch Title: Assistant Vice President WELLS FARGO BANK, N.A., as Master Servicer By: /s/ Ruth Fussell ---------------------------------- Name: Ruth Fussell Title: Vice President WELLS FARGO BANK, N.A., as Securities Administrator By: /s/ Ruth Fussell ---------------------------------- Name: Ruth Fussell Title: Vice President Solely for purposes of Sections 2.04 and 2.05 accepted and agreed to by: J.P. MORGAN MORTGAGE ACQUISITION CORP. By: /s/ Jonathan Dais ------------------------------------ Name: Jonathan Davis Title: Vice President SUNSET FINANCIAL RESOURCES, INC. By: /s/ Thomas G. Manuel ------------------------------------ Name: Thomas G. Manuel Title: EVP EXHIBIT A FORMS OF CERTIFICATES A-1 EXHIBIT B FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE) STATE OF ) ) ss.: COUNTY OF ) [NAME OF OFFICER], _________________ being first duly sworn, deposes and says: 1. That he [she] is [title of officer] ________________________ of [name of Purchaser] _________________________________________ (the "Purchaser"), a _______________________ [description of type of entity] duly organized and existing under the laws of the [State of __________] [United States], on behalf of which he [she] makes this affidavit. 2. That the Purchaser's Taxpayer Identification Number is [ ]. 3. That the Purchaser is not a "disqualified organization" within the meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code") and will not be a "disqualified organization" as of [date of transfer], and that the Purchaser is not acquiring a Residual Certificate (as defined in the Agreement) for the account of, or as agent (including a broker, nominee, or other middleman) for, any person or entity from which it has not received an affidavit substantially in the form of this affidavit. For these purposes, 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 an instrumentality if all of its activities are subject to tax and a majority of its board of directors is not selected by such governmental entity), any cooperative organization furnishing electric energy or providing telephone service to persons in rural areas as described in Code Section 1381(a)(2)(C), any "electing large partnership" within the meaning of Section 775 of the Code, or any organization (other than a farmers' cooperative described in Code Section 521) that is exempt from federal income tax unless such organization is subject to the tax on unrelated business income imposed by Code Section 511. 4. That the Purchaser either (x) is not, and on__________________ [date of transfer] will not be, an employee benefit plan or other retirement arrangement subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code ("Code"), (collectively, a "Plan") or a person acting on behalf of any such Plan or investing the assets of any such Plan to acquire a Residual Certificate; (y) is an insurance company that is purchasing the Certificate with funds contained in an "insurance company general account" as defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE") 95-60 and the purchase and holding of the Certificate satisfy the requirements for exemptive relief under Sections I and III of PTCE B-1 95-60; or (z) herewith delivers to the Certificate Registrar an opinion of counsel satisfactory to the Certificate Registrar, and upon which the Certificate Registrar, the Trustee, the Master Servicer, each Servicer, the Depositor and Securities Administrator shall be entitled to rely, to the effect that the purchase or holding of such Residual Certificate by the Investor will not result in any non-exempt prohibited transactions under Title I of ERISA or Section 4975 of the Code and will not subject the Certificate Registrar, the Trustee, the Depositor, the Master Servicer, any Servicer or the Securities Administrator to any obligation in addition to those undertaken by such entities in the Pooling and Servicing Agreement, which opinion of counsel shall not be an expense of the Trust Fund or any of the above parties. 5. That the Purchaser hereby acknowledges that under the terms of the Pooling and Servicing Agreement, dated as of June 1, 2004 (the "Agreement"), by and among J.P. Morgan Acceptance Corporation I, as Depositor, Wells Fargo Bank, N.A., as Master Servicer and as Securities Administrator, and Wachovia Bank, National Association, as Trustee with respect to J.P. Morgan Mortgage Trust 2004-A3, Mortgage Pass-Through Certificates, no transfer of the Residual Certificates shall be permitted to be made to any person unless the Certificate Registrar and Trustee have received a certificate from such transferee containing the representations in paragraphs 3 and 4 hereof. 6. That the Purchaser does not hold REMIC residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (such entity, a "Book-Entry Nominee"). 7. That the Purchaser does not have the intention to impede the assessment or collection of any federal, state or local taxes legally required to be paid with respect to such Residual Certificate. 8. That the Purchaser will not transfer a Residual Certificate to any person or entity (i) as to which the Purchaser has actual knowledge that the requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof are not satisfied or that the Purchaser has reason to believe does not satisfy the requirements set forth in paragraph 7 hereof, and (ii) without obtaining from the prospective Purchaser an affidavit substantially in this form and providing to the Trustee and the Certificate Registrar a written statement substantially in the form of Exhibit C to the Agreement. 9. That the Purchaser understands that, as the holder of a Residual Certificate, the Purchaser may incur tax liabilities in excess of any cash flows generated by the interest and that it intends to pay taxes associated with holding such Residual Certificate as they become due. 10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S. Person that holds a Residual Certificate in connection with the conduct of a trade or business B-2 within the United States and has furnished the transferor, the Trustee and the Certificate Registrar with an effective Internal Revenue Service Form W-8ECI (Certificate of Foreign Person's Claim for Exemption From Withholding on Income Effectively Connected With the Conduct of a Trade or Business in the United States) or successor form at the time and in the manner required by the Code or (iii) is a Non-U.S. Person that has delivered to the transferor, the Trustee and the Certificate Registrar an opinion of a nationally recognized tax counsel to the effect that the transfer of such Residual Certificate to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of a Residual Certificate will not be disregarded for federal income tax purposes. "Non-U.S. Person" means an individual, corporation, partnership or other person other than (i) a citizen or resident of the United States; (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States or any state thereof, including for this purpose, the District of Columbia; (iii) an estate that is subject to U.S. federal income tax regardless of the source of its income; (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States trustees have authority to control all substantial decisions of the trust; and, (v) to the extent provided in Treasury regulations, certain trusts in existence on August 20, 1996 that are treated as United States persons prior to such date and elect to continue to be treated as United States persons. 11. The Purchaser will not cause income from the Residual Certificate to be attributable to a foreign permanent establishment or fixed base of the Purchaser or another U.S. taxpayer. 12. That the Purchaser agrees to such amendments of the Pooling and Servicing Agreement as may be required to further effectuate the restrictions on transfer of any Residual Certificate to such a "disqualified organization," an agent thereof, a Book-Entry Nominee, or a person that does not satisfy the requirements of paragraph 7 and paragraph 10 hereof. 13. That the Purchaser consents to the designation of the Securities Administrator to act as agent for the "tax matters person" of each REMIC created by the Trust Fund pursuant to the Pooling and Servicing Agreement. B-3 IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on its behalf, pursuant to authority of its Board of Directors, by its [title of officer] this _____ day of __________ 20__. _______________________________________ [name of Purchaser] By: ___________________________________ Name: Title: Personally appeared before me the above-named [name of officer] ________________, known or proved to me to be the same person who executed the foregoing instrument and to be the [title of officer] _________________ of the Purchaser, and acknowledged to me that he [she] executed the same as his [her] free act and deed and the free act and deed of the Purchaser. Subscribed and sworn before me this _____ day of __________ 20__. NOTARY PUBLIC ________________________________________ COUNTY OF ______________________________ STATE OF _______________________________ My commission expires the _____ day of __________ 20__. B-4 EXHIBIT C FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR) _______________________________ Date Re: J.P. Morgan Mortgage Trust 2004-A3 Mortgage Pass-Through Certificates _______________________ (the "Transferor") has reviewed the attached affidavit of _____________________________ (the "Transferee"), and has no actual knowledge that such affidavit is not true and has no reason to believe that the information contained in paragraph 7 thereof is not true, and has no reason to believe that the Transferee has the intention to impede the assessment or collection of any federal, state or local taxes legally required to be paid with respect to a Residual Certificate. In addition, the Transferor has conducted a reasonable investigation at the time of the transfer and found that the Transferee had historically paid its debts as they came due and found no significant evidence to indicate that the Transferee will not continue to pay its debts as they become due. Very truly yours, ________________________________________ Name: Title: C-1 EXHIBIT D [RESERVED] D-1 EXHIBIT E LIST OF PURCHASE AND SERVICING AGREEMENTS 1. Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated April 29, 2003, among J.P. Morgan Mortgage Acquisition Corp., Cendant Mortgage Corporation ("Cendant") and Bishop's Gate Residential Mortgage Trust (formerly known as Cendant Residential Mortgage Trust), as Sellers, and Cendant, as Servicer, as modified by the Acknowledgement. 2. Master Mortgage Loan Purchase and Servicing Agreement, dated as of August 28, 2003, as amended by Amendment No. 1 thereto dated as of June 1, 2004, and together with the Trade Confirmation and Purchase Confirmation, between Countrywide Home Loans, Inc. as seller and servicer and J.P. Morgan Mortgage Acquisition Corp., as purchaser, as modified by the Acknowledgement. 3. The Flow Mortgage Loan Purchase, Warranties and Servicing Agreement, dated as of January 1, 2004 between J.P. Morgan Mortgage Acquisition Corp., as purchaser, and Chase Manhattan Mortgage Corporation, as seller and servicer, as modified by the Acknowledgement. 4. The Flow Master Seller's Warranties and Servicing Agreement, dated as of February 24, 2004 between J.P. Morgan Mortgage Acquisition Corp., as purchaser, and National City Mortgage Co., as seller and servicer, as modified by the Acknowledgement. 5. Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of November 13, 2003, among Morgan Stanley Mortgage Capital Inc., as purchaser, Cendant Mortgage Corporation, as a seller and servicer and Bishop's Gate Residential Mortgage Trust (formerly known as Cendant Residential Mortgage Trust), as a seller, as modified by the Acknowledgement. 6. The Flow Mortgage Loan Flow Sale and Servicing Agreement, dated October 1, 2003, as amended by Amendment No. 1 thereto dated as of February 24, 2004, between Morgan Stanley Mortgage Capital Inc. and Bank of America, N.A., as seller and servicer, as modified by the Acknowledgement. 7. Mortgage Loan Sale and Servicing Agreement, dated as of September 1, 2003, among Morgan Stanley Mortgage Capital Inc., as purchaser, and GreenPoint Mortgage Funding, Inc., as seller and servicer, as modified by the Acknowledgement. E-1 EXHIBIT F LIST OF CUSTODIAL AGREEMENTS 1. Custodial Agreement dated as of April 1, 2003 among J.P. Morgan Mortgage Acquisition Corp., as Owner, Cendant Mortgage Corporation and Bishop's Gate Residential Mortgage Trust (formerly known as Cendant Residential Mortgage Trust), as Sellers, and JPMorgan Chase Bank, as Custodian, as modified by the Assignment. 2. Custodial Agreement dated as of August 28, 2003 among J.P. Morgan Mortgage Acquisition Corp., as Owner, Countrywide Home Loans, Inc., as Seller, and JPMorgan Chase Bank, as Custodian, as modified by the Assignment. 3. Custodial Agreement dated as of July 29, 2003 among Wachovia, N.A., as Owner, Chase Manhattan Mortgage Corporation, as Servicer, and JPMorgan Chase Bank, as Custodian. 4. Custodial Agreement dated as of February 1, 2004 among J.P. Morgan Mortgage Acquisition Corp., as the Purchaser, National City Mortgage Co., as the Company, and JPMorgan Chase Bank, as the Custodian, as modified by the Assignment. 5. Custodial Agreement dated as of June 1, 2004 among J.P. Morgan Acceptance Corporation I, Sunset Financial Resources, Inc., Bank of America, N.A., GreenPoint Mortgage Funding, Inc., Cendant Mortgage Corporation, Bishop's Gate Residential Mortgage Trust, Wachovia Bank, National Association and JPMorgan Chase Bank. F-1 EXHIBIT G LIST OF LIMITED PURPOSE SURETY BONDS 1. Ambac Assurance Corporation Surety Bond No. AB0039BE G-1 EXHIBIT H FORM OF RULE 144A TRANSFER CERTIFICATE Re: J.P. Morgan Mortgage Trust 2004-A3, Mortgage Pass-Through Certificates Reference is hereby made to the Pooling and Servicing Agreement, dated as of June 1, 2004 (the "Pooling and Servicing Agreement"), by and among J.P. Morgan Acceptance Corporation I, as Depositor, Wells Fargo Bank, N.A., as Master Servicer and as Securities Administrator, and Wachovia Bank, National Association, as Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement. This letter relates to $__________ initial Certificate Balance of Class _____ Certificates which are held in the form of Definitive Certificates registered in the name of ______________ (the "Transferor"). The Transferor has requested a transfer of such Definitive Certificates for Definitive Certificates of such Class registered in the name of [insert name of transferee]. In connection with such request, and in respect of such Certificates, the Transferor hereby certifies that such Certificates are being transferred in accordance with (i) the transfer restrictions set forth in the Pooling and Servicing Agreement and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser that the Transferor reasonably believes is a "qualified institutional buyer" within the meaning of Rule 144A purchasing for its own account or for the account of a "qualified institutional buyer," which purchaser is aware that the sale to it is being made in reliance upon Rule 144A, in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other applicable jurisdiction. This certificate and the statements contained herein are made for your benefit and the benefit of the Underwriter, the Certificate Registrar and the Depositor. ________________________________________ [Name of Transferor] By: ____________________________________ Name: Title: Dated: ___________, ____ H-1 EXHIBIT I FORM OF PURCHASER'S LETTER FOR INSTITUTIONAL ACCREDITED INVESTOR Date Dear Sirs: In connection with our proposed purchase of $______________ principal amount of J.P. Morgan Mortgage Trust 2004-A3, Mortgage Pass-Through Certificates (the "Privately Offered Certificates") of J.P. Morgan Acceptance Corporation I (the "Depositor"), we confirm that: (1) We understand that the Privately Offered Certificates have not been, and will not be, registered under the Securities Act of 1933, as amended (the "Securities Act"), and may not be sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell any Privately Offered Certificates within two years of the later of the date of original issuance of the Privately Offered Certificates or the last day on which such Privately Offered Certificates are owned by the Depositor or any affiliate of the Depositor we will do so only (A) to the Depositor, (B) to "qualified institutional buyers" (within the meaning of Rule 144A under the Securities Act) in accordance with Rule 144A under the Securities Act ("QIBs"), (C) pursuant to the exemption from registration provided by Rule 144 under the Securities Act, or (D) to an institutional "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that is not a QIB (an "Institutional Accredited Investor") which, prior to such transfer, delivers to the Certificate Registrar under the Pooling and Servicing Agreement, dated as of June 1, 2004, by and among J.P. Morgan Acceptance Corporation I, as Depositor, Wells Fargo Bank, N.A., as Master Servicer and as Securities Administrator, and Wachovia Bank, National Association, as Trustee, a signed letter in the form of this letter; and we further agree, in the capacities stated above, to provide to any person purchasing any of the Privately Offered Certificates from us a notice advising such purchaser that resales of the Privately Offered Certificates are restricted as stated herein. (2) We understand that, in connection with any proposed resale of any Privately Offered Certificates to an Institutional Accredited Investor, we will be required to furnish to the Certificate Registrar a certification from such transferee in the form hereof to confirm that the proposed sale is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. We further understand that the Privately Offered Certificates purchased by us will bear a legend to the foregoing effect. I-1 (3) We are acquiring the Privately Offered Certificates for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Privately Offered Certificates, and we and any account for which we are acting are each able to bear the economic risk of such investment. (4) We are an Institutional Accredited Investor and we are acquiring the Privately Offered Certificates purchased by us for our own account or for one or more accounts (each of which is an Institutional Accredited Investor) as to each of which we exercise sole investment discretion. (5) We have received such information as we deem necessary in order to make our investment decision. (6) If we are acquiring ERISA-Restricted Certificates, we understand that in accordance with ERISA, the Code and the Exemption, no Plan and no person acting on behalf of such a Plan may acquire such Certificate except in accordance with Section 3.03(d) of the Pooling and Servicing Agreement. Terms used in this letter which are not otherwise defined herein have the respective meanings assigned thereto in the Pooling and Servicing Agreement. I-2 You and the Certificate Registrar are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. Very truly yours, ________________________________________ [Purchaser] By: ____________________________________ Name: Title: I-3 EXHIBIT J FORM OF ERISA TRANSFER AFFIDAVIT STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) The undersigned, being first duly sworn, deposes and says as follows: 1. The undersigned is the ______________________ of ______________ (the "Investor"), a [corporation duly organized] and existing under the laws of __________, on behalf of which he makes this affidavit. 2. The Investor either (x) is not, and on ___________ [date of transfer] will not be, an employee benefit plan or other retirement arrangement subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), (collectively, a "Plan") or a person acting on behalf of any such Plan or investing the assets of any such Plan; (y) if the Certificate has been the subject of an ERISA-Qualifying Underwriting, is an insurance company that is purchasing the Certificate with funds contained in an "insurance company general account" as defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE") 95-60 and the purchase and holding of the Certificate satisfy the requirements for exemptive relief under Sections I and III of PTCE 95-60; or (z) herewith delivers to the Certificate Registrar an opinion of counsel satisfactory to the Certificate Registrar, and upon which the Certificate Registrar, the Trustee, the Master Servicer, any Servicer, the Depositor and the Securities Administrator shall be entitled to rely, to the effect that the purchase or holding of such Certificate by the Investor will not constitute or result in any non-exempt prohibited transactions under Title I of ERISA or Section 4975 of the Code and will not subject the Certificate Registrar, the Trustee, the Master Servicer, the Depositor, the Securities Administrator or any Servicer to any obligation in addition to those undertaken by such entities in the Pooling and Servicing Agreement, which opinion of counsel shall not be an expense of the Trust Fund or the above parties. 3. The Investor hereby acknowledges that under the terms of the Pooling and Servicing Agreement, dated as of June 1, 2004 (the "Agreement"), by and among J.P. Morgan Acceptance Corporation I, as Depositor, Wells Fargo Bank, N.A., as Master Servicer and as Securities Administrator, and Wachovia Bank, National Association, as Trustee, no transfer of the ERISA-Restricted Certificates shall be permitted to be made to any person unless the Certificate Registrar has received a certificate from such transferee in the form hereof. J-1 IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on its behalf, pursuant to proper authority, by its duly authorized officer, duly attested, this ____ day of _______________ 20___. ________________________________________ [Investor] By: ____________________________________ Name: Title: ATTEST: __________________________________________ STATE OF ) ) ss.: COUNTY OF ) Personally appeared before me the above-named ________________, known or proved to me to be the same person who executed the foregoing instrument and to be the ____________________ of the Investor, and acknowledged that he executed the same as his free act and deed and the free act and deed of the Investor. Subscribed and sworn before me this _____ day of _________ 20___. ________________________________________ NOTARY PUBLIC My commission expires the _____ day of __________ 20___. J-2 EXHIBIT K FORM OF LETTER OF REPRESENTATIONS WITH THE DEPOSITORY TRUST COMPANY [On File with Securities Administrator] K-1 EXHIBIT L FORM OF CUSTODIAN CERTIFICATION [DATE] J.P. Morgan Acceptance Corporation I 270 Park Avenue New York, New York 10017 Wachovia Bank, National Association, as Trustee 401 South Tryon Street Charlotte, North Carolina 28288-1179 RE: J.P. Morgan Mortgage Trust 2004-A3, Mortgage Pass-Through Certificates Ladies and Gentlemen: Reference is hereby made to the Pooling and Servicing Agreement, dated as of June 1, 2004 (the "Pooling and Servicing Agreement"), among J.P. Morgan Acceptance Corporation I, as depositor, Wells Fargo Bank, N.A., in its dual capacities as master servicer and securities administrator, and Wachovia Bank, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings provided in the Pooling and Servicing Agreement. In accordance with the provisions of Section 2.01 of the Pooling and Servicing Agreement, the undersigned, as the Custodian, hereby certifies that, as to each Mortgage Loan listed on the Mortgage Loan Schedule, it has reviewed the Trustee Mortgage File and has determined that (a) all documents required to be delivered to it pursuant to Section 2.01 (a) (i) through (ix) of the Pooling and Servicing Agreement are in its possession; provided, that the Custodian has no obligation to verify the receipt of any documents the existence of which was not made known to the Custodian by the Trustee Mortgage File, and provided, further, that the Custodian has no obligation to determine whether recordation of any such modification is necessary (except as set forth in Section 2.01 of the Pooling and Servicing Agreement); (b) such documents have been reviewed by it (the "Verified Information") and appear regular on their face and to relate to such Mortgage Loans, except as set forth in the attached exception report; provided, however, that the Custodian makes no representation and has no responsibilities as to the authenticity of such documents, their compliance with applicable law, or the collectability of any of the Mortgage Loans relating thereto; (c) based upon its examination, and only as to the foregoing documents, the information set forth on the Mortgage Loan Schedule accurately reflects, within permitted tolerances, the Verified Information with respect to each Mortgage Loan; and (d) each Mortgage Note has been endorsed and each assignment has been assigned as required under Section 2.01 of the Pooling & Servicing Agreement. JPMORGAN CHASE BANK, as Custodian By: ____________________________________ Name: Title: L-1 EXHIBIT M [RESERVED] M-1 SCHEDULE A MORTGAGE LOAN SCHEDULE [On File] S-1 EX-10.3 4 d16708exv10w3.txt ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT Exhibit 10.3 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"), dated as of June 1, 2004, is entered into among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the "Depositor"), Wachovia Bank, National Association, as trustee (the "Trustee") of J.P. Morgan Mortgage Trust 2004-A3 (the "Trust"), Sunset Financial Resources, Inc., a Maryland corporation ("Sunset"), and Bank of America, N.A., a national banking association ("BANA"). RECITALS WHEREAS BANA, as seller and as servicer, and Morgan Stanley Mortgage Capital Inc., as purchaser ("Morgan Stanley"), entered into a certain Flow Mortgage Loan Sale and Servicing Agreement, dated October 1, 2003, as amended by Amendment No. 1 thereto dated as of February 24, 2004 (the "Agreement"), pursuant to which Morgan Stanley acquired certain mortgage loans (the "Mortgage Loans") pursuant to the terms of the Agreement and BANA agreed to service such Mortgage Loans; WHEREAS, pursuant to an Assignment, Assumption and Recognition Agreement dated March 30, 2004 relating to the Agreement, Sunset acquired from Morgan Stanley all of Morgan Stanley's right, title and interest in certain of the Mortgage Loans (the "Sunset Mortgage Loans") and BANA agreed to service such Sunset Mortgage Loans pursuant to the Agreement; WHEREAS the Depositor has agreed, on the terms and conditions contained herein, to purchase from Sunset certain of the Sunset Mortgage Loans (the "Specified Mortgage Loans") which are subject to the provisions of the Agreement and are listed on the mortgage loan schedule attached as Exhibit I hereto (the "Specified Mortgage Loan Schedule"); and WHEREAS the Trustee, on behalf of the Trust, has agreed, on the terms and conditions contained herein, to purchase from the Depositor the Specified Mortgage Loans; NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows: 1. Assignment and Assumption (a) On and as of the date hereof, Sunset hereby sells, assigns and transfers to the Depositor all of its right, title and interest in the Specified Mortgage Loans and all rights and obligations related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans (without recourse or warranty except as may be otherwise specifically provided herein), the Depositor hereby accepts such assignment from Sunset (the "First Assignment and Assumption"), and BANA hereby acknowledges the First Assignment and Assumption. Sunset specifically reserves and does not assign to the Depositor hereunder any and all right, title and interest in, to and under and all obligations of Sunset with respect to any Sunset Mortgage Loans subject to the Agreement which are not the Specified Mortgage Loans. (b) On and as of the date hereof, immediately after giving effect to the First Assignment and Assumption, the Depositor hereby sells, assigns and transfers to the Trustee, on behalf of the Trust, all of its right, title and interest in the Specified Mortgage Loans and all rights and obligations related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans, and the Trustee, on behalf of the Trust, hereby accepts such assignment from the Depositor (the "Second Assignment and Assumption"), and BANA hereby acknowledges the Second Assignment and Assumption. (c) On and as of the date hereof, Sunset represents and warrants to the Depositor and the Trustee that Sunset has not taken any action that would serve to impair or encumber the respective ownership interests of the Depositor and the Trustee in the Specified Mortgage Loans since the date of Sunset's acquisition of the Specified Mortgage Loans. 2. Recognition of Trustee (a) From and after the date hereof, both Sunset and BANA shall note the transfer of the Specified Mortgage Loans to the Trustee, in their respective books and records and shall recognize the Trustee, on behalf of the Trust, as of the date hereof, as the owner of the Specified Mortgage Loans, and BANA shall service the Specified Mortgage Loans for the benefit of the Trust pursuant to the Agreement, the terms of which are incorporated herein by reference. It is the intention of BANA, the Depositor, the Trustee and Sunset that this Assignment shall be binding upon and inure to the benefit of the Depositor, the Trustee and Sunset and their respective successors and assigns. (b) Without in any way limiting the foregoing, the parties confirm that this Assignment includes the rights relating to amendments and waivers under the Agreement. Accordingly, the right of Sunset to consent to any amendment of the Agreement and its rights concerning waivers as set forth in Sections 25 and 21, respectively, of the Agreement shall be exercisable, to the extent any such amendment or waiver affects the Specified Mortgage Loans or any of the rights or obligations under the Agreement with respect thereto (including, without limitation, the servicing of the Specified Mortgage Loans), by the Trustee as assignee of Sunset. 3. Representations and Warranties (a) The Depositor represents and warrants that it is a sophisticated investor able to evaluate the risks and merits of the transactions contemplated hereby, and that it has not relied in connection therewith upon any statements or representations of BANA or Sunset other than those contained in the Agreement or this Assignment. (b) Each of the parties hereto represents and warrants that it is duly and legally authorized to enter into this Assignment. (c) Each of the parties hereto represents and warrants that this Assignment has been duly authorized, executed and delivered by it and (assuming due authorization, execution and delivery thereof by each of the other parties hereto) constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). (d) BANA hereby restates (x) the representations and warranties contained in Subsection 7.01 of the Agreement as of November 24, 2003 and (y) the representations and warranties contained in Subsection 7.02 of the Agreement as of the Closing Date (as defined in the Pooling and Servicing Agreement referred to below), with respect to each of the Specified Mortgage Loans that were sold by it under the Agreement, to and for the benefit of the Depositor, the Trustee and the Trust, and by this reference incorporates such representations and warranties herein, as of such Closing Date. 2 4. BANA hereby acknowledges that Wells Fargo Bank, N.A. has been appointed as the master servicer (the "Master Servicer") of the Specified Mortgage Loans pursuant to the pooling and servicing agreement dated as of the date hereof among the Depositor, the Master Servicer, the Securities Administrator and the Trustee (the "Pooling and Servicing Agreement") for Mortgage Pass-Through Certificates, Series 2004-A3 and, therefore, has the right to enforce all obligations of BANA under the Agreement with respect to the Specified Mortgage Loans. Such rights will include, without limitation, the right to terminate BANA under the Agreement with respect to the Specified Mortgage Loans upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by BANA under the Agreement with respect to the Specified Mortgage Loans, the right to receive all monthly reports and other data required to be delivered by BANA under the Agreement with respect to the Specified Mortgage Loans, the right to examine the books and records of BANA, indemnification rights and the right to exercise certain rights of consent and approval relating to actions taken by Sunset with respect to the Specified Mortgage Loans. BANA shall make all distributions under the Agreement to the Master Servicer by wire transfer of immediately available funds to: Wells Fargo Bank, N.A. ABA Number: 121-000-248 Account Name: SAS Clearing Account number: 3970771416 For further credit to: J.P. Morgan Mortgage Trust 2004-A3, Distribution Account Number: 18172300 BANA shall deliver all reports required to be delivered under the Agreement to the Master Servicer at the following address: Wells Fargo Bank, N.A. 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Client Manager Telecopier: (410) 715-2380 5. Establishment of Custodial Account The Servicer shall establish and maintain a separate Custodial Account in the name of the Trustee, in trust for J.P. Morgan Mortgage Trust 2004-A3, for all funds collected and received on the Specified Mortgage Loans. 6. Amendments to the Agreement The parties to this Assignment hereby agree to amend the Agreement as follows: (a) The definition of "Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by deleting "and" immediately prior to clause (viii) and by inserting the following: "(ix) have a Stated Principal Balance, after deduction of the principal portion of the Monthly Payment due in the month of substitution, not in excess of, and not more than 10% less than, the Stated Principal Balance of the Deleted Mortgage Loan; (x) have a Lifetime Rate Cap not less than (and not more than two percentage points greater than) the Lifetime Rate Cap of the Deleted Mortgage Loan; (xi) have a gross margin not less than that of the Deleted Mortgage Loan; (xii) have the same Adjustment Date as that of the Deleted Mortgage Loan; (xiii) have a 3 minimum Mortgage Interest Rate not less than that of the Deleted Mortgage Loan; (xiv) not permit conversion of the related Mortgage Interest Rate to a permanent fixed Mortgage Interest Rate; (xv) have the same Index as that of the Deleted Mortgage Loan; and (xvi) shall be accompanied by an Opinion of Counsel that such Substitute Mortgage Loan would not adversely affect the REMIC status of any REMIC created hereunder or would not otherwise be prohibited by this Pooling and Servicing Agreement." (b) With respect to the Specified Mortgage Loans, "Eligible Investments" shall have the meaning of "Permitted Investments" as defined in the Pooling and Servicing Agreement. (c) Section 1 is hereby amended by inserting the following new definition: "Rating Agency: Each of Standard & Poor's, a division of The McGraw-Hill Companies, Inc., Fitch Ratings and Moody's Investor Services, Inc., as applicable." (d) The second and fourth sentences of Subsection 11.04 are hereby deleted and replaced with the following: "Such Custodial Account shall be (i) an account or accounts maintained with a federal or state chartered depository institution or trust company the long-term unsecured debt obligations of which are rated by each Rating Agency in one of its two highest rating categories or the short-term unsecured debt obligations of which have the highest short-term ratings of each Rating Agency at the time any amounts are held on deposit therein, or (ii) an account or accounts in a depository institution or trust company in which such accounts are insured by the FDIC or the SAIF (to the limits established by the FDIC or the SAIF) and the uninsured deposits in which accounts are otherwise secured such that, as evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating Agency, the Certificateholders have a claim with respect to the funds in such account or a perfected first priority security interest against any collateral (which shall be limited to Eligible Investments) securing such funds that is superior to claims of any other depositors or creditors of the depository institution or trust company in which such account is maintained, or (iii) a trust account or accounts maintained with the trust department of a federal or state chartered depository institution or trust company which is subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal Regulation Section 9.10(b) and which has corporate trust powers and is acting in its fiduciary capacity, or (iv) any other account acceptable to each Rating Agency, as evidenced by a signed writing delivered by each Rating Agency." (e) Subsection 11.04(i) of the Agreement is hereby amended and restated in its entirety as follows: "(i) with respect to each Principal Prepayment, an amount (to be paid by the Servicer out of its own funds) which, when added to all amounts allocable to interest received in connection with the Principal Prepayment, equals one month's interest on the amount of principal so prepaid for the month of prepayment at the applicable Remittance Rate; provided, however, that the Servicer's aggregate obligations under this paragraph for any month shall be limited to the total amount of Servicing Fees actually received with respect to the Mortgage Loans by the Servicer during such month; and" (f) The fourth paragraph of Subsection 11.13(c) of the Agreement is hereby amended and restated in its entirety as follows: 4 "With respect to any REO Property, the deed or certificate of sale shall be taken in the name of the Purchaser, or its designee. The Trustee's name shall be placed on the title to such REO Property solely as the Trustee hereunder and not in its individual capacity. The Servicer shall ensure that the title to such REO Property references the Agreement and the Purchaser's (or its designee's) capacity thereunder. Pursuant to its efforts to sell such REO Property, the Servicer shall either itself or through an agent selected by the 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 Purchaser, or its designee, rent the same, or any part thereof, as the Servicer deems to be in the best interest of the Purchaser, or its designee, for the period prior to the sale of such REO Property. The Servicer shall prepare for and deliver to the Purchaser, or its designee, a statement with respect to each REO Property that has been rented showing the aggregate rental income received and all expenses incurred in connection with the maintenance of such REO Property at such times as is necessary to enable the Purchaser, or its designee, to comply with the reporting requirements of the REMIC Provisions. The net monthly rental income, if any, from such REO Property shall be deposited in the Certificate Account no later than the close of business on each Determination Date. The Servicer shall perform the tax reporting and withholding required by Sections 1445 and 6050J of the Code with respect to foreclosures and abandonments, the tax reporting required by Section 6050H of the Code with respect to the receipt of mortgage interest from individuals and any tax reporting required by Section 6050P of the Code with respect to the cancellation of indebtedness by certain financial entities, by preparing such tax and information returns as may be required, in the form required, and delivering the same to the Purchaser, or its designee, for filing. In the event that the Purchaser, or its designee, acquires any Mortgaged Property as aforesaid or otherwise in connection with a default or imminent default on a Mortgage Loan, the Servicer shall dispose of such Mortgaged Property as soon as practicable in a manner that maximizes the Liquidation Proceeds thereof, but in no event later than three years after its acquisition by the Purchaser, or its designee. In that event, the Purchaser, or its designee, shall have been supplied with an Opinion of Counsel to the effect that the holding by the Purchaser, or its designee, of such Mortgaged Property subsequent to a three-year period, if applicable, will not result in the imposition of taxes on "prohibited transactions" of any REMIC as defined in section 860F of the Code or cause any REMIC to fail to qualify as a REMIC at any time, the Purchaser, or its designee, may continue to hold such Mortgaged Property (subject to any conditions contained in such Opinion of Counsel) after the expiration of such three-year period. Notwithstanding any other provision of this Agreement, no Mortgaged Property acquired by the Purchaser, or its designee, shall be rented (or allowed to continue to be rented) or otherwise used for the production of income by or on behalf of the Purchaser, or its designee, in such a manner or pursuant to any terms that would (i) cause such Mortgaged Property to fail to qualify as "foreclosure property" within the meaning of section 860G(a)(8) of the Code or (ii) subject any REMIC to the imposition of any federal, state or local income taxes on the income earned from such Mortgaged Property under Section 860G(c) of the Code or otherwise, unless the Servicer has agreed to indemnify and hold harmless the Purchaser, or its designee, with respect to the imposition of any such taxes." (g) The first four sentences of Subsection 11.16 of the Agreement is hereby amended and restated in its entirety as follows: 5 "Statements to the Purchaser. Not later than the 10th calendar day of each month (or, if such 10th day is not a Business Day, the following Business Day), the Servicer shall forward to the Master Servicer in hard copy and electronic format a statement, certified by a Servicing Officer, setting forth (a) the amount of the distribution to be made on the Remittance Date in the current calendar month which is allocable to principal and allocable to interest; (b) the amount of servicing compensation received by the Servicer during the prior calendar month; (c) the aggregate Stated Principal Balance and the aggregate unpaid principal balance of the Mortgage Loans as of the last day of the preceding month; and (d) the paid through date for each Mortgage Loan. Such statement shall also include information regarding delinquencies on Mortgage Loans, indicating the number and aggregate principal amount of Mortgage' Loans which are either one (1), two (2) or three (3) or more months delinquent and the book value of any REO Property, or such other mortgage loan level data as agreed upon by the Servicer and the Master Servicer, and the monthly reports substantially in the form of Exhibit 8 attached hereto." (h) Subsection 11.20 is hereby amended and restated in its entirety as follows: "Annual Statement as to Compliance. (a) The Servicer shall deliver to the Purchaser and the Master Servicer, on or before March 15th each year beginning March 15, 2004, an Officer's Certificate stating that (i) a review of the activities of the Servicer during the preceding calendar year and if performance under this Agreement has been made under such officer's supervision, and (ii) to the best of such officer's knowledge, based on such review, the Servicer has fulfilled all its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and status thereof and the action being taken by the Servicer to cure such default. (b) For so long as the Mortgage Loans are being master serviced by a master servicer in a Securitization (the "Master Servicer"), by the later of March 15 or 30 days prior to the date on which the Form 10-K is required to be filed with the Securities and Exchange Commission of each year (or if not a Business Day, the immediately preceding Business Day), an officer of the Servicer shall execute and deliver an Officer's Certificate to the Master Servicer for the benefit of such Master Servicer and its officers, directors and affiliates, certifying as to the following matters: (i) Based on my knowledge, the information in the Annual Statement as to Compliance, the Annual Independent Public Accountant's Servicing Report and all servicing reports, officer's certificates and other information relating to the servicing of the Mortgage Loans submitted to the Master Servicer taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the last day of the month covered by such servicing reports; (ii) Based on my knowledge, the servicing information required to be provided to the Master Servicer by the Servicer under the Agreement has been provided to the Master Servicer; (iii) I am responsible for reviewing the activities performed by the Servicer under the Agreement and based upon the review required by the Agreement, and except as disclosed in the Annual Statement as to Compliance or the Annual Independent Public Accountant's Servicing Report submitted to the Master Servicer, the Servicer has, for the period covered by the Form 10-K fulfilled its obligations under the Agreement; and 6 (iv) The Servicer has disclosed to the Servicer's certified public accountants all significant deficiencies relating to the Servicer's compliance with the minimum servicing standards in accordance with a review conducted in compliance with the Uniform Single Attestation Program for Mortgage Bankers or similar standard as set forth in the Agreement. (c) The Servicer shall indemnify and hold harmless the Master Servicer and its officers, directors, agents and affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Servicer or any of its officers, directors, agents or affiliates of its obligations under this Section 11.20 or the negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Servicer agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Servicer on the other in connection with a breach of the Servicer's obligations under this Section 11.20 or the Servicer's negligence, bad faith or willful misconduct in connection therewith." (i) Subsection 11.21 of the Agreement is hereby amended and restated in its entirety as follows: "Annual Independent Public Accountants' Servicing Report. On or before March 15th of each year beginning March 15, 2004, the Servicer at its expense shall cause a firm of independent public accountants which is a member of the American Institute of Certified Public Accountants to furnish a statement to the Purchaser and the Master Servicer to the effect that such firm has, with respect to the Servicer's overall servicing operations, examined such operations in accordance with the requirements of the Uniform Single Attestation Program for Mortgage Bankers, stating such firm's conclusions relating thereto." (j) The word "or" is deleted from the end of Subsection 13.01(f), the word "or" is added at the end of Subsection 13.01(g) and the following paragraph is hereby incorporated into the Agreement as new Subsection 13.01(h): "(h) failure by the Servicer to duly perform, within the required time period, its obligations under Subsections 11.20 or 11.21 which failure continues unremedied for a period of fifteen (15) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any party to this Agreement or by any master servicer responsible for master servicing the Mortgage Loans pursuant to a Securitization of such Mortgage Loans;" (k) The following paragraph is hereby incorporated into the Agreement as new Section 32: "Third Party Beneficiary. For purposes of this Agreement, including but not limited to Subsections 11.20 and 11.21, any Master Servicer shall be considered a third party beneficiary to this Agreement entitled to all the rights and benefits accruing to any Master Servicer herein as if it were a direct party to this Agreement." (l) Exhibit 8 to the Agreement is hereby replaced in its entirety with the Amended and Restated Exhibit 8 attached to this Assignment as Exhibit II. 7 (m) Exhibit 13 to the Agreement is hereby deleted in its entirety. 7. Indemnification by Master Servicer The Master Servicer shall indemnify and hold harmless BANA and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Master Servicer or any of its officers, directors, agents or affiliates of its obligations in connection with the preparation, filing and certification of any Form 10-K pursuant to the Pooling and Servicing Agreement or the negligence, bad faith or willful misconduct of the Master Servicer in connection therewith. In addition, the Master Servicer shall indemnify and hold harmless BANA and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by any Servicer (as defined in the Pooling and Servicing Agreement), other than BANA, of its obligations in connection with any back-up certification (or any other back-up documents) to any certification of any Form 10-K required to be provided by the Master Servicer, but solely to the extent the Master Servicer receives amounts from such Servicer in connection with any indemnification provided by such Servicer (in each case as defined in the Pooling and Servicing Agreement) to the Master Servicer. 8. Continuing Effect Except as contemplated hereby, the Agreement shall remain in full force and effect in accordance with its terms. 9. Governing Law This Assignment and the rights and obligations hereunder shall be governed by and construed in accordance with the internal laws of the State of New York. 10. Notices Any notices or other communications permitted or required under the Agreement to be made to Sunset, the Depositor, the Trustee and BANA shall be made in accordance with the terms of the Agreement and shall be sent to the Depositor and Trustee as follows: In the case of Sunset: Sunset Financial Resources, Inc. 10245 Centurion Parkway North Suite 305 Jacksonville, Florida 32256 Attention: Byron Boston Telephone: 904-425-4351 Facsimile: 904-425-4755 In the case of the Depositor: J.P. Morgan Acceptance Corporation I 270 Park Avenue New York, New York 10017 8 Attention: J.P. Morgan Mortgage Trust 2004-A3 In the case of the Trustee: Wachovia Bank, National Association 401 South Tryon Street Charlotte, North Carolina 28288-1179 Attention: Structured Finance Trust Services, J.P. Morgan Mortgage Trust 2004-A3 In the case of BANA: Bank of America, N.A. 475 Crosspoint Parkway Getzville, New York 10468-9000 Attention: Servicing Manager or to such other address as may hereafter be furnished by the Depositor and the Trustee to the parties in accordance with the provisions of the Agreement. 11. Ratification Except as modified and expressly amended by this Assignment, the Agreement is in all respects ratified and confirmed, and all terms, provisions and conditions thereof shall be and remain in full force and effect. 12. Counterparts This Assignment may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. 13. Definitions Any capitalized term used but not defined in this Assignment has the same meaning as in the Agreement. [SIGNATURE PAGE FOLLOWS] 9 IN WITNESS WHEREOF, the parties hereto have executed this Assignment the day and year first above written. SUNSET FINANCIAL RESOURCES, INC. By: /s/ Thomas G. Manuel -------------------------------- Name: Thomas G. Manuel Title: EVP J.P. MORGAN ACCEPTANCE CORPORATION I By: /s/ Jonathan Davis --------------------------------- Name: Jonathan Davis Title: Vice President WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee of J.P. Morgan Mortgage Trust 2004-A3 By: /s/ Stephanie J. Aronovitch --------------------------------- Name: Stephanie J. Aronovitch Title: Assistant Vice President BANK OF AMERICA, N.A. By: /s/ Jill E. Payne --------------------------------- Name: Jill E. Payne Title: Vice President Acknowledged and Agreed: WELLS FARGO BANK, N.A., as Master Servicer By: /s/ Ruth Fussell --------------------------------------- Name: Ruth Fussell Title: Vice President EX-10.4 5 d16708exv10w4.txt ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT Exhibit 10.4 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"), dated as of June 1, 2004, is entered into among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the "Depositor"), Wachovia Bank, National Association, as trustee (the "Trustee") of J.P. Morgan Mortgage Trust 2004-A3 (the "Trust"), Sunset Financial Resources, Inc., a Maryland corporation ("Sunset"), Cendant Mortgage Corporation ("Cendant") and Bishop's Gate Residential Mortgage Trust ("Bishop's Gate" and, together with Cendant, the "Sellers"), with Cendant Mortgage Corporation, as the servicer (in such capacity, the "Servicer"). RECITALS WHEREAS the Sellers and the Servicer and Morgan Stanley Mortgage Capital Inc., as purchaser ("Morgan Stanley"), entered into a certain Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of November 13, 2003 (the "Agreement"), pursuant to which Morgan Stanley acquired certain mortgage loans (the "Mortgage Loans") pursuant to the terms of the Agreement and the Servicer agreed to service such Mortgage Loans; WHEREAS, pursuant to an Assignment, Assumption and Recognition Agreement dated March 30, 2004 relating to the Agreement, Sunset acquired from Morgan Stanley all of Morgan Stanley's right, title and interest in certain of the Mortgage Loans (the "Sunset Mortgage Loans") and the Servicer agreed to service such Sunset Mortgage Loans pursuant to the Agreement; WHEREAS the Depositor has agreed, on the terms and conditions contained herein, to purchase from Sunset certain of the Sunset Mortgage Loans (the "Specified Mortgage Loans") which are subject to the provisions of the Agreement and are listed on the mortgage loan schedule attached as Exhibit I hereto (the "Specified Mortgage Loan Schedule"); and WHEREAS the Trustee, on behalf of the Trust, has agreed, on the terms and conditions contained herein, to purchase from the Depositor the Specified Mortgage Loans; NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows: 1. Assignment and Assumption (a) On and as of the date hereof, Sunset hereby sells, assigns and transfers to the Depositor all of its right, title and interest in the Specified Mortgage Loans and all rights related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans (without recourse or warranty except as otherwise specifically provided herein), the Depositor hereby accepts such assignment from Sunset (the "First Assignment and Assumption"), and the Sellers hereby acknowledge the First Assignment and Assumption. Sunset specifically reserves and does not assign to the Depositor hereunder any and all right, title and interest in, to and under and all obligations of Sunset with respect to any Sunset Mortgage Loans subject to the Agreement which are not the Specified Mortgage Loans. (b) On and as of the date hereof, immediately after giving effect to the First Assignment and Assumption, the Depositor hereby sells, assigns and transfers to the Trustee, on behalf of the Trust, all of its right, title and interest in the Specified Mortgage Loans and all rights related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans, and the Trustee, on behalf of the Trust, hereby accepts such assignment from the Depositor (the "Second Assignment and Assumption"), and the Sellers hereby acknowledge the Second Assignment and Assumption. (c) On and as of the date hereof, Sunset represents and warrants to the Depositor and the Trustee that Sunset has not taken any action that would serve to impair or encumber the respective ownership interests of the Depositor and the Trustee in the Specified Mortgage Loans since the date of Sunsets' acquisition of the Specified Mortgage Loans. 2. Recognition of Trustee (a) From and after the date hereof, both Sunset and the Sellers shall note the transfer of the Specified Mortgage Loans to the Trustee, in their respective books and records and shall recognize the Trustee, on behalf of the Trust, as of the date hereof, as the owner of the Specified Mortgage Loans, and Servicer shall service the Specified Mortgage Loans for the benefit of the Trust pursuant to the Agreement, the terms of which are incorporated herein by reference. It is the intention of the Sellers, the Servicer, the Depositor, the Trustee and Sunset that this Assignment shall be binding upon and inure to the benefit of the Depositor, the Trustee and Sunset and their respective successors and assigns. (b) Without in any way limiting the foregoing, the parties confirm that this Assignment includes the rights relating to amendments and waivers under the Agreement. Accordingly, the right of Sunset to consent to any amendment of the Agreement and its rights concerning waivers as set forth in Section 12.07 of the Agreement shall be exercisable, to the extent any such amendment or waiver affects the Specified Mortgage Loans or any of the rights under the Agreement with respect thereto (including, without limitation, the servicing of the Specified Mortgage Loans), by the Trustee as assignee of Sunset. 3. Representations and Warranties (a) The Depositor represents and warrants that it is a sophisticated investor able to evaluate the risks and merits of the transactions contemplated hereby, and that it has not relied in connection therewith upon any statements or representations of the Sellers or Sunset other than those contained in the Agreement or this Assignment. (b) Each of the parties hereto represents and warrants that it is duly and legally authorized to enter into this Assignment. (c) Each of the parties hereto represents and warrants that this Assignment has been duly authorized, executed and delivered by it and (assuming due authorization, execution and delivery thereof by each of the other parties hereto) constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). (d) Each Seller hereby restates, as of Closing Date (as defined in the Pooling and Servicing Agreement referred to below) (or, with respect to the representations and warranties contained in Sections 3.03(4), (20), (21), (25), (31) and (58) of the Agreement, as of the applicable Funding Date (as defined in the Agreement)), the representations and warranties set forth in Article III of the Agreement, with respect to each of the Specified Mortgage Loans that were sold by it under the Agreement, to and for the benefit of the Depositor, the Trustee and the Trust, and by this reference incorporates such representations and 2 warranties herein, as of such Closing Date. In addition, each Seller hereby represents and warrants that each Specified Mortgage Loan sold by it under the Agreement that is a Cooperative Loan is secured by stock in a "cooperative housing corporation" within the meaning of Section 216(b) of the Code. 4. The Servicer hereby acknowledges that Wells Fargo Bank, N.A. has been appointed as the master servicer (the "Master Servicer") of the Specified Mortgage Loans pursuant to the pooling and servicing agreement dated as of the date hereof among the Depositor, the Master Servicer, the Securities Administrator and the Trustee (the "Pooling and Servicing Agreement") for Mortgage Pass-Through Certificates, Series 2004-A3 and, therefore, has the right to enforce all obligations of the Servicer under the Agreement with respect to the Specified Mortgage Loans. Such rights will include, without limitation, the right to terminate the Servicer under the Agreement with respect to the Specified Mortgage Loans upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by the Servicer under the Agreement with respect to the Specified Mortgage Loans, the right to receive all monthly reports and other data required to be delivered by the Servicer under the Agreement with respect to the Specified Mortgage Loans, the right to examine the books and records of the Servicer, indemnification rights and the right to exercise certain rights of consent and approval relating to actions taken by Sunset with respect to the Specified Mortgage Loans. The Servicer shall make all distributions under the Agreement to the Master Servicer by wire transfer of immediately available funds to: Wells Fargo Bank, N.A. ABA Number: 121-000-248 Account Name: SAS Clearing Account number: 3970771416 For further credit to: J.P. Morgan Mortgage Trust 2004-A3, Distribution Account Number: 18172300 The Servicer shall deliver all reports required to be delivered under the Agreement to the Master Servicer at the following address: Wells Fargo Bank, N.A. 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Client Manager Telecopier: (410) 715-2380 5. Establishment of Collection Account The Servicer shall establish and maintain a separate Collection Account in the name of the Trustee, in trust for J.P. Morgan Mortgage Trust 2004-A3, for all funds collected and received on the Specified Mortgage Loans. 6. Amendments to the Agreement The parties to the Agreement hereby agree to amend the Agreement as follows: (a) The definition of "Qualified Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by deleting clause (x) in its entirety and replacing it as follows: "(x) with respect to each ARM Loan, have the same Index as that of the Deleted Mortgage Loan," 3 (b) The definition of "Qualified Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by inserting the following: "and (xiv) with respect to each ARM Loan, not permit conversion of the related Note Rate to a permanent fixed Note Rate." (c) With respect to the Specified Mortgage Loans, "Permitted Investments" shall have the meaning of such term as defined in the Pooling and Servicing Agreement. (d) Notwithstanding any provision in the Agreement to the contrary, the parties to this Assignment hereby agree that the Servicer's aggregate obligations under Section 6.03(3) of the Agreement to make payments on account of Prepayment Interest Shortfall Amounts with respect to a Mortgage Pool (as defined in the Pooling and Servicing Agreement) shall be limited to the total amount of servicing compensation that would be payable to the Servicer with respect to such Mortgage Pool if no Principal Payment was made during the related Due Period. (e) Section 6.02 is hereby amended by deleting the first sentence of the first paragraph and replacing it with the following sentence: "On or before the 5th Business Day of each month during the term hereof, the Servicer shall deliver to the Master Servicer monthly accounting reports in the form of Exhibits 6.02(a) through 6.02(g) and Exhibit 13 attached hereto, in Microsoft Excel format as requested by the Purchaser, with respect to the most recently ended Due Period." (f) The reporting requirements attached to this Assignment as Exhibit II is hereby incorporated into the Agreement as new Exhibit 13. (g) The references to "March 15" in Section 7.04 are hereby deleted and replaced with "March 1". (h) Section 7.04 of the Agreement is hereby amended and restated in its entirety as follows: "Annual Statement as to Compliance. (a) For so long as the Mortgage Loans are being master serviced by a master servicer in a securitization transaction (the "Master Servicer"), by the later of March 1 or 30 days prior to the date on which the Form 10-K is required to be filed with the SEC of each year (or if not a Business Day, the immediately preceding Business Day), an officer of the Servicer shall execute and deliver an Officer's Certificate to the Master Servicer for the benefit of such Master Servicer and its officers, directors and affiliates, in the form of Exhibit 11 hereto. (b) The Servicer shall indemnify and hold harmless the Master Servicer and its officers, directors, agents and affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Servicer or any of its officers, directors, agents or affiliates of its obligations under this Section 7.04 or the negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Servicer agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Servicer on the other in connection with a breach of the 4 Servicer's obligations under this Section 7.04 or the Servicer's negligence, bad faith or willful misconduct in connection therewith." (i) The word "or" is deleted from the end of Section 10.01(8), the word "or" is added at the end of Subsection 10.01(9) and the following paragraph is hereby incorporated into the Agreement as new Subsection 10.01(10): "(10) failure by the Servicer to duly perform, within the required time period, its obligations under Sections 7.04 and 7.05 which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any party to this Agreement or by any master servicer responsible for master servicing the Mortgage Loans pursuant to a Pass-Through Transfer of such Mortgage Loans;" (j) The following paragraph is hereby incorporated into the Agreement as new Section 12.14: "Third Party Beneficiary. For purposes of Section 7.04 only, any Master Servicer shall be considered a third party beneficiary to Section 7.04 and shall be entitled to enforce the provisions of Section 7.04." 7. Indemnification by Master Servicer The Master Servicer shall indemnify and hold harmless the Servicer and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Master Servicer or any of its officers, directors, agents or affiliates of its obligations in connection with the preparation, filing and certification of any Form 10-K pursuant to the Pooling and Servicing Agreement or the negligence, bad faith or willful misconduct of the Master Servicer in connection therewith. In addition, the Master Servicer shall indemnify and hold harmless the Servicer and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by any Servicer (as defined in the Pooling and Servicing Agreement), other than the Servicer (as defined herein), of its obligations in connection with any back-up certification (or any other back-up documents) to any certification of any Form 10-K required to be provided by the Master Servicer, but solely to the extent the Master Servicer receives amounts from such Servicer in connection with any indemnification provided by such Servicer (in each case as defined in the Pooling and Servicing Agreement) to the Master Servicer. 8. Continuing Effect Except as contemplated hereby, the Agreement shall remain in full force and effect in accordance with its terms. 9. Governing Law This Assignment and the rights and obligations hereunder shall be governed by and construed in accordance with the internal laws of the State of New York. 10. Notices 5 Any notices or other communications permitted or required under the Agreement to be made to Sunset, the Depositor, the Trustee, Cendant, Bishop's Gate and the Servicer shall be made in accordance with the terms of the Agreement and shall be sent to the Depositor and Trustee as follows: In the case of Sunset: Sunset Financial Resources, Inc. 10245 Centurion Parkway North Suite 305 Jacksonville, Florida 32256 Attention: Byron Boston Telephone: 904-425-4351 Facsimile: 904-425-4755 In the case of the Depositor: J.P. Morgan Acceptance Corporation I 270 Park Avenue New York, New York 10017 Attention: J.P. Morgan Mortgage Trust 2004-A3 In the case of the Trustee: Wachovia Bank, National Association 401 South Tryon Street Charlotte, North Carolina 28288-1179 Attention: Structured Finance Trust Services, J.P. Morgan Mortgage Trust 2004-A3 In the case of Cendant: Cendant Mortgage Corporation 3000 Leadenhall Road Mt. Laurel, NJ 08054 Attention: Peter A. Thomas, Vice President, Secondary Marketing In the case of Bishop's Gate: c/o Cendant Mortgage Corporation, as Administrator 3000 Leadenhall Road Mt. Laurel, NJ 08054 Attention: Peter A. Thomas, Vice President, Secondary Marketing In the case of the Servicer: Cendant Mortgage Corporation 3000 Leadenhall Road Mt. Laurel, NJ 08054 Attention: Peter A. Thomas, Vice President, Secondary Marketing 6 or to such other address as may hereafter be furnished by the Depositor and the Trustee to the parties in accordance with the provisions of the Agreement. 11. Ratification Except as modified and expressly amended by this Assignment, the Agreement is in all respects ratified and confirmed, and all terms, provisions and conditions thereof shall be and remain in full force and effect. 12. Counterparts This Assignment may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. 13. Definitions Any capitalized term used but not defined in this Assignment has the same meaning as in the Agreement. [SIGNATURE PAGE FOLLOWS] 7 IN WITNESS WHEREOF, the parties hereto have executed this Assignment the day and year first above written. SUNSET FINANCIAL RESOURCES, INC. By: /s/ Thomas G. Manuel ------------------------------ Name: Thomas G. Manuel Title: EVP J.P. MORGAN ACCEPTANCE CORPORATION I By: /s/ Jonathan Davis ---------------------------------- Name: Jonathan Davis Title: Vice President WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee of J.P. Morgan Mortgage Trust 2004-A3 By: /s/ Stephanie J. Aronovitch ---------------------------------- Name: Stephanie J. Aronovitch Title: Assistant Vice President CENDANT MORTGAGE CORPORATION By: /s/ Crissy Judge ---------------------------------- Name: Crissy Judge Title: Assistant Vice President BISHOP'S GATE RESIDENTIAL MORTGAGE TRUST By: /s/ Crissy Judge ----------------------------------- Name: Crissy Judge Title: Assistant Vice President CENDANT MORTGAGE CORPORATION,as Servicer By: /s/ Crissy Judge ----------------------------------- Name: Crissy Judge Title: Assistant Vice President Acknowledged and Agreed: WELLS FARGO BANK, N.A., as Master Servicer By: /s/ Ruth Fussell ------------------------------- Name: Ruth Fussell Title: Vice President EX-10.5 6 d16708exv10w5.txt ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT Exhibit 10.5 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"), dated as of June 1, 2004, is entered into among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the "Depositor"), Wachovia Bank, National Association, as trustee (the "Trustee") of J.P. Morgan Mortgage Trust 2004-A3 (the "Trust"), Sunset Financial Resources, Inc., a Maryland corporation ("Sunset"), Cendant Mortgage Corporation ("Cendant") and Bishop's Gate Residential Mortgage Trust ("Bishop's Gate" and, together with Cendant, the "Sellers"), with Cendant Mortgage Corporation, as the servicer (in such capacity, the "Servicer"). RECITALS WHEREAS, the Sellers and the Servicer and J.P. Morgan Mortgage Acquisition Corp. ("JPMorgan Acquisition") entered into a certain Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of April 29, 2003 (the "Purchase Agreement"), as amended by Amendment No. 1 thereto, dated as of September 1, 2003 (the "Amendment No. 1" and, together with the Purchase Agreement, the "Agreement"), pursuant to which JPMorgan Acquisition acquired certain mortgage loans (the "Mortgage Loans") pursuant to the terms of the Agreement and the Servicer agreed to service such Mortgage Loans; WHEREAS, pursuant to (i) the Assignment, Assumption and Recognition Agreement dated as of March 30, 2004 relating to the Agreement, and (ii) the Assignment, Assumption and Recognition Agreement dated as of June 1, 2004 relating to the Agreement, Sunset acquired from JPMorgan Acquisition all of JPMorgan Acquisition's right, title and interest in certain of the Mortgage Loans (the "Sunset Mortgage Loans") and the Servicer agreed to service such Sunset Mortgage Loans pursuant to the Agreement; WHEREAS the Depositor has agreed, on the terms and conditions contained herein, to purchase from Sunset certain of the Sunset Mortgage Loans (the "Specified Mortgage Loans") which are subject to the provisions of the Agreement and are listed on the mortgage loan schedule attached as Exhibit I hereto (the "Specified Mortgage Loan Schedule"); and WHEREAS the Trustee, on behalf of the Trust, has agreed, on the terms and conditions contained herein, to purchase from the Depositor the Specified Mortgage Loans; NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows: 1. Assignment and Assumption (a) On and as of the date hereof, Sunset hereby sells, assigns and transfers to the Depositor all of its right, title and interest in the Specified Mortgage Loans and all rights related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans (without recourse or warranty except as may be otherwise specifically provided herein), the Depositor hereby accepts such assignment from Sunset (the "First Assignment and Assumption"), and the Sellers hereby acknowledge the First Assignment and Assumption. Sunset specifically reserves and does not assign to the Depositor hereunder any and all right, title and interest in, to and under and all obligations of Sunset with respect to any Sunset Mortgage Loans subject to the Agreement which are not the Specified Mortgage Loans. (b) On and as of the date hereof, immediately after giving effect to the First Assignment and Assumption, the Depositor hereby sells, assigns and transfers to the Trustee, on behalf of the Trust, all of its right, title and interest in the Specified Mortgage Loans and all rights related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans, and the Trustee, on behalf of the Trust, hereby accepts such assignment from the Depositor (the "Second Assignment and Assumption"), and the Sellers hereby acknowledge the Second Assignment and Assumption. (c) On and as of the date hereof, Sunset represents and warrants to the Depositor and the Trustee that Sunset has not taken any action that would serve to impair or encumber the respective ownership interests of the Depositor and the Trustee in the Specified Mortgage Loans since the date of Sunsets' acquisition of the Specified Mortgage Loans. 2. Recognition of Trustee (a) From and after the date hereof, both Sunset and the Sellers shall note the transfer of the Specified Mortgage Loans to the Trustee, in their respective books and records and shall recognize the Trustee, on behalf of the Trust, as of the date hereof, as the owner of the Specified Mortgage Loans, and Servicer shall service the Specified Mortgage Loans for the benefit of the Trust pursuant to the Agreement, the terms of which are incorporated herein by reference. It is the intention of the Sellers, the Servicer, the Depositor, the Trustee and Sunset that this Assignment shall be binding upon and inure to the benefit of the Depositor, the Trustee and Sunset and their respective successors and assigns. (b) Without in any way limiting the foregoing, the parties confirm that this Assignment includes the rights relating to amendments and waivers under the Agreement. Accordingly, the right of Sunset to consent to any amendment of the Agreement and its rights concerning waivers as set forth in Section 12.07 of the Agreement shall be exercisable, to the extent any such amendment or waiver affects the Specified Mortgage Loans or any of the rights under the Agreement with respect thereto (including, without limitation, the servicing of the Specified Mortgage Loans), by the Trustee as assignee of Sunset. 3. Representations and Warranties (a) The Depositor represents and warrants that it is a sophisticated investor able to evaluate the risks and merits of the transactions contemplated hereby, and that it has not relied in connection therewith upon any statements or representations of the Sellers or Sunset other than those contained in the Agreement or this Assignment. (b) Each of the parties hereto represents and warrants that it is duly and legally authorized to enter into this Assignment. (c) Each of the parties hereto represents and warrants that this Assignment has been duly authorized, executed and delivered by it and (assuming due authorization, execution and delivery thereof by each of the other parties hereto) constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). 2 (d) Each Seller hereby restates, as of the Closing Date (as defined in the Pooling and Servicing Agreement referred to below) (or, with respect to the representations and warranties specifically mentioned in Section 3.05 of the Agreement, as of the applicable Funding Date (as defined in the Agreement)), the representations and warranties set forth in the Agreement, with respect to each of the Specified Mortgage Loans that were sold by it under the Agreement, to and for the benefit of the Depositor, the Trustee and the Trust, and by this reference incorporates such representations and warranties herein, as of such Closing Date. In addition, each Seller hereby represents and warrants that (i) each Specified Mortgage Loan sold by it under the Agreement is a "qualified mortgage" within the meaning of 860G(a)(3) of the Code and (ii) each Specified Mortgage Loan sold by it under the Agreement that is a Cooperative Loan is secured by stock in a "cooperative housing corporation" within the meaning of Section 216(b) of the Code. 4. The Servicer hereby acknowledges that Wells Fargo Bank, N.A. has been appointed as the master servicer (the "Master Servicer") of the Specified Mortgage Loans pursuant to the pooling and servicing agreement dated as of the date hereof among the Depositor, the Master Servicer, the Securities Administrator and the Trustee (the "Pooling and Servicing Agreement") for Mortgage Pass-Through Certificates, Series 2004-A3 and, therefore, has the right to enforce all obligations of the Servicer under the Agreement with respect to the Specified Mortgage Loans. Such rights will include, without limitation, the right to terminate the Servicer under the Agreement with respect to the Specified Mortgage Loans upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by the Servicer under the Agreement with respect to the Specified Mortgage Loans, the right to receive all monthly reports and other data required to be delivered by the Servicer under the Agreement with respect to the Specified Mortgage Loans, the right to examine the books and records of the Servicer, indemnification rights and the right to exercise certain rights of consent and approval relating to actions taken by Sunset with respect to the Specified Mortgage Loans. The Servicer shall make all distributions under the Agreement to the Master Servicer by wire transfer of immediately available funds to: Wells Fargo Bank, N.A. ABA Number: 121-000-248 Account Name: SAS Clearing Account number: 3970771416 For further credit to: J.P. Morgan Mortgage Trust 2004-A3, Distribution Account Number: 18172300 The Servicer shall deliver all reports required to be delivered under the Agreement to the Master Servicer at the following address: Wells Fargo Bank, N.A. 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Client Manager Telecopier: (410) 715-2380 5. Establishment of Collection Account The Servicer shall establish and maintain a separate Collection Account in the name of the Trustee, in trust for J.P. Morgan Mortgage Trust 2004-A3, for all funds collected and received on the Specified Mortgage Loans. 6. Amendments to the Agreement 3 The parties to the Agreement hereby agree to amend the Agreement as follows: (a) The definition of "Qualified Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by deleting clause (x) in its entirety and replacing it as follows: "(x) with respect to each ARM Loan, have the same Index as that of the Deleted Mortgage Loan," (b) The definition of "Qualified Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by inserting the following: "and (xiv) with respect to each ARM Loan, not permit conversion of the related Note Rate to a permanent fixed Note Rate," (c) With respect to the Specified Mortgage Loans, "Permitted Investments" shall have the meaning of such term as defined in the Pooling and Servicing Agreement. (d) Notwithstanding any provision in the Purchase Agreement to the contrary, the parties to the Purchase Agreement hereby agree that the Servicer's aggregate obligations under clause (4)(ii) of the Purchase Agreement, as amended by Section 2(b) of Amendment No. 1, with respect to a Mortgage Pool (as defined in the Pooling and Servicing Agreement) for any month shall be limited to the total amount of Servicing Fees actually received for the Specified Mortgage Loans in such Mortgage Pool by the Servicer during such month. (e) Section 10.01 is hereby amended by inserting the following at the end of Section 10.01(2): "provided, further, that for purposes of this provision, the failure on the part of the Seller/Servicer to comply with Sections 7.04 or 7.05 shall be deemed material." 7. Indemnification by Master Servicer The Master Servicer shall indemnify and hold harmless the Servicer and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Master Servicer or any of its officers, directors, agents or affiliates of its obligations in connection with the preparation, filing and certification of any Form 10-K pursuant to the Pooling and Servicing Agreement or the negligence, bad faith or willful misconduct of the Master Servicer in connection therewith. In addition, the Master Servicer shall indemnify and hold harmless the Servicer and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by any Servicer (as defined in the Pooling and Servicing Agreement), other than the Servicer (as defined herein), of its obligations in connection with any back-up certification (or any other back-up documents) to any certification of any Form 10-K required to be provided by the Master Servicer, but solely to the extent the Master Servicer receives amounts from such Servicer in connection with any indemnification provided by such Servicer (in each case as defined in the Pooling and Servicing Agreement) to the Master Servicer. 4 8. Continuing Effect Except as contemplated hereby, the Agreement shall remain in full force and effect in accordance with its terms. 9. Governing Law This Assignment and the rights and obligations hereunder shall be governed by and construed in accordance with the internal laws of the State of New York. 10. Notices Any notices or other communications permitted or required under the Agreement to be made to Sunset, the Depositor, the Trustee, Cendant, Bishop's Gate and the Servicer shall be made in accordance with the terms of the Agreement and shall be sent to the Depositor and Trustee as follows: In the case of Sunset: Sunset Financial Resources, Inc. 10245 Centurion Parkway North Suite 305 Jacksonville, Florida 32256 Telephone: 904-425-4351 Facsimile: 904-425-4755 In the case of the Depositor: J.P. Morgan Acceptance Corporation I 270 Park Avenue New York, New York 10017 Attention: J.P. Morgan Mortgage Trust 2004-A3 In the case of the Trustee: Wachovia Bank, National Association 401 South Tryon Street Charlotte, North Carolina 28288-1179 Attention: Structured Finance Trust Services, J.P. Morgan Mortgage Trust 2004-A3 In the case of Cendant: Cendant Mortgage Corporation 3000 Leadenhall Road Mt. Laurel, NJ 08054 Attention: Peter A.Thomas,Vice President,Secondary Marketing In the case of Bishop's Gate: c/o Cendant Mortgage Corporation, as Administrator 3000 Leadenhall Road 5 Mt. Laurel, NJ 08054 Attention:Peter A. Thomas, Vice President, Secondary Marketing In the case of the Servicer: Cendant Mortgage Corporation 3000 Leadenhall Road Mt. Laurel, NJ 08054 Attention:Peter A. Thomas, Vice President, Secondary Marketing or to such other address as may hereafter be furnished by the Depositor and the Trustee to the parties in accordance with the provisions of the Agreement. 11. Ratification Except as modified and expressly amended by this Assignment, the Agreement is in all respects ratified and confirmed, and all terms, provisions and conditions thereof shall be and remain in full force and effect. 12. Counterparts This Assignment may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. 13. Definitions Any capitalized term used but not defined in this Assignment has the same meaning as in the Agreement. [SIGNATURE PAGE FOLLOWS] 6 IN WITNESS WHEREOF, the parties hereto have executed this Assignment the day and year first above written. SUNSET FINANCIAL RESOURCES, INC. By: /s/ Thomas G. Manuel ------------------------------ Name: Thomas G. Manuel Title: EVP J.P. MORGAN ACCEPTANCE CORPORATION I By: /s/ Jonathan Davis ----------------------------- Name: Jonathan Davis Title: Vice President WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee of J.P. Morgan Mortgage Trust 2004-A3 By: /s/ Stephanie J. Aronovitch ----------------------------------- Name: Stephanie J. Aronovitch Title: Assistant Vice President CENDANT MORTGAGE CORPORATION By: /s/ Crissy Judge ----------------------------------- Name: Crissy Judge Title: Assistant Vice President BISHOP'S GATE RESIDENTIAL MORTGAGE TRUST By: /s/ Crissy Judge ---------------------------------- Name: Crissy Judge Title: Assistant Vice President CENDANT MORTGAGE CORPORATION,as Servicer By: /s/ Crissy Judge ---------------------------------- Name: Crissy Judge Title: Assistant Vice President Acknowledged and Agreed: WELLS FARGO BANK, N.A., as Master Servicer By: /s/ Ruth Fussell ------------------------------ Name: Ruth Fussell Title: Vice President EXHIBIT I MORTGAGE LOAN SCHEDULE [SEE SCHEDULE A TO POOLING AND SERVICING AGREEMENT] EX-10.6 7 d16708exv10w6.txt ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT Exhibit 10.6 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"), dated as of June 1, 2004, is entered into among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the "Depositor"), Wachovia Bank, National Association, as trustee (the "Trustee") of J.P. Morgan Mortgage Trust 2004-A3 (the "Trust"), Sunset Financial Resources, Inc., a Maryland corporation ("Sunset") and National City Mortgage Co. ("National City"). RECITALS WHEREAS National City, as seller and as servicer, and J.P. Morgan Mortgage Acquisition Corp. ("JPMorgan Acquisition") entered into a certain Flow Master Seller's Warranties and Servicing Agreement, dated as of February 24, 2004 (the "Agreement"), pursuant to which Sunset acquired certain mortgage loans (the "Mortgage Loans") pursuant to the terms of the Agreement and National City agreed to service such Mortgage Loans; WHEREAS, pursuant to an Assignment, Assumption and Recognition Agreement dated as of March 30, 2004 relating to the Agreement, Sunset acquired from JPMorgan Acquisition all of JPMorgan Acquisition's right, title and interest in certain of the Mortgage Loans (the "Sunset Mortgage Loans") and National City agreed to service such Sunset Mortgage Loans pursuant to the Agreement; WHEREAS the Depositor has agreed, on the terms and conditions contained herein, to purchase from Sunset certain of the Sunset Mortgage Loans (the "Specified Mortgage Loans") which are subject to the provisions of the Agreement and are listed on the mortgage loan schedule attached as Exhibit I hereto (the "Specified Mortgage Loan Schedule"); and WHEREAS the Trustee, on behalf of the Trust, has agreed, on the terms and conditions contained herein, to purchase from the Depositor the Specified Mortgage Loans; NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows: 1. Assignment and Assumption (a) On and as of the date hereof, Sunset hereby sells, assigns and transfers to the Depositor all of its right, title and interest in the Specified Mortgage Loans and all rights and obligations related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans (without recourse or warranty except as may be otherwise specifically provided herein), the Depositor hereby accepts such assignment from Sunset (the "First Assignment and Assumption"), and National City hereby acknowledges the First Assignment and Assumption. Sunset specifically reserves and does not assign to the Depositor hereunder any and all right, title and interest in, to and under and all obligations of Sunset with respect to any Sunset Mortgage Loans subject to the Agreement which are not the Specified Mortgage Loans. (b) On and as of the date hereof, immediately after giving effect to the First Assignment and Assumption, the Depositor hereby sells, assigns and transfers to the Trustee, on behalf of the Trust, all of its right, title and interest in the Specified Mortgage Loans and all rights and obligations related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans, and the Trustee, on behalf of the Trust, hereby accepts such assignment from the Depositor (the "Second Assignment and Assumption"), and National City hereby acknowledges the Second Assignment and Assumption. (c) On and as of the date hereof, Sunset represents and warrants to the Depositor and the Trustee that Sunset has not taken any action that would serve to impair or encumber the respective ownership interests of the Depositor and the Trustee in the Specified Mortgage Loans since the date of Sunsets' acquisition of the Specified Mortgage Loans. 2. Recognition of Trustee (a) From and after the date hereof, both Sunset and National City shall note the transfer of the Specified Mortgage Loans to the Trustee, in their respective books and records and shall recognize the Trustee, on behalf of the Trust, as of the date hereof, as the owner of the Specified Mortgage Loans, and National City shall service the Specified Mortgage Loans for the benefit of the Trust pursuant to the Agreement, the terms of which are incorporated herein by reference. It is the intention of National City, the Depositor, the Trustee and Sunset that this Assignment shall be binding upon and inure to the benefit of the Depositor, the Trustee and Sunset and their respective successors and assigns. (b) Without in any way limiting the foregoing, the parties confirm that this Assignment includes the rights relating to amendments and waivers under the Agreement. Accordingly, the right of Sunset to consent to any amendment of the Agreement and its rights concerning waivers as set forth in Sections 12.02 and 12.12, respectively, of the Agreement shall be exercisable, to the extent any such amendment or waiver affects the Specified Mortgage Loans or any of the rights or obligations under the Agreement with respect thereto (including, without limitation, the servicing of the Specified Mortgage Loans), by the Trustee as assignee of Sunset. 3. Representations and Warranties (a) The Depositor represents and warrants that it is a sophisticated investor able to evaluate the risks and merits of the transactions contemplated hereby, and that it has not relied in connection therewith upon any statements or representations of National City or Sunset other than those contained in the Agreement or this Assignment. (b) Each of the parties hereto represents and warrants that it is duly and legally authorized to enter into this Assignment. (c) Each of the parties hereto represents and warrants that this Assignment has been duly authorized, executed and delivered by it and (assuming due authorization, execution and delivery thereof by each of the other parties hereto) constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). (d) National City hereby restates, as of the Closing Date (as defined in the Pooling and Servicing Agreement referred to below), the representations and warranties contained in Sections 3.01 and 3.02 of the Agreement, with respect to each of the Specified Mortgage Loans that were sold by it under the Agreement, to and for the benefit of the Depositor, the Trustee and the Trust, and by this reference incorporates such representations and warranties herein, as of such Closing Date. 2 4. National City hereby acknowledges that Wells Fargo Bank, N.A. has been appointed as the master servicer (the "Master Servicer") of the Specified Mortgage Loans pursuant to the pooling and servicing agreement dated as of the date hereof among the Depositor, the Master Servicer, the Securities Administrator and the Trustee (the "Pooling and Servicing Agreement") for Mortgage Pass-Through Certificates, Series 2004-A3 and, therefore, has the right to enforce all obligations of National City under the Agreement with respect to the Specified Mortgage Loans. Such rights will include, without limitation, the right to terminate National City under the Agreement with respect to the Specified Mortgage Loans upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by National City under the Agreement with respect to the Specified Mortgage Loans, the right to receive all monthly reports and other data required to be delivered by National City under the Agreement with respect to the Specified Mortgage Loans, the right to examine the books and records of National City, indemnification rights and the right to exercise certain rights of consent and approval relating to actions taken by Sunset with respect to the Specified Mortgage Loans. National City shall make all distributions under the Agreement to the Master Servicer by wire transfer of immediately available funds to: Wells Fargo Bank, N.A. ABA Number: 121-000-248 Account Name: SAS Clearing Account number: 3970771416 For further credit to: J.P. Morgan Mortgage Trust 2004-A3, Distribution Account Number: 18172300 National City shall deliver all reports required to be delivered under the Agreement to the Master Servicer at the following address: Wells Fargo Bank, N.A. 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Client Manager Telecopier: (410) 715-2380 5. Establishment of Custodial Account The Servicer shall establish and maintain a separate Custodial Account in the name of the Trustee, in trust for J.P. Morgan Mortgage Trust 2004-A3, for all funds collected and received on the Specified Mortgage Loans. 6. Amendments to the Agreement The parties to the Agreement hereby agree to amend the Agreement as follows: (a) The definition of "Qualified Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by inserting the following: "(vi) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan at substitution; (vii) have the same Adjustment Date as that of the Deleted Mortgage Loan; (viii) have a Minimum Mortgage Interest Rate not less than that of the Deleted Mortgage Loan; (ix) have a Maximum Mortgage Interest Rate not less than (and not more than 2% greater than) the Maximum Mortgage Interest Rate of the Deleted Mortgage Loan; (x) not permit conversion of the related Mortgage Interest Rate to a permanent fixed Mortgage Interest Rate; and (xi) be 3 accompanied by an Opinion of Counsel that such Qualified Substitute Mortgage Loan would not adversely affect the REMIC status of any REMIC created under the Pooling and Servicing Agreement or would not otherwise be prohibited by the Pooling and Servicing Agreement." (b) With respect to the Specified Mortgage Loans, "Eligible Investments" shall have the meaning of "Permitting Investments" as defined in the Pooling and Servicing Agreement. (c) Notwithstanding any provision in the Agreement to the contrary, the parties to the Agreement hereby agree that, in connection with any prepayments in full of the Specified Mortgage Loans in a Mortgage Pool (as defined in the Pooling and Servicing Agreement), the Servicer shall contribute from its own funds, to the extent that such contributions do not exceed the aggregate Servicing Fee for the Specified Mortgage Loans in such Mortgage Pool, any shortfall in the interest component thereof such that one month's interest shall be deposited to the Custodial Account as defined in the Agreement. 7. Indemnification by Master Servicer The Master Servicer shall indemnify and hold harmless National City and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Master Servicer or any of its officers, directors, agents or affiliates of its obligations in connection with the preparation, filing and certification of any Form 10-K pursuant to the Pooling and Servicing Agreement or the negligence, bad faith or willful misconduct of the Master Servicer in connection therewith. In addition, the Master Servicer shall indemnify and hold harmless National City and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by any Servicer (as defined in the Pooling and Servicing Agreement), other than National City, of its obligations in connection with any back-up certification (or any other back-up documents) to any certification of any Form 10-K required to be provided by the Master Servicer, but solely to the extent the Master Servicer receives amounts from such Servicer in connection with any indemnification provided by such Servicer (in each case as defined in the Pooling and Servicing Agreement) to the Master Servicer. 8. Continuing Effect Except as contemplated hereby, the Agreement shall remain in full force and effect in accordance with its terms. 9. Governing Law This Assignment and the rights and obligations hereunder shall be governed by and construed in accordance with the internal laws of the State of New York. 10. Notices Any notices or other communications permitted or required under the Agreement to be made to Sunset, the Depositor, the Trustee and National City shall be made in accordance with the terms of the Agreement and shall be sent to the Depositor and Trustee as follows: 4 In the case of Sunset: Sunset Financial Resources, Inc. 10245 Centurion Parkway North Suite 305 Jacksonville, Florida 32256 Attention: Byron Boston Telephone: 904-425-4351 Facsimile: 904-425-4755 In the case of the Depositor: J.P. Morgan Acceptance Corporation I 270 Park Avenue New York, New York 10017 Attention: J.P. Morgan Mortgage Trust 2004-A3 In the case of the Trustee: Wachovia Bank, National Association 401 South Tryon Street Charlotte, North Carolina 28288-1179 Attention: Structured Finance Trust Services, J.P. Morgan Mortgage Trust 2004-A3 In the case of National City: National City Mortgage Company Attention: Hugh Yeary 3232 Newmark Dr. Miamisburg, Ohio 45342 With a copy to: National City Mortgage Company Attention: T. Jackson Case 3232 Newmark Dr. Miamisburg, Ohio 45342 or to such other address as may hereafter be furnished by the Depositor and the Trustee to the parties in accordance with the provisions of the Agreement. 11. Ratification Except as modified and expressly amended by this Assignment, the Agreement is in all respects ratified and confirmed, and all terms, provisions and conditions thereof shall be and remain in full force and effect. 5 12. Counterparts This Assignment may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. 13. Definitions Any capitalized term used but not defined in this Assignment has the same meaning as in the Agreement. [SIGNATURE PAGE FOLLOWS] 6 IN WITNESS WHEREOF, the parties hereto have executed this Assignment the day and year first above written. SUNSET FINANCIAL RESOURCES, INC. By: /s/ Thomas G. Manuel ------------------------------ Name: Thomas G. Manuel Title: EVP J.P. MORGAN ACCEPTANCE CORPORATION I By: /s/ Jonathan Davis ----------------------------------- Name: Jonathan Davis Title: Vice President WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee of J.P. Morgan Mortgage Trust 2004-A3 By: /s/ Stephanie J. Aronovitch ----------------------------------- Name: Stephanie J. Aronovitch Title: Assistant Vice President NATIONAL CITY MORTGAGE CO. By: /s/ Mary Beth Criswell ----------------------------------- Name: Mary Beth Criswell Title: Vice President Acknowledged and Agreed: WELLS FARGO BANK, N.A., as Master Servicer By: /s/ Ruth Fussell --------------------------------------- Name: Ruth Fussell Title: Vice President EXHIBIT I MORTGAGE LOAN SCHEDULE [SEE SCHEDULE A TO POOLING AND SERVICING AGREEMENT] EX-10.7 8 d16708exv10w7.txt ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT Exhibit 10.7 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"), dated as of June 1, 2004, is entered into among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the "Depositor"), Wachovia Bank, National Association, as trustee (the "Trustee") of J.P. Morgan Mortgage Trust 2004-A3 (the "Trust"), Sunset Financial Resources, Inc., a Maryland corporation ("Sunset"), and Greenpoint Mortgage Funding, Inc. ("Greenpoint"). RECITALS WHEREAS Greenpoint, as seller and as servicer, and Morgan Stanley Mortgage Capital Inc., as purchaser ("Morgan Stanley") entered into a certain Mortgage Loan Sale and Servicing Agreement, dated as of September 1, 2003 (the "Agreement"), pursuant to which Morgan Stanley acquired certain mortgage loans (the "Mortgage Loans") pursuant to the terms of the Agreement and Greenpoint agreed to service such Mortgage Loans; WHEREAS, pursuant to an Assignment, Assumption and Recognition Agreement dated March 30, 2004 relating to the Agreement, Sunset acquired from Morgan Stanley all of Morgan Stanley's right, title and interest in certain of the Mortgage Loans (the "Sunset Mortgage Loans") and Greenpoint agreed to service such Sunset Mortgage Loans pursuant to the Agreement. WHEREAS the Depositor has agreed, on the terms and conditions contained herein, to purchase from Sunset certain of the Sunset Mortgage Loans (the "Specified Mortgage Loans") which are subject to the provisions of the Agreement and are listed on the mortgage loan schedule attached as Exhibit I hereto (the "Specified Mortgage Loan Schedule"); and WHEREAS the Trustee, on behalf of the Trust, has agreed, on the terms and conditions contained herein, to purchase from the Depositor the Specified Mortgage Loans; NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows: 1. Assignment and Assumption (a) On and as of the date hereof, Sunset hereby sells, assigns and transfers to the Depositor all of its right, title and interest in the Specified Mortgage Loans and all rights and obligations related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans (without recourse or warranty except as otherwise specifically provided herein), the Depositor hereby accepts such assignment from Sunset (the "First Assignment and Assumption"), and Greenpoint hereby acknowledges the First Assignment and Assumption. Sunset specifically reserves and does not assign to the Depositor hereunder any and all right, title and interest in, to and under and all obligations of Sunset with respect to any Sunset Mortgage Loans subject to the Agreement which are not the Specified Mortgage Loans. (b) On and as of the date hereof, immediately after giving effect to the First Assignment and Assumption, the Depositor hereby sells, assigns and transfers to the Trustee, on behalf of the Trust, all of its right, title and interest in the Specified Mortgage Loans and all rights and obligations related thereto as provided under the Agreement to the extent relating to the Specified Mortgage Loans, and the Trustee, on behalf of the Trust, hereby accepts such assignment from the Depositor (the "Second Assignment and Assumption"), and Greenpoint hereby acknowledges the Second Assignment and Assumption. (c) On and as of the date hereof, Sunset represents and warrants to the Depositor and the Trustee that Sunset has not taken any action that would serve to impair or encumber the respective ownership interests of the Depositor and the Trustee in the Specified Mortgage Loans since the date of Sunset's acquisition of the Specified Mortgage Loans. 2. Recognition of Trustee (a) From and after the date hereof, both Sunset and Greenpoint shall note the transfer of the Specified Mortgage Loans to the Trustee, in their respective books and records and shall recognize the Trustee, on behalf of the Trust, as of the date hereof, as the owner of the Specified Mortgage Loans, and Greenpoint shall service the Specified Mortgage Loans for the benefit of the Trust pursuant to the Agreement, the terms of which are incorporated herein by reference. It is the intention of Greenpoint, the Depositor, the Trustee and Sunset that this Assignment shall be binding upon and inure to the benefit of the Depositor, the Trustee and Sunset and their respective successors and assigns. (b) Without in any way limiting the foregoing, the parties confirm that this Assignment includes the rights relating to amendments and waivers under the Agreement. Accordingly, the right of Sunset to consent to any amendment of the Agreement and its rights concerning waivers as set forth in Sections 28 and 24, respectively, of the Agreement shall be exercisable, to the extent any such amendment or waiver affects the Specified Mortgage Loans or any of the rights or obligations under the Agreement with respect thereto (including, without limitation, the servicing of the Specified Mortgage Loans), by the Trustee as assignee of Sunset. 3. Representations and Warranties (a) The Depositor represents and warrants that it is a sophisticated investor able to evaluate the risks and merits of the transactions contemplated hereby, and that it has not relied in connection therewith upon any statements or representations of Greenpoint or Sunset other than those contained in the Agreement or this Assignment. (b) Each of the parties hereto represents and warrants that it is duly and legally authorized to enter into this Assignment. (c) Each of the parties hereto represents and warrants that this Assignment has been duly authorized, executed and delivered by it and (assuming due authorization, execution and delivery thereof by each of the other parties hereto) constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). (d) Greenpoint hereby restates, as of the Closing Date (as defined in the Pooling and Servicing Agreement referred to below), the representations and warranties contained in Subsections 7.01 and 7.02 of the Agreement, with respect to each of the Specified Mortgage Loans that were sold by it under the Agreement, to and for the benefit of the Depositor, the Trustee and the Trust, and by this reference incorporates such representations and warranties herein, as of such Closing Date. 2 4. Greenpoint hereby acknowledges that Wells Fargo Bank, N.A. has been appointed as the master servicer (the "Master Servicer") of the Specified Mortgage Loans pursuant to the pooling and servicing agreement dated as of the date hereof among the Depositor, the Master Servicer, the Securities Administrator and the Trustee (the "Pooling and Servicing Agreement") for Mortgage Pass-Through Certificates, Series 2004-A3 and, therefore, has the right to enforce all obligations of Greenpoint under the Agreement with respect to the Specified Mortgage Loans. Such rights will include, without limitation, the right to terminate Greenpoint under the Agreement with respect to the Specified Mortgage Loans upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by Greenpoint under the Agreement with respect to the Specified Mortgage Loans, the right to receive all monthly reports and other data required to be delivered by Greenpoint under the Agreement with respect to the Specified Mortgage Loans, the right to examine the books and records of Greenpoint, indemnification rights and the right to exercise certain rights of consent and approval relating to actions taken by Sunset with respect to the Specified Mortgage Loans. Greenpoint shall make all distributions under the Agreement to the Master Servicer by wire transfer of immediately available funds to: Wells Fargo Bank, N.A. ABA Number: 121-000-248 Account Name: SAS Clearing Account number: 3970771416 For further credit to: J.P. Morgan Mortgage Trust 2004-A3, Distribution Account Number: 18172300 Greenpoint shall deliver all reports required to be delivered under the Agreement to the Master Servicer at the following address: Wells Fargo Bank, N.A. 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Client Manager Telecopier: (410) 715-2380 5. Establishment of Custodial Account The Servicer shall establish and maintain a separate Custodial Account in the name of the Trustee, in trust for J.P. Morgan Mortgage Trust 2004-A3, for all funds collected and received on the Specified Mortgage Loans. 6. Amendments to the Agreement The parties to this Assignment hereby agree to amend the Agreement as follows: (a) The definition of "Qualified Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by inserting the following: "(ix) have a Stated Principal Balance, after deduction of the principal portion of the Monthly Payment due in the month of substitution, not in excess of, and not more than 10% less than, the Stated Principal Balance of the Deleted Mortgage Loan; (x) have a gross margin not less than that of the Deleted Mortgage Loan; (xi) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (xii) have the same Interest Rate Adjustment Date as that of the Deleted Mortgage Loan; (xiii) not permit conversion of the related Mortgage Interest Rate to a permanent fixed Mortgage Rate; and (xiv) shall be accompanied by an Opinion of Counsel that such 3 Qualified Substitute Mortgage Loan would not adversely affect the REMIC status of any REMIC created under the Pooling and Servicing Agreement or would not otherwise be prohibited by the Pooling and Servicing Agreement." (b) With respect to the Specified Mortgage Loans, "Eligible Investments" shall have the meaning of "Permitted Investments" as defined in the Pooling and Servicing Agreement. (c) Section 1 is hereby amended by inserting the following new definition: "Rating Agency": Each of Standard & Poor's, a division of The McGraw-Hill Companies, Inc., Fitch Ratings and Moody's Investor Services, Inc., as applicable. (d) Notwithstanding any provision in the Agreement to the contrary, the parties to the Agreement hereby agree that, in connection with any prepayments of the Specified Mortgage Loans in a Mortgage Pool (as defined in the Pooling and Servicing Agreement), the Servicer shall contribute from its own funds, to the extent that such contributions do not exceed the aggregate Servicing Fees for the Specified Mortgage Loans in such Mortgage Pool, any shortfall in the interest component thereof such that one month's interest shall be deposited to the Custodial Account as defined in the Agreement. (e) Subsection 11.04(i) of the Agreement is hereby amended and restated in its entirety as follows: "(i) with respect to each Principal Prepayment, an amount (to be paid by the Servicer out of its own funds) which, when added to all amounts allocable to interest received in connection with the Principal Prepayment, equals one month's interest on the amount of principal so prepaid for the month of prepayment at the applicable Mortgage Loan Remittance Rate; provided, however, that the Servicer's aggregate obligations under this paragraph for any month shall be limited to the total amount of Servicing Fees actually received with respect to the Mortgage Loans by the Servicer during such month." (f) The fifth paragraph of Subsection 11.12 of the Agreement is hereby amended and restated in its entirety as follows: "With respect to any REO Property, the deed or certificate of sale shall be taken in the name of the Purchaser, or its designee. The Trustee's name shall be placed on the title to such REO Property solely as the Trustee hereunder and not in its individual capacity. The Servicer shall ensure that the title to such REO Property references the Agreement and the Purchaser's (or its designee's) capacity thereunder. Pursuant to its efforts to sell such REO Property, the Servicer shall either itself or through an agent selected by the 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 Purchaser, or its designee, rent the same, or any part thereof, as the Servicer deems to be in the best interest of the Purchaser, or its designee, for the period prior to the sale of such REO Property. The Servicer shall prepare for and deliver to the Purchaser, or its designee, a statement with respect to each REO Property that has been rented showing the aggregate rental income received and all expenses incurred in connection with the maintenance of such REO Property at such times as is necessary to enable the Purchaser, or its designee, to comply with the reporting requirements of the REMIC Provisions. The net monthly rental income, if any, from such REO Property shall be deposited in the Certificate Account no later than the close of business on each Determination Date. The Servicer shall perform the tax reporting and withholding required by Sections 1445 and 6050J of the Code with respect to foreclosures and abandonments, the tax 4 reporting required by Section 6050H of the Code with respect to the receipt of mortgage interest from individuals and any tax reporting required by Section 6050P of the Code with respect to the cancellation of indebtedness by certain financial entities, by preparing such tax and information returns as may be required, in the form required, and delivering the same to the Purchaser, or its designee, for filing. In the event that the Purchaser, or its designee, acquires any Mortgaged Property as aforesaid or otherwise in connection with a default or imminent default on a Mortgage Loan, the Servicer shall dispose of such Mortgaged Property as soon as practicable in a manner that maximizes the Liquidation Proceeds thereof, but in no event later than three years after its acquisition by the Purchaser, or its designee. In that event, the Purchaser, or its designee, shall have been supplied with an Opinion of Counsel to the effect that the holding by the Purchaser, or its designee, of such Mortgaged Property subsequent to a three-year period, if applicable, will not result in the imposition of taxes on "prohibited transactions" of any REMIC as defined in section 860F of the Code or cause any REMIC to fail to qualify as a REMIC at any time, the Purchaser, or its designee, may continue to hold such Mortgaged Property (subject to any conditions contained in such Opinion of Counsel) after the expiration of such three-year period. Notwithstanding any other provision of this Agreement, no Mortgaged Property acquired by the Purchaser, or its designee, shall be rented (or allowed to continue to be rented) or otherwise used for the production of income by or on behalf of the Purchaser, or its designee, in such a manner or pursuant to any terms that would (i) cause such Mortgaged Property to fail to qualify as "foreclosure property" within the meaning of section 860G(a)(8) of the Code or (ii) subject any REMIC to the imposition of any federal, state or local income taxes on the income earned from such Mortgaged Property under Section 860G(c) of the Code or otherwise, unless the Servicer has agreed to indemnify and hold harmless the Purchaser, or its designee, with respect to the imposition of any such taxes." (g) The first sentence of Subsection 11.15 of the Agreement is hereby amended and restated in its entirety as follows: "Statements to the Purchaser. Not later than the 10th calendar day of each month (or, if such 10th day is not a Business Day, the following Business Day), the Servicer shall forward to the Master Servicer in hard copy and electronic format a statement, certified by a Servicing Officer, setting forth (a) the amount of the distribution made on such Remittance Date which is allocable to principal and allocable to interest; (b) the amount of servicing compensation received by the Servicer during the prior calendar month; (c) the aggregate Stated Principal Balance and the aggregate unpaid principal balance of the Mortgage Loans as of the last day of the preceding month; and (d) the paid through date for each Mortgage Loan. Such statement shall also include information regarding delinquencies on Mortgage Loans, indicating the number and aggregate principal amount of Mortgage' Loans which are either one (1), two (2) or three (3) or more months delinquent and the book value of any REO Property, or such other mortgage loan level data as agreed upon by the Servicer and the Master Servicer, and monthly reports substantially in the form of Exhibit 9 attached hereto." (h) Subsection 11.19 of the Agreement is hereby amended and restated in its entirety as follows: "Annual Statement as to Compliance. (a) The Servicer shall deliver to the Purchaser and the Master Servicer, on or before March 1st each year beginning March 1, 2004, an Officer's Certificate stating that (i) a review of the activities of the Servicer during the preceding calendar year and if performance under this Agreement has been made under such officer's supervision, 5 and (ii) to the best of such officer's knowledge, based on such review, the Servicer has fulfilled all its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and status thereof and the action being taken by the Servicer to cure such default. (b) For so long as the Mortgage Loans are being master serviced by a master servicer in a securitization transaction (the "Master Servicer"), by the later of March 1 or 30 days prior to the date on which the Form 10-K is required to be filed with the SEC of each year (or if not a Business Day, the immediately preceding Business Day), an officer of the Servicer shall execute and deliver an Officer's Certificate to the Master Servicer for the benefit of such Master Servicer and its officers, directors and affiliates, certifying as to the following matters: (i) Based on my knowledge, the information in the Annual Statement of Compliance, the Annual Independent Public Accountant's Servicing Report and all servicing reports, officer's certificates and other information relating to the servicing of the Mortgage Loans submitted to the Master Servicer taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading as of the date of this certification; (ii) Based on my knowledge, the servicing information required to be provided to the Master Servicer by the Servicer under this Servicing Agreement has been provided to the Master Servicer; (iii) I am responsible for reviewing the activities performed by the Servicer under the Servicing Agreement and based upon the review required by this Servicing Agreement, and except as disclosed in the Annual Statement of Compliance and the Annual Independent Public Accountant's Servicing Report submitted to the Master Servicer, the Servicer has, as of the date of this certification fulfilled its obligations under this Servicing Agreement; and (iv) I have disclosed to the Master Servicer all significant deficiencies relating to the Servicer's compliance with the minimum servicing standards in accordance with a review conducted in compliance with the Uniform Single Attestation Program for Mortgage Bankers or similar standard as set forth in the Servicing Agreement. (c) The Servicer shall indemnify and hold harmless the Master Servicer and its officers, directors, agents and affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Servicer or any of its officers, directors, agents or affiliates of its obligations under this Section 11.19 or the negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Servicer agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Servicer on the other in connection with a breach of the Servicer's obligations under this Section 11.19 or the Servicer's negligence, bad faith or willful misconduct in connection therewith." (i) Subsection 11.20 of the Agreement is hereby amended and restated in its entirety as follows: 6 "Annual Independent Public Accountants' Servicing Report. On or before March 1st of each year beginning March 1, 2004, the Servicer at its expense shall cause a firm of independent public accountants which is a member of the American Institute of Certified Public Accountants to furnish a statement to the Purchaser and the Master Servicer to the effect that such firm has, with respect to the Servicer's overall servicing operations, examined such operations in accordance with the requirements of the Uniform Single Attestation Program for Mortgage Bankers, stating such firm's conclusions relating thereto." (j) The word "or" is deleted from the end of Subsection 13.01(d), the word "or" is added at the end of Subsection 13.01(e) and the following paragraph is hereby incorporated into the Agreement as new Subsection 13.01(f): "(f) failure by the Servicer to duly perform, within the required time period, its obligations under Subsections 11.19 or 11.20 which failure continues unremedied for a period of fifteen (15) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any party to this Agreement or by any master servicer responsible for master servicing the Mortgage Loans pursuant to a securitization of such Mortgage Loans;" (k) The following paragraph is hereby incorporated into the Agreement as new Section 34: "Third Party Beneficiary. For purposes of this Agreement, including but not limited to Subsection 11.20, any Master Servicer shall be considered a third party beneficiary to this Agreement entitled to all the rights and benefits accruing to any Master Servicer herein as if it were a direct party to this Agreement." (l) Exhibit 9 to the Agreement is hereby replaced in its entirety with the Amended and Restated Exhibit 9 attached to this Assignment as Exhibit II. (m) Exhibit 16 to the Agreement is hereby deleted in its entirety. (n) The second and third sentences of Subsection 11.04 are hereby deleted and replaced with the following: "Such Custodial Account shall be (i) an account or accounts maintained with a federal or state chartered depository institution or trust company the long-term unsecured debt obligations of which are rated by each Rating Agency in one of its two highest rating categories or the short-term unsecured debt obligations of which have the highest short-term ratings of each Rating Agency at the time any amounts are held on deposit therein, or (ii) an account or accounts in a depository institution or trust company in which such accounts are insured by the FDIC or the SAIF (to the limits established by the FDIC or the SAIF) and the uninsured deposits in which accounts are otherwise secured such that, as evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating Agency, the Certificateholders have a claim with respect to the funds in such account or a perfected first priority security interest against any collateral (which shall be limited to Eligible Investments) securing such funds that is superior to claims of any other depositors or creditors of the depository institution or trust company in which such account is maintained, or (iii) a trust account or accounts maintained with the trust department of a federal or state chartered depository institution or trust company which is subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal Regulation Section 9.10(b) and which has corporate trust powers and is acting in its fiduciary capacity, or (iv) any 7 other account acceptable to each Rating Agency, as evidenced by a signed writing delivered by each Rating Agency." 7. Indemnification by Master Servicer The Master Servicer shall indemnify and hold harmless Greenpoint and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Master Servicer or any of its officers, directors, agents or affiliates of its obligations in connection with the preparation, filing and certification of any Form 10-K pursuant to the Pooling and Servicing Agreement or the negligence, bad faith or willful misconduct of the Master Servicer in connection therewith. In addition, the Master Servicer shall indemnify and hold harmless Greenpoint and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by any Servicer (as defined in the Pooling and Servicing Agreement), other than Greenpoint, of its obligations in connection with any back-up certification (or any other back-up documents) to any certification of any Form 10-K required to be provided by the Master Servicer, but solely to the extent the Master Servicer receives amounts from such Servicer in connection with any indemnification provided by such Servicer (in each case as defined in the Pooling and Servicing Agreement) to the Master Servicer. 8. Continuing Effect Except as contemplated hereby, the Agreement shall remain in full force and effect in accordance with its terms. 9. Governing Law This Assignment and the rights and obligations hereunder shall be governed by and construed in accordance with the internal laws of the State of New York. 10. Notices Any notices or other communications permitted or required under the Agreement to be made to the Depositor and the Trustee shall be made in accordance with the terms of the Agreement and shall be sent to the Depositor and Trustee as follows: In the case of Sunset: Sunset Financial Resources, Inc. 10245 Centurion Parkway North Suite 305 Jacksonville, Florida 32256 Attention: Byron Boston Telephone: 904-425-4351 Facsimile: 904-425-4755 In the case of the Depositor: J.P. Morgan Acceptance Corporation I 270 Park Avenue 8 New York, New York 10017 Attention: J.P. Morgan Mortgage Trust 2004-A3 In the case of the Trustee: Wachovia Bank, National Association 401 South Tryon Street Charlotte, North Carolina 28288-1179 Attention: Structured Finance Trust Services, J.P. Morgan Mortgage Trust 2004-A3 In the case of Greenpoint: Greenpoint Mortgage Funding, Inc. 100 Wood Hollow Drive Novato, CA 94945 or to such other address as may hereafter be furnished by the Depositor and the Trustee to the parties in accordance with the provisions of the Agreement. 11. Ratification Except as modified and expressly amended by this Assignment, the Agreement is in all respects ratified and confirmed, and all terms, provisions and conditions thereof shall be and remain in full force and effect. 12. Counterparts This Assignment may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. 13. Definitions Any capitalized term used but not defined in this Assignment has the same meaning as in the Agreement. [SIGNATURE PAGE FOLLOWS] 9 IN WITNESS WHEREOF, the parties hereto have executed this Assignment the day and year first above written. SUNSET FINANCIAL RESOURCES, INC. By: /s/ Thomas G. Manuel -------------------- Name: Thomas G. Manuel Title: EVP J.P. MORGAN ACCEPTANCE CORPORATION I By: /s/ Jonathan Davis ------------------------------ Name: Jonathan Davis Title: Vice President WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee of J.P. Morgan Mortgage Trust 2004-A3 By: /s/ Stephanie J. Aronovitch --------------------------- Name: Stephanie J. Arnovitch Title: Assistant Vice President GREENPOINT MORTGAGE FUNDING, INC. By: /s/ Susan David ---------------------------------- Name: Susan David Title: AVP Acknowledged and Agreed: WELLS FARGO BANK, N.A., as Master Servicer By: /s/ Ruth Fussell ---------------------------------- Name: Ruth Fussell Title: Vice President EX-10.8 9 d16708exv10w8.txt INDEMNIFICATION AGREEMENT Exhibit 10.8 INDEMNIFICATION AGREEMENT J.P. MORGAN ACCEPTANCE CORPORATION I MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-A3 WHEREAS, pursuant to the Mortgage Loan Sale and Servicing Agreement dated as of September 1, 2003 (the "GreenPoint Purchase Agreement"), between Morgan Stanley Mortgage Capital Inc. ("Morgan Stanley"), as purchaser, and GreenPoint Mortgage Funding, Inc. ("GreenPoint"), as seller and as servicer, Morgan Stanley purchased from GreenPoint certain mortgage loans (the "GreenPoint Mortgage Loans"); WHEREAS, pursuant to the Flow Mortgage Loan Sale and Servicing Agreement, dated October 1, 2003, as amended by Amendment No. 1 thereto dated as of February 24, 2004 (the "BANA Purchase Agreement") between Morgan Stanley, as purchaser, and Bank of America, N.A. ("BANA"), as seller and as servicer, Morgan Stanley purchased from BANA certain mortgage loans (the "BANA Mortgage Loans"); WHEREAS, pursuant to the Mortgage Loan Flow Purchase, Sale & Servicing Agreement dated as of November 13, 2003 (the "Cendant/MS Purchase Agreement"), among Morgan Stanley, as purchaser, Cendant Mortgage Corporation and Bishop's Gate Residential Mortgage Trust, as sellers (the "Cendant Sellers") and Cendant Mortgage Corporation, as servicer, Morgan Stanley purchased from the Cendant Sellers certain mortgage loans (the "Cendant/MS Mortgage Loans" and, together with the GreenPoint Mortgage Loans and the BANA Mortgage Loans, the "Specified Mortgage Loans"); WHEREAS, pursuant to a series of Assignment, Assumption and Recognition Agreements, each dated as of March 30, 2004, Sunset Financial Resources, Inc. ("Sunset") acquired from Morgan Stanley all of Morgan Stanley's right, title and interest in the Specified Mortgage Loans; WHEREAS, pursuant to a series of Assignment, Assumption and Recognition Agreements, each dated as of June 1, 2004, among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the "Depositor"), Wachovia Bank, National Association (the "Trustee"), as trustee of J.P. Morgan Mortgage Trust 2004-A3, Sunset and the applicable Originator Sellers, the Depositor acquired from Sunset all of Sunset's right, title and interest in the Specified Mortgage Loans; WHEREAS, capitalized terms used but not defined in this Indemnification Agreement have the meanings ascribed pursuant to the applicable Purchase Agreements; WHEREAS, the Depositor will cause the securitization of the Specified Mortgage Loans pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2004, between the Depositor, Wells Fargo Bank, N.A., as master servicer and securities administrator (the "Master Servicer") and the Trustee, and the issuance of Mortgage Pass-Through Certificates, Series 2004-A3 (the "Certificates") thereunder, and pursuant to an Underwriting Agreement and Purchase Agreement, each dated June 24, 2004, each between the Depositor and J.P. Morgan Securities Inc. ("JPMSI"), and the sale of the Certificates thereunder to JPMSI, as underwriter and initial purchaser, respectively; WHEREAS, in connection with the securitization of the Specified Mortgage Loans, the Depositor has requested indemnification from Sunset, in respect of certain information to be used in the underwriting or placement of the Certificates; NOW THEREFORE, in consideration of the agreements contained herein, and other valuable consideration the receipt and sufficiency of which is hereby acknowledged, Sunset and the Depositor agree as follows: 1. Indemnification and Contribution. (a) Sunset agrees to indemnify and hold harmless the Depositor, its officers and directors and each person, if any, who controls the Depositor within the meaning of either Section 15 of the Securities Act of 1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and all losses, claims, damages or liabilities, joint or several, to which the Depositor or any of them may become subject under the 1933 Act, the 1934 Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based in whole or in part upon any untrue statement or alleged untrue statement of a material fact contained in the Sunset Information (as defined below) or any omission or alleged omission to state in the Sunset Information a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and agrees to reimburse the Depositor and each such officer, director and controlling person promptly upon demand for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which Sunset may otherwise have. As used herein "Sunset Information" means (x) the information and data concerning the Specified Mortgage Loans set forth on any computer tape (or other electronic or printed medium) furnished to the Depositor and/or JPMSI by Sunset and (y) the information set forth in the Prospectus Supplement of the Depositor, dated June 24, 2004, under the captions "Summary -- The Mortgage Loans", "Description of the Mortgage Pools -- The Mortgage Loans" and "Description of the Mortgage Pools -- Tabular Characteristics of the Mortgage Loans (Aggregate Pool II)", in each case, as such information relates to the Specified Mortgage Loans. (b) The Depositor agrees to indemnify and hold harmless Sunset, its officers and directors and each person, if any, who controls Sunset within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all losses, claims, damages or liabilities, joint or several, to which Sunset or any of them may become subject under the 1933 Act, the 1934 Act or other federal or state statutory law or regulation, at common law or 2 otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based in whole or in part upon any untrue statement or alleged untrue statement of a material fact contained in the Depositor Information or any omission or alleged omission to state in the Depositor Information a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and agrees to reimburse Sunset and each such officer, director and controlling person promptly upon demand for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which the Depositor may otherwise have. As used herein "Depositor Information" means all information contained in the Prospectus Supplement relating to the Certificates dated June 24, 2004, the accompanying Prospectus, dated February 19, 2004, the Private Placement Memorandum dated June 29, 2004 relating to the privately offered Certificates and any amendment or supplement to any of the foregoing and any other materials used by the Depositor to offer any of the Certificates, in each case other than the Sunset Information constituting a part thereof. (c) Promptly after receipt by any indemnified party under this Section 1 of notice of any claim or the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 1, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 1 except to the extent it has been materially prejudiced by such failure; and provided further, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 1. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, except as provided in the following paragraph, the indemnifying party shall not be liable to the indemnified party under this Section 1 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the employment thereof has been specifically authorized by the indemnifying party in writing; (ii) such indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party and in the reasonable judgment of such counsel it is advisable for such indemnified party to employ separate counsel; or (iii) the indemnifying party has failed to assume the defense of such action and employ 3 counsel reasonably satisfactory to the indemnified party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to local counsel) at any time for all such indemnified parties. The indemnifying party shall not be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested the indemnifying party to reimburse the indemnified party for fees and expenses of counsel, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. (d) If the indemnification provided for in this Section 1 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities, in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, respectively, in connection with the statements or omissions that result in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the indemnified party and indemnifying party shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to Sunset Information, on the one hand, or Depositor Information on the other. The parties agree that it would not be just and equitable if contribution pursuant to this Section 1(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the considerations referred to in this Section 1(d) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 1(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, except where the indemnified party is required to bear such expenses pursuant to this Section 1, which expenses the indemnifying party shall pay as and when incurred, at the request of the indemnified party, to the extent that the indemnifying party will be ultimately obligated to pay such expenses. In the event that any expenses so paid by the indemnifying party are subsequently determined to not be required to be borne by the indemnifying party hereunder, the party which received such payment shall 4 promptly refund the amount so paid to the party which made such payment. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the 1933 Act), shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) The indemnity and contribution agreements contained in this Section 1 and the representations and warranties set forth in Section 2 shall remain operative and in full force and effect regardless of (i) any termination of the Purchase Agreement, (ii) any investigation made by either the Depositor or Sunset, their directors or officers or any person controlling either of them, by or on behalf of either of them, and (iii) acceptance of and payment for any of the Certificates. 2. Representations and Warranties. Sunset and the Depositor each represent that: (i) such party is validly existing and in good standing under the laws of its jurisdiction of formation or incorporation, as applicable, and has full power and authority to own its assets and to transact the business in which it is currently engaged; (ii) such party is not required to obtain the consent of any other Person or any consent, license, approval or authorization from, or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Indemnification Agreement; (iii)the execution, delivery and performance of this Indemnification Agreement by such party will not violate any provision of any existing law or regulation or any order decree of any court applicable to such party or any provision of the charter or bylaws of such party, or constitute a material breach of any mortgage, indenture, contract or other agreement to which such party is a party or by which it may be bound; (iv) no proceeding of or before any court, tribunal or governmental body is currently pending or, to the knowledge of each party, threatened against such party or any of its properties or with respect to this Indemnification Agreement or the Specified Mortgage Loans; (v) such party has full power and authority to make, execute, deliver and perform this Indemnification Agreement and all of the transactions contemplated hereunder, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Indemnification Agreement. When executed and delivered, this Indemnification Agreement will constitute the legal, valid and binding obligation of such party enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally, by the availability of equitable remedies, and by limitations of public policy under applicable securities law as to rights of indemnity and contribution thereunder; and (vi) this Indemnification Agreement has been duly executed and delivered by such party. 3. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Depositor will be mailed, delivered or telegraphed and confirmed to such party at 270 Park Avenue New York, New York 10017 Attention: General Counsel's 5 Office or, if sent to Sunset will be mailed, delivered or telegraphed and confirmed to Sunset Financial Resources, Inc., 10245 Centurion Parkway North, Suite 305, Jacksonville, Florida 32256, Attention: Byron Boston. 4. Miscellaneous. This Indemnification Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. This Indemnification Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns and the controlling persons referred to herein, and no other person shall have any right or obligation hereunder. Neither this Indemnification Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. This Indemnification Agreement may be executed in counterparts, each of which when so executed and delivered shall be considered an original, and all such counterparts shall constitute one and the same instrument. [Signature Page Follows] 6 IN WITNESS WHEREOF, the parties hereto have caused this Indemnification Agreement to be duly executed by their respective officers hereunto duly authorized, this 29th day of June, 2004. J.P. MORGAN ACCEPTANCE CORPORATION I By /s/ Jonathan Davis ---------------------------------- Name: Jonathan Davis Title: Vice President SUNSET FINANCIAL RESOURCES, INC. By /s/ Thomas G. Manuel -------------------------- Name: Thomas G. Manuel Title: EVP 7 EX-99.1 10 d16708exv99w1.txt PRESS RELEASE EXHIBIT 99.1 [SUNSET LOGO] 10245 CENTURION Parkway North, Suite 310, Jacksonville, Fl. 32256 FOR IMMEDIATE RELEASE July 2, 2004 SUNSET FINANCIAL RESOURCES SECURITIZES ITS INITIAL PORTFOLIO Jacksonville, FL - July 2, 2004 - Sunset Financial Resources, Inc. (NYSE:SFO) announced today that on June 29 it successfully securitized $219.4 million in residential mortgage loans. Sunset contributed these loans to J.P.Morgan Mortgage Trust 2004-A3 and received a like amount of investment securities. "This securitization represents a significant milestone in the execution of our business plan," remarked Sunset's Chief Investment Officer, Byron Boston. "To successfully convert our whole loan purchases to mortgage-backed securities in the first full quarter of our operating history is a solid accomplishment. By participating in this securization with JPMorgan, we shortened dramatically the time it took Sunset to get to the market. We are grateful to JPMorgan for allowing us to participate with them and look forward to future opportunities together." Sunset also reported today that it executed an amendment to its $250 million Senior Secured Credit Agreement with JPMorgan on June 24. This amendment creates an $18.75 million sub-limit relating to commercial mortgage bridge loans that meet specific criteria. "Critical to the financial execution of our business plan is our ability to leverage our commercial loan portfolio" commented Sunset's Chief Financial Officer, Mike Pannell. "The amendment to our credit agreement with JPMorgan is the first step in that direction. In addition, we continue to establish repurchase lines and trading agreements with key mortgage securities dealers. These relationships allow us to continue to grow our balance sheet through the use of leverage." Sunset has scheduled a conference call to discuss these milestones and the changing interest rate environment at 11:00AM EDT on Tuesday, July 6, 2004. Byron Boston, Vice Chairman and Chief Investment Officer, will host the conference call. Those wishing to listen to the conference call by telephone may dial (866)-660-0170. Please call ten minutes prior to the scheduled conference call time. The conference call will also be archived on the company's web site through July 31 at www.sunsetfinancial.net. Sunset Financial Resources, Inc. is a self-managed real estate investment trust (REIT) that went public on March 17, 2004. Sunset seeks to deliver attractive dividend income and steady growth to its shareholders through the acquisition and management of a portfolio of high quality residential mortgage loans and commercial mortgage bridge loans in the United States. Certain statements in this news release may constitute "forward-looking statements" within the meaning of the federal securities laws and involve risks, uncertainties and other factors which may cause the actual performance of Sunset Financial Resources, Inc. to be materially different from the performance expressed or implied by such statements. These risks include the failure of Sunset to successfully execute its business plan, gain access to additional financing, the availability of additional loan portfolios for future acquisition, continued qualification as a REIT, the cost of capital, as well as the additional risks and uncertainties detailed in Sunset's periodic reports and registration statements filed with the Securities and Exchange Commission. For further information, call Tom Manuel, EVP at (904) 425-4353. 10245 Centurion Parkway North, Suite 305, Jacksonville, Florida 32256 -30- ~~-----END PRIVACY-ENHANCED MESSAGE-----~~

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