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Exhibit 7.1
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CONFORMED COPY
PNC MORTGAGE SECURITIES CORP.,
as Depositor and Master Servicer
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
POOLING AND SERVICING AGREEMENT
$203,628,267.87
PNC Mortgage Securities Corp.
Mortgage Pass-Through Certificates
Series 2000-6
Cut-Off Date: September 1, 2000
This Pooling and Servicing Agreement, dated and effective as of
September 1, 2000 (this "Agreement"), is executed by and between PNC
Mortgage Securities Corp., as Depositor and Master Servicer (the
"Company"), and State Street Bank and Trust Company, a Massachusetts trust
company with a corporate trust office at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000, as Trustee (the "Trustee"). Capitalized terms used in this
Agreement and not otherwise defined have the meanings ascribed to such
terms in Article I hereof.
PRELIMINARY STATEMENT
The Company at the Closing Date is the owner of the PNC Mortgage Loans
and the other property being conveyed by it to the Trustee for inclusion in
the Trust Fund. On the Closing Date, the Company will acquire the REMIC I
Regular Interests and the Class R-1 Certificates from the REMIC I Trust
Fund as consideration for its transfer to the Trust Fund of the PNC
Mortgage Loans and certain other assets and the deposit into the
Certificate Account of the Clipper Mortgage Loan Purchase Amount and will
be the owner of the REMIC I Regular Interests and the Class R-1
Certificates. Thereafter on the Closing Date, the Company will acquire the
Certificates (other than the Class R-1 Certificates) from REMIC II as
consideration for its transfer to REMIC II of the REMIC I Regular Interests
and will be the owner of the Certificates. The Company has duly authorized
the execution and delivery of this Agreement to provide for (i) the
conveyance to the Trustee of the PNC Mortgage Loans and the issuance to the
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Company of the REMIC I Regular Interests and the Class R-1 Certificates
representing in the aggregate the entire beneficial ownership of REMIC I,
(ii) the conveyance to the Trustee of the Clipper Mortgage Loans pursuant
to the Clipper Loan Sale Agreement and (iii) the conveyance to the Trustee
of the REMIC I Regular Interests and the issuance to the Company of the
Certificates (other than the Class R-1 Certificates) representing in the
aggregate the entire beneficial interest of REMIC II. All covenants and
agreements made by the Company and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the assets of REMIC I
are for the benefit of the Holders from time to time of the REMIC I Regular
Interests and the Class R-1 Certificates. All covenants and agreements made
by the Company and the Trustee herein with respect to the REMIC I Regular
Interests are for the benefit of the Holders from time to time of the
Certificates (other than the Class R-1 Certificates). The Company is
entering into this Agreement, and the Trustee is accepting the two separate
trusts created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
The Certificates issued hereunder, other than the Junior Subordinate
Certificates, have been offered for sale pursuant to a Prospectus, dated
July 26, 2000, and a Prospectus Supplement, dated September 21, 2000, of
the Company (together, the "Prospectus"). The Junior Subordinate
Certificates have been offered for sale pursuant to a Private Placement
Memorandum, dated September 28, 2000. The Trust Fund and the REMIC II
Trust Fund created hereunder are collectively intended to be the "Trust"
described in the Prospectus and the Private Placement Memorandum and the
Certificates are intended to be the "Certificates" described therein. The
following tables set forth the designation, type of interest, Certificate
Interest Rate, initial Class Principal Balance and Final Maturity Date for
the REMIC I Regular Interests and the Certificates:
REMIC I Interests
REMIC I
Class Designation
for each REMIC I
Regular Interest
and the Class R-1 Type of Remittance Initial Class Final Maturity
Certificates Interest Rate (1) Principal Balance Date*
----------------- -------- ------------- ----------------- --------------
Class A-1-L Regular 7.750% $135,000,000.00 October 2030
Class A-2-L Regular 7.750% 13,197,000.00 October 2030
Class A-3-L Regular 7.710% 24,000,000.00 October 2030
Class A-4-L Regular 7.750% 20,362,661.00 October 2030
Class X-L Regular 7.750% (2) ------ October 2030
Class P-L Regular (3) 378,022.00 October 2030
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Class B-1-L Regular 7.750% 4,988,892.00 October 2030
Class B-2-L Regular 7.750% 2,341,726.00 October 2030
Class B-3-L Regular 7.750% 1,323,584.00 October 2030
Class B-4-L Regular 7.750% 916,327.00 October 2030
Class B-5-L Regular 7.750% 509,071.00 October 2030
Class B-6-L Regular 7.750% 610,884.87 October 2030
Class R-2-L Regular 7.750% 50.00 October 2030
Class R-1+ Residual 7.750% 50.00 October 2030
* The Distribution Date in the month following the month the latest
maturing Mortgage Loan matures.
+ The Class R-1 Certificates are entitled to receive the applicable
Residual Distribution Amount and any Excess Liquidation Proceeds.
(1) Interest distributed to the REMIC I Regular Interests (other than the
Class P-L Regular Interest, which shall not be entitled to receive any
distributions of interest) and the Class R-1 Certificates on each
Distribution Date will have accrued at the applicable per annum Certificate
Interest Rate on the Class Principal Balance or Class Notional Amount
outstanding following the immediately prior Distribution Date (or, with
respect to the first Distribution Date, as of the Closing Date).
(2) The Class X-L Regular Interest shall accrue interest on the Class X
Notional Amount. The Class X-L Regular Interest shall not be entitled to
receive any distributions of principal.
(3) The Class P-L Regular Interest shall not be entitled to receive any
distributions of interest.
As provided herein, with respect to REMIC I, the Company will cause an
election to be made on behalf of REMIC I to be treated for federal income
tax purposes as a REMIC. The REMIC I Regular Interests will be designated
regular interests in REMIC I and the Class R-1 Certificates will be
designated the sole class of residual interest in REMIC I, for purposes of
the REMIC Provisions.
REMIC II Interests
REMIC II
Class Designation
for each REMIC II
Regular Interest
and the Class R-2 Type of Remittance Initial Class Final Maturity
Certificates Interest Rate (1) Principal Balance Date*
----------------- -------- ------------- ----------------- --------------
Class A-1 Regular 7.750% $ 135,000,000.00 October 2030
Class A-2 Regular 7.750% 13,197,000.00 October 2030
Class A-3 Regular 7.300% 24,000,000.00 October 2030
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Class A-4 Regular 7.750% 20,362,661.00 October 2030
Class A-5 Regular 8.000% (2) ------ October 2030
Class X Regular 7.750% (2) ------ October 2030
Class P Regular (3) 378,022.00 October 2030
Class B-1 Regular 7.750% 4,988,892.00 October 2030
Class B-2 Regular 7.750% 2,341,726.00 October 2030
Class B-3 Regular 7.750% 1,323,584.00 October 2030
Class B-4 Regular 7.750% 916,327.00 October 2030
Class B-5 Regular 7.750% 509,071.00 October 2030
Class B-6 Regular 7.750% 610,884.87 October 2030
Class R-2+ Residual 7.750% 50.00 October 2030
* The Distribution Date in the month following the month the latest
maturing Mortgage Loan matures.
+ The Class R-2 Certificates are entitled to receive the applicable
Residual Distribution Amount.
(1) Interest distributed to the Certificates (other than the Class P
Certificates, which shall not be entitled to receive any distributions of
interest) on each Distribution Date will have accrued at the applicable per
annum Certificate Interest Rate on the Class Principal Balance or Class
Notional Amount outstanding following the immediately prior Distribution
Date (or, with respect to the first Distribution Date, as of the Closing
Date).
(2) Each of the Class X and Class A-5 Certificates shall accrue interest
on the related Class Notional Amount. The Class X and Class A-5
Certificates shall not be entitled to receive any distributions of
principal.
(3) The Class P Certificates shall not be entitled to receive any
distributions of interest.
As provided herein, with respect to REMIC II, the Company will cause
an election to be made on behalf of REMIC II to be treated for federal
income tax purposes as a REMIC. The Certificates (other than the Class R-1
and Class R-2 Certificates) will be designated regular interests in REMIC
II, and the Class R-2 Certificates will be designated the sole class of
residual interest in REMIC II, for purposes of the REMIC Provisions. As of
the Cut-Off Date, the Mortgage Loans have an aggregate Principal Balance of
$203,628,268.06 and the Certificates have an Aggregate Certificate
Principal Balance of $203,628,267.87.
W I T N E S S E T H :
WHEREAS, the Company is a corporation duly organized and existing
under and by virtue of the laws of the State of Delaware and has full
corporate power and authority to enter into this Agreement and to undertake
the obligations undertaken by it herein;
WHEREAS, the Company is the owner of the PNC Mortgage Loans identified
in the Mortgage Loan Schedule hereto having unpaid Principal Balances on
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the Cut-Off Date as stated therein;
WHEREAS, the Company has been duly authorized to (i) create a trust
(the "Trust Fund") to hold the PNC Mortgage Loans, the Clipper Mortgage
Loans and certain other property and (ii) sell undivided beneficial
ownership interests in REMIC I and in order to do so is selling the REMIC I
Regular Interests issued hereunder as hereinafter provided;
WHEREAS, the Company has been duly authorized to (i) create a trust
("REMIC II") to hold the REMIC I Regular Interests and (ii) sell undivided
beneficial ownership interests in REMIC II and in order to do so is selling
the Certificates issued hereunder as hereinafter provided; and
WHEREAS, the Trustee is a Massachusetts trust company duly organized
and existing under the laws of The Commonwealth of Massachusetts and has
full power and authority to enter into this Agreement.
NOW, THEREFORE, in order to declare the terms and conditions upon
which the Certificates are, and are to be, authenticated, issued and
delivered, and in consideration of the premises and of the purchase and
acceptance of the Certificates by the Holders thereof, the Company
covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective Holders from time to time of the Certificates, as
follows:
ARTICLE I
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Aggregate Certificate Principal Balance: At any given time, the sum of
the then current Class Principal Balances of the Certificates.
Appraised Value: The amount set forth in an appraisal made by or for
(a) the mortgage originator in connection with its origination of each
Mortgage Loan, (b) with respect to a Mortgage Loan originated to refinance
mortgage debt, the originator of such mortgage debt or (c) the Servicer, at
any time, in accordance with the Selling and Servicing Contract.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
the assignment or mortgage of the related Cooperative Lease from the
Mortgagor to the originator of the Cooperative Loan.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 8.11.
Authorized Denomination: With respect to the Certificates (other than
the Class X, Class A-2, Class A-3, Class A-5 and Residual Certificates), an
initial Certificate Principal Balance equal to $25,000 and multiples of $1
in excess thereof, except that one Certificate of each Class of the Junior
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Subordinate Certificates may be issued in an amount that is not an integral
multiple of $1. With respect to the Class A-2 and Class A-3 Certificates,
an initial Certificate Principal Balance equal to $1,000 and multiples of
$1 in excess thereof. With respect to the Class X and Class A-5
Certificates, a Class Notional Amount as of the Cut-Off Date equal to
$100,000 and multiples of $1 in excess thereof. With respect to each Class
of the Residual Certificates, one Certificate with a Percentage Interest
equal to 0.01% and one Certificate with a Percentage Interest equal to
99.99%.
Bankruptcy Coverage: $100,000 less (a) any scheduled or permissible
reduction in the amount of Bankruptcy Coverage pursuant to this definition
and (b) Bankruptcy Losses allocated to the Certificates.
The Bankruptcy Coverage may be reduced upon written confirmation from
the Rating Agencies that such reduction will not adversely affect the then
current ratings assigned to the Certificates by the Rating Agencies
(determined in the case of the Insured Certificates, without giving effect
to the Certificate Insurance Policy).
Bankruptcy Loss: A loss on a Mortgage Loan arising out of (i) a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a
court of competent jurisdiction in a case under the United States
Bankruptcy Code, other than any such reduction that arises out of clause
(ii) of this definition of "Bankruptcy Loss", including, without
limitation, any such reduction that results in a permanent forgiveness of
principal, or (ii) with respect to any Mortgage Loan, a valuation, by a
court of competent jurisdiction in a case under such Bankruptcy Code, of
the related Mortgaged Property in an amount less than the then outstanding
Principal Balance of such Mortgage Loan.
Beneficial Holder: A Person holding a beneficial interest in any Book-
Entry Certificate as or through a DTC Participant or an Indirect DTC
Participant or a Person holding a beneficial interest in any Definitive
Certificate.
Book-Entry Certificates: The Class A, Class X and Class P
Certificates, beneficial ownership and transfers of which shall be made
through book entries as described in Section 5.07.
Business Day: Any day other than a Saturday, a Sunday, or a day on
which the Certificate Insurer (with respect to matters hereunder affecting
the Certificate Insurer) or banking institutions in Chicago, Illinois,
Boston, Massachusetts or New York, New York are authorized or obligated by
law or executive order to be closed.
Buydown Agreement: An agreement between a Person and a Mortgagor
pursuant to which such Person has provided a Buydown Fund.
Buydown Fund: A fund provided by the originator of a Mortgage Loan or
another Person with respect to a Buydown Loan which provides an amount
sufficient to subsidize regularly scheduled principal and interest payments
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due on such Buydown Loan for a period. Buydown Funds may be (i) funded at
the par values of future payment subsidies, or (ii) funded in an amount
less than the par values of future payment subsidies, and determined by
discounting such par values in accordance with interest accruing on such
amounts, in which event they will be deposited in an account bearing
interest. Buydown Funds may be held in a separate Buydown Fund Account or
may be held in a Custodial Account for P&I or a Custodial Account for
Reserves and monitored by a Servicer.
Buydown Fund Account: A separate account or accounts created and
maintained pursuant to Section 3.02 (a) with the corporate trust department
of the Trustee or another financial institution approved by the Master
Servicer, (b) within FDIC insured accounts (or other accounts with
comparable insurance coverage acceptable to the Rating Agencies) created,
maintained and monitored by a Servicer or (c) in a separate non-trust
account without FDIC or other insurance in an Eligible Institution. Such
account or accounts may be non-interest bearing or may bear interest. In
the event that a Buydown Fund Account is established pursuant to clause (b)
of the preceding sentence, amounts held in such Buydown Fund Account shall
not exceed the level of deposit insurance coverage on such account;
accordingly, more than one Buydown Fund Account may be established.
Buydown Loan: A Mortgage Loan for which the Mortgage Interest Rate has
been subsidized through a Buydown Fund provided at the time of origination
of such Mortgage Loan.
Certificate: Any one of the Certificates issued pursuant to this
Agreement, executed by the Trustee and authenticated by or on behalf of the
Trustee hereunder in substantially one of the forms set forth in Exhibit A
and B hereto. The additional matter appearing in Exhibit H shall be deemed
incorporated into Exhibit A as though set forth at the end of such Exhibit.
Certificate Account: The separate trust account created and maintained
with the Trustee, the Investment Depository or any other bank or trust
company acceptable to the Rating Agencies which is incorporated under the
laws of the United States or any state thereof pursuant to Section 3.04,
which account shall bear a designation clearly indicating that the funds
deposited therein are held in trust for the benefit of the Trustee on
behalf of the Certificateholders or any other account serving a similar
function acceptable to the Rating Agencies. Funds in the Certificate
Account may be invested in Eligible Investments pursuant to Section 3.04(b)
and reinvestment earnings thereon shall be paid to the Master Servicer as
additional servicing compensation. Funds deposited in the Certificate
Account (exclusive of the Master Servicing Fee) shall be held in trust for
the Certificateholders and for the uses and purposes set forth in Section
2.01, Section 3.04, Section 3.05, Section 4.01 and Section 4.04.
Certificateholder or Holder: With respect to the Certificates, the
person in whose name a Certificate is registered in the Certificate
Register, except that, solely for the purposes of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Company, the Master Servicer or any affiliate thereof shall be deemed not
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to be outstanding and the Percentage Interest evidenced thereby shall not
be taken into account in determining whether the requisite percentage of
Percentage Interests necessary to effect any such consent has been
obtained; provided, that the Trustee may conclusively rely upon an
Officer's Certificate to determine whether any Person is an affiliate of
the Company or the Master Servicer. For so long as no Certificate Insurer
Default exists (and whether or not any payments with respect to Deficiency
Amounts or Preference Amounts have been made), the Certificate Insurer
shall be deemed to be the sole Holder of all outstanding Insured
Certificates (other than the right to receive distributions on such Insured
Certificates, except as provided in Section 3.21); provided, that the
Certificate Insurer shall have no power without the consent of the Owner of
each Certificate affected thereby to: (i) reduce in any manner the amount
of, or delay the timing of, distributions of principal or interest required
to be made hereunder or reduce the Certificateholder's Percentage Interest,
the Certificate Interest Rate or the Termination Payment with respect to
the Insured Certificates; (ii) reduce the percentage of Percentage
Interests specified in Section 10.01 which are required to amend this
Agreement; (iii) create or permit the creation of any lien against any part
of the REMIC I Trust Fund or the REMIC II Trust Fund; (iv) modify any
provision in any way which would permit an earlier retirement of the
Certificates; or (v) amend this definition of "Certificateholder or
Holder." With respect to the REMIC I Regular Interests, the owner of the
REMIC I Regular Interests, which as of the Closing Date shall be the
Trustee.
Certificate Insurance Policy: The Certificate Guaranty Insurance
Policy No. 33237 issued by the Certificate Insurer in respect of the Class
A-3 Certificates, a copy of which is attached hereto as Exhibit K.
Certificate Insurer: MBIA Insurance Corporation or its successors in
interest.
Certificate Insurer Default: The existence and continuance of any of
the following: (a) a failure by the Certificate Insurer to make a payment
required under the Certificate Insurance Policy in accordance with its
terms; (b) the entry of a decree or order of a court or agency having
jurisdiction in respect of the Certificate Insurer in an involuntary case
under any present or future Federal or state bankruptcy, insolvency or
similar law appointing a conservator or receiver or liquidator or other
similar official of the Certificate Insurer or of any substantial part of
its property, or the entering of an order for the winding up or liquidation
of the affairs of the Certificate Insurer and the continuance of any such
decree or order undischarged or unstayed and in force for a period of 90
consecutive days; (c) the Certificate Insurer shall consent to the
appointment of a conservator or receiver or liquidator or other similar
official in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Certificate
Insurer or of or relating to all or substantially all of its property; or
(d) the Certificate Insurer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of or
otherwise voluntarily commence a case or proceeding under any applicable
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bankruptcy, insolvency, reorganization or other similar statute, make an
assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations.
Certificate Insurer Premium: The "Premium," with respect to the Class
A-3 Certificates, as set forth in Section 3.03 of the Insurance Agreement.
Certificate Interest Rate: For each Class of Certificates and REMIC I
Regular Interests, the per annum rate set forth as the Certificate Interest
Rate for such Class in the Preliminary Statement hereto.
Certificate Principal Balance: For each Certificate of any Class, the
portion of the related Class Principal Balance, if any, represented by such
Certificate.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed, respectively, pursuant to Section
5.03.
Class: All REMIC I Regular Interests or the Class R-1 Certificates
having the same priority and rights to payments on the Mortgage Loans from
the REMIC I Available Distribution Amount, and all REMIC II Regular
Interests or the Class R-2 Certificates having the same priority and rights
to payments on the REMIC I Regular Interests from the REMIC II Available
Distribution Amount, as applicable, which REMIC I Regular Interests, REMIC
II Regular Interests and Residual Certificates, as applicable, shall be
designated as a separate Class, and which, in the case of the Certificates,
shall be set forth in the applicable forms of Certificates attached hereto
as Exhibits A and B. Each Class of REMIC I Regular Interests and the Class
R-1 Certificates shall be entitled to receive the amounts allocated to such
Class pursuant to the definition of "REMIC I Distribution Amount" only to
the extent of the REMIC I Available Distribution Amount for such
Distribution Date remaining after distributions in accordance with prior
clauses of the definition of "REMIC I Distribution Amount" and each Class
of Certificates (other than the Class R-1 Certificates) shall be entitled
to receive the amounts allocated to such Class pursuant to the definition
of "REMIC II Distribution Amount" only to the extent of the REMIC II
Available Distribution Amount for such Distribution Date remaining after
distributions in accordance with prior clauses of the definition of "REMIC
II Distribution Amount."
Class A Certificates: The Class A-1, Class A-2, Class A-3, Class A-4
and Class A-5 Certificates.
Class A-L Regular Interests: The Class A-1-L, Class A-2-L, Class A-3-L
and Class A-4-L Regular Interests.
Class A-1 Certificates: The Certificates designated as "Class A-1" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class A-1-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
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Regular Interest and is entitled to distributions as set forth herein.
Class A-2 Certificates: The Certificates designated as "Class A-2" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class A-2-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class A-3 Certificates: The Certificates designated as "Class A-3" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class A-3 Covered Interest Shortfall Amount: For any Distribution
Date, an amount equal to the product of (a) the portion of the amount, if
any, for such Distribution Date specified in clause (ii) of the definition
of "Uncompensated Interest Shortfall" that is allocated to the Class A-3-L
Regular Interest pursuant to such definition and (b) a fraction, the
numerator of which is the amount for such Distribution Date set forth in
clause (b)(ii)(A) of the definition of "REMIC II Distribution Amount" and
the denominator of which is the sum of the amounts for such Distribution
Date set forth in clauses (b)(ii)(A) and (b)(ii)(B) of the definition of
"REMIC II Distribution Amount".
Class A-3 Priority Amount: For any Distribution Date occurring prior
to October 2003, zero; and for any Distribution Date occurring in or after
October 2003, $24,000.
Class A-3 Reimbursement Amount: The sum of (a) all amounts previously
paid by the Certificate Insurer under the Certificate Insurance Policy
which have not been previously reimbursed and (b) interest on the foregoing
at the Late Payment Rate from the date such amount was paid by the
Certificate Insurer until paid in full.
Class A-3 Reserve Fund: The separate trust account maintained by the
Master Servicer and held by the Trustee, which account shall bear a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Trustee on behalf of the Class A-3
Certificateholders, or any other account serving a similar function
acceptable to the Rating Agencies and the Certificate Insurer, and which
account provides that the Trustee may make, or cause to be made,
withdrawals therefrom in accordance with Section 3.16.
Class A-3-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class A-4 Adjusted Percentage: For any Distribution Date occurring
prior to the Distribution Date in October 2005, 0%; and for the
Distribution Date occurring in October 2005 and any Distribution Date
thereafter, the Class A-4 Percentage.
Class A-4 Certificates: The Certificates designated as "Class A-4" on
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the face thereof in substantially the form attached hereto as Exhibit A.
Class A-4 Liquidation Amount: For any Distribution Date, the
aggregate, for each Mortgage Loan which became a Liquidated Mortgage Loan
during the Prior Period, of the lesser of (i) the Class A-4 Adjusted
Percentage of the Principal Balance of such Mortgage Loan (exclusive of the
Class P Fraction thereof, for any Class P Mortgage Loan) and (ii) the Class
A-4 Adjusted Percentage of the Liquidation Principal for such Mortgage
Loan.
Class A-4 Percentage: For any Distribution Date, the Class A-4
Principal Balance divided by the aggregate Class Principal Balance of the
Class A, Class B and Residual Certificates, in each case immediately after
any allocations of Realized Losses but before any distributions on such
Distribution Date.
Class A-4 Prepayment Percentage: For any Distribution Date, the
product of (i) the Class A-4 Percentage and (ii) the Step Down Percentage.
Class A-4 Priority Amount: For any Distribution Date, the sum of
(i) the Class A-4 Adjusted Percentage of the Principal Payment Amount
(exclusive of the portion thereof attributable to principal distributions
to the Class P-L Regular Interest pursuant to clause (I)(i) of the
definition of "REMIC I Distribution Amount"), (ii) the Class A-4 Prepayment
Percentage of the Principal Prepayment Amount (exclusive of the portion
thereof attributable to principal distributions to the Class P-L Regular
Interest pursuant to clause (I)(i) of the definition of "REMIC I
Distribution Amount") and (iii) the Class A-4 Liquidation Amount.
Class A-4-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class A-5 Certificates: The Certificates designated as "Class A-5" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class A-5 Notional Amount: For any Distribution Date, the Class A-3
Principal Balance immediately before such Distribution Date multiplied by
41/800.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
Class X-X Regular Interests: The Class B-1-L, Class B-2-L, Class B-3-
L, Class B-4-L, Class B-5-L and Class B-6-L Regular Interests.
Class B-1 Certificates: The Certificates designated as "Class B-1" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-1-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
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Class B-2 Certificates: The Certificates designated as "Class B-2" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-2-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class B-3 Certificates: The Certificates designated as "Class B-3" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-3-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class B-4 Certificates: The Certificates designated as "Class B-4" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-4-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class B-5 Certificates: The Certificates designated as "Class B-5" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-5-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class B-6 Certificates: The Certificates designated as "Class B-6" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-6-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class P Certificates: The Certificates designated as "Class P" on the
face thereof in substantially the form attached hereto as Exhibit A.
Class P Fraction: For each Class P Mortgage Loan, a fraction, the
numerator of which is 7.750% less the Pass-Through Rate on such Class P
Mortgage Loan and the denominator of which is 7.750%.
Class P Mortgage Loan: Any Mortgage Loan with a Pass-Through Rate of
less than 7.750% per annum.
Class P-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class X Certificates: The Certificates designated as "Class X" on the
face thereof in substantially the form attached hereto as Exhibit A.
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Class X Notional Amount: For any Distribution Date, the product of
(x) the aggregate scheduled principal balance, as of the second preceding
Due Date after giving effect to payments scheduled to be received as of
such Due Date, whether or not received (and after giving effect to
Principal Prepayments, Monthly P&I Advances and the principal portion of
Realized Losses applied prior to such Due Date), or for the initial
Distribution Date, as of the Cut-Off Date, of the Premium Rate Mortgage
Loans and (y) a fraction, the numerator of which is the weighted average of
the Stripped Interest Rates for the Premium Rate Mortgage Loans as of such
Due Date and the denominator of which is 7.750%..
Class X-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class Notional Amount: With respect to the Class X Certificates, the
Class X-L Regular Interest and the Class A-5 Certificates, the related
notional amount for such Class, as specified herein (e.g., the "Class
Notional Amount" for the Class X Certificates and the Class X-L Regular
Interest is the Class X Notional Amount).
Class Principal Balance: For any Class of Certificates and for any
Class of Regular Interests, the applicable initial Class Principal Balance
therefor set forth in the Preliminary Statement hereto, corresponding to
the rights of such Class in payments of principal due to be passed through
to the Certificateholders or the Holders of the Regular Interests from
principal payments on the Mortgage Loans or the REMIC I Regular Interests,
as applicable, as reduced from time to time by (x) distributions of
principal to the Certificateholders or the Holders of the Regular Interests
of such Class and (y) the portion of Realized Losses allocated to the Class
Principal Balance of such Class pursuant to the definition of "Realized
Loss" with respect to a given Distribution Date. For any Distribution Date,
the reduction of the Class Principal Balance of any Class of Certificates
and Regular Interests pursuant to the definition of "Realized Loss" shall
be deemed effective prior to the determination and distribution of
principal on such Class pursuant to the definitions of "REMIC I
Distribution Amount" and "REMIC II Distribution Amount." Notwithstanding
the foregoing, any amounts distributed in respect of losses pursuant to
paragraph (I)(v) or (I)(vi) of the definition of "REMIC I Distribution
Amount" shall not cause a further reduction in the Class Principal Balance
of the Class P Regular Interest or its Corresponding Classes and any
amounts distributed in respect of losses pursuant to paragraph (I)(xxvi) of
the definition of "REMIC I Distribution Amount" shall not cause a further
reduction in the Class Principal Balances of the Class X-X Regular
Interests or their Corresponding Classes. The Class Principal Balance for
the Class A-1 Certificates shall be referred to as the "Class A-1 Principal
Balance," the Class Principal Balance for the Class A-1-L Regular Interest
shall be referred to as the "Class A-1-L Principal Balance" and so on. The
Class Principal Balances for the Class X Certificates, the Class X-L
Regular Interest and the Class A-5 Certificates shall each be zero.
Exclusively for the purpose of determining any subrogation rights of the
Certificate Insurer arising under Section 3.21 hereof, "Class Principal
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Balance" of the Class A-3 Certificates shall not be reduced by the amount
of any payments made by the Certificate Insurer in respect of principal on
such Certificates under the Certificate Insurance Policy, except to the
extent such payments have been reimbursed to the Certificate Insurer
pursuant to the provisions of this Agreement.
Class R-1 Certificates: The Certificates designated as "Class R-1" on
the face thereof in substantially the form attached hereto as Exhibit B,
which have been designated as the single class of "residual interest" in
REMIC I pursuant to Section 2.01.
Class R-2 Certificates: The Certificates designated as "Class R-2" on
the face thereof in substantially the form attached hereto as Exhibit A,
which have been designated as the single class of "residual interest" in
REMIC II pursuant to Section 2.05.
Class R-2-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Clean-Up Call Percentage: 10%.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
which initially shall be DTC.
Clipper: Clipper Receivables Corporation, a Delaware corporation.
Clipper Loan Sale Agreement: The Loan Sale Agreement, substantially in
the form of Exhibit O hereto, to be entered into between Clipper and the
Trustee pursuant to Section 2.01.
Clipper Mortgage Loans: The Mortgage Loans identified as Clipper
Mortgage Loans on the Mortgage Loan Schedule and conveyed by Clipper to the
Trustee pursuant to the Clipper Loan Sale Agreement.
Clipper Mortgage Loan Purchase Amount: The amount of $10,721,889.63,
which shall be deposited by the Company into the Certificate Account on the
Closing Date and withdrawn therefrom and applied by the Trustee in payment
of the purchase price for the Clipper Mortgage Loans pursuant to Section
2.01.
Closing Date: September 28, 2000, which is the date of settlement of
the sale of the Certificates to the original purchasers thereof.
Code: The Internal Revenue Code of 1986, as amended.
Company: PNC Mortgage Securities Corp., a Delaware corporation, or its
successor-in-interest.
Compensating Interest: For any Distribution Date, the lesser of (i)
the sum of (a) the aggregate Master Servicing Fee payable with respect to
15
the Mortgage Loans, (b) the aggregate Payoff Earnings with respect to the
Mortgage Loans and (c) the aggregate Payoff Interest with respect to the
Mortgage Loans and (ii) the aggregate Uncollected Interest with respect to
the Mortgage Loans.
Cooperative: A private, cooperative housing corporation organized
under the laws of, and headquartered in, the State of New York or
Washington, D.C. which owns or leases land and all or part of a building or
buildings located in any such state, including apartments, spaces used for
commercial purposes and common areas therein and whose board of directors
authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment
occupied by the Mortgagor and relating to the related Cooperative Stock,
which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii)
an assignment or mortgage of the Cooperative Lease, (iv) financing
statements and (v) a stock power (or other similar instrument), and
ancillary thereto, a recognition agreement between the Cooperative and the
originator of the Cooperative Loan, each of which was transferred and
assigned to the Trustee pursuant to Section 2.01 and are from time to time
held as part of the Trust Fund created hereunder.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan,
the stock certificate or other instrument evidencing the related
Cooperative Stock.
Corporate Trust Office: The corporate trust office of the Trustee in
the Commonwealth of Massachusetts, at which at any particular time its
corporate trust business with respect to this Agreement shall be
administered, which office at the date of the execution of this Agreement
is located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Corporate
Trust PNC 2000-6.
Corresponding Class: With respect to the Certificates and the REMIC I
Regular Interests, the "Corresponding Class" shall be as indicated in the
following table:
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Class A-1-L Class A-1
Class A-2-L Class A-2
Class A-3-L Class A-3
Class A-4-L Class A-4
Class X-L Class X
Class P-L Class P
Class B-1-L Class B-1
Class B-2-L Class B-2
Class B-3-L Class B-3
Class B-4-L Class B-4
Class B-5-L Class B-5
Class B-6-L Class B-6
Class R-2-L Class R-2
Credit Support Depletion Date: The first Distribution Date on which
the aggregate Class Principal Balance of the Class B Certificates has been
or will be reduced to zero as a result of principal distributions thereon
and the allocation of Realized Losses on such Distribution Date.
Curtailment: Any payment (exclusive of any prepayment penalty) of
principal on a Mortgage Loan, made by or on behalf of the related
Mortgagor, other than a Monthly Payment, a Prepaid Monthly Payment or a
Payoff, which is applied to reduce the outstanding principal balance of the
Mortgage Loan.
Curtailment Shortfall: With respect to any Curtailment applied with a
Monthly Payment other than a Prepaid Monthly Payment, an amount equal to
one month's interest on such Curtailment at the applicable Pass-Through
Rate on such Mortgage Loan.
Custodial Account for P&I: The Custodial Account for principal and
interest established and maintained by each Servicer pursuant to its
Selling and Servicing Contract and caused by the Master Servicer to be
established and maintained pursuant to Section 3.02 (a) with the corporate
trust department of the Trustee or another financial institution approved
by the Master Servicer such that the rights of the Master Servicer, the
Trustee and the Certificateholders thereto shall be fully protected against
the claims of any creditors of the applicable Servicer and of any creditors
or depositors of the institution in which such account is maintained, (b)
within FDIC insured accounts (or other accounts with comparable insurance
coverage acceptable to the Rating Agencies) created, maintained and
monitored by a Servicer or (c) in a separate non-trust account without FDIC
or other insurance in an Eligible Institution. In the event that a
Custodial Account for P&I is established pursuant to clause (b) of the
preceding sentence, amounts held in such Custodial Account for P&I shall
not exceed the level of deposit insurance coverage on such account;
accordingly, more than one Custodial Account for P&I may be established.
Any amount that is at any time not protected or insured in accordance with
the first sentence of this definition of "Custodial Account for P&I" shall
promptly be withdrawn from such Custodial Account for P&I and be remitted
to the Investment Account.
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Custodial Account for Reserves: The Custodial Account for Reserves
established and maintained by each Servicer pursuant to its Selling and
Servicing Contract and caused by the Master Servicer to be established and
maintained pursuant to Section 3.02 (a) with the corporate trust department
of the Trustee or another financial institution approved by the Master
Servicer such that the rights of the Master Servicer, the Trustee and the
Certificateholders thereto shall be fully protected against the claims of
any creditors of the applicable Servicer and of any creditors or depositors
of the institution in which such account is maintained, (b) within FDIC
insured accounts (or other accounts with comparable insurance coverage
acceptable to the Rating Agencies) created, maintained and monitored by a
Servicer or (c) in a separate non-trust account without FDIC or other
insurance in an Eligible Institution. In the event that a Custodial Account
for Reserves is established pursuant to clause (b) of the preceding
sentence, amounts held in such Custodial Account for Reserves shall not
exceed the level of deposit insurance coverage on such account;
accordingly, more than one Custodial Account for Reserves may be
established. Any amount that is at any time not protected or insured in
accordance with the first sentence of this definition of "Custodial Account
for Reserves" shall promptly be withdrawn from such Custodial Account for
Reserves and be remitted to the Investment Account.
Custodial Agreement: The agreement, if any, among the Master Servicer,
the Trustee and a Custodian providing for the safekeeping of the Mortgage
Files on behalf of the Certificateholders.
Custodian: A custodian (other than the Trustee) which is not an
affiliate of the Master Servicer or the Company and which is appointed
pursuant to a Custodial Agreement. Any Custodian so appointed shall act as
agent on behalf of the Trustee, and shall be compensated by the Trustee at
no additional charge to the Master Servicer. The Trustee shall remain at
all times responsible under the terms of this Agreement, notwithstanding
the fact that certain duties have been assigned to a Custodian.
Cut-Off Date: September 1, 2000.
Deceased Holder: A Beneficial Holder of a Special Retail Certificate
who was living at the time such Certificate was acquired and whose
authorized personal representative, surviving tenant by the entirety,
surviving joint tenant or surviving tenant in common or other person
empowered to act on behalf of such Beneficial Holder causes to be furnished
to DTC evidence of such Beneficial Holder's death satisfactory to the
Trustee and any tax waivers requested by the Trustee.
Deficiency Amount: With respect to any Distribution Date and the Class
A-3 Certificates, the sum of (i) the amount, if any, by which the amount
available to be paid as interest to the Class A-3 Certificates, pursuant to
the priority of payment set forth in the definition of "REMIC II
Distribution Amount", plus any Class A-3 Covered Interest Shortfall Amount
available to be paid from the Class A-3 Reserve Fund, is less than (A) the
product of (1) 1/12 of the Certificate Interest Rate for the Class A-3
Certificates and (2) the Class A-3 Principal Balance immediately prior to
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such Distribution Date, minus (B) the sum of (1) the portion of
Uncompensated Interest Shortfall attributable to Curtailment Shortfalls
which is allocable to the Class A-3 Certificates, (2) the portion of
Uncompensated Interest Shortfall attributable to the failure of the Master
Servicer to pay Compensating Interest which is allocable to the Class A-3
Certificates and (3) any interest shortfalls related to the Relief Act
allocable to the Class A-3 Certificates, (ii) the principal portion of any
Realized Losses allocable to the Class A-3 Certificates on such
Distribution Date and (iii) to the extent unpaid on the Distribution Date
in October 2030, after payment of all other amounts due to the Class A-3
Certificates, any remaining Class A-3 Principal Balance.
Definitive Certificates: Certificates in definitive, fully registered
and certificated form.
Depositary Agreement: The Letter of Representations, dated September
27, 2000 by and among DTC, the Company and the Trustee.
Destroyed Mortgage Note: A Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Determination Date: A day not later than the 10th day preceding a
related Distribution Date, as determined by the Master Servicer.
Disqualified Organization: Any Person which is not a Permitted
Transferee, but does not include any Pass-Through Entity which owns or
holds a Residual Certificate and of which a Disqualified Organization,
directly or indirectly, may be a stockholder, partner or beneficiary.
Distribution Date: With respect to distributions on the REMIC I
Regular Interests and the Certificates, the 25th day (or, if such 25th day
is not a Business Day, the Business Day immediately succeeding such 25th
day) of each month, with the first such date being October 25, 2000. The
"related Due Date" for any Distribution Date is the Due Date immediately
preceding such Distribution Date.
DLJ: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
DTC: The Depository Trust Company.
DTC Participant: A broker, dealer, bank, other financial institution
or other Person for whom DTC effects book-entry transfers and pledges of
securities deposited with DTC.
Due Date: The day on which the Monthly Payment for each Mortgage Loan
is due.
Eligible Institution: An institution having (i) the highest short-term
debt rating, and one of the two highest long-term debt ratings of the
Rating Agencies, (ii) with respect to any Custodial Account for P&I and
special Custodial Account for Reserves, an unsecured long-term debt rating
of at least one of the two highest unsecured long-term debt ratings of the
19
Rating Agencies, (iii) with respect to any Buydown Fund Account or
Custodial Account which also serves as a Buydown Fund Account, the highest
unsecured long-term debt rating by the Rating Agencies, or (iv) the
approval of the Rating Agencies. Such institution may be the Servicer if
the applicable Selling and Servicing Contract requires the Servicer to
provide the Master Servicer with written notice on the Business Day
following the date on which the Servicer determines that such Servicer's
short-term debt and unsecured long-term debt ratings fail to meet the
requirements of the prior sentence.
Eligible Investments: Any one or more of the obligations or securities
listed below in which funds deposited in the Investment Account, the
Certificate Account, the Custodial Account for P&I and the Custodial
Account for Reserves may be invested:
(i) Obligations of, or guaranteed as to principal and interest by,
the United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United
States;
(ii) Repurchase agreements on obligations described in clause (i) of
this definition of "Eligible Investments", provided that the unsecured
obligations of the party (including the Trustee in its commercial
capacity) agreeing to repurchase such obligations have at the time one
of the two highest short term debt ratings of the Rating Agencies and
provided that such repurchaser's unsecured long term debt has one of
the two highest unsecured long term debt ratings of the Rating
Agencies;
(iii) Federal funds, certificates of deposit, time deposits and
bankers' acceptances of any U.S. bank or trust company incorporated
under the laws of the United States or any state (including the
Trustee in its commercial capacity), provided that the debt
obligations of such bank or trust company (or, in the case of the
principal bank in a bank holding company system, debt obligations of
the bank holding company) at the date of acquisition thereof have one
of the two highest short term debt ratings of the Rating Agencies and
unsecured long term debt has one of the two highest unsecured long
term debt ratings of the Rating Agencies;
(iv) Obligations of, or obligations guaranteed by, any state of the
United States or the District of Columbia, provided that such
obligations at the date of acquisition thereof shall have the highest
long-term debt ratings available for such securities from the Rating
Agencies;
(v) Commercial paper of any corporation incorporated under the laws
of the United States or any state thereof, which on the date of
acquisition has the highest commercial paper rating of the Rating
Agencies, provided that the corporation has unsecured long term debt
that has one of the two highest unsecured long term debt ratings of
the Rating Agencies;
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(vi) Securities (other than stripped bonds or stripped coupons)
bearing interest or sold at a discount that are issued by any
corporation incorporated under the laws of the United States or any
state thereof and have the highest long-term unsecured rating
available for such securities from the Rating Agencies; provided,
however, that securities issued by any such corporation will not be
investments to the extent that investment therein would cause the
outstanding principal amount of securities issued by such corporation
that are then held as part of the Investment Account or the
Certificate Account to exceed 20% of the aggregate principal amount of
all Eligible Investments then held in the Investment Account and the
Certificate Account;
(vii) Units of taxable money market funds (which may be 12b-1 funds,
as contemplated under the rules promulgated by the Securities and
Exchange Commission under the Investment Company Act of 1940), which
funds have the highest rating available for such securities from the
Rating Agencies or which have been designated in writing by the Rating
Agencies as Eligible Investments; and
(viii) Such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies and with notice
to the Certificate Insurer, result in the downgrading or withdrawal of
the Ratings (determined in the case of the Insured Certificates,
without giving effect to the Certificate Insurance Policy);
provided, however, that such obligation or security is held for a temporary
period pursuant to Section 1.860G-2(g)(1) of the Treasury Regulations, and
that such period can in no event exceed thirteen months.
In no event shall an instrument be an Eligible Investment if such
instrument (a) evidences a right to receive only interest payments with
respect to the obligations underlying such instrument or (b) has been
purchased at a price greater than the outstanding principal balance of such
instrument.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificate: Any Class B or Residual Certificate.
Event of Default: Any event of default as specified in Section 7.01.
Excess Liquidation Proceeds: With respect to any Distribution Date,
the excess, if any, of aggregate Liquidation Proceeds received during the
Prior Period over the amount that would have been received if Payoffs had
been made with respect to such Mortgage Loans on the date such Liquidation
Proceeds were received.
FDIC: Federal Deposit Insurance Corporation, or any successor thereto.
21
FHA: Federal Housing Administration, or any successor thereto.
Xxxxxx Mae: The entity formerly known as the Federal National Mortgage
Association, or any successor thereto.
Final Maturity Date: With respect to each Class of the REMIC I
Regular Interests and the Certificates, the date set forth in the
applicable table contained in the Preliminary Statement hereto.
Fitch: Fitch, Inc., provided that at any time it be a Rating Agency.
Fraud Coverage: During the period prior to the first anniversary of
the Cut-Off Date, 1.00% of the aggregate principal balance of the Mortgage
Loans as of the Cut-Off Date (the "Initial Fraud Coverage"), reduced by
Fraud Losses allocated to the REMIC I Regular Interests and the Class R-1
Certificates since the Cut-Off Date; during the period from the first
anniversary of the Cut-Off Date to (but not including) the fifth
anniversary of the Cut-Off Date, the amount of the Fraud Coverage on the
most recent previous anniversary of the Cut-Off Date (calculated in
accordance with the second sentence of this paragraph) reduced by Fraud
Losses allocated to the REMIC I Regular Interests and the Class R-1
Certificates since such anniversary; and during the period on and after the
fifth anniversary of the Cut-Off Date, zero. On each anniversary of the Cut-
Off Date, the Fraud Coverage shall be reduced to the lesser of (i) on the
first and second anniversaries of the Cut-Off Date, 1.00%, and on the third
and fourth anniversaries of the Cut-Off Date, 0.50%, of the aggregate
principal balance of the Mortgage Loans as of the Due Date in the preceding
month and (ii) the excess of the Initial Fraud Coverage over cumulative
Fraud Losses allocated to the REMIC I Regular Interests and the Class R-1
Certificates since the Cut-Off Date.
The Fraud Coverage may be reduced upon written confirmation from the
Rating Agencies that such reduction will not adversely affect the then
current ratings assigned to the Certificates by the Rating Agencies
(determined in the case of the Insured Certificates, without giving effect
to the Certificate Insurance Policy).
Fraud Loss: A Realized Loss (or portion thereof) with respect to a
Mortgage Loan arising from any action, event or state of facts with respect
to such Mortgage Loan which, because it involved or arose out of any
dishonest, fraudulent, criminal, negligent or knowingly wrongful act, error
or omission by the Mortgagor, originator (or assignee thereof) of such
Mortgage Loan, Lender, a Servicer or the Master Servicer, would result in
an exclusion from, denial of, or defense to coverage which otherwise would
be provided by a Primary Insurance Policy previously issued with respect to
such Mortgage Loan.
Xxxxxxx Mac: The entity formerly known as the Federal Home Loan
Mortgage Corporation, or any successor thereto.
Indirect DTC Participants: Entities such as banks, brokers, dealers or
trust companies, that clear through or maintain a custodial relationship
22
with a DTC Participant, either directly or indirectly.
Insurance Proceeds: Amounts paid or payable by the insurer under any
Primary Insurance Policy or any other insurance policy (including any
replacement policy permitted under this Agreement) covering any Mortgage
Loan or Mortgaged Property, including, without limitation, any hazard
insurance policy required pursuant to Section 3.07, any title insurance
policy required pursuant to Section 2.03 and any FHA insurance policy or VA
guaranty.
Insured Certificates: The Class A-3 Certificates.
Insured Payment: With respect to the Insured Certificates, (i) as of
any Distribution Date, any Deficiency Amount and (ii) any Preference
Amount.
Insurance Agreement: The Insurance Agreement, dated as of September 1,
2000, among the Certificate Insurer, the Trustee and the Company.
Interest Distribution Amount: On any Distribution Date, for any Class
of the REMIC I Regular Interests and the Class R-1 Certificates, the amount
of interest accrued on the respective Class Principal Balance or Class
Notional Amount, as applicable, in each case at the related Certificate
Interest Rate for such Class during the Prior Period, in each case before
giving effect to allocations of Realized Losses for the Prior Period or
distributions to be made on such Distribution Date, reduced by
Uncompensated Interest Shortfall, interest shortfalls related to the Relief
Act and the interest portion of Realized Losses allocated to such Class
pursuant to the definitions of "Uncompensated Interest Shortfall", "Relief
Act" and "Realized Loss", respectively. The Interest Distribution Amount
for the Class P-L Regular Interest shall equal zero.
Investment Account: The commingled account (which shall be commingled
only with investment accounts related to series of pass-through
certificates with a class of certificates which has a rating equal to the
highest of the Ratings of the Certificates) maintained by the Master
Servicer in the trust department of the Investment Depository pursuant to
Section 3.03 and which bears a designation acceptable to the Rating
Agencies.
Investment Depository: The Chase Manhattan Bank, New York, New York or
another bank or trust company designated from time to time by the Master
Servicer. The Investment Depository shall at all times be an Eligible
Institution.
Junior Subordinate Certificates: The Class B-4, Class B-5 and Class B-
6 Certificates.
Last Scheduled Distribution Date: With respect to any Class of
Certificates, the Final Maturity Date for such Class.
Late Payment Rate: The rate of interest publicly announced by
23
Citibank, N.A. at its principal office in New York, New York as its prime
rate (any change in such prime rate of interest to be effective on the date
such change is announced by Citibank, N.A.) plus two (2) percentage points.
The Late Payment Rate shall be computed on the basis of a year of 365 days
calculating the actual number of days elapsed. In no event shall the Late
Payment Rate exceed the maximum rate permissible under law applicable to
the Insurance Agreement limiting interest rates.
Lender: An institution from which the Company purchased any Mortgage
Loans pursuant to a Selling and Servicing Contract.
Living Holder: A Beneficial Holder of a Special Retail Certificate
other than a Deceased Holder.
Liquidated Mortgage Loan: A Mortgage Loan for which the Master
Servicer or the applicable Servicer has determined in accordance with its
customary servicing practices that it has received all amounts which it
expects to recover from or on account of such Mortgage Loan, whether from
Insurance Proceeds, Liquidation Proceeds or otherwise. For purposes of this
definition, acquisition of a Mortgaged Property by the Trust Fund shall not
constitute final liquidation of the related Mortgage Loan.
Liquidation Principal: The principal portion of Liquidation Proceeds
received (exclusive of the portion thereof attributable to distributions to
the Class P-L Regular Interest pursuant to clauses (I)(i) and (II)(i) of
the definition of "REMIC I Distribution Amount") with respect to each
Mortgage Loan which became a Liquidated Mortgage Loan (but not in excess of
the principal balance thereof) during the Prior Period.
Liquidation Proceeds: Amounts after deduction of amounts reimbursable
under Section 3.05(a)(i) and (ii) received and retained in connection with
the liquidation of defaulted Mortgage Loans, whether through foreclosure or
otherwise.
Loan-to-Value Ratio: The original principal amount of a Mortgage Loan
divided by the Original Value; however, references to "current Loan-to-
Value Ratio" or "Loan-to-Value Ratio as of the Cut-Off Date" in Section
2.03 shall be deemed to mean the then current Principal Balance of a
Mortgage Loan divided by the Original Value.
Lowest Class B Owner: An owner unaffiliated with the Company or the
Master Servicer of (i) a 100% interest in the Class of Class B Certificates
with the lowest priority or (ii) a 100% interest in a class of securities
representing such interest in such Class.
Master Servicer: The Company, or any successor thereto appointed as
provided pursuant to Section 7.02, acting to service and administer the
Mortgage Loans pursuant to Section 3.01.
Master Servicing Fee: The fee charged by the Master Servicer for
supervising the mortgage servicing and advancing certain expenses, equal to
a per annum rate set forth for each Mortgage Loan in Exhibit D on the
24
outstanding Principal Balance of such Mortgage Loan, payable monthly from
the Certificate Account, the Investment Account or the Custodial Account
for P&I.
Monthly P&I Advance: An advance of funds by the Master Servicer
pursuant to Section 4.02 or a Servicer pursuant to its Selling and
Servicing Contract to cover delinquent principal and interest installments.
Monthly Payment: The scheduled payment of principal and interest on a
Mortgage Loan (including any amounts due from a Buydown Fund, if any) which
is due on the related Due Date for such Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note.
Mortgage File: The following documents or instruments with respect to
each PNC Mortgage Loan transferred and assigned by the Company pursuant to
Section 2.01 and each Clipper Mortgage Loan transferred and assigned by
Clipper pursuant to the Clipper Loan Sale Agreement, (X) with respect to
each Mortgage Loan that is not a Cooperative Loan:
(i) The original Mortgage Note endorsed to "State Street Bank and
Trust Company, as Custodian/Trustee, without recourse" or "State Street
Bank and Trust Company, as Trustee for the benefit of the Holders from
time to time of PNC Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2000-6, without recourse" and all intervening
endorsements evidencing a complete chain of endorsements from the
originator to the Trustee, or, in the event of any Destroyed Mortgage
Note, a copy or a duplicate original of the Mortgage Note, together
with an original lost note affidavit from the originator of the related
Mortgage Loan or the Company or Clipper, as applicable, stating that the
original Mortgage Note was lost, misplaced or destroyed, together with
a copy of the related Mortgage Note; in the event the Mortgage Notes
are endorsed in blank as of the Closing Date, the Company shall, within
45 days of the Closing Date, cause such Mortgage Notes to be endorsed
pursuant to the terms set forth herein; provided, that, with respect
to any Mortgage Note whereby the related Mortgaged Property is located
in California, such original Mortgage Note may be endorsed in blank
and the Company shall not be required to endorse such Mortgage Notes
pursuant to the terms otherwise set forth in this clause (i);
The Buydown Agreement, if applicable;
A Mortgage that is either
(1) the original recorded Mortgage with recording
information thereon for the jurisdiction in which the Mortgaged
Property is located and a Mortgage assignment thereof in
recordable form to "State Street Bank and Trust Company, as
Custodian/Trustee", or to "State Street Bank and Trust Company,
as Trustee for the Holders of PNC Mortgage Securities Corp.
Mortgage Pass-Through Certificates, Series 2000-6" and all
25
intervening assignments evidencing a complete chain of
assignment, from the originator to the name holder or the payee
endorsing the related Mortgage Note; or
(2) a copy of the Mortgage which represents a true and
correct reproduction of the original Mortgage and which has
either been certified (i) on the face thereof by the public
recording office in the appropriate jurisdiction in which the
Mortgaged Property is located, or (ii) by the originator or
Lender as a true and correct copy the original of which has been
sent for recordation and an original Mortgage assignment thereof
duly executed and acknowledged in recordable form to "State
Street Bank and Trust Company, as Custodian/Trustee" or to "State
Street Bank and Trust Company, as Trustee for the Holders of PNC
Mortgage Securities Corp. Mortgage Pass-Through Certificates,
Series 2000-6" and true and correct copies, certified by the
applicable county recorder or by the originator or Lender as
described above, of all intervening assignments evidencing a
complete chain of assignment from the originator to the name
holder or the payee endorsing the related Mortgage Note;
provided, that in the event the assignments are executed in blank
as of the Closing Date, the Company shall, within 45 days of the
Closing Date, cause such assignments to be executed pursuant to
the terms set forth herein; provided, that, with respect to any
Mortgage whereby the related Mortgaged Property is located in
California, the Mortgage assignment may be executed and
acknowledged in blank and the Company shall not be required to
deliver such Mortgage assignment in the form otherwise set forth
in clause (iii)(1) or this clause (iii)(2);
A copy of (a) the title insurance policy, or (b) in lieu thereof,
a title insurance binder, a copy of an attorney's title opinion,
certificate or other evidence of title acceptable to the Company; and
For any Mortgage Loan that has been modified or amended, the
original instrument or instruments effecting such modification or
amendment;
and (Y) with respect to each Cooperative Loan:
(i) the original Mortgage Note endorsed to "State Street Bank and
Trust Company, as Custodian/Trustee", or to "State Street Bank and Trust
Company, as Trustee for the Holders of PNC Mortgage Securities Corp.
Mortgage Pass-Through Certificates, Series 2000-6" and all intervening
endorsements evidencing a complete chain of endorsements, from the
originator to the Trustee, or, in the event of any Destroyed Mortgage
Note, a copy or a duplicate original of the Mortgage Note, together
with an original lost note affidavit from the originator of the related
Mortgage Loan or the Company or Clipper, as applicable, stating that
the original Mortgage Note was lost, misplaced or destroyed, together
with a copy of the related Mortgage Note;
26
(ii) A counterpart of the Cooperative Lease and the Assignment of
Proprietary Lease to the originator of the Cooperative Loan with
intervening assignments showing an unbroken chain of title from such
originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the
related Cooperative Stock pledged with respect to such Cooperative
Loan, together with an undated stock power (or other similar
instrument) executed in blank;
(iv) The original recognition agreement by the Cooperative of the
interests of the mortgagee with respect to the related Cooperative
Loan;
(vi) The Security Agreement;
(vii) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such Cooperative
Loan as secured party, each with evidence of recording thereof,
evidencing the interest of the originator under the Security Agreement
and the Assignment of Proprietary Lease;
(viii) Copies of the filed UCC-3 assignments of the security interest
referenced in clause (vi) above showing an unbroken chain of title
from the originator to the Trustee, each with evidence of recording
thereof, evidencing the interest of the originator under the Security
Agreement and the Assignment of Proprietary Lease;
(ix) An executed assignment of the interest of the originator in the
Security Agreement, Assignment of Proprietary Lease and the
recognition agreement referenced in clause (iv) above, showing an
unbroken chain of title from the originator to the Trustee;
(x) An executed UCC-1 financing statement showing the Company or
Clipper, as applicable, as debtor and the Trustee as secured party,
each in a form sufficient for filing, evidencing the interest of such
debtors in the Cooperative Loans; and
(xi) For any Cooperative Loan that has been modified or amended, the
original instrument or instruments effecting such modification or
amendment.
Mortgage Interest Rate: For any Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan pursuant to the terms of the
related Mortgage Note.
Mortgage Loan Schedule: The schedule, as amended from time to time, of
Mortgage Loans attached hereto as Exhibit D, which shall set forth as to
each Mortgage Loan the following, among other things:
(i) its loan number,
27
(ii) the address of the Mortgaged Property,
(iii) the name of the Mortgagor,
(iv) the Original Value of the property subject to the Mortgage,
(v) the Principal Balance as of the Cut-Off Date,
(vi) the Mortgage Interest Rate borne by the Mortgage Note,
(vii) whether a Primary Insurance Policy is in effect as of the Cut-
Off Date, and, if so, whether such Primary Insurance Policy is a Special
Primary Insurance Policy,
(viii) the maturity of the Mortgage Note,
(ix) the Servicing Fee and the Master Servicing Fee, and
(x) whether it is a PNC Mortgage Loan or a Clipper Mortgage Loan.
Mortgage Loans: With respect to each Cooperative Loan, the related
Mortgage Note, Security Agreement, Assignment of Proprietary Lease,
Cooperative Stock Certificate and Cooperative Lease, and, with respect to
each Mortgage Loan other than a Cooperative Loan, the Mortgages and the
related Mortgage Notes, each transferred and assigned to the Trustee
pursuant to the provisions hereof or of the Clipper Loan Sale Agreement as
from time to time are held as part of the Trust Fund, the Mortgage Loans so
held being identified in the Mortgage Loan Schedule.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Pool: All of the Mortgage Loans.
Mortgaged Property: With respect to any Mortgage Loan, other than a
Cooperative Loan, the real property, together with improvements thereto,
and, with respect to any Cooperative Loan, the related Cooperative Stock
and Cooperative Lease, securing the indebtedness of the Mortgagor under the
related Mortgage Loan. "Mortgaged Property" shall also refer to property
which once secured the indebtedness of a Mortgagor under the related
Mortgage Loan but which was acquired by the Trust upon foreclosure or other
liquidation of such Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Nonrecoverable Advance: With respect to any Mortgage Loan, any advance
which the Master Servicer shall determine to be a Nonrecoverable Advance
pursuant to Section 4.03 and which was, or is proposed to be, made by (i)
the Master Servicer or (ii) a Servicer pursuant to its Selling and
Servicing Contract.
Non-U.S. Person: A Person that is not a U.S. Person.
28
Notice: With respect to the Insured Certificates, the telephonic or
telegraphic notice, promptly confirmed in writing by telecopy substantially
in the form of Exhibit A attached to the Certificate Insurance Policy, the
original of which is subsequently delivered by registered or certified
mail, from the Trustee specifying the Insured Payment which shall be due
and owing on the applicable Distribution Date.
Notice Addresses: (a) In the case of the Company, 00 Xxxxx Xxxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000, Attention: General Counsel (with a
copy directed to the attention of the Master Servicing Department) or such
other address as may hereafter be furnished to the Trustee in writing by
the Company, (b) in the case of the Trustee, at its Corporate Trust Office,
or such other address as may hereafter be furnished to the Master Servicer
in writing by the Trustee, (c) in the case of the Certificate Registrar, at
its Corporate Trust Office, or such other address as may hereafter be
furnished to the Trustee in writing by the Certificate Registrar, (d) in
the case of S&P, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10041-
0003, Attention: Xxxxx Xxxxxx, or such other address as may hereafter be
furnished to the Trustee and Master Servicer in writing by S&P, (e) in the
case of Fitch, 0 Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxxx, or such other address as may hereafter be furnished to the
Trustee and Master Servicer in writing by Fitch and (f) in the case of the
Certificate Insurer, to MBIA Insurance Corporation, 000 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000, Attn: Insured Portfolio Management - Structured
Finance (IPM-SF), or such other address as may hereafter be furnished to
the Trustee and Master Servicer in writing by the Certificate Insurer.
OTS: The Office of Thrift Supervision, or any successor thereto.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the President, a Vice President, or the Treasurer of the Master
Servicer and delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, who shall be
reasonably acceptable to the Trustee and who may be counsel (including in-
house counsel) for the Company or the Master Servicer.
Original Value: With respect to any Mortgage Loan other than a
Mortgage Loan originated for the purpose of refinancing an existing
mortgage debt, the lesser of (a) the Appraised Value (if any) of the
Mortgaged Property at the time the Mortgage Loan was originated or (b) the
purchase price paid for the Mortgaged Property by the Mortgagor. With
respect to a Mortgage Loan originated for the purpose of refinancing
existing mortgage debt, the Original Value shall be equal to the Appraised
Value of the Mortgaged Property.
Owner: Each Holder of an Insured Certificate who, on the applicable
Distribution Date, is entitled under the terms of the Insured Certificates
to payment thereunder.
Ownership Interest: With respect to any Residual Certificate, any
ownership or security interest in such Residual Certificate, including any
29
interest in a Residual Certificate as the Holder thereof and any other
interest therein whether direct or indirect, legal or beneficial, as owner
or as pledgee.
PNC Mortgage Loans: The Mortgage Loans identified as PNC Mortgage
Loans on the Mortgage Loan Schedule and conveyed by the Company to the
Trustee pursuant to Section 2.01.
Pass-Through Entity: Any regulated investment company, real estate
investment trust, common trust fund, partnership, trust or estate, and any
organization to which Section 1381 of the Code applies.
Pass-Through Rate: For each Mortgage Loan, a per annum rate equal to
the Mortgage Interest Rate for such Mortgage Loan less the per annum
percentage rates related to each of (i) the Servicing Fee for such Mortgage
Loan, (ii) the Master Servicing Fee for such Mortgage Loan and (iii) if
such Mortgage Loan was covered by a Special Primary Insurance Policy on the
Closing Date (even if no longer so covered), the applicable Special Primary
Insurance Premium. For each Mortgage Loan, any calculation of monthly
interest at such rate shall be based upon annual interest at such rate
(computed on the basis of a 360-day year of twelve 30-day months) on the
unpaid Principal Balance of the related Mortgage Loan divided by twelve,
and any calculation of interest at such rate by reason of a Payoff shall be
based upon annual interest at such rate on the outstanding Principal
Balance of the related Mortgage Loan multiplied by a fraction, the
numerator of which is the number of days elapsed from the Due Date of the
last scheduled payment of principal and interest to, but not including, the
date of such Payoff, and the denominator of which is (a) for Payoffs
received on a Due Date, 360, and (b) for all other Payoffs, 365.
Paying Agent: Any paying agent appointed by the Trustee pursuant to
Section 8.12.
Payoff: Any Mortgagor payment (exclusive of any prepayment penalty) of
principal on a Mortgage Loan equal to the entire outstanding Principal
Balance of such Mortgage Loan, if received in advance of the last scheduled
Due Date for such Mortgage Loan and accompanied by an amount of interest
equal to accrued unpaid interest on the Mortgage Loan to the date of such
payment-in-full.
Payoff Earnings: For any Distribution Date with respect to each
Mortgage Loan on which a Payoff was received by the Master Servicer during
the Payoff Period, the aggregate of the interest earned by the Master
Servicer from investment of each such Payoff from the date of receipt of
such Payoff until the Business Day immediately preceding the related
Distribution Date (net of investment losses).
Payoff Interest: For any Distribution Date with respect to a Mortgage
Loan for which a Payoff was received on or after the first calendar day of
the month of such Distribution Date and before the 15th calendar day of
such month, an amount of interest thereon at the applicable Pass-Through
Rate from the first day of the month of distribution through the day of
30
receipt thereof; to the extent (together with Payoff Earnings and the
aggregate Master Servicing Fee) not required to be distributed as
Compensating Interest on such Distribution Date, Payoff Interest shall be
payable to the Master Servicer as additional servicing compensation.
Payoff Period: For the first Distribution Date, the period from the
Cut-Off Date through October 14, 2000, inclusive; and for any Distribution
Date thereafter, the period from the 15th day of the Prior Period through
the 14th day of the month of such Distribution Date, inclusive
Percentage Interest: (a) With respect to the right of each
Certificate of a particular Class in the distributions allocated to such
Class, "Percentage Interest" shall mean the percentage undivided beneficial
ownership interest evidenced by such Certificate of such Class, which
percentage shall equal:
(i) with respect to any Certificate (other than the Residual, Class
A-5 and Class X Certificates), its Certificate Principal Balance divided
by the applicable Class Principal Balance;
with respect to any Class X or Class A-5 Certificate, the portion
of the respective Class Notional Amount evidenced by such Certificate
divided by the respective Class Notional Amount; and
with respect to any Residual Certificate, the percentage set
forth on the face of such Certificate.
(b) With respect to the rights of each Certificate in connection with
Sections 5.09, 7.01, 8.01(c), 8.02, 8.07, 10.01 and 10.03, "Percentage
Interest" shall mean the percentage undivided beneficial interest evidenced
by such Certificate in REMIC II, which for purposes of such rights only
shall equal:
(i) with respect to any Certificate (other than the Class X, Class
A-5 and Residual Certificates), the product of (x) ninety-eight percent
(98%) and (y) the percentage calculated by dividing its Certificate
Principal Balance by the Aggregate Certificate Principal Balance of the
Certificates; provided, however, that the percentage in clause (x)
above shall be increased by one percent (1%) upon the retirement of
each Class of Certificates referenced in the parenthetical above (other
than the Residual Certificates);
with respect to any Class X or Class A-5 Certificate, one percent
(1%) of such Certificate's Percentage Interest as calculated by
paragraph (a)(ii) of this definition; and
with respect to any Residual Certificate, zero.
Permitted Transferee: With respect to the holding or ownership of any
Residual Certificate, any Person other than (i) the United States, a State
or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization
31
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code
Section 521) which is exempt from the taxes imposed by Chapter 1 of the
Code (unless such organization is subject to the tax imposed by Section 511
of the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Code Section 1381(a)(2)(C), (v) any
"electing large partnership" as defined in Section 775(a) of the Code, (vi)
any Person from whom the Trustee has not received an affidavit to the
effect that it is not a "disqualified organization" within the meaning of
Section 860E(e)(5) of the Code, and (vii) any other Person so designated by
the Company based upon an Opinion of Counsel that the transfer of an
Ownership Interest in a Residual Certificate to such Person may cause REMIC
I or REMIC II, as applicable, to fail to qualify as a REMIC at any time
that the Certificates are outstanding. The terms "United States", "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation shall not be treated as
an instrumentality of the United States or of any State or political
subdivision thereof if all of its activities are subject to tax, and, with
the exception of the Xxxxxxx Mac, a majority of its board of directors is
not selected by such governmental unit.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Premium Rate Mortgage Loans: The Mortgage Loans having Pass-Through
Rates in excess of 7.750% per annum.
Preference Amount: Any amount previously distributed to an Owner on
the Insured Certificates that is recoverable and sought to be recovered as
a voidable preference by a trustee in bankruptcy pursuant to the United
States Bankruptcy Code (11 U.S.C.), as amended from time to time in
accordance with a final nonappealable order of a court having competent
jurisdiction.
Prepaid Monthly Payment: Any Monthly Payment received prior to its
scheduled Due Date, which is intended to be applied to a Mortgage Loan on
its scheduled Due Date and held in the related Custodial Account for P&I
until the Withdrawal Date following its scheduled Due Date.
Primary Insurance Policy: A policy of mortgage guaranty insurance, if
any, on an individual Mortgage Loan or on pools of mortgage loans that
include an individual Mortgage Loan, providing coverage as required by
Section 2.03(xi) (including any Special Primary Insurance Policy).
Principal Balance: Except as used in Sections 2.02, 3.09 and 9.01 and
for purposes of the definition of Purchase Price, at the time of any
determination, the principal balance of a Mortgage Loan remaining to be
paid at the close of business on the Cut-Off Date, after application of all
scheduled principal payments due on or before the Cut-Off Date, whether or
not received, reduced by all amounts distributed or (except when such
32
determination occurs earlier in the month than the Distribution Date) to be
distributed to Certificateholders through the Distribution Date in the
month of determination that are reported as allocable to principal of such
Mortgage Loan.
For purposes of the definition of Purchase Price and as used in
Sections 2.02, 3.09 and 9.01, at the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid at the close of
business on the Cut-Off Date, after deduction of all scheduled principal
payments due on or before the Cut-Off Date, whether or not received,
reduced by all amounts distributed or to be distributed to
Certificateholders through the Distribution Date in the month of
determination that are reported as allocable to principal of such Mortgage
Loan.
In the case of a Substitute Mortgage Loan, "Principal Balance" shall
mean, at the time of any determination, the principal balance of such
Substitute Mortgage Loan transferred to the Trust Fund, on the date of
substitution, reduced by all amounts distributed or to be distributed to
Certificateholders through the Distribution Date in the month of
determination that are reported as allocable to principal of such
Substitute Mortgage Loan.
The Principal Balance of a Mortgage Loan (including a Substitute
Mortgage Loan) shall not be adjusted solely by reason of any bankruptcy or
similar proceeding or any moratorium or similar waiver or grace period.
Whenever a Realized Loss has been incurred with respect to a Mortgage Loan
during a calendar month, the Principal Balance of such Mortgage Loan shall
be reduced by the amount of such Realized Loss as of the Distribution Date
next following the end of such calendar month after giving effect to the
allocation of Realized Losses and distributions of principal to the
Certificates.
Principal Payment: Any payment of principal on a Mortgage Loan other
than a Principal Prepayment.
Principal Payment Amount: For any Distribution Date, the sum of (i)
the scheduled principal payments on the Mortgage Loans due on the related
Due Date, (ii) the principal portion of proceeds received with respect to
any Mortgage Loan which was purchased or repurchased pursuant to a Purchase
Obligation or as permitted by this Agreement during the Prior Period and
(iii) any other unscheduled payments of principal which were received with
respect to any Mortgage Loan during the Prior Period, other than Payoffs,
Curtailments and Liquidation Principal. In addition, in the event that all
or a portion of the Clipper Mortgage Loan Purchase Amount has not been
applied to the purchase of Clipper Mortgage Loans under the Clipper Loan
Sale Agreement in accordance with Section 2.01, such remaining portion
shall on the first Distribution Date be included in the Principal Payment
Amount.
Principal Prepayment: Any payment of principal on a Mortgage Loan
which constitutes a Payoff or a Curtailment.
33
Principal Prepayment Amount: For any Distribution Date, the sum with
respect to the Mortgage Loans of (i) Curtailments received during the Prior
Period and (ii) Payoffs received during the Payoff Period.
Prior Period: The calendar month immediately preceding any
Distribution Date.
Pro Rata Allocation: With respect to Realized Losses on Mortgage
Loans, the allocation of the principal portion of such losses to all
Classes of REMIC I Regular Interests (other than the Class P-L Regular
Interest) and the Class R-1 Certificates pro rata according to their
respective Class Principal Balances in reduction thereof (except if the
loss is recognized with respect to a Class P Mortgage Loan, in which case
the applicable Class P Fraction of such loss will first be allocated to the
Class P-L Regular Interest, and the remainder of such loss will be
allocated as set forth above), and the allocation of the interest portion
of such losses to all Classes of REMIC I Regular Interests (other than the
Class P-L Regular Interest) and the Class R-1 Certificates pro rata
according to the amount of interest accrued but unpaid on each such Class,
in reduction thereof, and then to such Classes (other than the Class P-L
and Class X-L Regular Interests) pro rata according to their respective
Class Principal Balances in reduction thereof.
Any losses allocated among the outstanding Classes of REMIC I Regular
Interests pursuant to this definition of "Pro Rata Allocation" in reduction
of the Class Principal Balance thereof shall also be allocated to the
Corresponding Classes of Certificates in reduction of the Class Principal
Balances thereof by the same amount.
Prospectus: The Prospectus, dated July 26, 2000, and the Prospectus
Supplement, dated September 21, 2000, of the Company.
Protective Transfer Agreement: The Protective Transfer Agreement,
substantially in the form of Exhibit P hereto, to be entered into between
Fairway Drive Funding Corp. and the Trustee pursuant to Section 2.01.
Purchase Obligation: An obligation of the Company to purchase or
repurchase Mortgage Loans under the circumstances and in the manner
provided in Section 2.02 or Section 2.03.
Purchase Price: With respect to any Mortgage Loan to be purchased
pursuant to a Purchase Obligation or pursuant to Section 3.01, an amount
equal to the sum of (i) the Principal Balance thereof, (ii) unpaid accrued
interest thereon, if any, during the calendar month in which the date of
purchase or repurchase occurs to the last day of such month at a rate equal
to the applicable Pass-Through Rate and (iii) (in the case of a purchase
pursuant to the fourth sentence of the third paragraph of Section 3.01
only) the amount of any related unreimbursed advances by the Master
Servicer; provided, however, that no Mortgage Loan shall be purchased or
required to be purchased pursuant to Section 2.03, or more than two years
after the Closing Date under Section 2.02, unless (a) the Mortgage Loan to
be purchased is in default, or default is in the judgment of the Company
34
reasonably imminent, or (b) the Company, at its expense, delivers to the
Trustee an Opinion of Counsel to the effect that the purchase of such
Mortgage Loan will not give rise to a tax on a prohibited transaction, as
defined in Section 860F(a) of the Code.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the states in which the Mortgaged
Properties are located if such qualification is necessary to issue the
applicable insurance policy or bond, duly authorized and licensed in such
states to transact the applicable insurance business and to write the
insurance provided by the Primary Insurance Policies and approved as an
insurer by Xxxxxxx Mac or Xxxxxx Mae and the Master Servicer. A Qualified
Insurer must have the rating required by the Rating Agencies.
Random Lot: With respect to any Distribution Date on which a mandatory
distribution is to be made on the Special Retail Certificates (as described
in Section 4.07), the method by which DTC will determine which Special
Retail Certificates will be paid principal, using its established random
lot procedures or, if such Certificates are no longer represented by a Book-
Entry Certificate, using the Trustee's procedures.
Rating Agency: Initially, each of S&P and Fitch and thereafter, each
nationally recognized statistical rating organization that has rated the
Certificates at the request of the Company, or their respective successors
in interest.
Ratings: As of any date of determination, the ratings, if any, of the
Certificates as assigned by the Rating Agencies (determined in the case of
the Insured Certificates, without giving effect to the Certificate
Insurance Policy)..
Realized Loss: For any Distribution Date, with respect to any Mortgage
Loan which became a Liquidated Mortgage Loan during the related Prior
Period, the sum of (i) the principal balance of such Mortgage Loan
remaining outstanding and the principal portion of Nonrecoverable Advances
actually reimbursed with respect to such Mortgage Loan (the principal
portion of such Realized Loss), and (ii) the accrued interest on such
Mortgage Loan remaining unpaid and the interest portion of Nonrecoverable
Advances actually reimbursed with respect to such Mortgage Loan (the
interest portion of such Realized Loss). For any Distribution Date, with
respect to any Mortgage Loan which is not a Liquidated Mortgage Loan, the
amount of the Bankruptcy Loss incurred with respect to such Mortgage Loan
as of the related Due Date.
Realized Losses allocated to any Class of REMIC I Regular Interests in
reduction of the Class Principal Balance thereof shall also be allocated to
the Corresponding Class of Certificates in reduction of the Class Principal
Balance thereof by the same amount.
Except for Special Hazard Losses in excess of the Special Hazard
Coverage, Fraud Losses in excess of the Fraud Coverage and Bankruptcy
Losses in excess of the Bankruptcy Coverage, Realized Losses shall be
35
allocated among the REMIC I Regular Interests and the Class R-1
Certificates (i) for Realized Losses allocable to principal (a) first, to
the Class B-6-L Regular Interest, until the Class B-6-L Principal Balance
has been reduced to zero, (b) second, to the Class B-5-L Regular Interest,
until the Class B-5-L Principal Balance has been reduced to zero, (c)
third, to the Class B-4-L Regular Interest, until the Class B-4-L Principal
Balance has been reduced to zero, (d) fourth, to the Class B-3-L Regular
Interest, until the Class B-3-L Principal Balance has been reduced to zero,
(e) fifth, to the Class B-2-L Regular Interest, until the Class B-2-L
Principal Balance has been reduced to zero, (f) sixth, to the Class B-1-L
Regular Interest, until the Class B-1-L Principal Balance has been reduced
to zero, and (g) seventh, to the Class A-L and Class R-2-L Regular
Interests and the Class R-1 Certificates, pro rata according to the Class
Principal Balance thereof, in reduction thereof; provided, however, that if
the loss is recognized with respect to a Class P Mortgage Loan, the
applicable Class P Fraction of such loss will first be allocated to the
Class P-L Regular Interest and the remainder of such loss will be allocated
as set forth above in this clause (i); and (ii) for Realized Losses
allocable to interest (a) first, to the Class B-6-L Regular Interest, in
reduction of accrued but unpaid interest thereon and then in reduction of
the Class B-6-L Principal Balance, (b) second, to the Class B-5-L Regular
Interest, in reduction of accrued but unpaid interest thereon and then in
reduction of the Class B-5-L Principal Balance, (c) third, to the Class B-4-
L Regular Interest, in reduction of accrued but unpaid interest thereon and
then in reduction of the Class B-4-L Principal Balance, (d) fourth, to the
Class B-3-L Regular Interest, in reduction of accrued but unpaid interest
thereon and then in reduction of the Class B-3-L Principal Balance, (e)
fifth, to the Class B-2-L Regular Interest, in reduction of accrued but
unpaid interest thereon and then in reduction of the Class B-2-L Principal
Balance, (f) sixth, to the Class B-1-L Regular Interest, in reduction of
accrued but unpaid interest thereon and then in reduction of the Class B-1-
L Principal Balance, and (g) seventh, to the Class A-L, Class X-L and Class
R-2-L Regular Interests and the Class R-1 Certificates, pro rata according
to accrued but unpaid interest on such Classes, in reduction thereof, and
then to the Class A-L and Class R-2-L Regular Interests and the Class R-1
Certificates, pro rata according to the Class Principal Balances thereof,
in reduction thereof.
Special Hazard Losses in excess of the Special Hazard Coverage, Fraud
Losses in excess of the Fraud Coverage and Bankruptcy Losses in excess of
the Bankruptcy Coverage shall be allocated among the REMIC I Regular
Interests and the Class R-1 Certificates by Pro Rata Allocation.
On each Distribution Date, after giving effect to the principal
distributions and allocations of losses as provided in this Agreement
(without regard to this paragraph), if the aggregate Class Principal
Balance of all outstanding REMIC I Regular Interests and the Class R-1
Certificates exceeds the aggregate principal balance of the Mortgage Loans
remaining to be paid at the close of business on the Cut-Off Date, after
deduction of (i) all principal payments due on or before the Cut-Off Date
in respect of each Mortgage Loan whether or not paid and (ii) all amounts
of principal in respect of each Mortgage Loan that have been received or
36
advanced and included in the REMIC I Available Distribution Amount, and all
losses in respect of each Mortgage Loan that have been allocated to the
REMIC I Regular Interests and the Class R-1 Certificates on such
Distribution Date or prior Distribution Dates, then such excess will be
deemed a principal loss and will be allocated to the most junior Class of
Class X-X Regular Interests, in reduction of the Class Principal Balance
thereof.
Record Date: The last Business Day of the month immediately preceding
the month of the related Distribution Date.
Regular Interests: (i) With respect to REMIC I, the REMIC I Regular
Interests and (ii) with respect to REMIC II, the REMIC II Regular
Interests.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended. Interest shortfalls related to the Relief Act shall be allocated
in the same manner as Realized Losses attributable to interest are
allocated.
REMIC: A real estate mortgage investment conduit, as such term is
defined in the Code.
REMIC Provisions: Sections 860A through 860G of the Code, related Code
provisions and regulations promulgated thereunder, as the foregoing may be
in effect from time to time.
REMIC I: The segregated pool of assets consisting of the REMIC I Trust
Fund, with respect to which a separate REMIC election is to be made.
REMIC I Available Distribution Amount: For any Distribution Date, the
sum of the following amounts with respect to the Mortgage Loans:
(1) the total amount of all cash received by or on behalf of the
Master Servicer with respect to the Mortgage Loans by the Determination
Date for such Distribution Date and not previously distributed, including
Monthly P&I Advances made by Servicers, Liquidation Proceeds and scheduled
amounts of distributions from Buydown Funds respecting Buydown Loans, if
any, except:
(a) all scheduled payments of principal and interest collected
but due on or subsequent to such Distribution Date;
(b) all Curtailments received after the Prior Period;
(c) all Payoffs received after the Payoff Period immediately
preceding such Distribution Date (together with any interest payment
received with such Payoffs to the extent that it represents the
payment of interest accrued on the Mortgage Loans for the period
subsequent to the Prior Period), and interest which was accrued and
received on Payoffs received during the period from the 1st to the
14th day of the month of such Distribution Date, which interest shall
37
not be included in the calculation of the REMIC I Available
Distribution Amount for any Distribution Date;
(d) Insurance Proceeds and Liquidation Proceeds received on the
Mortgage Loans after the Prior Period;
(e) all amounts in the Certificate Account which are due and
reimbursable to a Servicer or the Master Servicer pursuant to the
terms of this Agreement;
(f) the sum of the Master Servicing Fee and the Servicing Fee
for each Mortgage Loan, the Certificate Insurer Premium and any
Special Primary Insurance Premiums payable on such Distribution Date
with respect to such Mortgage Loan; and
(g) Excess Liquidation Proceeds;
(2) the sum, to the extent not previously distributed, of the
following amounts, to the extent advanced or received, as applicable, by
the Master Servicer:
(a) any Monthly P&I Advance made by the Master Servicer to the
Trustee with respect to such Distribution Date relating to such
Mortgage Loans; and
(b) Compensating Interest; and
(3) the total amount, to the extent not previously distributed, of
all cash received by the Distribution Date by the Trustee or the Master
Servicer, in respect of a Purchase Obligation under Section 2.02 and
Section 2.03 or any permitted purchase or repurchase of such a Mortgage
Loan.
REMIC I Distribution Amount:
(I) For any Distribution Date prior to the Credit Support Depletion
Date, the REMIC I Available Distribution Amount for such Distribution Date
shall be distributed to the REMIC I Regular Interests, the Class R-1
Certificates and the Certificate Insurer in the following amounts and
priority, to the extent of the REMIC I Available Distribution Amount for
such Distribution Date remaining following prior distributions, if any, on
such Distribution Date:
(i) first, to the Class P-L Regular Interest, the aggregate for all
Class P Mortgage Loans of the product for each Class P Mortgage Loan of
the applicable Class P Fraction and the sum of (x) scheduled payments of
principal on such Class P Mortgage Loan due on or before the related Due
Date in respect of which no distribution has been made on any previous
Distribution Date and which were received by the Determination Date, or
which have been advanced as part of a Monthly P&I Advance with respect to
such Distribution Date, (y) the principal portion received in respect of
such Class P Mortgage Loan during the Prior Period of (1) Curtailments, (2)
38
Insurance Proceeds, (3) the amount, if any, of the principal portion of the
Purchase Price paid pursuant to a Purchase Obligation or any purchase or
repurchase of a Mortgage Loan permitted hereunder and (4) Liquidation
Proceeds and (z) the principal portion of Payoffs received in respect of
such Class P Mortgage Loan during the Payoff Period;
(ii) second, to the Class A-L, Class X-L and Class R-2-L Regular
Interests and the Class R-1 Certificates, concurrently, the sum of the
Interest Distribution Amounts for such Classes of Regular Interests
and Certificates remaining unpaid from previous Distribution Dates,
pro rata according to their respective shares of such unpaid amounts;
(iii) third, to the Class A-L, Class X-L and Class R-2-L Regular
Interests and the Class R-1 Certificates, concurrently, the sum of the
Interest Distribution Amounts for such Classes of Regular Interests
and Certificates for the current Distribution Date, pro rata according
to their respective Interest Distribution Amounts;
(iv) fourth, to the Class A-L and Class R-2-L Regular Interests and
the Class R-1 Certificates, as principal, the Senior Principal
Distribution Amount, sequentially, as follows:
(a) first, to the Class A-4-L Regular Interest, an amount,
up to the amount of the Class A-4 Priority Amount for such
Distribution Date, until the Class A-4-L Principal Balance has
been reduced to zero;
(b) second, sequentially, to the Class R-1 Certificates and
the Class R-2-L Regular Interest, until their respective Class
Principal Balances have each been reduced to zero;
(c) third, to the Class A-3-L Regular Interest, an amount,
up to the amount of the Class A-3 Priority Amount for such
Distribution Date, until the Class A-3-L Principal Balance has
been reduced to zero;
(d) fourth, to the Class A-1-L Regular Interest, until the
Class A-1-L Principal Balance has been reduced to zero;
(e) fifth, to the Class A-2-L Regular Interest, until the
Class A-2-L Principal Balance has been reduced to zero;
(f) sixth, to the Class A-3-L Regular Interest, until the
Class A-3-L Principal Balance has been reduced to zero; and
(g) seventh, to the Class A-4-L Regular Interest, until the
Class A-4-L Principal Balance has been reduced to zero;
(v) fifth, to the Class P-L Regular Interest, to the extent of
amounts otherwise available to pay the Subordinate Principal
Distribution Amount (without regard to clause (B) of the definition
thereof) on such Distribution Date, the amount payable to such Class
39
of Regular Interests on previous Distribution Dates pursuant to clause
(I)(vi) of this definition of "REMIC I Distribution Amount" and
remaining unpaid from such previous Distribution Dates;
(vi) sixth, to the Class P-L Regular Interest, to the extent of
amounts otherwise available to pay the Subordinate Principal
Distribution Amount (without regard to clause (B) of the definition
thereof) on such Distribution Date, principal in an amount equal to
the applicable Class P Fraction of any Realized Loss on a Class P
Mortgage Loan incurred in the Prior Period (in each case, other than a
Realized Loss which, pursuant to the definition of "Realized Loss", is
allocated by Pro Rata Allocation); provided, that any amounts
distributed in respect of losses pursuant to paragraph (I)(v) or this
paragraph (I)(vi) of this definition of "REMIC I Distribution Amount"
shall not cause a further reduction in the Class P-L Principal
Balance;
(vii) seventh, to the Class B-1-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests remaining
unpaid from previous Distribution Dates;
(viii) eighth, to the Class B-1-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests for the
current Distribution Date;
(ix) ninth, to the Class B-1-L Regular Interest, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
Regular Interests pursuant to the definition of "Subordinate Principal
Distribution Amount", until the Class B-1-L Principal Balance has been
reduced to zero;
(x) tenth, to the Class B-2-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests remaining
unpaid from previous Distribution Dates;
(xi) eleventh, to the Class B-2-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests for the
current Distribution Date;
(xii) twelfth, to the Class B-2-L Regular Interest, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
Regular Interests pursuant to the definition of "Subordinate Principal
Distribution Amount", until the Class B-2-L Principal Balance has been
reduced to zero;
(xiii) thirteenth, to the Class B-3-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests remaining
unpaid from previous Distribution Dates;
(xiv) fourteenth, to the Class B-3-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests for the
current Distribution Date;
40
(xv) fifteenth, to the Class B-3-L Regular Interest, the portion of
the Subordinate Principal Distribution Amount allocable to such Class
of Regular Interests pursuant to the definition of "Subordinate
Principal Distribution Amount", until the Class B-3-L Principal
Balance has been reduced to zero;
(xvi) sixteenth, to the Class B-4-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests remaining
unpaid from previous Distribution Dates;
(xvii) seventeenth, to the Class B-4-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests for the
current Distribution Date;
(xviii) eighteenth, to the Class B-4-L Regular Interest, the portion
of the Subordinate Principal Distribution Amount allocable to such Class
of Regular Interests pursuant to the definition of "Subordinate
Principal Distribution Amount", until the Class B-4-L Principal
Balance has been reduced to zero;
(xix) nineteenth, to the Class B-5-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests remaining
unpaid from previous Distribution Dates;
(xx) twentieth, to the Class B-5-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests for the
current Distribution Date;
(xxi) twenty-first, to the Class B-5-L Regular Interest, the portion
of the Subordinate Principal Distribution Amount allocable to such Class
of Regular Interests pursuant to the definition of "Subordinate
Principal Distribution Amount", until the Class B-5-L Principal
Balance has been reduced to zero;
(xxii) twenty-second, to the Class B-6-L Regular Interest, the
Interest Distribution Amount for such Class of Regular Interests remaining
unpaid from previous Distribution Dates;
(xxiii) twenty-third, to the Class B-6-L Regular Interest, the
Interest Distribution Amount for such Class of Regular Interests for the
current Distribution Date;
(xxiv) twenty-fourth, to the Class B-6-L Regular Interest, the portion
of the Subordinate Principal Distribution Amount allocable to such
Class of Regular Interests pursuant to the definition of "Subordinate
Principal Distribution Amount", until the Class B-6-L Principal
Balance has been reduced to zero;
(xxv) twenty-fifth, to the Certificate Insurer, the Class A-3
Reimbursement Amount;
41
(xxvi) twenty-sixth, to each Class of Class X-X Regular Interests in
order of seniority, the remaining portion, if any, of the REMIC I
Available Distribution Amount, up to the amount of unreimbursed
Realized Losses previously allocated to such Class, if any; provided,
however, that any amounts distributed pursuant to this paragraph
(I)(xxvi) of this definition of "REMIC I Distribution Amount" shall
not cause a further reduction in the Class Principal Balances of any
of the Class X-X Regular Interests; and
(xxvii) twenty-seventh, to the Class R-1 Certificates, the Residual
Distribution Amount for the Class R-1 Certificates for such
Distribution Date.
(II) For any Distribution Date on or after the Credit Support
Depletion Date, the REMIC I Available Distribution Amount for such
Distribution Date shall be distributed to the REMIC I Regular Interests,
the Class R-1 Certificates and the Certificate Insurer in the following
amounts and priority, to the extent of the REMIC I Available Distribution
Amount for such Distribution Date remaining following prior distributions,
if any, on such Distribution Date:
(i) first, to the Class P-L Regular Interest, principal in the
amount that would otherwise be distributed to such Class on such
Distribution Date pursuant to clause (I)(i) of this definition of
"REMIC I Distribution Amount";
(ii) second, to the Class A-L, Class X-L and Class R-2-L Regular
Interests and the Class R-1 Certificates, the amount payable to each
such Class of Regular Interests and Certificates on prior Distribution
Dates pursuant to clause (I)(iii) or (II)(iii) of this definition of
"REMIC I Distribution Amount", and remaining unpaid, pro rata
according to such amount payable to the extent of amounts available;
(iii) third, to the Class A-L, Class X-L and Class R-2-L Regular
Interests and the Class R-1 Certificates, concurrently, the sum of the
Interest Distribution Amounts for such Classes of Regular Interests
and Certificates for the current Distribution Date, pro rata according
to their respective Interest Distribution Amounts;
(iv) fourth, to the Class A-L and Class R-2-L Regular Interests and
the Class R-1 Certificates, pro rata according to Class Principal
Balance, as principal, the Senior Principal Distribution Amount;
(v) fifth, to the Certificate Insurer, the Class A-3 Reimbursement
Amount for such Distribution Date; and
(vi) sixth, the Residual Distribution Amount for the Class R-1
Certificates for such Distribution Date.
REMIC I Regular Interests: The Classes of interests in the REMIC I
Trust Fund designated as "regular interests" in the table titled "REMIC I
Interests" in the Preliminary Statement hereto.
42
REMIC I Trust Fund: All of the assets in the Trust Fund other than the
Class A-3 Reserve Fund.
REMIC II: The segregated pool of assets consisting of the REMIC II
Trust Fund conveyed in trust to the Trustee for the benefit of the Holders
of the REMIC II Regular Interests and the Class R-2 Certificateholders
pursuant to Section 2.05, with respect to which a separate REMIC election
is to be made.
REMIC II Available Distribution Amount: For any Distribution Date, the
aggregate of all distributions to the REMIC I Regular Interests on such
Distribution Date (other than any Rounding Amount, Class A-3 Covered
Interest Shortfall Amount or Deficiency Amount deemed to have been
distributed pursuant to Section 4.01(ii)).
REMIC II Distribution Amount: The REMIC II Available Distribution
Amount for any Distribution Date shall be distributed to the Certificates
(other than the Class R-1 Certificates) in the following amounts and
priority, to the extent of the REMIC II Available Distribution Amount for
such Distribution Date remaining following prior distributions, if any, on
such Distribution Date:
(a) to each Class of Certificates (other than the Class A-3 and Class
A-5 Certificates), the amounts distributed to its Corresponding Class on
such Distribution Date;
(b) (i) to the Class A-3 Certificates, the amount distributed as
principal (other than any Rounding Amount) to the Class A-3-L Regular
Interest on such Distribution Date and (ii) to the Class A-3 and Class A-5
Certificates, an amount up to the amount distributed as interest to the
Class A-3-L Regular Interest on such Distribution Date, concurrently, as
follows: (A) to the Class A-3 Certificates, an amount equal to the product
of 1/12 of the Class A-3 Certificate Interest Rate and the Class A-3
Principal Balance and (B) to the Class A-5 Certificates, an amount equal to
the product of 1/12 of the Class A-5 Certificate Interest Rate and the
Class A-5 Notional Amount (in the case of each of clause (A) and (B) above,
before allocating principal losses and giving effect to distributions of
principal on such Distribution Date); and
(c) to the Class R-2 Certificates, the Residual Distribution Amount
for the Class R-2 Certificates for such Distribution Date.
In each case where a distribution is required to be made concurrently
to two or more Classes of Certificates pursuant to this definition of
"REMIC II Distribution Amount", if the portion of the REMIC II Available
Distribution Amount from which such deemed distribution is required to be
made is insufficient to make such distribution in full to such Classes of
Certificates, such distribution shall be allocated between such Classes of
Certificates pro rata according to the respective amounts to which they are
otherwise entitled from such distribution.
REMIC II Regular Interests: The Classes of interests in the REMIC II
43
Trust Fund designated as "regular interests" in the table titled "REMIC II
Interests" in the Preliminary Statement hereto.
REMIC II Trust Fund: The REMIC II Trust Fund created pursuant to
Section 2.05 of this Agreement. The REMIC II Trust Fund consists of the
REMIC I Regular Interests to be held by the Trustee for the benefit of the
Holders from time to time of the REMIC II Regular Interests and the Class R-
2 Certificates issued hereunder.
Residual Certificates: With respect to REMIC I, the Class R-1
Certificates, which are being issued in a single class and with respect to
REMIC II, the Class R-2 Certificates, which are being issued in a single
class. The Class R-1 and Class R-2 Certificates are hereby designated the
sole Class of "residual interests" in REMIC I and REMIC II, respectively,
for purposes of Section 860G(a)(2) of the Code.
Residual Distribution Amount: For any Distribution Date, with respect
to the Class R-1 Certificates, any portion of the REMIC I Available
Distribution Amount remaining after all distributions of the REMIC I
Available Distribution Amount pursuant to clauses (I) and (II), as
applicable, of the definition of "REMIC I Distribution Amount" (other than
the distribution pursuant to the last subclause of clause (I) and (II)).
For any Distribution Date, with respect to the Class R-2 Certificates,
any portion of the REMIC II Available Distribution Amount remaining after
all distributions of the REMIC II Available Distribution Amount pursuant to
clauses (a) and (b) of the definition of "REMIC II Distribution Amount".
Upon termination of the obligations created by this Agreement and the
REMIC I Trust Fund and the REMIC II Trust Fund created hereby, the amounts
which remain on deposit in the Certificate Account after payment to the
Holders of the REMIC I Regular Interests of the amounts set forth in
Section 9.01 of this Agreement, and subject to the conditions set forth
therein, shall be distributed to the Class R-1 and Class R-2 Certificates
in accordance with the preceding sentence of this definition as if the date
of such distribution were a Distribution Date.
Responsible Officer: When used with respect to the Trustee, any
officer assigned to and working in its Corporate Trust Department or
similar group and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
Rounding Account: The separate trust account maintained with the
Trustee pursuant to Section 3.22, which account shall bear a designation
clearly indicating that the funds deposited therein are held in trust for
the benefit of the Trustee on behalf of the Class A-3 Certificateholders,
or any other account serving a similar function acceptable to the Rating
Agencies, and which account provides that the Trustee may make, or cause to
be made, withdrawals as provided in Section 3.22 hereof, to the extent of
the amount then remaining in the Rounding Account.
44
Rounding Amount: With respect to the Class A-3 Certificates, the
amount of funds, if any, needed to be withdrawn from the Rounding Account
and used to round the amount of any distributions in reduction of the Class
A-3 Principal Balance on any Distribution Date upward to the next higher
integral multiple of $1,000.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., provided that at any time it be a Rating Agency.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: With respect to a Cooperative Loan, the agreement
or mortgage creating a security interest in favor of the originator of the
Cooperative Loan in the related Cooperative Stock.
Selling and Servicing Contract: (a) The contract (including the PNC
Mortgage Securities Corp. Selling Guide and PNC Mortgage Securities Corp.
Servicing Guide to the extent incorporated by reference therein) between
the Company and a Person relating to the sale of the Mortgage Loans to the
Company and the servicing of such Mortgage Loans for the benefit of the
Certificateholders, which contract is substantially in the form of Exhibit
E hereto, as such contract may be amended or modified from time to time;
provided, however, that any such amendment or modification shall not
materially adversely affect the interests and rights of Certificateholders
and (b) any other similar contract providing substantially similar rights
and benefits as those provided by the forms of contract attached as Exhibit
E hereto.
Senior Certificates: The Class A, Class P, Class X and Residual
Certificates.
Senior Liquidation Amount: For any Distribution Date, the aggregate,
for each Mortgage Loan which became a Liquidated Mortgage Loan during the
Prior Period, of the lesser of: (i) the Senior Percentage of the Principal
Balance of such Mortgage Loan (exclusive of the Class P Fraction thereof,
for any Class P Mortgage Loan) and (ii) the Senior Prepayment Percentage of
the Liquidation Principal for such Mortgage Loan.
Senior Percentage: For any Distribution Date, the aggregate Class
Principal Balance of the Class A and Residual Certificates divided by the
aggregate Class Principal Balance of the Class A, Class B and Residual
Certificates, in each case immediately after any allocations of Realized
Losses but before any distributions on such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date, the Senior
Prepayment Percentage shall equal 100%, unless (i) the Senior Percentage
for such Distribution Date is less than or equal to the Senior Percentage
as of the Closing Date, (ii) such Distribution Date occurs on or after the
fifth anniversary of the first Distribution Date and (iii) the following
tests specified in clauses (a) and (b) are met with respect to the Mortgage
Loans:
45
(a) the mean aggregate Principal Balance as of the Distribution Date
in each of the immediately preceding six calendar months of the
Mortgage Loans which were 60 or more days delinquent as of such
date (including loans in foreclosure and mortgaged property held
by REMIC I) is less than or equal to 50% of the Subordinate
Component Balance as of the current Distribution Date, and
(b) cumulative Realized Losses on the Mortgage Loans allocated to the
Class X-X Regular Interests, as a percentage of the Subordinate
Component Balance as of the Closing Date, are less than or equal
to, for any Distribution Date (1) before the sixth anniversary of
the first Distribution Date, 30%, (2) on or after the sixth
anniversary but before the seventh anniversary of the first
Distribution Date, 35%, (3) on or after the seventh anniversary
but before the eighth anniversary of the first Distribution Date,
40%, (4) on or after the eighth anniversary but before the ninth
anniversary of the first Distribution Date, 45%, and (5) on or
after the ninth anniversary of the first Distribution Date, 50%,
in which case the Senior Prepayment Percentage shall be calculated as
follows: (1) for any such Distribution Date on or after the fifth
anniversary but before the sixth anniversary of the first Distribution
Date, the Senior Percentage for such Distribution Date plus 70% of the
Subordinate Percentage for such Distribution Date; (2) for any such
Distribution Date on or after the sixth anniversary but before the seventh
anniversary of the first Distribution Date, the Senior Percentage for such
Distribution Date plus 60% of the Subordinate Percentage for such
Distribution Date; (3) for any such Distribution Date on or after the
seventh anniversary but before the eighth anniversary of the first
Distribution Date, the Senior Percentage for such Distribution Date plus
40% of the Subordinate Percentage for such Distribution Date; (4) for any
such Distribution Date on or after the eighth anniversary but before the
ninth anniversary of the first Distribution Date, the Senior Percentage for
such Distribution Date plus 20% of the Subordinate Percentage for such
Distribution Date; and (5) for any such Distribution Date thereafter, the
Senior Percentage for such Distribution Date.
If on any Distribution Date the allocation to the Senior REMIC I
Regular Interests (other than the Class P-L Regular Interest) of Principal
Prepayments in the percentage required would reduce the aggregate Class
Principal Balance of such Regular Interests below zero, the Senior
Prepayment Percentage for such Distribution Date shall be limited to the
percentage necessary to reduce the aggregate Class Principal Balance of
such Regular Interests to zero. Notwithstanding the foregoing, however, on
each Distribution Date, the Class P-L Regular Interest shall receive the
applicable Class P Fraction of all principal payments, including, without
limitation, Principal Prepayments, received in respect of Class P Mortgage
Loans.
Senior Principal Distribution Amount: For any Distribution Date, an
amount equal to the sum of (a) the Senior Percentage of the Principal
Payment Amount (exclusive of the portion thereof attributable to principal
46
distributions to the Class P-L Regular Interest pursuant to clauses (I)(i)
and (II)(i) of the definition of "REMIC I Distribution Amount"), (b) the
Senior Prepayment Percentage of the Principal Prepayment Amount (exclusive
of the portion thereof attributable to principal distributions to the Class
P-L Regular Interest pursuant to clauses (I)(i) and (II)(i) of the
definition of "REMIC I Distribution Amount") and (c) the Senior Liquidation
Amount.
Senior REMIC I Regular Interests: The Class A-L, Class P-L, Class X-L
and Class R-2-L Regular Interests.
Senior Subordinate Certificates: The Subordinate Certificates other
than the Junior Subordinate Certificates.
Servicer: A mortgage loan servicing institution to which the Master
Servicer has assigned servicing duties with respect to any Mortgage Loan
under a Selling and Servicing Contract; provided, however, the Master
Servicer may designate itself or one or more other mortgage loan servicing
institutions as Servicer upon termination of an initial Servicer's
servicing duties.
Servicing Fee: For each Mortgage Loan, the fee paid to the Servicer
thereof to perform primary servicing functions for the Master Servicer with
respect to such Mortgage Loan, equal to the per annum rate set forth for
each Mortgage Loan in the Mortgage Loan Schedule on the outstanding
Principal Balance of such Mortgage Loan. In addition, any prepayment
penalty received on a Mortgage Loan will be paid as additional servicing
compensation to the Master Servicer or the related Servicer.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans or
the Certificates, as applicable, whose name and specimen signature appear
on a list of servicing officers furnished to the Trustee by the Master
Servicer, as such list may from time to time be amended.
Special Hazard Coverage: The Special Hazard Coverage on the most
recent anniversary of the Cut-Off Date (calculated in accordance with the
second sentence of this paragraph) or, if prior to the first such
anniversary, $2,036,282, in each case reduced by Special Hazard Losses
allocated to the REMIC I Regular Interests and the Class R-1 Certificates
since the most recent anniversary of the Cut-Off Date (or, if prior to the
first such anniversary, since the Cut-Off Date). On each anniversary of
the Cut-Off Date, the Special Hazard Coverage shall be reduced, but not
increased, to an amount equal to the lesser of (1) the greatest of (a) the
aggregate principal balance of the Mortgage Loans located in the single
California zip code area containing the largest aggregate principal balance
of Mortgage Loans, (b) 1.0% of the aggregate unpaid principal balance of
the Mortgage Loans and (c) twice the unpaid principal balance of the
largest single Mortgage Loan, in each case calculated as of the Due Date in
the immediately preceding month, and (2) $2,036,282 as reduced by the
Special Hazard Losses allocated to the REMIC I Regular Interests and the
Class R-1 Certificates since the Cut-Off Date.
47
The Special Hazard Coverage may be reduced upon written confirmation
from the Rating Agencies that such reduction will not adversely affect the
then current ratings assigned to the Certificates by the Rating Agencies
(determined in the case of the Insured Certificates, without giving effect
to the Certificate Insurance Policy).
Special Hazard Loss: A Realized Loss (or portion thereof) with respect
to a Mortgage Loan arising from any direct physical loss or damage to a
Mortgaged Property not covered by a standard hazard maintenance policy with
extended coverage which is caused by or results from any cause except: (i)
fire, lightning, windstorm, hail, explosion, riot, riot attending a strike,
civil commotion, vandalism, aircraft, vehicles, smoke, sprinkler leakage,
except to the extent of that portion of the loss which was uninsured
because of the application of a co-insurance clause of any insurance policy
covering these perils; (ii) normal wear and tear, gradual deterioration,
inherent vice or inadequate maintenance of all or part thereof; (iii)
errors in design, faulty workmanship or materials, unless the collapse of
the property or a part thereof ensues and then only for the ensuing loss;
(iv) nuclear reaction or nuclear radiation or radioactive contamination,
all whether controlled or uncontrolled and whether such loss be direct or
indirect, proximate or remote or be in whole or in part caused by,
contributed to or aggravated by a peril covered by this definition of
Special Hazard Loss; (v) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an actual,
impending or expected attack (a) by any government of sovereign power (de
jure or de facto), or by an authority maintaining or using military, naval
or air forces, (b) by military, naval or air forces, or (c) by an agent of
any such government, power, authority or forces; (vi) any weapon of war
employing atomic fission or radioactive force whether in time of peace or
war; (vii) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such occurrence; or (viii) seizure or destruction under quarantine
or customs regulations, or confiscation by order of any government or
public authority.
Special Primary Insurance Policy: Any Primary Insurance Policy
covering a Mortgage Loan the premium of which is payable by the Trustee
pursuant to Section 4.04(a), if so identified in the Mortgage Loan
Schedule.
Special Primary Insurance Premium: With respect to any Special Primary
Insurance Policy, the monthly premium payable thereunder.
Special Retail Certificates: The Class A-3 Certificates.
Step Down Percentage: For any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In Step Down
Percentage
October 2000 through September 2005 0%
48
October 2005 through September 2006 30%
October 2006 through September 2007 40%
October 2007 through September 2008 60%
October 2008 through September 2009 80%
October 2009 and thereafter 100%
Stripped Interest Rate: For each Mortgage Loan, the excess, if any, of
the Pass-Through Rate for such Mortgage Loan over 7.750% per annum.
Subordinate Certificates: The Class B Certificates.
Subordinate Component Balance: For any date of determination, the then
outstanding aggregate Principal Balance of the Mortgage Loans (less the
applicable Class P Fraction thereof with respect to any Class P Mortgage
Loan) minus the then outstanding aggregate Class Principal Balance of the
Class A and Residual Certificates.
Subordinate Liquidation Amount: For any Distribution Date, the excess,
if any, of the aggregate of Liquidation Principal for all Mortgage Loans
which became Liquidated Mortgage Loans during the Prior Period, over the
Senior Liquidation Amount for such Distribution Date.
Subordinate Percentage: For any Distribution Date, the excess of 100%
over the Senior Percentage for such date.
Subordinate Prepayment Percentage: For any Distribution Date, the
excess of 100% over the Senior Prepayment Percentage for such Distribution
Date; provided, however, that if the aggregate Class Principal Balance of
the Class A and Residual Certificates has been reduced to zero, then the
Subordinate Prepayment Percentage shall equal 100%.
Subordinate Principal Distribution Amount: For any Distribution Date,
the excess of (A) the sum of (i) the Subordinate Percentage of the
Principal Payment Amount (exclusive of the portion thereof attributable to
principal distributions to the Class P-L Regular Interest pursuant to
clause (I)(i) of the definition of "REMIC I Distribution Amount"), (ii) the
Subordinate Principal Prepayments Distribution Amount (without regard to
the proviso in the definition thereof) and (iii) the Subordinate
Liquidation Amount over (B) the amounts required to be distributed to the
Class P-L Regular Interest pursuant to clauses (I)(v) and (I)(vi) of the
definition of "REMIC I Distribution Amount" on such Distribution Date.
On any Distribution Date, the Subordinate Principal Distribution
Amount shall be allocated pro rata, by Class Principal Balance, among the
Classes of Class X-X Regular Interests and paid in the order of
distribution to such Classes pursuant to clause (I) of the definition of
"REMIC I Distribution Amount" except as otherwise stated in such
definition. Notwithstanding the foregoing, on any Distribution Date prior
to distributions on such date, if the Subordination Level for any Class of
Class X-X Regular Interests is less than such Subordination Level as of the
Closing Date, the pro rata portion of the Subordinate Principal Prepayments
Distribution Amount otherwise allocable to the Class or Classes of Class B-
49
L Regular Interests junior to such Class will be distributed to the most
senior Class of Class X-X Regular Interests for which the Subordination
Level is less than the Subordination Level as of the Closing Date, and to
the Class or Classes of Class X-X Regular Interests senior thereto, pro
rata according to the Class Principal Balances of such Classes. For
purposes of this definition and the definition of "Subordination Level,"
the relative seniority, from highest to lowest, of the Class X-X Regular
Interests shall be as follows: Class B-1-L, Class B-2-L, Class B-3-L, Class
B-4-L, Class B-5-L and Class B-6-L.
Subordinate Principal Prepayments Distribution Amount: For any
Distribution Date, the Subordinate Prepayment Percentage of the Principal
Prepayment Amount (exclusive of the portion thereof attributable to
principal distributions to the Class P-L Regular Interest pursuant to
clause (I)(i) of the definition of "REMIC I Distribution Amount");
provided, however, that if the amount specified in clause (B) of the
definition of "Subordinate Principal Distribution Amount" is greater than
the sum of the amounts specified in clauses (A)(i) and (A)(iii) of such
definition, then the Subordinate Principal Prepayments Distribution Amount
shall be reduced by the amount of such excess.
Subordination Level: On any specified date, for any Class of Class X-X
Regular Interests, the percentage obtained by dividing the aggregate Class
Principal Balance of the Classes of Class X-X Regular Interests which are
subordinate in right of payment to such Class by the aggregate Class
Principal Balance of the REMIC I Regular Interests and the Class R-1
Certificates as of such date prior to giving effect to distributions of
principal or interest or allocations of Realized Losses on the Mortgage
Loans on such date.
Substitute Mortgage Loan: A Mortgage Loan which is substituted for
another Mortgage Loan pursuant to and in accordance with the provisions of
Section 2.02.
Tax Matters Person: A Holder of a Class R-1 Certificate, with respect
to REMIC I, and a Holder of a Class R-2 Certificate, with respect to REMIC
II, in each case with a Percentage Interest of at least 0.01% or any
Permitted Transferee of such Class R-1 or Class R-2 Certificateholder
designated as succeeding to the position of Tax Matters Person with respect
to the applicable trust fund in a notice to the Trustee signed by
authorized representatives of the transferor and transferee of such Class R-
1 or Class R-2 Certificate. The Company is hereby appointed to act as the
Tax Matters Person for REMIC I so long as it holds a Class R-1 Certificate,
and to act as the Tax Matters Person for REMIC II so long as it holds a
Class R-2 Certificate, in each case with a Percentage Interest of at least
0.01%. The Company is hereby appointed to act as agent for the Tax Matters
Person for any of REMIC I or REMIC II, to perform the functions of such Tax
Matters Person as provided herein, so long as the Company is the Master
Servicer hereunder, in the event that the Company ceases to hold a Class R-
1 or Class R-2 Certificate, as applicable, with the required Percentage
Interest. In the event that the Company ceases to be the Master Servicer
hereunder, the successor Master Servicer is hereby appointed to act as
50
agent for the Tax Matters Person for REMIC I and REMIC II, to perform the
functions of such Tax Matters Person as provided herein. If the Tax Matters
Person for REMIC I or REMIC II becomes a Disqualified Organization, the
last preceding Holder, that is not a Disqualified Organization, of the
Class R-1 or Class R-2 Certificate, as applicable, held by the Disqualified
Organization shall be Tax Matters Person for such trust pursuant to and as
permitted by Section 5.01(c). If any Person is appointed as tax matters
person by the Internal Revenue Service pursuant to the Code, such Person
shall be Tax Matters Person.
Termination Date: The date upon which final payment of the
Certificates will be made pursuant to the procedures set forth in Section
9.01(b).
Termination Payment: The final payment delivered to the
Certificateholders on the Termination Date pursuant to the procedures set
forth in Section 9.01(b).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
Transferee Affidavit and Agreement: An affidavit and agreement in the
form attached hereto as Exhibit J.
Trust: The pool of assets consisting of the Trust Fund conveyed
pursuant to Section 2.01 of this Agreement.
Trust Fund: The corpus of the trust created pursuant to Section 2.01
of this Agreement. The Trust Fund consists of (i) the PNC Mortgage Loans
and (upon purchase thereof by the Trustee pursuant to Section 2.01) the
Clipper Mortgage Loans and all rights pertaining thereto; (ii) such assets
as from time to time may be held by the Trustee (or its duly appointed
agent) in the Certificate Account (including an initial deposit therein on
the Closing Date by the Company in the amount of the Clipper Mortgage Loan
Purchase Amount for the purchase by the Trustee of the Clipper Mortgage
Loans pursuant to Section 2.01, which initial deposit shall be irrevocable)
or the Investment Account (except amounts representing the Master Servicing
Fee or the Servicing Fee) or the Rounding Account or the Class A-3 Reserve
Fund; (iii) such assets as from time to time may be held by Servicers in a
Custodial Account for P&I or Custodial Account for Reserves or a Buydown
Fund Account related to the Mortgage Loans (except amounts representing the
Master Servicing Fee or the Servicing Fee); (iv) property which secured a
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure or, in the case of a Cooperative Loan, a similar form of
conversion, after the Cut-Off Date; and (v) the Certificate Insurance
Policy and amounts paid or payable by the insurer under any FHA insurance
policy or any Primary Insurance Policy and proceeds of any VA guaranty and
any other insurance policy related to any Mortgage Loan or the Mortgage
Pool.
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Trustee: State Street Bank and Trust Company, or its successor-in-
interest as provided in Section 8.09, or any successor trustee appointed as
herein provided.
Uncollected Interest: With respect to any Distribution Date for any
Mortgage Loan on which a Payoff was made by a Mortgagor during the related
Payoff Period, except for Payoffs received during the period from the first
through the 14th day of the month of such Distribution Date, an amount
equal to one month's interest at the applicable Pass-Through Rate on such
Mortgage Loan less the amount of interest actually paid by the Mortgagor
with respect to such Payoff.
Uncompensated Interest Shortfall: For any Distribution Date, the sum
of (i) aggregate Curtailment Shortfall with respect to the Mortgage Loans
and (ii) the excess, if any, of (a) aggregate Uncollected Interest with
respect to the Mortgage Loans over (b) Compensating Interest with respect
to the Mortgage Loans.
Uncompensated Interest Shortfall shall be allocated to the REMIC I
Regular Interests and the Class R-1 Certificates pro rata according to the
amount of the Interest Distribution Amount to which each such Class would
otherwise be entitled in reduction thereof.
Underwriting Standards: The underwriting standards of the Company,
Xxxxxx Savings & Loan Association, F.A., North American Mortgage Company,
GreenPoint Mortgage Funding, Inc., Xxxxxx, Xxxx & Xxxxxxxx, Firstar Bank,
N.A., IndyMac Bank, F.S.B. and Flagstar Bank.
Uninsured Cause: Any cause of damage to a Mortgaged Property, the cost
of the complete restoration of which is not fully reimbursable under the
hazard insurance policies required to be maintained pursuant to Section
3.07.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under
the laws of the United States, any state thereof or the District of
Columbia, or an estate or trust that is subject to U.S. federal income tax
regardless of the source of its income.
VA: The Department of Veterans Affairs, formerly known as the Veterans
Administration, or any successor thereto.
Withdrawal Date: Any day during the period commencing on the 18th day
of the month of the related Distribution Date (or if such day is not a
Business Day, the immediately preceding Business Day) and ending on the
last Business Day prior to the 21st day of the month of such Distribution
Date. The "related Due Date" for any Withdrawal Date is the Due Date
immediately preceding the related Distribution Date.
ARTICLE II
Conveyance of the Trust Funds; REMIC Election and Designations;
52
Original Issuance of Certificates
Section 2.01. Conveyance of the Trust Fund; REMIC Election and
Designations. The Trust of which the Trustee is the trustee is hereby
created under the laws of the State of New York for the benefit of the
Holders of the REMIC I Regular Interests and the Class R-1 Certificates.
The purpose of the Trust is to hold the Trust Fund and provide for the
creation of the REMIC I Regular Interests and for the issuance, execution
and delivery of the Class R-1 Certificates. The assets of the Trust shall
consist of the Trust Fund. The Trust shall be irrevocable.
The assets of the Trust shall remain in the custody of the Trustee, on
behalf of the Trust, and shall be kept in the Trust except as otherwise
expressly set forth herein. Moneys to the credit of the Trust shall be
held by the Trustee and invested as provided herein. All assets received
and held in the Trust will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of State Street Bank and Trust
Company in its own right, or any Person claiming through it. The Trustee,
on behalf of the Trust, shall not have the power or authority to transfer,
assign, hypothecate, pledge or otherwise dispose of any of the assets of
the Trust to any Person, except as permitted herein. No creditor of a
beneficiary of the Trust, of the Trustee, of the Master Servicer or of the
Company shall have any right to obtain possession of, or otherwise exercise
legal or equitable remedies with respect to, the property of the Trust,
except in accordance with the terms of this Agreement.
Concurrently with the execution and delivery hereof, the Company (i)
does hereby irrevocably sell, transfer, assign, set over and otherwise
convey to the Trustee, in trust for the benefit of the Holders of REMIC I
Regular Interests and the Class R-1 Certificates, without recourse, all the
Company's right, title and interest in and to the Trust Fund (other than
the Clipper Mortgage Loans), including but not limited to all scheduled
payments of principal and interest due after the Cut-Off Date and received
by the Company with respect to the PNC Mortgage Loans at any time, and all
Principal Prepayments received by the Company after the Cut-Off Date with
respect to the PNC Mortgage Loans (such transfer and assignment by the
Company to be referred to herein as the "Conveyance", and the assets so
transferred and assigned to be referred to herein as the "PNC Conveyed
Assets") and (ii) shall deposit into the Certificate Account the Clipper
Mortgage Loan Purchase Amount. Concurrently with the execution and delivery
hereof, the Trustee shall (a) execute and deliver the Clipper Loan Sale
Agreement, and withdraw from the Certificate Account the Clipper Mortgage
Loan Purchase Amount and apply such amount to payment of the purchase price
for the assets conveyed to the Trustee under the Clipper Loan Sale
Agreement and (b) execute and deliver the Protective Transfer Agreement.
The Trustee shall have no duty to review or otherwise determine the
adequacy of the Clipper Loan Sale Agreement and the Protective Transfer
Agreement. The Clipper Mortgage Loans and the other assets conveyed to the
Trustee under the Clipper Loan Sale Agreement and the Protective Transfer
Agreement shall become part of the Trust Fund. The Trustee hereby accepts
the Trust created hereby and accepts delivery of the Trust Fund on behalf
of the Trust and acknowledges that it holds the Mortgage Loans for the
53
benefit of the Holders of the REMIC I Regular Interests and the Class R-1
Certificates issued pursuant to this Agreement.
It is the express intent of the parties hereto that the Conveyance of
the PNC Conveyed Assets to the Trustee by the Company as provided in this
Section 2.01 be, and be construed as, an absolute sale of the PNC Conveyed
Assets. It is, further, not the intention of the parties that such
Conveyance be deemed the grant of a security interest in the PNC Conveyed
Assets by the Company to the Trustee to secure a debt or other obligation
of the Company. However, in the event that, notwithstanding the intent of
the parties, the PNC Conveyed Assets are held to be the property of the
Company, or if for any other reason this Agreement is held or deemed to
create a security interest in the PNC Conveyed Assets, then
(a) this Agreement shall be deemed to be a security agreement;
(b) the Conveyance provided for in this Section 2.01 shall be deemed
to be a grant by the Company to the Trustee, to secure all of the Company's
obligations hereunder, of a security interest in all of the Company's
right, title, and interest, whether now owned or hereafter acquired, in and
to:
(I) (i) the PNC Mortgage Loans identified on the Mortgage Loan
Schedule, including the related Mortgage Notes, Mortgages, Cooperative
Stock Certificates, and Cooperative Leases, all related Substitute
Mortgage Loans and all distributions with respect to such PNC Mortgage
Loans and related Substitute Mortgage Loans payable on and after the
Cut-Off Date; (ii) the Certificate Account, the Investment Account,
the Rounding Account, the Class A-3 Reserve Fund and all money or
other property held therein, and the Custodial Accounts for P&I and
the Custodial Accounts for Reserves (to the extent of the amounts on
deposit or other property therein attributable to the Mortgage Loans);
and (iii) the Certificate Insurance Policy and amounts paid or payable
by the insurer under any FHA insurance policy or any Primary Insurance
Policy and proceeds of any VA guaranty and any other insurance policy
related to any Mortgage Loan or the Mortgage Pool;
(II) All rights arising from or by virtue of the disposition of,
or collections with respect to, or insurance proceeds payable with
respect to, or claims against other persons with respect to, all or
any part of the collateral described in (I) above (including any
accrued discount realized on liquidation of any investment purchased
at a discount);
(III) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
foregoing; and
(IV) All proceeds of the foregoing;
54
(c) the possession by the Trustee of any of the foregoing property
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and
9-115 thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or
agents of, or persons holding for, the Trustee, as applicable for the
purpose of perfecting such security interest under applicable law.
The Company and the Trustee at the direction of the Company shall, to
the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a
security interest in the PNC Conveyed Assets, such security interest would
be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. In connection herewith, the Trustee shall have all of the rights
and remedies of a secured party and creditor under the Uniform Commercial
Code as in force in the relevant jurisdiction.
In connection with the sale, transfer and assignment referred to in
the third paragraph of this Section 2.01, the Company, concurrently with
the execution and delivery hereof, does deliver to, and deposit with, or
cause to be delivered to and deposited with, the Trustee or Custodian the
Mortgage Files for the PNC Mortgage Loans, which shall on original issuance
thereof and at all times be registered in the name of the Trustee. In the
event that the Mortgage Files delivered or caused to be delivered by
Clipper to the Trustee with respect to the Clipper Mortgage Loans pursuant
to the Clipper Loan Sale Agreement do not include all the documents or
instruments required to be included therein pursuant to the definition of
"Mortgage File" herein, the Company shall deliver or cause to be delivered
to the Trustee or Custodian such missing documents or instruments.
Concurrently with the execution and delivery hereof, the Company shall
cause assignments of the Mortgage Loans to the Trustee to be recorded or
filed, except in states where, in the opinion of counsel admitted to
practice in such state acceptable to the Company, the Trustee and the
Rating Agencies submitted in lieu of such recording or filing, such
recording or filing is not required to protect the Trustee's interest in
such Mortgage Loans against creditors of, or against sale, further
assignments, satisfaction or discharge by the Lender, a Servicer, Clipper,
the Company or the Master Servicer, and the Company shall cause to be filed
the Form UCC-3 assignment and Form UCC-1 financing statement referred to in
clause (Y)(vii) and (ix), respectively, of the definition of "Mortgage
File." Notwithstanding the immediately preceding sentence, in the event
that any Mortgage Loan is delivered to the Trustee by a custodian which is
not an affiliate of the Company and the related Mortgage File does not
contain an assignment of the Mortgage as required by clause (X)(iii)(1) or
clause (X)(iii)(2) of the definition of "Mortgage File," the Company shall
55
cause such custodian promptly to deliver such an assignment, but in no
event later than 30 days after the Closing Date. In connection with its
servicing of Cooperative Loans, the Master Servicer will use its best
efforts to file timely continuation statements, if necessary, with regard
to each financing statement and assignment relating to Cooperative Loans.
In instances where the original recorded Mortgage or any intervening
assignment thereof (recorded or in recordable form) relating to a Mortgage
Loan is not included in the Mortgage File delivered to the Trustee prior to
or concurrently with the execution and delivery hereof or of the Clipper
Loan Sale Agreement, as applicable (due to a delay on the part of the
recording office), the Company shall deliver to the Trustee a fully legible
reproduction of the original Mortgage or intervening assignment provided
that the related Lender or originator certifies on the face of such
reproduction(s) or copy as follows: "Certified true and correct copy of
original which has been transmitted for recordation." For purposes hereof,
transmitted for recordation means having been mailed or otherwise delivered
for recordation to the appropriate authority. In all such instances, the
Company shall transmit the original recorded Mortgage and any intervening
assignments with evidence of recording thereon (or a copy of such original
Mortgage or intervening assignment certified by the applicable recording
office) (collectively, "Recording Documents") to the Trustee within 270
days after the execution and delivery hereof. In instances where, due to a
delay on the part of the recording office where any such Recording
Documents have been delivered for recordation, the Recording Documents
cannot be delivered to the Trustee within 270 days after execution and
delivery hereof, the Company shall deliver to the Trustee within such time
period a certificate (a "Company Officer's Certificate") signed by the
Chairman of the Board, President, any Vice President or Treasurer of the
Company stating the date by which the Company expects to receive such
Recording Documents from the applicable recording office. In the event that
Recording Documents have still not been received by the Company and
delivered to the Trustee by the date specified in its previous Company
Officer's Certificate delivered to the Trustee, the Company shall deliver
to the Trustee by such date an additional Company Officer's Certificate
stating a revised date by which the Company expects to receive the
applicable Recording Documents. This procedure shall be repeated until the
Recording Documents have been received by the Company and delivered to the
Trustee.
In instances where, due to a delay on the part of the title insurer, a
copy of the title insurance policy for a particular Mortgage Loan is not
included in the Mortgage File delivered to the Trustee prior to or
concurrently with the execution and delivery hereof or of the Clipper Loan
Sale Agreement, as applicable, the Company shall provide a copy of such
title insurance policy to the Trustee within 90 days after the Company's
receipt of the Recording Documents necessary to issue such title insurance
policy. In addition, the Company shall, subject to the limitations set
forth in the preceding sentence, provide to the Trustee upon request
therefor a duplicate title insurance policy for any Mortgage Loan.
For Mortgage Loans for which the Company or Clipper, as applicable,
56
has received a Payoff after the Cut-Off Date and prior to the date of
execution and delivery hereof, the Company, in lieu of delivering the above
documents, herewith delivers to the Trustee a certification of a Servicing
Officer of the nature set forth in Section 3.10.
The Trustee is authorized, with the Master Servicer's consent, to
appoint any bank or trust company approved by and unaffiliated with each of
the Company and the Master Servicer as Custodian of the documents or
instruments referred to above in this Section 2.01, and to enter into a
Custodial Agreement for such purpose, provided, however, that the Trustee
shall be and remain liable for the acts of any such Custodian only to the
extent that it is responsible for its own acts hereunder.
The Tax Matters Person, shall, on behalf of the REMIC I Trust Fund,
elect to treat the REMIC I Trust Fund as a REMIC within the meaning of
Section 860D of the Code and, if necessary, under applicable state laws.
Such election shall be included in the Form 1066 and any appropriate state
return to be filed on behalf of REMIC I for its first taxable year.
The Closing Date is hereby designated as the "startup day" of REMIC I
within the meaning of Section 860G(a)(9) of the Code.
The regular interests (as set forth in the table contained in the
Preliminary Statement hereto) relating to the REMIC I Trust Fund are hereby
designated as "regular interests" for purposes of Section 860G(a)(1) of the
Code. The Class R-1 Certificates are being issued in a single Class, which
is hereby designated as the sole class of "residual interest" in the REMIC
I Trust Fund for purposes of Section 860G(a)(2) of the Code.
The parties intend that the affairs of the REMIC I Trust Fund formed
hereunder shall constitute, and that the affairs of the REMIC I Trust Fund
shall be conducted so as to qualify the REMIC I Trust Fund as a REMIC. In
furtherance of such intention, the Tax Matters Person shall, on behalf of
the REMIC I Trust Fund: (a) prepare and file, or cause to be prepared and
filed, a federal tax return using a calendar year as the taxable year and
using an accrual method of accounting for the REMIC I Trust Fund when and
as required by the REMIC Provisions and other applicable federal income tax
laws; (b) make an election, on behalf of the trust, for the REMIC I Trust
Fund to be treated as a REMIC on the federal tax return of the REMIC I
Trust Fund for its first taxable year, in accordance with the REMIC
Provisions; (c) prepare and forward, or cause to be prepared and forwarded,
to the Holders of the REMIC I Regular Interests and the Class R-1
Certificates and the Trustee, all information reports as and when required
to be provided to them in accordance with the REMIC Provisions, and make
available the information necessary for the application of Section 860E(e)
of the Code; (d) conduct the affairs of the REMIC I Trust Fund at all times
that any REMIC I Regular Interests are outstanding so as to maintain the
status of the REMIC I Trust Fund as a REMIC under the REMIC Provisions; (e)
not knowingly or intentionally take any action or omit to take any action
that would cause the termination of the REMIC status of the REMIC I Trust
Fund; and (f) pay the amount of any federal prohibited transaction penalty
taxes imposed on the REMIC I Trust Fund when and as the same shall be due
57
and payable (but such obligation shall not prevent the Company or any other
appropriate person from contesting any such tax in appropriate proceedings
and shall not prevent the Company from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings); provided, that
the Company shall be entitled to be indemnified by the REMIC I Trust Fund
for any such prohibited transaction penalty taxes if the Company's failure
to exercise reasonable care was not the primary cause of the imposition of
such prohibited transaction penalty taxes.
The Trustee and the Master Servicer shall promptly provide the Company
with such information in the possession of the Trustee or the Master
Servicer, respectively, as the Company may from time to time request for
the purpose of enabling the Company to prepare tax returns.
In the event that a Mortgage Loan is discovered to have a defect
which, had such defect been discovered before the startup day, would have
prevented such Mortgage Loan from being a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, and the Company does not
purchase or repurchase such Mortgage Loan within 90 days of such date, the
Master Servicer, on behalf of the Trustee, shall within 90 days of the date
such defect is discovered sell such Mortgage Loan at such price as the
Master Servicer in its sole discretion, determines to be the greatest price
that will result in the purchase thereof within 90 days of such date,
unless the Master Servicer delivers to the Trustee an Opinion of Counsel to
the effect that continuing to hold such Mortgage Loan will not adversely
affect the status of the electing portion of the REMIC I Trust Fund as a
REMIC for federal income tax purposes.
In the event that any tax is imposed on "prohibited transactions" of
the REMIC I Trust Fund as defined in Section 860F of the Code and not paid
by the Company pursuant to clause (f) of the third preceding paragraph,
such tax shall be charged against amounts otherwise distributable to the
Class R-1 Certificateholders. Notwithstanding anything to the contrary
contained herein, the Trustee is hereby authorized to retain from amounts
otherwise distributable to the Class R-1 Certificateholders on any
Distribution Date sufficient funds to reimburse the Tax Matters Person (or
any agent therefor appointed in accordance with the definition of "Tax
Matters Person" herein, if applicable), for the payment of such tax (upon
the written request of the Tax Matters Person or its agent, to the extent
reimbursable, and to the extent that the Tax Matters Person or its agent
has not been previously reimbursed therefor).
Section 2.02. Acceptance by Trustee. The Trustee acknowledges receipt (or
with respect to any Mortgage Loan subject to a Custodial Agreement, receipt
by the Custodian thereunder) of the documents (or certified copies thereof
as specified in Section 2.01) referred to in Section 2.01 above, but
without having made the review required to be made within 45 days pursuant
to this Section 2.02, and declares that as of the Closing Date it holds and
will hold such documents and the other documents constituting a part of the
Mortgage Files delivered to it, and the Trust Fund, as Trustee in trust,
upon the trusts herein set forth, for the use and benefit of the Holders
from time to time of the REMIC I Regular Interests and Class R-1
58
Certificates. The Trustee agrees, for the benefit of the Holders of the
REMIC I Regular Interests and Class R-1 Certificates, to review or cause
the Custodian to review each Mortgage File within 45 days after the Closing
Date and deliver to the Company a certification in the form attached as
Exhibit M hereto, to the effect that, except as noted, all documents
required (in the case of instruments described in clauses (X)(v) and (Y)(x)
of the definition of "Mortgage File", known by the Trustee to be required)
pursuant to the definition of "Mortgage File" and Section 2.01 have been
executed and received, and that such documents relate to the Mortgage Loans
identified in the Mortgage Loan Schedule. In performing such review, the
Trustee may rely upon the purported genuineness and due execution of any
such document, and on the purported genuineness of any signature thereon.
The Trustee shall not be required to make any independent examination of
any documents contained in each Mortgage File beyond the review
specifically required herein. The Trustee makes no representations as to:
(i) the validity, legality, enforceability or genuineness of any of the
Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any Mortgage
Loan. If the Trustee finds any document or documents constituting a part of
a Mortgage File not to have been executed or received, or to be unrelated
to the Mortgage Loans identified in the Mortgage Loan Schedule, the Trustee
shall promptly so notify the Company. The Company hereby covenants and
agrees that, if any such defect cannot be corrected or cured, the Company
shall, not later than 60 days after the Trustee's notice to it respecting
such defect, within the three-month period commencing on the Closing Date
(or within the two-year period commencing on the Closing Date if the
related Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), either (i) purchase or repurchase the related Mortgage Loan
from the Trustee at the Purchase Price, or (ii) substitute for any Mortgage
Loan to which such defect relates a different mortgage loan (a "Substitute
Mortgage Loan") which is a "qualified replacement mortgage" (as defined in
the Code) and, (iii) after such three-month or two-year period, as
applicable, the Company shall purchase or repurchase the Mortgage Loan from
the Trustee at the Purchase Price but only if the Mortgage Loan is in
default or default is, in the judgment of the Company, reasonably imminent.
If such defect would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous
sentence, purchase, repurchase or substitution must occur within the sooner
of (i) 90 days from the date the defect was discovered or (ii) in the case
of substitution, two years from the Closing Date.
Such Substitute Mortgage Loan shall mature no later than, and not more
than two years earlier than, have a principal balance and Loan-to-Value
Ratio equal to or less than, and have a Pass-Through Rate on the date of
substitution equal to or no more than 1% greater than the Mortgage Loan
being substituted for. If the aggregate of the principal balances of the
Substitute Mortgage Loans substituted for a Mortgage Loan is less than the
Principal Balance of such Mortgage Loan, the Company shall pay the
difference in cash to the Trustee for deposit into the Certificate Account,
and such payment by the Company shall be treated in the same manner as
proceeds of the purchase or repurchase by the Company of a Mortgage Loan
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pursuant to this Section 2.02. Furthermore, such Substitute Mortgage Loan
shall otherwise have such characteristics so that the representations and
warranties of the Company set forth in Section 2.03 hereof would not have
been incorrect had such Substitute Mortgage Loan originally been a Mortgage
Loan, and the Company shall be deemed to have made such representations and
warranties as to such Substitute Mortgage Loan. A Substitute Mortgage Loan
may be substituted for a defective Mortgage Loan whether or not such
defective Mortgage Loan is itself a Substitute Mortgage Loan.
Notwithstanding anything herein to the contrary, each Substitute Mortgage
Loan shall be deemed to have the same Pass-Through Rate as the Mortgage
Loan for which it was substituted.
The Purchase Price for each purchased or repurchased Mortgage Loan
shall be deposited by the Company in the Certificate Account and, upon
receipt by the Trustee of written notification of such deposit signed by a
Servicing Officer, the Trustee shall release to the Company the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in
the Company or its designee or assignee title to any Mortgage Loan released
pursuant hereto. The obligation of the Company to purchase or repurchase or
substitute any Mortgage Loan as to which such a defect in a constituent
document exists shall constitute the sole remedy respecting such defect
available to the Holders of the REMIC I Regular Interests or the Class R-1
Certificateholders or the Trustee on behalf of the Holders of the REMIC I
Regular Interests or the Class R-1 Certificateholders.
Section 2.03. Representations and Warranties of the Company Concerning the
Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans
provided for in Section 2.01 herein and the conveyance of the Clipper
Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company
hereby represents and warrants to the Trustee that as of the Cut-Off Date
unless otherwise indicated:
(i) The information set forth in the Mortgage Loan Schedule was
true and correct in all material respects at the date or dates respect-
ing which such information is furnished;
(ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan
that is not a Cooperative Loan is a valid and enforceable (subject to
Section 2.03(xvi)) first lien on an unencumbered estate in fee simple
or leasehold estate in the related Mortgaged Property subject only to
(a) liens for current real property taxes and special assessments; (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal obtained in connection with the origination of the
Mortgage Loan; (c) exceptions set forth in the title insurance policy
relating to such Mortgage, such exceptions being acceptable to
mortgage lending institutions generally; and (d) other matters to
which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
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the Mortgage;
(iii) Immediately upon the transfer and assignment contemplated herein
and in the Clipper Loan Sale Agreement, the Trustee shall have good
title to, and will be the sole legal owner of, each PNC Mortgage Loan
and Clipper Mortgage Loan, respectively, free and clear of any
encumbrance or lien (other than any lien under this Agreement);
(iv) As of the day prior to the Cut-Off Date, all payments due on each
Mortgage Loan had been made and no Mortgage Loan had been delinquent
(i.e., was more than 30 days past due) more than once in the preceding
12 months and any such delinquency lasted for no more than 30 days;
(v) As of the Closing Date, there is no late assessment for
delinquent taxes outstanding against any Mortgaged Property;
(vi) As of the Closing Date, there is no offset, defense or
counterclaim to any Mortgage Note, including the obligation of the
Mortgagor to pay the unpaid principal or interest on such Mortgage
Note except to the extent that the Buydown Agreement for a Buydown
Loan forgives certain indebtedness of a Mortgagor;
(vii) As of the Closing Date, each Mortgaged Property is free of
damage and in good repair, ordinary wear and tear excepted;
(viii) Each Mortgage Loan at the time it was made complied with all
applicable state and federal laws, including, without limitation,
usury, equal credit opportunity, disclosure and recording laws;
(vix) Each Mortgage Loan was originated by a savings association,
savings bank, credit union, insurance company, or similar institution
which is supervised and examined by a federal or state authority or by
a mortgagee approved by the FHA and will be serviced by an institution
which meets the servicer eligibility requirements established by the
Company;
(x) As of the Closing Date, each Mortgage Loan which is not a
Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee
title insurance policy or other form of policy of insurance which, as
of the origination date of such Mortgage Loan, was acceptable to
Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid
and binding obligation of, a title insurer which, as of the
origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae
or Xxxxxxx Mac and qualified to do business in the state in which the
related Mortgaged Property is located. Such policy insures the
originator of the Mortgage Loan, its successors and assigns as to the
first priority lien of the Mortgage in the original principal amount
of the Mortgage Loan subject to the exceptions set forth in such
policy. Such policy is in full force and effect and will be in full
force and effect and inure to the benefit of the Holders of the REMIC
I Regular Interests and the Class R-1 Certificateholders upon the
consummation of the transactions contemplated by this Agreement and no
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claims have been made under such policy, and no prior holder of the
related Mortgage, including the Company, has done, by act or omission,
anything which would impair the coverage of such policy;
(xi) All of the Mortgage Loans with Loan-to-Value Ratios as of the
Cut-Off Date in excess of 80% were covered by a Primary Insurance Policy
or an FHA insurance policy or a VA guaranty, and such policy or
guaranty is valid and remains in full force and effect;
(xii) As of the Closing Date, all policies of insurance required by
this Agreement or by a Selling and Servicing Contract have been
validly issued and remain in full force and effect, including such
policies covering the Company, the Master Servicer or any Servicer;
(xiii) As of the Closing Date, each insurer issuing a Primary
Insurance Policy holds a rating acceptable to the Rating Agencies;
(xiv) Each Mortgage (exclusive of any riders thereto) was
documented by appropriate Xxxxxx Mae/Xxxxxxx Mac mortgage instruments in
effect at the time of origination, or other instruments approved by the
Company;
(xv) As of the Closing Date, the Mortgaged Property securing each
Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is
improved with a one- to four-family dwelling unit, including units in
a duplex, condominium project, townhouse, a planned unit development
or a de minimis planned unit development;
(xvi) As of the Closing Date, each Mortgage and Mortgage Note is the
legal, valid and binding obligation of the maker thereof and is
enforceable in accordance with its terms, except only as such
enforcement may be limited by laws affecting the enforcement of
creditors' rights generally and principles of equity;
(xvii) As of the date of origination, as to Mortgaged Properties
which are units in condominiums or planned unit developments, all of
such units met Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a
condominium or planned unit development projects which have received
Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or
Xxxxxxx Mac or have otherwise been approved by the Company;
(xviii) One of the Mortgage Loans is a Buydown Loan;
(xvix) Based solely on representations of the Mortgagors obtained at
the origination of the related Mortgage Loans, approximately 97.60% (by
Principal Balance) of the Mortgage Loans will be secured by owner
occupied Mortgaged Properties which are the primary residences of the
related Mortgagors, approximately 1.42% (by Principal Balance) of the
Mortgage Loans will be secured by owner occupied Mortgaged Properties
which were second or vacation homes of the Mortgagors and
approximately 0.99% (by Principal Balance) of the Mortgage Loans will
be secured by Mortgaged Properties which were investor properties of
the related Mortgagors;
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(xx) Prior to origination or refinancing, an appraisal of each
Mortgaged Property was made by an appraiser on a form satisfactory to
Xxxxxx Mae or Xxxxxxx Mac;
(xxi) The Mortgage Loans have been underwritten substantially in
accordance with the applicable Underwriting Standards;
(xxii) All of the Mortgage Loans have due-on-sale clauses; however,
the due on sale provisions may not be exercised at the time of a transfer
if prohibited by law;
(xxiii) The Company used no adverse selection procedures in
selecting the Mortgage Loans from among the outstanding fixed-rate
conventional mortgage loans purchased by it which were available for
inclusion in the Mortgage Pool and as to which the representations and
warranties in this Section 2.03 could be made;
(xxiv) With respect to each Cooperative Loan, the Cooperative Stock
that is pledged as security for the Cooperative Loan is held by a person
as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the
Code);
(xxv) Each Cooperative Loan is secured by a valid, subsisting and
enforceable (except as such enforcement may be limited by laws
affecting the enforcement of creditors' rights generally and
principles of equity) perfected first lien and security interest in
the related Cooperative Stock securing the related Mortgage Note,
subject only to (a) liens of the Cooperative for unpaid assessments
representing the Mortgagor's pro rata share of the Cooperative's
payments for its blanket mortgage, current and future real property
taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject, and (b) other matters to
which like collateral is commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
the Security Agreement;
(xxvi) With respect to any Mortgage Loan as to which an affidavit has
been delivered to the Trustee certifying that the original Mortgage
Note is a Destroyed Mortgage Note, if such Mortgage Loan is
subsequently in default, the enforcement of such Mortgage Loan or of
the related Mortgage by or on behalf of the Trustee will not be
materially adversely affected by the absence of the original Mortgage
Note;
(xxvii) Based upon an appraisal of the Mortgaged Property securing
each Mortgage Loan, approximately 91.61% (by Principal Balance) of the
Mortgage Loans had a current Loan-to-Value Ratio less than or equal to
80%, approximately 8.39% (by Principal Balance) of the Mortgage Loans
had a current Loan-to-Value Ratio greater than 80% but less than or
equal to 95% and none of the Mortgage Loans had a current Loan-to-
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Value Ratio greater than 95%;
(xxviii) Approximately 19.72% (by Principal Balance) of the Mortgage
Loans were originated for the purpose of refinancing existing mortgage
debt, including cash-out refinancings; and approximately 80.28% (by
Principal Balance) of the Mortgage Loans were originated for the
purpose of purchasing the Mortgaged Property;
(xxix) Not less than approximately 66.98% (by Principal Balance) of
the Mortgage Loans were originated under full documentation programs; and
(xxx) Each Mortgage Loan constitutes a qualified mortgage under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-
2(a)(1).
It is understood and agreed that the representations and warranties
set forth in this Section 2.03 shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian, as the case may be, and
shall continue throughout the term of this Agreement. Upon discovery by any
of the Company, the Master Servicer, the Trustee or the Custodian of a
breach of any of the foregoing representations and warranties which
materially and adversely affects the value of the related Mortgage Loans or
the interests of the Certificateholders in the related Mortgage Loans, the
Company, the Master Servicer, the Trustee or the Custodian, as the case may
be, discovering such breach shall give prompt written notice to the others.
Within 90 days of its discovery or its receipt of notice of breach, the
Company shall purchase or repurchase, subject to the limitations set forth
in the definition of "Purchase Price", or substitute for the affected
Mortgage Loan or Mortgage Loans or any property acquired in respect thereof
from the Trustee, unless it has cured such breach in all material respects.
After the end of the three-month period beginning on the "start-up day",
any such substitution shall be made only if the Company provides to the
Trustee and the Certificate Insurer an Opinion of Counsel reasonably
satisfactory to the Trustee that each Substitute Mortgage Loan will be a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4)
of the Code. Such substitution shall be made in the manner and within the
time limits set forth in Section 2.02. Any such purchase or repurchase by
the Company shall be accomplished in the manner and at the Purchase Price,
if applicable, but shall not be subject to the time limits, set forth in
Section 2.02. It is understood and agreed that the obligation of the
Company to provide such substitution or to make such purchase or repurchase
of any affected Mortgage Loan or Mortgage Loans or any property acquired in
respect thereof as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the Holders
of the REMIC I Regular Interests and the Class R-1 Certificateholders or
the Trustee on behalf of the Holders of the REMIC I Regular Interests and
the Class R-1 Certificateholders.
Section 2.04. Acknowledgment of Transfer of Trust Fund; Authentication of
Class R-1 Certificates. The Trustee acknowledges the transfer and
assignment to it of the property constituting the Trust Fund, but without
having made the review required to be made within 45 days pursuant to
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Section 2.02, and, as of the Closing Date, does hereby convey to the
Company the REMIC I Regular Interests, and shall cause to be authenticated
and delivered, upon and pursuant to the order of the Company, the Class R-1
Certificates in Authorized Denominations evidencing the residual beneficial
ownership interest in the REMIC I Trust Fund.
Section 2.05. Conveyance of REMIC II; REMIC Election and Designations. A
trust ("REMIC II") of which the Trustee is the trustee is hereby created
under the laws of the State of New York for the benefit of the Holders of
the Certificates (other than the Class R-1 Certificates). The purpose of
REMIC II is to hold the REMIC II Trust Fund and provide for the issuance,
execution and delivery of the Certificates (other than the Class R-1
Certificates). The assets of REMIC II shall consist of the REMIC II Trust
Fund. REMIC II shall be irrevocable.
The assets of REMIC II shall remain in the custody of the Trustee, on
behalf of REMIC II, and shall be kept in REMIC II. Moneys to the credit of
REMIC II shall be held by the Trustee and invested as provided herein. All
assets received and held in REMIC II will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of State
Street Bank and Trust Company in its own right, or any Person claiming
through it. The Trustee, on behalf of REMIC II, shall not have the power
or authority to transfer, assign, hypothecate, pledge or otherwise dispose
of any of the assets of REMIC II to any Person, except as permitted herein.
No creditor of a beneficiary of REMIC II, of the Trustee, of the Master
Servicer or of the Company shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of REMIC II, except in accordance with the terms of this
Agreement.
Concurrently with the execution and delivery hereof, the Company does
hereby irrevocably sell, transfer, assign, set over, and otherwise convey
to the Trustee in trust for the benefit of the Certificateholders (other
than the Class R-1 Certificateholders), without recourse, all the Company's
right, title and interest in and to the REMIC II Trust Fund, including all
interest and principal received by the Company on or with respect to the
REMIC I Regular Interests after the Cut-Off Date. The Trustee hereby
accepts REMIC II created hereby and accepts delivery of the REMIC II Trust
Fund on behalf of REMIC II and acknowledges that it holds the REMIC I
Regular Interests for the benefit of the Holders of the Certificates (other
than the Class R-1 Certificates) issued pursuant to this Agreement. It is
the express intent of the parties hereto that the conveyance of the REMIC
II Trust Fund to the Trustee by the Company as provided in this Section
2.05 be, and be construed as, an absolute sale of the REMIC II Trust Fund.
It is, further, not the intention of the parties that such conveyance be
deemed the grant of a security interest in the REMIC II Trust Fund by the
Company to the Trustee to secure a debt or other obligation of the Company.
However, in the event that, notwithstanding the intent of the parties, the
REMIC II Trust Fund is held to be the property of the Company, or if for
any other reason this Agreement is held or deemed to create a security
interest in the REMIC II Trust Fund, then
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(a) this Agreement shall be deemed to be a security agreement;
(b) the conveyance provided for in this Section 2.05 shall be deemed
to be a grant by the Company to the Trustee, to secure all of the Company's
obligations hereunder, of a security interest in all of the Company's
right, title, and interest, whether now owned or hereafter acquired, in and
to:
(I) The uncertificated REMIC I Regular Interests, including
without limitation all rights represented thereby in and to (i) the
Mortgage Loans identified on the Mortgage Loan Schedule, including the
related Mortgage Notes, Mortgages, Cooperative Stock Certificates, and
Cooperative Leases, all Substitute Mortgage Loans and all
distributions with respect to such Mortgage Loans and Substitute
Mortgage Loans payable on and after the Cut-Off Date, (ii) the
Certificate Account, the Investment Account, the Rounding Account, the
Class A-3 Reserve Fund and all money or other property held therein,
and the Custodial Accounts for P&I and the Custodial Accounts for
Reserves (to the extent of the amounts on deposit therein attributable
to the Mortgage Loans); (iii) the Certificate Insurance Policy and
amounts paid or payable by the insurer under any FHA insurance policy
or any Primary Insurance Policy and proceeds of any VA guaranty and
any other insurance policy related to any Mortgage Loan or the
Mortgage Pool; and (iv) all rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance proceeds
payable with respect to, or claims against other persons with respect
to, all or any part of the collateral described in (i)-(iii) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount);
(II) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
foregoing; and
(III) All proceeds of the foregoing;
(c) the possession by the Trustee of any of the foregoing property
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and
9-115 thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or
persons holding for, the Trustee, as applicable for the purpose of
perfecting such security interest under applicable law.
The Company and the Trustee shall, to the extent consistent with this
66
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the REMIC II Trust
Fund, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as
such throughout the term of this Agreement. In connection herewith, the
Trustee shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
The Trustee is authorized, with the Master Servicer's consent, to
appoint any bank or trust company approved by and unaffiliated with each of
the Company and the Master Servicer as Custodian of the documents or
instruments referred to above in this Section 2.05, and to enter into a
Custodial Agreement for such purpose; provided, however, that the Trustee
shall be and remain liable for actions of any such Custodian only to the
extent it would otherwise be responsible for such acts hereunder.
The Tax Matters Person shall, on behalf of the REMIC II Trust Fund,
elect to treat the REMIC II Trust Fund as a REMIC within the meaning of
Section 860D of the Code and, if necessary, under applicable state laws.
Such election shall be included in the Form 1066 and any appropriate state
return to be filed on behalf of REMIC II for its first taxable year.
The Closing Date is hereby designated as the "startup day" of REMIC II
within the meaning of Section 860G(a)(9) of the Code.
The regular interests (as set forth in the table contained in the
Preliminary Statement hereto) relating to the REMIC II Trust Fund are
hereby designated as "regular interests" for purposes of Section 860G(a)(1)
of the Code. The Class R-2 Certificates are being issued in a single Class,
which is hereby designated as the sole class of "residual interest" in the
REMIC II Trust Fund for purposes of Section 860G(a)(2) of the Code.
The parties intend that the affairs of the REMIC II Trust Fund formed
hereunder shall constitute, and that the affairs of the REMIC II Trust Fund
shall be conducted so as to qualify it as, a REMIC. In furtherance of such
intention, the Tax Matters Person shall, on behalf of the REMIC II Trust
Fund: (a) prepare and file, or cause to be prepared and filed, a federal
tax return using a calendar year as the taxable year for the REMIC II Trust
Fund when and as required by the REMIC provisions and other applicable
federal income tax laws; (b) make an election, on behalf of the REMIC II
Trust Fund, to be treated as a REMIC on the federal tax return of the REMIC
II Trust Fund for its first taxable year, in accordance with the REMIC
provisions; (c) prepare and forward, or cause to be prepared and forwarded,
to the Certificateholders (other than the Class R-1 Certificateholders) all
information reports as and when required to be provided to them in
accordance with the REMIC provisions; (d) conduct the affairs of the REMIC
II Trust Fund at all times that any of the Certificates are outstanding so
as to maintain the status of the REMIC II Trust Fund as a REMIC under the
REMIC provisions; (e) not knowingly or intentionally take any action or
omit to take any action that would cause the termination of the REMIC
status of the REMIC II Trust Fund; and (f) pay the amount of any federal
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prohibited transaction penalty taxes imposed on the REMIC II Trust Fund
when and as the same shall be due and payable (but such obligation shall
not prevent the Company or any other appropriate person from contesting any
such tax in appropriate proceedings and shall not prevent the Company from
withholding payment of such tax, if permitted by law, pending the outcome
of such proceedings); provided, that the Company shall be entitled to be
indemnified from the REMIC II Trust Fund for any such prohibited
transaction penalty taxes if the Company's failure to exercise reasonable
care was not the primary cause of the imposition of such prohibited
transaction penalty taxes.
In the event that any tax is imposed on "prohibited transactions" of
the REMIC II Trust Fund as defined in Section 860F of the Code and not paid
by the Company pursuant to clause (f) of the preceding paragraph, such tax
shall be charged against amounts otherwise distributable to the Holders of
the Class R-2 Certificates. Notwithstanding anything to the contrary
contained herein, the Company is hereby authorized to retain from amounts
otherwise distributable to the Holders of the Class R-2 Certificates on any
Distribution Date sufficient funds to reimburse the Company for the payment
of such tax (to the extent that the Company has not been previously
reimbursed therefor).
Section 2.06. Acceptance by Trustee; Authentication of Certificates. The
Trustee acknowledges and accepts the assignment to it of the property
constituting the REMIC II Trust Fund and declares that as of the Closing
Date it holds and shall hold any documents constituting a part of the REMIC
II Trust Fund, and the REMIC II Trust Fund, as Trustee in trust, upon the
trusts herein set forth, for the use and benefit of all present and future
Certificateholders (other than the Class R-2 Certificateholders). In
connection therewith, as of the Closing Date, the Trustee shall cause to be
authenticated and delivered, upon and pursuant to the order of the Company,
in exchange for the property constituting the REMIC II Trust Fund, the
Certificates (other than the Class R-2 Certificates) in Authorized
Denominations evidencing the entire ownership of the REMIC II Trust Fund.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01. The Company to Act as Master Servicer. The Company shall
act as Master Servicer to service and administer the Mortgage Loans on
behalf of the Trustee and for the benefit of the Certificateholders in
accordance with the terms hereof and in the same manner in which, and with
the same care, skill, prudence and diligence with which, it services and
administers similar mortgage loans for other portfolios, and shall have
full power and authority to do or cause to be done any and all things in
connection with such servicing and administration which it may deem
necessary or desirable, including, without limitation, the power and
authority to bring actions and defend the Trust Fund on behalf of the
Trustee in order to enforce the terms of the Mortgage Notes. The Master
Servicer may perform its master servicing responsibilities through agents
or independent contractors, but shall not thereby be released from any of
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its responsibilities hereunder and the Master Servicer shall diligently
pursue all of its rights against such agents or independent contractors.
The Master Servicer shall make reasonable efforts to collect or cause
to be collected all payments called for under the terms and provisions of
the Mortgage Loans and shall, to the extent such procedures shall be
consistent with this Agreement and the terms and provisions of any Primary
Insurance Policy, any FHA insurance policy or VA guaranty, any hazard
insurance policy, and federal flood insurance, cause to be followed such
collection procedures as are followed with respect to mortgage loans
comparable to the Mortgage Loans and held in portfolios of responsible
mortgage lenders in the local areas where each Mortgaged Property is
located. The Master Servicer shall enforce "due-on-sale" clauses with
respect to the related Mortgage Loans, to the extent permitted by law,
subject to the provisions set forth in Section 3.08.
Consistent with the foregoing, the Master Servicer may in its
discretion (i) waive or cause to be waived any assumption fee or late
payment charge in connection with the prepayment of any Mortgage Loan and
(ii) only upon determining that the coverage of any applicable insurance
policy or guaranty related to a Mortgage Loan will not be materially
adversely affected, arrange a schedule, running for no more than 180 days
after the first delinquent Due Date, for payment of any delinquent
installment on any Mortgage Note or for the liquidation of delinquent
items. The Master Servicer shall have the right, but not the obligation, to
purchase or repurchase any delinquent Mortgage Loan delinquent 90
consecutive days or more for an amount equal to its Purchase Price;
provided, however, that the aggregate Purchase Price of Mortgage Loans so
purchased or repurchased pursuant to this sentence shall not exceed one-
half of one percent (0.50%) of the aggregate Principal Balance, as of the
Cut-Off Date, of all Mortgage Loans. The Master Servicer shall also have
the right, but not the obligation, to purchase or repurchase, for an amount
equal to its Purchase Price, any Mortgage Loan either (i) delinquent 90
consecutive days or more, (ii) delinquent one or more but less than 90
consecutive days with respect to which the Master Servicer has determined,
in its reasonable judgment, that a default is expected to occur or (iii)
with respect to which the Mortgage was fraudulently procured by the
Mortgagor, in the case of each of (i), (ii) and (iii) above, for the
purpose of requiring the Person who sold such Mortgage Loan to the Company
to repurchase such Mortgage Loan based on a breach of a representation or
warranty made by such Person in connection with the Company's purchase or
acquisition of such Mortgage Loan. The Master Servicer shall also have the
right, but not the obligation, to direct the Trustee to sell, transfer and
assign any Mortgage Loan that has been delinquent for 90 consecutive days
or more to a third party designated by the Master Servicer as agent for
such third party, upon receipt by the Trustee of written notification
signed by a Servicing Officer of the deposit in the Certificate Account of
the Purchase Price for such delinquent Mortgage Loan by the Master Servicer
on behalf of such third party or by such third party; provided, however,
that if the Purchase Price is deposited in the Certificate Account by the
Master Servicer on behalf of such third party, the Master Servicer shall be
entitled to retain from the Purchase Price the amount of any unreimbursed
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advances made by the Master Servicer with respect to such Mortgage Loan,
and if the Purchase Price is deposited in the Certificate Account directly
by such third party, the Master Servicer shall be entitled to reimburse
itself for such unreimbursed advances pursuant to Section 3.05(a)(iv). For
purposes of this paragraph, a Mortgage Loan is considered delinquent for 90
consecutive days if a Monthly Payment is not received by the first day of
the third month following the month during which such payment was due.
Consistent with the terms of this Section 3.01, the Master Servicer
may waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of
the related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be adversely affected by
such waiver, modification, postponement or indulgence; provided, however,
that (unless the Mortgagor is in default with respect to the Mortgage Loan
or in the reasonable judgment of the Master Servicer such default is
imminent) the Master Servicer shall not permit any modification with
respect to any Mortgage Loan that would (i) change the applicable Mortgage
Interest Rate, defer or forgive the payment of any principal or interest,
reduce the outstanding principal balance (except for actual payments of
principal) or extend the final maturity date with respect to such Mortgage
Loan, or (ii) be inconsistent with the terms of any applicable Primary
Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance
policy or federal flood insurance policy. Notwithstanding the foregoing,
the Master Servicer shall not permit any modification with respect to any
Mortgage Loan that would both constitute a sale or exchange of such
Mortgage Loan within the meaning of Section 1001 of the Code (including any
proposed, temporary or final regulations promulgated thereunder) (other
than in connection with a proposed conveyance or assumption of such
Mortgage Loan that is treated as a Principal Prepayment or in a default
situation) and cause either REMIC to fail to qualify as such under the
Code.
The Master Servicer is hereby authorized and empowered by the Trustee
to execute and deliver or cause to be executed and delivered on behalf of
the Holders of the REMIC I Regular Interests and the Class R-1
Certificateholders, and the Trustee or any of them, any and all instruments
of satisfaction or cancellation, or of partial or full release, discharge
or modification, assignments of Mortgages and endorsements of Mortgage
Notes in connection with refinancings (in jurisdictions where such
assignments are the customary and usual standard of practice of mortgage
lenders) and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall
execute and furnish to the Master Servicer, at the Master Servicer's
direction, any powers of attorney and other documents prepared by the
Master Servicer and determined by the Master Servicer to be necessary or
appropriate to enable the Master Servicer to carry out its supervisory,
servicing and administrative duties under this Agreement.
The Master Servicer and each Servicer shall obtain (to the extent
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generally commercially available from time to time) and maintain fidelity
bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Xxxxxxx
Mac with respect to their obligations under this Agreement and the
applicable Selling and Servicing Contract, respectively. The Master
Servicer or each Servicer, as applicable, shall establish escrow accounts
for, or pay when due (by means of an advance), any tax liens in connection
with the Mortgaged Properties that are not paid by the Mortgagors when due
to the extent that any such payment would not constitute a Nonrecoverable
Advance when made. Notwithstanding the foregoing, the Master Servicer shall
not permit any modification with respect to any Mortgage Loan that would
both constitute a sale or exchange of such Mortgage Loan within the meaning
of Section 1001 of the Code (including any proposed, temporary or final
regulations promulgated thereunder) (other than in connection with a
proposed conveyance or assumption of such Mortgage Loan that is treated as
a Principal Prepayment or in a default situation) and cause either of the
REMICs to fail to qualify as such under the Code. The Master Servicer shall
be entitled to approve a request from a Mortgagor for a partial release of
the related Mortgaged Property, the granting of an easement thereon in
favor of another Person, any alteration or demolition of the related
Mortgaged Property or other similar matters if it has determined,
exercising its good faith business judgment in the same manner as it would
if it were the owner of the related Mortgage Loan, that the security for,
and the timely and full collectability of, such Mortgage Loan would not be
adversely affected thereby and that the applicable trust fund would not
fail to continue to qualify as a REMIC under the Code as a result thereof
and that no tax on "prohibited transactions" or "contributions" after the
startup day would be imposed on either REMIC as a result thereof.
In connection with the servicing and administering of each Mortgage
Loan, the Master Servicer and any affiliate of the Master Servicer (i) may
perform services such as appraisals, default management and brokerage
services that are not customarily provided by servicers of mortgage loans,
and shall be entitled to reasonable compensation therefor and (ii) may, at
its own discretion and on behalf of the Trustee, obtain credit information
in the form of a "credit score" from a credit repository.
Section 3.02. Custodial Accounts. The Master Servicer shall cause to be
established and maintained by each Servicer under the Master Servicer's
supervision the Custodial Account for P&I, Buydown Fund Accounts (if any)
and special Custodial Account for Reserves and shall deposit or cause to be
deposited therein daily the amounts related to the Mortgage Loans required
by the Selling and Servicing Contracts to be so deposited. Proceeds
received with respect to individual Mortgage Loans from any title, hazard,
or FHA insurance policy, VA guaranty, Primary Insurance Policy or other
insurance policy (other than any Special Primary Insurance Policy) covering
such Mortgage Loans shall be deposited first in the Custodial Account for
Reserves if required for the restoration or repair of the related Mortgaged
Property. Otherwise, Insurance Proceeds (other than proceeds from any
Special Primary Insurance Policy) shall be deposited in the Custodial
Account for P&I, and shall be applied to the balances of the related
Mortgage Loans as payments of interest and principal.
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The Master Servicer is hereby authorized to make withdrawals from and
to issue drafts against the Custodial Accounts for P&I and the Custodial
Accounts for Reserves for the purposes required or permitted by this
Agreement. Each Custodial Account for P&I and each Custodial Account for
Reserves shall bear a designation clearly showing the respective interests
of the applicable Servicer, as trustee, and of the Master Servicer, in
substantially one of the following forms:
(a) With respect to the Custodial Account for P&I: (i)
[Servicer's Name], as agent, trustee and/or bailee of principal and
interest custodial account for PNC Mortgage Securities Corp., its
successors and assigns, for various owners of interests in PNC
Mortgage Securities Corp. mortgage-backed pools or (ii) [Servicer's
Name] in trust for PNC Mortgage Securities Corp.;
(b) With respect to the Custodial Account for Reserves: (i)
[Servicer's Name], as agent, trustee and/or bailee of taxes and
insurance custodial account for PNC Mortgage Securities Corp., its
successors and assigns for various mortgagors and/or various owners of
interests in PNC Mortgage Securities Corp. mortgage-backed pools or
(ii) [Servicer's Name] in trust for PNC Mortgage Securities Corp. and
various Mortgagors.
The Master Servicer hereby undertakes to assure remittance to the
Certificate Account of all amounts relating to the Mortgage Loans that have
been collected by any Servicer and are due to the Certificate Account
pursuant to Section 4.01 of this Agreement.
Section 3.03. The Investment Account; Eligible Investments.(a) Not later
than the Withdrawal Date, the Master Servicer shall withdraw or direct the
withdrawal of funds in the Custodial Accounts for P&I, for deposit in the
Investment Account, in an amount representing:
(a) Scheduled installments of principal and interest on the Mortgage
Loans received or advanced by the applicable Servicers which were due
on the related Due Date, net of Servicing Fees due the applicable
Servicers and less any amounts to be withdrawn later by the applicable
Servicers from the applicable Buydown Fund Accounts;
(b) Payoffs and the proceeds of other types of liquidations of the
Mortgage Loans received by the applicable Servicer for such Mortgage
Loans during the applicable Payoff Period, with interest to the date
of Payoff or liquidation less any amounts to be withdrawn later by the
applicable Servicers from the applicable Buydown Fund Accounts; and
(c) Curtailments received by the applicable Servicers in the Prior
Period.
At its option, the Master Servicer may invest funds withdrawn from the
Custodial Accounts for P&I, as well as any Buydown Funds, Insurance
Proceeds and Liquidation Proceeds previously received by the Master
Servicer (including amounts paid by the Company in respect of any Purchase
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Obligation or its substitution obligations set forth in Section 2.02 or
Section 2.03 or in connection with the exercise of the option to terminate
this Agreement pursuant to Section 9.01) for its own account and at its own
risk, during any period prior to their deposit in the Certificate Account.
Such funds, as well as any funds which were withdrawn from the Custodial
Accounts for P&I on or before the Withdrawal Date, but not yet deposited
into the Certificate Account, shall immediately be deposited by the Master
Servicer with the Investment Depository in an Investment Account in the
name of the Master Servicer and the Trustee for investment only as set
forth in this Section 3.03. The Master Servicer shall bear any and all
losses incurred on any investments made with such funds and shall be
entitled to retain all gains realized on such investments as additional
servicing compensation. Not later than the Business Day prior to the
Distribution Date, the Master Servicer shall deposit such funds, net of any
gains (except Payoff Earnings) earned thereon, in the Certificate Account.
(b) Funds held in the Investment Account shall be invested in (i) one
or more Eligible Investments which shall in no event mature later than the
Business Day prior to the related Distribution Date (except if such
Eligible Investments are obligations of the Trustee, such Eligible
Investments may mature on the Distribution Date), or (ii) such other
instruments as shall be required to maintain the Ratings.
Section 3.04. The Certificate Account.
(a) Not later than the Business Day prior to the related Distribution
Date, the Master Servicer shall direct the Investment Depository to deposit
into the Certificate Account the amounts previously deposited into the
Investment Account (which may include a deposit of Eligible Investments) to
which the Holders of the REMIC I Regular Interests, the Class R-1
Certificateholders and the Certificate Insurer are entitled or which are
necessary for payment of any Special Primary Insurance Premiums. In
addition, not later than the Business Day prior to the Distribution Date,
the Master Servicer shall deposit into the Certificate Account any Monthly
P&I Advances or other payments required to be made by the Master Servicer
pursuant to Section 4.02 of this Agreement and any Insurance Proceeds or
Liquidation Proceeds (including amounts paid by the Company in respect of
any Purchase Obligation) not previously deposited in the Custodial Accounts
for P&I or the Investment Account, and any amounts paid by the Company in
connection with the exercise of its option to terminate this Agreement
pursuant to Section 9.01 or any other purchase or repurchase of Mortgage
Loans permitted by this Agreement. The Trustee shall deposit into the
Certificate Account amounts received under the Certificate Insurance Policy
in accordance with Section 3.21(b) hereof.
(b) Funds held in the Certificate Account shall be invested at the
written direction of the Master Servicer in (i) one or more Eligible
Investments which shall in no event mature later than the Business Day
prior to the related Distribution Date (except if such Eligible Investments
are obligations of the Trustee, such Eligible Investments may mature on the
Distribution Date), or (ii) such other instruments as shall be required to
maintain the Ratings. The Master Servicer shall be entitled to receive any
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gains earned on such Eligible Investments and shall bear any losses
suffered in connection therewith. If the Trustee has not received such
written investment directions from the Master Servicer, the Trustee shall
not invest funds held in the Certificate Account. The Trustee shall have
no liability for any losses on investments of funds held in the Certificate
Account.
Section 3.05. Permitted Withdrawals from the Certificate Account, the
Investment Account and Custodial Accounts for P&I and of Buydown Funds from
the Buydown Fund Accounts.
(a) The Master Servicer is authorized to make withdrawals, from time
to time, from the Investment Account, the Certificate Account or the
Custodial Accounts for P&I established by the Servicers of amounts
deposited therein in respect of the Certificates, as follows:
(i) To reimburse itself or the applicable Servicer for Monthly P&I
Advances made pursuant to Section 4.02 or a Selling and Servicing
Contract, such right to reimbursement pursuant to this paragraph (i)
being limited to amounts received on particular Mortgage Loans
(including, for this purpose, Insurance Proceeds and Liquidation
Proceeds) which represent late recoveries of principal and/or interest
respecting which any such Monthly P&I Advance was made;
(ii) To reimburse itself or the applicable Servicer for amounts
expended by or for the account of the Master Servicer pursuant to
Section 3.09 or amounts expended by such Servicer pursuant to the
Selling and Servicing Contracts in connection with the restoration of
property damaged by an Uninsured Cause or in connection with the
liquidation of a Mortgage Loan;
(iii) To pay to itself, with respect to the related Mortgage Loans,
the Master Servicing Fee (net of Compensating Interest reduced by Payoff
Earnings and Payoff Interest) as to which no prior withdrawals from
funds deposited by the Master Servicer have been made;
(iv) To reimburse itself or the applicable Servicer for advances made
with respect to related Mortgage Loans (except for Mortgage Loans
purchased pursuant to a Purchase Obligation or pursuant to the second
sentence of the third paragraph of Section 3.01) which the Master
Servicer has determined to be Nonrecoverable Advances;
(v) To pay to itself reinvestment earnings deposited or earned in the
Investment Account and the Certificate Account to which it is entitled
and to reimburse itself for expenses incurred by and reimbursable to
it pursuant to Section 6.03;
(vi) To deposit to the Investment Account amounts in the Certificate
Account not required to be on deposit therein at the time of such
withdrawal;
(vii) To deposit in the Certificate Account, not later than the
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Business Day prior to the related Distribution Date, the amounts
specified in Section 3.04(a);
(viii) To pay on behalf of the Trustee any Special Primary Insurance
Premium payable by the Trustee pursuant to Section 4.04(a); provided,
the Master Servicer shall give written notice thereof to the Trustee
prior to noon New York City time two Business Days prior to the
applicable Distribution Date; and
after making or providing for the above withdrawals
To clear and terminate the Investment Account and the Certificate
Account following termination of this Agreement pursuant to Section
9.01.
Since, in connection with withdrawals pursuant to paragraphs (i) and
(ii), the Master Servicer's entitlement thereto is limited to collections
or other recoveries on the related Mortgage Loan, the Master Servicer or
the applicable Servicer shall keep and maintain separate accounting for
each Mortgage Loan, for the purpose of justifying any such withdrawals.
(b) The Master Servicer (or the applicable Servicer, if such Servicer
holds and maintains a Buydown Fund Account) is authorized to make
withdrawals, from time to time, from the Buydown Fund Account or Custodial
Account for P&I established by any Servicer under its supervision of the
following amounts of Buydown Funds:
(i) To deposit each month in the Investment Account the amount
necessary to supplement payments received on Buydown Loans;
In the event of a Payoff of any Mortgage Loan having a related
Buydown Fund, to apply amounts remaining in Buydown Fund Accounts to
reduce the required amount of such principal Payoff (or, if the
Mortgagor has made a Payoff, to refund such remaining Buydown Fund
amounts to the Person entitled thereto);
In the event of foreclosure or liquidation of any Mortgage Loan
having a Buydown Fund, to deposit remaining Buydown Fund amounts in
the Investment Account as Liquidation Proceeds; and
To clear and terminate the portion of any account representing
Buydown Funds following termination of this Agreement pursuant to
Section 9.01;
(c) The Trustee is authorized to make withdrawals from time to time
from the Certificate Account to reimburse itself for advances it has made
pursuant to Section 7.01(a) hereof that it has determined to be
Nonrecoverable Advances.
Section 3.06. Maintenance of Primary Insurance Policies; Collections
Thereunder. The Master Servicer shall use commercially reasonable efforts
to keep, and to cause the Servicers to keep, in full force and effect each
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Primary Insurance Policy (except any Special Primary Insurance Policy)
required with respect to a Mortgage Loan, in the manner set forth in the
applicable Selling and Servicing Contract, until no longer required, and
the Master Servicer shall use commercially reasonable efforts to keep in
full force and effect each Special Primary Insurance Policy, if any.
Notwithstanding the foregoing, the Master Servicer shall have no obligation
to maintain any Primary Insurance Policy for a Mortgage Loan for which the
outstanding Principal Balance thereof at any time subsequent to origination
was 80% or less of the Appraised Value of the related Mortgaged Property,
unless required by applicable law.
Unless required by applicable law, the Master Servicer shall not
cancel or refuse to renew, or allow any Servicer under its supervision to
cancel or refuse to renew, any Primary Insurance Policy in effect at the
date of the initial issuance of the Certificates that is required to be
kept in force hereunder; provided, however, that neither the Master
Servicer nor any Servicer shall advance funds for the payment of any
premium due under (i) any Primary Insurance Policy (other than a Special
Primary Insurance Policy) if it shall determine that such an advance would
be a Nonrecoverable Advance or (ii) any Special Primary Insurance Policy.
Section 3.07. Maintenance of Hazard Insurance. The Master Servicer shall
cause to be maintained for each Mortgage Loan (other than a Cooperative
Loan) fire insurance with extended coverage in an amount which is not less
than the original principal balance of such Mortgage Loan, except in cases
approved by the Master Servicer in which such amount exceeds the value of
the improvements to the Mortgaged Property. The Master Servicer shall also
require fire insurance with extended coverage in a comparable amount on
property acquired upon foreclosure, or deed in lieu of foreclosure, of any
Mortgage Loan (other than a Cooperative Loan). Any amounts collected under
any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property) shall be deposited into the
Custodial Account for P&I, subject to withdrawal pursuant to the applicable
Selling and Servicing Contract and pursuant to Section 3.03 and Section
3.05. Any unreimbursed costs incurred in maintaining any insurance
described in this Section 3.07 shall be recoverable as an advance by the
Master Servicer from the Investment Account or the Certificate Account.
Such insurance shall be with insurers approved by the Master Servicer and
Xxxxxx Xxx or Xxxxxxx Mac. Other additional insurance may be required of a
Mortgagor, in addition to that required pursuant to such applicable laws
and regulations as shall at any time be in force and as shall require such
additional insurance. Where any part of any improvement to the Mortgaged
Property (other than a Mortgaged Property secured by a Cooperative Loan) is
located in a federally designated special flood hazard area and in a
community which participates in the National Flood Insurance Program at the
time of origination of the related Mortgage Loan, the Master Servicer shall
cause flood insurance to be provided. The hazard insurance coverage
required by this Section 3.07 may be met with blanket policies providing
protection equivalent to individual policies otherwise required. The Master
Servicer or the applicable Servicer shall be responsible for paying any
deductible amount on any such blanket policy. The Master Servicer agrees to
present, or cause to be presented, on behalf of and for the benefit of the
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Trustee and Certificateholders, claims under the hazard insurance policy
respecting any Mortgage Loan, and in this regard to take such reasonable
actions as shall be necessary to permit recovery under such policy.
Section 3.08. Enforcement of Due-on-Sale Clauses; Assumption Agreements.
When any Mortgaged Property is about to be conveyed by the Mortgagor, the
Master Servicer shall, to the extent it has knowledge of such prospective
conveyance and prior to the time of the consummation of such conveyance,
exercise on behalf of the Trustee the Trustee's rights to accelerate the
maturity of such Mortgage Loan, to the extent that such acceleration is
permitted by the terms of the related Mortgage Note, under any "due-on-
sale" clause applicable thereto; provided, however, that the Master
Servicer shall not exercise any such right if the due-on-sale clause, in
the reasonable belief of the Master Servicer, is not enforceable under
applicable law or if such exercise would result in non-coverage of any
resulting loss that would otherwise be covered under any insurance policy.
In the event the Master Servicer is prohibited from exercising such right,
the Master Servicer is authorized to take or enter into an assumption and
modification agreement from or with the Person to whom a Mortgaged Property
has been or is about to be conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and, unless prohibited by applicable state
law or unless the Mortgage Note contains a provision allowing a qualified
borrower to assume the Mortgage Note, the Mortgagor remains liable thereon;
provided that the Mortgage Loan shall continue to be covered (if so covered
before the Master Servicer enters such agreement) by any related Primary
Insurance Policy. The Master Servicer is also authorized to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is
substituted as Mortgagor and becomes liable under the Mortgage Note. The
Master Servicer shall not enter into any substitution or assumption with
respect to a Mortgage Loan if such substitution or assumption shall (i)
both constitute a "significant modification" effecting an exchange or
reissuance of such Mortgage Loan under the Code (or Treasury regulations
promulgated thereunder) and cause the REMICs to fail to qualify as a REMIC
under the REMIC Provisions or (ii) cause the imposition of any tax on
"prohibited transactions" or "contributions" after the startup day under
the REMIC Provisions. The Master Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed by
forwarding to the Trustee the original copy of such substitution or
assumption agreement and other documents and instruments constituting a
part thereof. In connection with any such assumption or substitution
agreement, the terms of the related Mortgage Note shall not be changed. Any
fee collected by the applicable Servicer for entering into an assumption or
substitution of liability agreement shall be retained by such Servicer as
additional servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach
or any other violation of its obligations hereunder by reason of any
assumption of a Mortgage Loan by operation of law or any assumption which
the Master Servicer may be restricted by law from preventing, for any
reason whatsoever.
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Section 3.09. Realization Upon Defaulted Mortgage Loans. The Master
Servicer shall foreclose upon or otherwise comparably convert, or cause to
be foreclosed upon or comparably converted, the ownership of any Mortgaged
Property securing a Mortgage Loan which comes into and continues in default
and as to which no satisfactory arrangements can be made for collection of
delinquent payments pursuant to Section 3.01. In lieu of such foreclosure
or other conversion, and taking into consideration the desirability of
maximizing net Liquidation Proceeds after taking into account the effect of
Insurance Proceeds upon Liquidation Proceeds, the Master Servicer may, to
the extent consistent with prudent mortgage loan servicing practices,
accept a payment of less than the outstanding Principal Balance of a
delinquent Mortgage Loan in full satisfaction of the indebtedness evidenced
by the related Mortgage Note and release the lien of the related Mortgage
upon receipt of such payment. The Master Servicer shall not foreclose upon
or otherwise comparably convert a Mortgaged Property if the Master Servicer
is aware of evidence of toxic waste, other hazardous substances or other
evidence of environmental contamination thereon and the Master Servicer
determines that it would be imprudent to do so. In connection with such
foreclosure or other conversion, the Master Servicer shall cause to be
followed such practices and procedures as it shall deem necessary or
advisable and as shall be normal and usual in general mortgage servicing
activities. The foregoing is subject to the provision that, in the case of
damage to a Mortgaged Property from an Uninsured Cause, the Master Servicer
shall not be required to advance its own funds towards the restoration of
the property unless it shall be determined in the sole judgment of the
Master Servicer, (i) that such restoration will increase the proceeds of
liquidation of the Mortgage Loan to Certificateholders after reimbursement
to itself for such expenses, and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds. The Master Servicer shall
be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof (as well as its normal servicing compensation) as an advance. The
Master Servicer shall maintain information required for tax reporting
purposes regarding any Mortgaged Property which is abandoned or which has
been foreclosed or otherwise comparably converted. The Master Servicer
shall report such information to the Internal Revenue Service and the
Mortgagor in the manner required by applicable law.
The Master Servicer may enter into one or more special servicing
agreements with a Lowest Class B Owner, subject to each Rating Agency's
acknowledgment that the Ratings of the Certificates in effect immediately
prior to the entering into of such agreement would not be qualified,
downgraded or withdrawn and the Certificates would not be placed on credit
review status (except for possible upgrading) as a result of such
agreement. Any such agreement may contain provisions whereby such Lowest
Class B Owner may (a) instruct the Master Servicer to instruct a Servicer
to the extent provided in the applicable Selling and Servicing Contract to
commence or delay foreclosure proceedings with respect to related
delinquent Mortgage Loans, provided that the Lowest Class B Owner deposits
a specified amount of cash with the Master Servicer that will be available
for distribution to Certificateholders if Liquidation Proceeds are less
than they otherwise may have been had the Servicer acted pursuant to its
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normal servicing procedures, (b) purchase such delinquent Mortgage Loans
from the REMIC I Trust Fund immediately prior to the commencement of
foreclosure proceedings at a price equal to the aggregate outstanding
Principal Balance of such Mortgage Loans plus accrued interest thereon at
the applicable Mortgage Interest Rate through the last day of the month in
which such Mortgage Loans are purchased and/or (c) assume all of the
servicing rights and obligations with respect to such delinquent Mortgage
Loans so long as (i) the Master Servicer has the right to transfer the
servicing rights and obligations of such Mortgage Loans to another servicer
and (ii) such Lowest Class B Owner will service such Mortgage Loans in
accordance with the applicable Selling and Servicing Contract.
REMIC I shall not acquire any real property (or personal property
incident to such real property) except in connection with a default or
imminent default of a Mortgage Loan. In the event that REMIC I acquires any
real property (or personal property incident to such real property) in
connection with a default or imminent default of a Mortgage Loan, such
property shall be disposed of by the Master Servicer within three years
after its acquisition by the Master Servicer for REMIC I, unless the Master
Servicer provides to the Trustee and the Certificate Insurer an Opinion of
Counsel to the effect that the holding by REMIC I of such Mortgaged
Property subsequent to three years after its acquisition will not result in
the imposition of taxes on "prohibited transactions" of REMIC I as defined
in Section 860F of the Code or under the law of any state in which real
property securing a Mortgage Loan owned by REMIC I is located or cause
REMIC I to fail to qualify as a REMIC for federal income tax purposes or
for state tax purposes under the laws of any state in which real property
securing a Mortgage Loan owned by REMIC I is located at any time that any
Certificates are outstanding. The Master Servicer shall manage, conserve,
protect and operate each such property for the Certificateholders solely
for the purpose of its prompt disposition and sale in a manner which does
not cause such property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) or result in the receipt by the REMIC of
any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property"
which is subject to taxation under the REMIC Provisions. Pursuant to its
efforts to sell such property, the Master Servicer shall either itself or
through an agent selected by the Master Servicer protect and conserve such
property in the same manner and to such extent as is customary in the
locality where such property is located and may, incident to its
conservation and protection of the interests of the Certificateholders,
rent the same, or any part thereof, as the Master Servicer deems to be in
the best interest of the Master Servicer and the Certificateholders for the
period prior to the sale of such property. Additionally, the Master
Servicer shall perform the tax withholding and shall file information
returns with respect to the receipt of mortgage interests received in a
trade or business, the reports of foreclosures and abandonments of any
Mortgaged Property and the information returns relating to cancellation of
indebtedness income with respect to any Mortgaged Property required by
Sections 6050H, 6050J and 6050P, respectively, of the Code, and deliver to
the Trustee an Officers' Certificate on or before March 31 of each year
stating that such reports have been filed. Such reports shall be in form
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and substance sufficient to meet the reporting requirements imposed by
Sections 6050H, 6050J and 6050P of the Code.
Notwithstanding any other provision of this Agreement, the Master
Servicer and the Trustee, as applicable, shall comply with all federal
withholding requirements with respect to payments to Certificateholders of
interest or original issue discount that the Master Servicer or the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. Without
limiting the foregoing, the Master Servicer agrees that it will not
withhold with respect to payments of interest or original issue discount in
the case of a Certificateholder that has furnished or caused to be
furnished an effective Form W-8 or an acceptable substitute form or a
successor form and who is not a "10 percent shareholder" within the meaning
of Code Section 871(h)(3)(B) or a "controlled foreign corporation"
described in Code Section 881(c)(3)(C) with respect to REMIC I, REMIC II or
the Depositor. In the event the Trustee withholds any amount from
interest or original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholder.
Section 3.10. Trustee to Cooperate; Release of Mortgage Files. Upon the
Payoff or scheduled maturity of any Mortgage Loan, the Master Servicer
shall cause such final payment to be immediately deposited in the related
Custodial Account for P&I or the Investment Account. Upon notice thereof,
the Master Servicer shall promptly notify the Trustee by a certification
(which certification shall include a statement to the effect that all
amounts received in connection with such payment which are required to be
deposited in either such account have been so deposited) of a Servicing
Officer and shall request delivery to it of the Mortgage File. Upon receipt
of such certification and request, the Trustee shall, not later than the
fifth succeeding Business Day, release the related Mortgage File to the
Master Servicer or the applicable Servicer indicated in such request. With
any such Payoff or other final payment, the Master Servicer is authorized
to prepare for and procure from the trustee or mortgagee under the Mortgage
which secured the Mortgage Note a deed of full reconveyance or other form
of satisfaction or assignment of Mortgage and endorsement of Mortgage Note
in connection with a refinancing covering the Mortgaged Property, which
satisfaction, endorsed Mortgage Note or assigning document shall be
delivered by the Master Servicer to the person or persons entitled thereto.
No expenses incurred in connection with such satisfaction or assignment
shall be payable to the Master Servicer by the Trustee or from the
Certificate Account, the related Investment Account or the related
Custodial Account for P&I. From time to time as appropriate for the
servicing or foreclosure of any Mortgage Loan, including, for this purpose,
collection under any Primary Insurance Policy, the Trustee shall, upon
request of the Master Servicer and delivery to it of a trust receipt signed
by a Servicing Officer, release not later than the fifth Business Day
following the date of receipt of such request and trust receipt the related
Mortgage File to the Master Servicer or the related Servicer as indicated
by the Master Servicer and shall execute such documents as shall be
necessary to the prosecution of any such proceedings. Such trust receipt
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shall obligate the Master Servicer to return the Mortgage File to the
Trustee when the need therefor by the Master Servicer no longer exists,
unless the Mortgage Loan shall be liquidated, in which case, upon receipt
of a certificate of a Servicing Officer similar to that herein above
specified, the trust receipt shall be released by the Trustee to the Master
Servicer.
Section 3.11. Compensation to the Master Servicer and the Servicers. As
compensation for its activities hereunder, the Master Servicer shall be
entitled to receive from the Investment Account or the Certificate Account
the amounts provided for by Section 3.05(a)(iii). 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 specifically provided herein.
As compensation for its activities under the applicable Selling and
Servicing Contract, the applicable Servicer shall be entitled to withhold
or withdraw from the related Custodial Account for P&I the amounts provided
for in such Selling and Servicing Contract. Each Servicer is required to
pay all expenses incurred by it in connection with its servicing activities
under its Selling and Servicing Contract (including payment of premiums for
Primary Insurance Policies, other than Special Primary Insurance Policies,
if required) and shall not be entitled to reimbursement therefor except as
specifically provided in such Selling and Servicing Contract and not
inconsistent with this Agreement.
Section 3.12. Reports to the Trustee; Certificate Account Statement. Not
later than 15 days after each Distribution Date, the Master Servicer shall
forward a statement, certified by a Servicing Officer, to the Trustee and
the Certificate Insurer setting forth the status of the Certificate Account
as of the close of business on such Distribution Date and showing, for the
period covered by such statement, the aggregate of deposits into and
withdrawals from the Certificate Account for each category of deposit
specified in Section 3.04 and each category of withdrawal specified in
Section 3.05, and stating that all distributions required by this Agreement
have been made (or if any required distribution has not been made,
specifying the nature and amount thereof). The Trustee shall make
available such statements to any Certificateholder upon request at the
expense of the Master Servicer. Such statement shall also, to the extent
available, include information regarding delinquencies on the Mortgage
Loans, indicating the number and aggregate Principal Balance of Mortgage
Loans which are one, two, three or more months delinquent, the number and
aggregate Principal Balance of Mortgage Loans with respect to which
foreclosure proceedings have been initiated and the book value of any
Mortgaged Property acquired by the REMIC I Trust Fund through foreclosure,
deed in lieu of foreclosure or other exercise of the REMIC I Trust Fund's
security interest in the Mortgaged Property.
Section 3.13. Annual Statement as to Compliance. The Master Servicer shall
deliver to the Trustee and the Certificate Insurer, on or before April 30
of each year, beginning with the first April 30 succeeding the Cut-Off Date
by at least six months, an Officer's Certificate stating as to the signer
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thereof, that (i) a review of the activities of the Master Servicer during
the preceding calendar year and performance under this Agreement has been
made under such officer's supervision, and (ii) to the best of such
officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement 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. Copies of such statement shall be provided by the Master
Servicer to Certificateholders upon request or by the Trustee (solely to
the extent that such copies are available to the Trustee) at the expense of
the Master Servicer, should the Master Servicer fail to so provide such
copies.
Section 3.14. Access to Certain Documentation and Information Regarding
the Mortgage Loans. In the event that the Certificates are legal for
investment by federally-insured savings associations, the Master Servicer
shall provide to the OTS, the FDIC and the supervisory agents and examiners
of the OTS and the FDIC access to the documentation regarding the related
Mortgage Loans required by applicable regulations of the OTS or the FDIC,
as applicable, and shall in any event provide such access to the
documentation regarding such Mortgage Loans to the Trustee and its
representatives, such access being afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Master Servicer designated by it.
Section 3.15. Annual Independent Public Accountants' Servicing Report. On
or before April 30 of each year, beginning with the first April 30
succeeding the Cut-Off Date by at least six months, the Master Servicer, at
its expense, shall cause a firm of independent public accountants to
furnish a statement to the Trustee and the Certificate Insurer to the
effect that, in connection with the firm's examination of the financial
statements as of the previous December 31 of the Master Servicer's parent
corporation (which shall include a limited examination of the Master
Servicer's financial statements), nothing came to their attention that
indicated that the Master Servicer was not in compliance with Section 3.02,
Section 3.03, Section 3.04, Section 3.05, Section 3.11, Section 3.12 and
Section 3.13 of this Agreement, except for (i) such exceptions as such firm
believes to be immaterial, and (ii) such other exceptions as are set forth
in such statement.
Section 3.16. Maintenance of the Class A-3 Reserve Fund. On or prior to
the Closing Date, the Master Servicer shall cause to be established and
maintained the Class A-3 Reserve Fund, into which an amount equal to
$11,000 shall be contributed by DLJ, to provide coverage with respect to
any Class A-3 Covered Interest Shortfall Amount. For each Distribution
Date, so long as funds remain on deposit in the Class A-3 Reserve Fund, the
Master Servicer shall calculate the Class A-3 Covered Interest Shortfall
Amount for such Distribution Date, and shall notify the Trustee and the
Certificate Insurer by noon New York City time two Business Days prior to
the Distribution Date of such amount. On each such Distribution Date, the
Trustee shall then withdraw from the Class A-3 Reserve Fund, to the extent
funds are available therein, the Class A-3 Covered Interest Shortfall
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Amount, and deposit such amount in the Certificate Account for payment to
the Class A-3 Certificateholders pursuant to Section 4.04(a) (and shall be
deemed to have distributed such amount to the Class A-3-L Regular Interest
pursuant to Section 4.01).
The Trustee shall withdraw from the Class A-3 Reserve Fund and pay to
DLJ any amounts remaining in the Class A-3 Reserve Fund on the Distribution
Date on which the Class A-3 Principal Balance has been reduced to zero.
Amounts on deposit in the Class A-3 Reserve Fund shall not be invested
and shall not be held in an interest-bearing account.
To the extent that it constitutes a "reserve fund" for purposes of the
REMIC Provisions, the Class A-3 Reserve Fund established hereunder shall be
an "outside reserve fund" as defined in Treasury Regulation 1.860G-2(h),
and in that regard (i) such fund shall be an outside reserve fund and not
an asset of either REMIC, (ii) such fund shall be owned for federal tax
purposes by DLJ, and DLJ shall report all amounts of income, deduction,
gain or loss accruing therefrom, and (iii) amounts transferred by the REMIC
to the fund shall be treated as distributed by the REMIC to DLJ.
Section 3.17. [Reserved.]
Section 3.18. [Reserved.]
Section 3.19. [Reserved.]
Section 3.20. Assumption or Termination of Selling and Servicing Contracts
by Trustee. In the event the Master Servicer, or any successor Master
Servicer, shall for any reason no longer be the Master Servicer (including
by reason of an Event of Default), the Trustee as trustee hereunder or its
designee shall thereupon assume all of the rights and obligations of the
Master Servicer under the Selling and Servicing Contracts with respect to
the related Mortgage Loans unless the Trustee elects to terminate the
Selling and Servicing Contracts with respect to such Mortgage Loans in
accordance with the terms thereof. The Trustee, its designee or the
successor servicer for the Trustee shall be deemed to have assumed all of
the Master Servicer's interest therein with respect to the related Mortgage
Loans and to have replaced the Master Servicer as a party to the Selling
and Servicing Contracts to the same extent as if the rights and duties
under the Selling and Servicing Contracts relating to such Mortgage Loans
had been assigned to the assuming party, except that the Master Servicer
shall not thereby be relieved of any liability or obligations under the
Selling and Servicing Contracts with respect to the Master Servicer's
duties to be performed prior to its termination hereunder.
The Master Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to the
Selling and Servicing Contracts and the Mortgage Loans then being master
serviced by the Master Servicer and an accounting of amounts collected and
held by the Master Servicer and otherwise use its best efforts to effect
the orderly and efficient transfer of the rights and duties under the
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related Selling and Servicing Contracts relating to such Mortgage Loans to
the assuming party.
Section 3.21. Maintenance of the Certificate Insurance Policy; Collections
Thereunder.
(a) Prior to noon New York City time on the third Business Day prior
to each Distribution Date, the Master Servicer shall, with respect to the
Insured Certificates, determine if a Deficiency Amount for such
Distribution Date exists and, if so, shall immediately notify the Trustee
in writing of such amount; the Trustee, upon receipt of such notice, shall
complete the Notice and submit such Notice in accordance with the
Certificate Insurance Policy to the Certificate Insurer no later than noon,
New York City time, on the second Business Day immediately preceding such
Distribution Date, as a claim for an Insured Payment in an amount equal to
such Deficiency Amount. If at any time the Trustee receives a certified
copy of an order of an appropriate court that any payment of principal and
interest on the Insured Certificates constitutes a Preference Amount, the
Trustee, at the expense of the Trust, shall take the actions required on
its part by the terms of the Certificate Insurance Policy to obtain payment
of such Preference Amount by the Certificate Insurer.
(b) Upon receipt of an Insured Payment from the Certificate Insurer
on behalf of the Holders of the Insured Certificates, the Trustee shall
deposit such Insured Payment in the Certificate Account. All such amounts
on deposit in the Certificate Account shall remain uninvested. The Trustee
shall include on each Distribution Date any amounts received by it from or
on behalf of the Certificate Insurer with respect to a Deficiency Amount
for such Distribution Date (i) in the amount distributed to the Holders of
the Insured Certificates pursuant to Section 4.04 and (ii) in the amount
deemed to have been distributed to the Class A-3-L Regular Interest and
deposited for its benefit into the Certificate Account pursuant to Section
4.01). If on any Distribution Date the Trustee or the Master Servicer
determines (the Master Servicer having notified the Trustee of such
determination) that the Certificate Insurer has paid more under the
Certificate Insurance Policy than is required by the terms thereof, the
Trustee shall promptly return the excess amount to the Certificate Insurer.
(c) The Trustee shall (i) receive as attorney-in-fact of the Holders
of the Insured Certificates any Insured Payment delivered to it by the
Certificate Insurer for payment to such Class and (ii) distribute such
Insured Payment to such Holders as set forth in subsection 3.21(b) above.
Insured Payments disbursed by the Trustee from proceeds of the Certificate
Insurance Policy shall not be considered payment by the Trust Fund with
respect to the Insured Certificates, nor shall such disbursement of Insured
Payments discharge the obligations of the Trust Fund with respect to the
amounts thereof, and the Certificate Insurer shall become owner of such
amounts to the extent covered by such Insured Payments as the deemed
assignee of such Holders. The Trustee hereby agrees on behalf of the
Holders of the Insured Certificates (and each such Holder, by its
acceptance of its Insured Certificates, hereby agrees) for the benefit of
the Certificate Insurer that, to the extent the Certificate Insurer makes
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Insured Payments, either directly or indirectly (as by paying through the
Trustee), to the Holder of an Insured Certificate, the Certificate Insurer
will be subrogated to any rights of the Holder of such Insured Certificate
to receive (pursuant to the definition of "REMIC II Distribution Amount")
the amounts for which such Insured Payments were made, to the extent of
such payments, and the Trustee shall pay such amounts to the Certificate
Insurer to the extent included in the REMIC II Distribution Amount (as
notified to the Trustee by the Master Servicer in the written statement
required pursuant to Section 4.02(b)).
(d) On each Distribution Date and prior to making any distributions
on such Distribution Date pursuant to Section 4.01, the Trustee shall
withdraw from the Certificate Account and pay to the Certificate Insurer
the Certificate Insurer Premium as set forth in the statement delivered to
the Trustee pursuant to Section 4.02(b).
Section 3.22. Maintenance of the Rounding Account; Collections Thereunder.
On or prior to the Closing Date, the Trustee shall establish the Rounding
Account, and DLJ shall deposit $999.99 therein. The Master Servicer shall
maintain such account to provide, if needed, the Rounding Amount on any
Distribution Date. On the first Distribution Date with respect to which
the Master Servicer determines that principal is required to be distributed
to the Special Retail Certificates pursuant to Section 4.04(a)(ii), and the
aggregate amount of such principal is not an amount equal to an integral
multiple of $1,000, the Master Servicer shall notify the Trustee by Noon
New York City time two Business Days prior to such Distribution Date of the
Rounding Amount, and the Trustee shall withdraw the Rounding Amount from
the Rounding Account. On each succeeding Distribution Date, prior to the
earlier of (i) the Credit Support Depletion Date and (ii) the date on which
any loss is allocated to the Special Retail Certificates or its
Corresponding Class by Pro Rata Allocation, with respect to which the
Master Servicer determines that principal is required to be distributed to
such Class pursuant to Section 4.04(a)(ii), the aggregate amount of such
principal will be applied first to repay to the Rounding Account any funds
withdrawn from the Rounding Account on prior Distribution Dates which have
not been repaid. If the remainder of such aggregate amount of principal is
not an amount equal to an integral multiple of $1,000, the Master Servicer
shall notify the Trustee by Noon New York City time two Business Days prior
to such Distribution Date of the Rounding Amount, and the Trustee shall
withdraw from the Rounding Account, to the extent funds are available
therein, the amount so notified by the Master Servicer.
Any amounts withdrawn by the Trustee from the Rounding Account shall
be deposited in the Certificate Account for distribution to the Holders of
the Special Retail Certificates as described in the immediately preceding
paragraph (and shall be deemed to have been distributed to the Class A-3-L
Regular Interest and deposited for its benefit into the Certificate Account
in accordance with Section 4.01(ii)).
Amounts on deposit in the Rounding Account shall not be invested.
On the first Distribution Date after the earliest of (i) the Credit
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Support Depletion Date, (ii) the date on which any loss is allocated to the
Special Retail Certificates or their Corresponding Class by Pro Rata
Allocation and (iii) the date on which the Class Principal Balance of the
Special Retail Certificates has been reduced to zero, the Trustee shall
remit any amounts then remaining on deposit in the Rounding Account to the
Holders of the Class R-1 Certificates.
ARTICLE IV
Payments to Certificateholders; Payment of Expenses
Section 4.01. Distributions to Holders of REMIC I Regular Interests and
Class R-1 Certificateholders; Payments to Certificate Insurer. On each
Distribution Date, the Trustee (or any duly appointed paying agent) (i)
shall withdraw from the Certificate Account the Certificate Insurer Premium
and pay such amount to the Certificate Insurer, (ii) shall be deemed to
have distributed from the Certificate Account (a) the REMIC I Distribution
Amount (other than any Class A-3 Reimbursement Amount) to the Holders of
the REMIC I Regular Interests and (b) the Rounding Amount, the Class A-3
Covered Interest Shortfall Amount and the Deficiency Amount, if any, to the
Class A-3-L Regular Interest, and to have deposited such amounts for their
benefit into the Certificate Account, (iii) from the Certificate Account
shall distribute to the Certificate Insurer any Class A-3 Reimbursement
Amount to be distributed to the Certificate Insurer pursuant to the
definition of "REMIC I Distribution Amount" for such Distribution Date and
(iv) from the Certificate Account shall distribute to the Class R-1
Certificateholders the sum of (a) the Excess Liquidation Proceeds and (b)
the amounts to be distributed to the Class R-1 Certificateholders pursuant
to the definition of "REMIC I Distribution Amount" for such Distribution
Date, all in accordance with written statements received from the Master
Servicer pursuant to Section 4.02(b), by (except with respect to the
Certificate Insurer) wire transfer in immediately available funds for the
account of each such Holder and the Class R-1 Certificateholder, or by any
other means of payment acceptable to each such Holder and the Class R-1
Certificateholder of record on the immediately preceding Record Date (other
than as provided in Section 9.01 respecting the final distribution), as
specified by each such Certificateholder and at the address of such Holder
appearing in the Certificate Register, and with respect to payments to the
Certificate Insurer, by wire transfer in immediately available funds to
such account set forth in the Commitment (as defined in the Insurance
Agreement) or such other account as the Certificate Insurer shall designate
in writing to the Trustee from time to time at least one Business Day
before any Distribution Date or, at the election of the Certificate
Insurer, by check sent by first class mail to such address as the
Certificate Insurer shall designate in writing to the Trustee from time to
time at least one Business Day before any Distribution Date.
Notwithstanding any other provision of this Agreement, no actual
distributions pursuant to clause (ii) of this Section 4.01 shall be made on
account of the deemed distributions described in this paragraph except in
the event of a liquidation of REMIC II and not REMIC I.
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Section 4.02. Advances by the Master Servicer; Distribution Reports to the
Trustee.
(a) To the extent described below, the Master Servicer is obligated
to advance its own funds to the Certificate Account to cover any shortfall
between (i) payments scheduled to be received in respect of Mortgage Loans,
and (ii) the amounts actually deposited in the Certificate Account on
account of such payments. The Master Servicer's obligation to make any
advance or advances described in this Section 4.02 is effective only to the
extent that such advance is, in the good faith judgment of the Master
Servicer made on or before the Business Day immediately following the
Withdrawal Date, reimbursable from Insurance Proceeds or Liquidation
Proceeds of the related Mortgage Loans or recoverable as late Monthly
Payments with respect to the related Mortgage Loans or otherwise.
Prior to the close of business on the Business Day immediately
following each Withdrawal Date, the Master Servicer shall determine whether
or not it will make a Monthly P&I Advance on the Business Day prior to the
next succeeding Distribution Date (in the event that the applicable
Servicer fails to make such advances) and shall furnish a written statement
to the Trustee, the Paying Agent, if any, and to any Certificateholder
requesting the same, setting forth the aggregate amount to be distributed
on the next succeeding Distribution Date on account of principal and
interest in respect of the Mortgage Loans, stated separately. In the event
that full scheduled amounts of principal and interest in respect of the
Mortgage Loans shall not have been received by or on behalf of the Master
Servicer prior to such Determination Date and the Master Servicer shall
have determined that a Monthly P&I Advance shall be made in accordance with
this Section 4.02, the Master Servicer shall so specify and shall specify
the aggregate amount of such advance.
In the event that the Master Servicer shall be required to make a
Monthly P&I Advance, it shall on the Business Day prior to the related
Distribution Date either (i) deposit in the Certificate Account an amount
equal to such Monthly P&I Advance, (ii) make an appropriate entry in the
records of the Certificate Account that funds in such account being held
for future distribution or withdrawal have been, as permitted by this
Section 4.02, used by the Master Servicer to make such Monthly P&I Advance,
or (iii) make advances in the form of any combination of (i) and (ii)
aggregating the amount of such Monthly P&I Advance. Any funds being held
for future distribution to Certificateholders and so used shall be replaced
by the Master Servicer by deposit in the Certificate Account on the
Business Day immediately preceding any future Distribution Date to the
extent that funds in the Certificate Account on such Distribution Date with
respect to the Mortgage Loans shall be less than payments to
Certificateholders required to be made on such date with respect to the
Mortgage Loans. Under each Selling and Servicing Contract, the Master
Servicer is entitled to receive from the Custodial Accounts for P&I
established by the Servicers amounts received by the applicable Servicers
on particular Mortgage Loans as late payments of principal and interest or
as Liquidation or Insurance Proceeds and respecting which the Master
Servicer has made an unreimbursed advance of principal and interest. The
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Master Servicer is also entitled to receive other amounts from the related
Custodial Accounts for P&I established by the Servicers to reimburse itself
for prior Nonrecoverable Advances respecting Mortgage Loans serviced by
such Servicers. The Master Servicer shall deposit these amounts in the
Investment Account prior to withdrawal pursuant to Section 3.05.
In accordance with Section 3.05, Monthly P&I Advances are reimbursable
to the Master Servicer from cash in the Investment Account or the
Certificate Account to the extent that the Master Servicer shall determine
that any such advances previously made are Nonrecoverable Advances pursuant
to Section 4.03.
(b) Prior to noon New York City time two Business Days prior to each
Distribution Date, the Master Servicer shall provide the Trustee and the
Certificate Insurer (and the Company if the Company is no longer acting as
Master Servicer) with a statement in writing of (1) the amount of the
Certificate Insurer Premium for the Class A-3 Certificates, (2) the amounts
to be distributed to the Certificate Insurer pursuant to the definition of
"REMIC I Distribution Amount," (3) the Deficiency Amount, if any, to be
paid by the Certificate Insurer, (4) the Class A-3 Covered Interest
Shortfall Amount, if any, to be withdrawn from the Class A-3 Reserve Fund
pursuant to Section 3.16, (5) the Rounding Amount, if any, to be withdrawn
from the Rounding Account pursuant to Section 3.22; (6) the amounts to be
applied to repay any funds withdrawn from the Rounding Account on prior
Distribution Dates pursuant to Section 3.22; (7) the amount, as applicable,
of (i) interest, (ii) the interest portion, if any, of Realized Losses,
(iii) Uncompensated Interest Shortfall, (iv) scheduled principal, (v)
Principal Prepayments, (vi) the principal portion of Realized Losses, (vii)
the Residual Distribution Amount and (viii) the Excess Liquidation Proceeds
to be distributed to each Class of REMIC I Regular Interests and each Class
of Certificates on such Distribution Date (such amounts to be determined in
accordance with the definitions of "REMIC I Distribution Amount," and
"REMIC II Distribution Amount," Section 4.01 and Section 4.04 hereof and
other related definitions set forth in Article I hereof); (8) the
applicable Class Principal Balance after giving effect to such
distributions; and (9) the amount of any Special Primary Insurance Premium
payable on such Distribution Date.
Section 4.03. Nonrecoverable Advances. Any advance previously made by a
Servicer pursuant to its Selling and Servicing Contract with respect to a
Mortgage Loan or by the Master Servicer that the Master Servicer shall
determine in its good faith judgment not to be ultimately recoverable from
Insurance Proceeds or Liquidation Proceeds or otherwise with respect to
such Mortgage Loan or recoverable as late Monthly Payments with respect to
such Mortgage Loan shall be a Nonrecoverable Advance. The determination by
the Master Servicer that it or the applicable Servicer has made a
Nonrecoverable Advance or that any advance would constitute a
Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of
the Master Servicer delivered to the Trustee on the Determination Date and
detailing the reasons for such determination. Notwithstanding any other
provision of this Agreement, any insurance policy relating to the Mortgage
Loans, or any other agreement relating to the Mortgage Loans to which the
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Company or the Master Servicer is a party, (a) the Master Servicer and each
Servicer shall not be obligated to, and shall not, make any advance that,
after reasonable inquiry and in its sole discretion, the Master Servicer or
such Servicer shall determine would be a Nonrecoverable Advance, and (b)
the Master Servicer and each Servicer shall be entitled to reimbursement
for any advance as provided in Section 3.05(a)(i), (ii) and (iv) of this
Agreement.
Section 4.04. Distributions to Certificateholders; Payment of Special
Primary Insurance Premiums.
(a) On each Distribution Date, the Trustee (or any duly appointed
paying agent) shall (i) subject to Section 3.05(a)(viii), withdraw from the
Certificate Account any Special Primary Insurance Premium payable on such
Distribution Date and pay such amount to the insurer under the applicable
Special Primary Insurance Policy and (ii) withdraw from the Certificate
Account (A) the REMIC II Available Distribution Amount for such
Distribution Date and distribute, from the amount so withdrawn, to the
extent of the REMIC II Available Distribution Amount, the REMIC II
Distribution Amount to the Certificates (other than the Class R-1
Certificates) (provided that any portion of such amount distributable to
the Special Retail Certificates shall be used first to pay any amount
payable to the Rounding Account pursuant to Section 3.22) and to the
Certificate Insurer in respect of the Certificate Insurer's subrogation to
certain rights to payment due to the Holders of the Insured Certificates as
set forth in Section 3.21, (B) the Rounding Amount, if any, deposited
therein for distribution on such date pursuant to Section 3.22 and
distribute the amount so withdrawn to the Special Retail Certificates in
accordance with such Section 3.22, (C) the Class A-3 Covered Interest
Shortfall Amount, if any, deposited therein for distribution on such date
pursuant to Section 3.16 and distribute such amount to the Class A-3
Certificates and (D) the Deficiency Amount, if any, and distribute such
amount to the Holders of the Insured Certificates, all in accordance with
the written statement received from the Master Servicer pursuant to Section
4.02(b), by (except with respect to the Certificate Insurer and with
respect to any Special Primary Insurance Premium) wire transfer in
immediately available funds for the account of, or by check mailed to, each
such Certificateholder of record on the immediately preceding Record Date
(other than as provided in Section 9.01 respecting the final distribution),
as specified by each such Certificateholder and at the address of such
Holder appearing in the Certificate Register, and with respect to any
Special Primary Insurance Premiums, by means of payment acceptable to the
insurer under the respective Special Primary Insurance Policy, and with
respect to payments to the Certificate Insurer, by wire transfer in
immediately available funds to such account set forth in the Commitment (as
defined in the Insurance Agreement) or such other account as the
Certificate Insurer shall designate in writing to the Trustee from time to
time at least one Business Day before any Distribution Date or, at the
election of the Certificate Insurer, by check sent by first class mail to
such address as the Certificate Insurer shall designate in writing to the
Trustee from time to time at least one Business Day before any Distribution
Date.
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(b) All reductions in the Certificate Principal Balance of a
Certificate effected by distributions of principal and all allocations of
Realized Losses made on any Distribution Date shall be binding upon all
Holders of such Certificates and of any Certificates issued upon the
registration of transfer or exchange therefor or in lieu thereof, whether
or not such distribution is noted on such Certificate. The final
distribution of principal of each Certificate (and the final distribution
upon the Class R-1 and Class R-2 Certificates upon the termination of REMIC
I and REMIC II) shall be payable in the manner provided above only upon
presentation and surrender thereof on or after the Distribution Date
therefor at the office or agency of the Certificate Registrar specified in
the notice delivered pursuant to Section 4.04(c)(ii) and Section 9.01(b).
(c) Whenever, on the basis of Curtailments, Payoffs, proceeds of the
Certificate Insurance Policy and Monthly Payments on the Mortgage Loans and
Insurance Proceeds and Liquidation Proceeds received and expected to be
received during the Payoff Period, the Master Servicer has notified the
Trustee that it believes that the entire remaining unpaid Class Principal
Balance of any Class of Certificates will become distributable on the next
Distribution Date, the Trustee shall, no later than the 18th day of the
month of such Distribution Date, mail or cause to be mailed to each Person
in whose name a Certificate to be so retired is registered at the close of
business on the Record Date and to the Rating Agencies (with a copy to the
Certificate Insurer) a notice to the effect that:
it is expected that funds sufficient to make such final
distribution will be available in the Certificate Account on such
Distribution Date, and
if such funds are available, (A) such final distribution will be
payable on such Distribution Date, but only upon presentation and
surrender of such Certificate at the office or agency of the
Certificate Registrar maintained for such purpose (the address of
which shall be set forth in such notice), and (B) no interest shall
accrue on such Certificate after such Distribution Date.
Section 4.05. Statements to Certificateholders. With each distribution
from the Certificate Account on a Distribution Date, the Trustee shall send
to each Rating Agency and shall make available to each Certificateholder
the statement required by Section 4.02(b). The Trustee may make available
such statement and certain other information, including, without
limitation, information required to be provided by the Trustee pursuant to
Sections 3.12 and 3.13, to Certificateholders through the Trustee's
Corporate Trust home page on the world wide web. Such web page is currently
located at "xxxxxxxxxxxxxx.xxxxxxxxxxx.xxx". Mortgage-Backed Securities
information is currently available by clicking the "Bondholder Reporting"
button and selecting the appropriate transaction. The location of such web
page and the procedures used therein are subject to change from time to
time at the Trustee's discretion.
Upon request by any Certificateholder or Rating Agency or the Trustee,
the Master Servicer shall forward to such Certificateholder or Rating
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Agency and the Trustee and the Company (if the Company is no longer acting
as Master Servicer) an additional report which sets forth with respect to
the Mortgage Loans:
(a) The number and aggregate Principal Balance of the Mortgage
Loans delinquent one, two and three months or more;
(b) The (i) number and aggregate Principal Balance of Mortgage
Loans with respect to which foreclosure proceedings have been
initiated, and (ii) the number and aggregate book value of Mortgaged
Properties acquired through foreclosure, deed in lieu of foreclosure
or other exercise of rights respecting the Trustee's security interest
in the Mortgage Loans;
(c) The amount of the Special Hazard Coverage available to the
Senior Certificates remaining as of the close of business on the
applicable Determination Date;
(d) The amount of the Bankruptcy Coverage available to the
Senior Certificates remaining as of the close of business on the
applicable Determination Date;
(e) The amount of the Fraud Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(f) The amount of the Class A-3 Reimbursement Amount as of the
applicable Determination Date and the amount of any Preference Amount
and any amount payable to the Certificate Insurer pursuant to its
subrogation rights;
(g) The cumulative amount of Realized Losses allocated to the
Certificates since the Cut-Off Date; and
(h) The amount remaining on deposit in the Class A-3 Reserve
Fund.
Upon request by any Certificateholder, the Master Servicer, as soon as
reasonably practicable, shall provide the requesting Certificateholder with
such information as is necessary and appropriate, in the Master Servicer's
sole discretion, for purposes of satisfying applicable reporting
requirements under Rule 144A of the Securities Act.
The Company may make available any reports, statements or other
information to Certificateholders through the Company's home page on the
world wide web. Such web page is located at "xxx.xxxxxx.xxx" and
information is available by clicking on "Investor Information."
Section 4.06. Principal Distributions on the Special Retail Certificates.
With respect to the Special Retail Certificates, prior to the earlier of
(i) the Credit Support Depletion Date and (ii) the date on which any loss
is allocated to the Special Retail Certificates or its Corresponding Class
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by Pro Rata Allocation, distributions in reduction of the Class Principal
Balance of the Special Retail Certificates will be made in integral
multiples of $1,000 at the request of the appropriate representatives of
Deceased Holders of Certificates of such Class and at the request of Living
Holders of Certificates of such Class or by mandatory distributions,
pursuant to Section 4.06(a) and Section 4.06(d). On and after the earlier
of (i) the Credit Support Depletion Date and (ii) the date on which any
loss is allocated to such Class or its Corresponding Class by Pro Rata
Allocation, distributions in reduction of the Class Principal Balance of
such Class will be made on a pro rata basis pursuant to Section 4.06(e).
(a) On each Distribution Date on which principal distributions to the
Special Retail Certificates are made, such distributions will be made in
the following priority:
(i) first, to requesting Deceased Holders, in the order in which
such requests are received by DTC, but not exceeding an aggregate
amount of $25,000 for each requesting Deceased Holder; and
(ii) second, to requesting Living Holders, in the order in which
such requests are received by DTC, but not exceeding an aggregate
amount of $10,000 for each requesting Living Holder.
Thereafter, distributions will be made, with respect to the Special Retail
Certificates, as provided in clauses (i) and (ii) above up to a second
$25,000 and $10,000, respectively. This sequence of priorities will be
repeated until all requests for principal distributions by Deceased Holders
and Living Holders of such Class have been honored, to the extent of
amounts available for principal distributions to such Class.
All requests for principal distributions to Special Retail
Certificates will be accepted in accordance with the provisions set forth
in Section 4.06(c). Requests for principal distributions that are received
by the Trustee after the related Record Date and requests for principal
distributions received in a timely manner but not accepted with respect to
any Distribution Date, will be treated as requests for principal
distributions to Special Retail Certificates on the next succeeding
Distribution Date, and each succeeding Distribution Date thereafter, until
each such request is accepted or is withdrawn as provided in Section
4.06(c). Such requests as are not so withdrawn shall retain their order of
priority without the need for any further action on the part of the
appropriate Holder of the related Special Retail Certificate, all in
accordance with the procedures of DTC and the Trustee. Upon the transfer
of beneficial ownership of any Special Retail Certificate, any distribution
request previously submitted with respect to such Certificate will be
deemed to have been withdrawn only upon the receipt by the Trustee on or
before the Record Date for such Distribution Date of notification of such
withdrawal in the manner set forth in Section 4.06(c) using a form required
by DTC.
Distributions in reduction of the Class Principal Balance of the
Special Retail Certificates will be applied in an amount equal to the
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portion of the REMIC II Available Distribution Amount allocable to such
Class pursuant to Section 4.04, plus any amounts available for distribution
from the Rounding Account established as provided in Section 3.22, provided
that the aggregate distribution of principal to such Class on any
Distribution Date shall be made in an integral multiple of $1,000.
To the extent that the portion of the Senior Principal Distribution
Amount allocable to the Corresponding Class of the Special Retail
Certificates on any Distribution Date exceeds the aggregate Certificate
Principal Balance of Special Retail Certificates with respect to which
principal distribution requests, as set forth above, have been received,
principal distributions in reduction of the Class Principal Balance of the
Special Retail Certificates will be made by mandatory distribution pursuant
to Section 4.06(d).
(b) A Special Retail Certificate shall be deemed to be held by a
Deceased Holder for purposes of this Section 4.06 if the death of the
Holder thereof is deemed to have occurred. Special Retail Certificates
beneficially owned by tenants by the entirety, joint tenants or tenants in
common will be considered to be beneficially owned by a single owner. The
death of a tenant by the entirety, joint tenant or tenant in common will be
deemed to be the death of the Holder, and the Special Retail Certificates
so beneficially owned will be eligible for priority with respect to
principal distributions, subject to the limitations stated above. Special
Retail Certificates beneficially owned by a trust will be considered to be
beneficially owned by each beneficiary of the trust to the extent of such
beneficiary's beneficial interest therein, but in no event will a trust's
beneficiaries collectively be deemed to be Holders of a number of Special
Retail Certificates greater than the number of Special Retail Certificates
of which such trust is the owner. The death of a beneficiary of a trust
will be deemed to be the death of a Holder of the Special Retail
Certificates beneficially owned by the trust to the extent of such
beneficiary's beneficial interest in such trust. The death of an
individual who was a tenant by the entirety, joint tenant or tenant in
common in a tenancy which is the beneficiary of a trust will be deemed to
be the death of the beneficiary of such trust. The death of a person who,
during his or her lifetime, was entitled to substantially all of the
beneficial ownership interests in a Special Retail Certificate will be
deemed to be the death of the Holder of such Special Retail Certificate
regardless of the registration of ownership, if such beneficial ownership
interest can be established to the satisfaction of the Trustee. Such
beneficial interest will be deemed to exist in typical cases of street name
or nominee ownership, ownership by a trustee, ownership under the Uniform
Gifts to Minors Act and community property or other joint ownership
arrangements between a husband and wife. Beneficial interest shall include
the power to sell, transfer or otherwise dispose of a Special Retail
Certificate and the right to receive the proceeds therefrom, as well as
interest and principal distributions, as applicable, payable with respect
thereto. The Trustee may rely entirely upon documentation delivered to it
in establishing beneficial ownership interests in Special Retail
Certificates. The Trustee shall not be under any duty to determine
independently the occurrence of the death of any deceased Holder. The
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Trustee may rely entirely upon documentation delivered to it pursuant to
Section 4.06(c) in establishing the eligibility of any Holder to receive
the priority accorded Deceased Holders in Section 4.06(a).
(c) Requests for principal distributions to any Special Retail
Certificate must be made by delivering a written request therefor to the
DTC Participant or Indirect DTC Participant that maintains the account
evidencing such Holder's interest in such Certificate. In the case of a
request on behalf of a Deceased Holder, appropriate evidence of death and
any tax waivers are required to be forwarded to the Trustee under separate
cover. The DTC Participant should in turn make the request of DTC (or, in
the case of an Indirect DTC Participant, such Indirect DTC Participant must
notify the related DTC Participant of such request, which DTC Participant
should make the request of DTC) on a form required by DTC and provided to
the DTC Participant. Upon receipt of such request, DTC will date and time
stamp such request and forward such request to the Trustee. DTC may
establish such procedures as it deems fair and equitable to establish the
order of receipt of requests for such distributions received by it on the
same day. None of the Company, the Master Servicer or the Trustee shall be
liable for any delay in delivery of requests for distributions or
withdrawals of such requests by DTC, a DTC Participant or any Indirect DTC
Participant.
The Trustee shall maintain a list of those DTC Participants
representing the appropriate Holders of Special Retail Certificates that
have submitted requests for principal distributions, together with the
order of receipt and the amounts of such requests. Subject to the
priorities described in Section 4.06(a) above, DTC will honor requests for
distributions in the order of their receipt. The Trustee shall notify DTC
as to which requests should be honored on each Distribution Date at least
two Business Days prior to such Distribution Date and shall notify DTC as
to the portion of the REMIC II Available Distribution Amount (together with
any amounts available for distribution from the Rounding Account) to be
distributed to the Special Retail Certificates by mandatory distribution
pursuant to Section 4.06(d). Requests shall be honored by DTC in
accordance with the procedures, and subject to the priorities and
limitations, described in this Section 4.06. The exact procedures to be
followed by the Trustee and DTC for purposes of determining such priorities
and limitations will be those established from time to time by the Trustee
or DTC, as the case may be. The decisions of the Trustee and DTC
concerning such matters will be final and binding on all affected persons.
Special Retail Certificates that have been accepted for a distribution
shall be due and payable on the applicable Distribution Date. Such
Certificates shall cease to bear interest after the last calendar day of
the month preceding the month in which such Distribution Date occurs.
Any Holder of a Special Retail Certificate that has requested a
principal distribution may withdraw its request by so notifying in writing
the DTC Participant or Indirect DTC Participant that maintains such
Holder's account. In the event that such account is maintained by an
Indirect DTC Participant, such Indirect DTC Participant must notify the
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related DTC Participant which in turn must forward the withdrawal of such
request, on a form required by DTC, to DTC to be forwarded to the Trustee.
If such notice of withdrawal of a request for distribution has not been
received by DTC and forwarded to the Trustee on or before the Record Date
for the next Distribution Date, the previously made request for a principal
distribution will be irrevocable with respect to the making of principal
distributions on such Distribution Date.
In the event any requests for principal distributions are rejected by
the Trustee for failure to comply with the requirements of this Section
4.06, the Trustee shall return such request to the appropriate DTC
Participant with a copy to DTC with an explanation as to the reason for
such rejection.
(d) To the extent, if any, that principal distributions to be made to
the Special Retail Certificates on a Distribution Date exceed the aggregate
amount of principal distribution requests for such Class which have been
received on or before the applicable Record Date, as provided in Section
4.06(a) above, additional Special Retail Certificates will be selected to
receive mandatory principal distributions in lots equal to $1,000 in
accordance with the then-applicable Random Lot procedures of DTC, and the
then-applicable procedures of the DTC Participants and Indirect DTC
Participants representing the Holders (which procedures may or may not be
by random lot). The Trustee shall notify DTC of the aggregate amount of
the mandatory principal distribution to be made on the next Distribution
Date. DTC shall then allocate such aggregate amount among the DTC
Participants on a Random Lot basis. Each DTC Participant and, in turn,
each Indirect DTC Participant will then select, in accordance with its own
procedures, Special Retail Certificates from among those held in its
accounts to receive mandatory principal distributions, such that the total
amount of principal distributed to the Special Retail Certificates so
selected is equal to the aggregate amount of such mandatory distributions
allocated to such DTC Participant by DTC and to such Indirect DTC
Participant by its related DTC Participant, as the case may be. DTC
Participants and Indirect DTC Participants that hold Special Retail
Certificates selected for mandatory principal distributions are required to
provide notice of such mandatory distributions to the affected Holders.
The Master Servicer shall notify the Trustee of the amount of principal
distributions to be made on each Distribution Date in a timely manner such
that the Trustee may fulfill its obligations under the Depositary
Agreement.
(e) Notwithstanding any provisions herein to the contrary, on each
Distribution Date on and after the earlier of (i) the Credit Support
Depletion Date and (ii) the date on which any loss is allocated to the
Special Retail Certificates or its Corresponding Class by Pro Rata
Allocation, distributions in reduction of the Class Principal Balance of
the Special Retail Certificates will be made pro rata among the Holders of
such Certificates and will not be made in integral multiples of $1,000 nor
pursuant to requests for distribution as permitted by Section 4.06(a) or by
mandatory distributions as provided for by Section 4.06(d).
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(f) In the event that Definitive Certificates representing Special
Retail Certificates are issued pursuant to Section 5.09, an amendment to
this Agreement, which may be approved without the consent of any
Certificateholders, shall establish procedures relating to the manner in
which distributions in reduction of the Class Principal Balance of the
Special Retail Certificates are to be made; provided that such procedures
shall be consistent, to the extent practicable and customary for
certificates similar to the Special Retail Certificates, with the
provisions of this Section 4.06.
ARTICLE V
The Certificates
Section 5.01. The Certificates.
(a) The Certificates shall be substantially in the forms set forth in
Exhibit A and B with the additional insertion from Exhibit H attached
hereto, and shall be executed by the Trustee, authenticated by the Trustee
(or any duly appointed Authenticating Agent) and delivered (i) upon and
pursuant to the order of the Company and (ii) upon receipt by the Trustee
of the documents specified in Section 2.01. The Certificates shall be
issuable in Authorized Denominations evidencing Percentage Interests.
Certificates shall be executed by manual or facsimile signature on behalf
of the Trustee by authorized officers of the Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were at the time of
execution the proper officers of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or any Authenticating Agent by manual signature,
and such certificate upon any Certificate shall be conclusive evidence, and
the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
(b) The following definitions apply for purposes of this Section
5.01: "Disqualified Organization" means any Person which is not a Permitted
Transferee, but does not include any "Pass-Through Entity" which owns or
holds a Residual Certificate and of which a Disqualified Organization,
directly or indirectly, may be a stockholder, partner or beneficiary; "Pass-
Through Entity" means any regulated investment company, real estate
investment trust, common trust fund, partnership, trust or estate, and any
organization to which Section 1381 of the Code applies; "Ownership
Interest" means, with respect to any Residual Certificate, any ownership or
security interest in such Residual Certificate, including any interest in a
Residual Certificate as the Holder thereof and any other interest therein
whether direct or indirect, legal or beneficial, as owner or as pledgee;
"Transfer" means any direct or indirect transfer or sale of, or directly or
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indirectly transferring or selling any Ownership Interest in a Residual
Certificate; and "Transferee" means any Person who is acquiring by Transfer
any Ownership Interest in a Residual Certificate.
(c) Restrictions on Transfers of the Residual Certificates to
Disqualified Organizations are set forth in this Section 5.01(c).
Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition
of such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee or its
designee under clause (iii)(A) below to deliver payments to a Person
other than such Person and to negotiate the terms of any mandatory
sale under clause (iii)(B) below and to execute all instruments of
transfer and to do all other things necessary in connection with any
such sale. The rights of each Person acquiring any Ownership Interest
in a Residual Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate to a U.S. Person,
the Trustee shall require delivery to it, and shall not register
the Transfer of any Residual Certificate until its receipt of (1)
an affidavit and agreement (a "Transferee Affidavit and
Agreement") attached hereto as Exhibit J from the proposed
Transferee, in form and substance satisfactory to the Company,
representing and warranting, among other things, that it is not a
Non-U.S. Person, that such transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person who is not a Permitted
Transferee, that for so long as it retains its Ownership Interest
in a Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this
Section 5.01(c) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit I, from the Holder
wishing to transfer the Residual Certificate, in form and
substance satisfactory to the Company, representing and
warranting, among other things, that no purpose of the proposed
Transfer is to allow such Holder to impede the assessment or
collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit
and Agreement by a proposed Transferee under clause (B) above, if
the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
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effected.
(D) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate agrees by holding or acquiring such
Ownership Interest (i) to require a Transferee Affidavit and
Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest and to provide a certificate to
the Trustee in the form attached hereto as Exhibit J; (ii) to
obtain the express written consent of the Company prior to any
transfer of such Ownership Interest, which consent may be
withheld in the Company's sole discretion; and (iii) to provide a
certificate to the Trustee in the form attached hereto as Exhibit
I.
The Trustee shall register the Transfer of any Residual
Certificate only if it shall have received the Transferee Affidavit
and Agreement, a certificate of the Holder requesting such transfer in
the form attached hereto as Exhibit J and all of such other documents
as shall have been reasonably required by the Trustee as a condition
to such registration.
(A) If any "disqualified organization" (as defined in Section
860E(e)(5) of the Code) shall become a holder of a Residual
Certificate, then the last preceding Permitted Transferee shall
be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. If
any Non-U.S. Person shall become a holder of a Residual
Certificate, then the last preceding holder which is a U.S.
Person shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date
of registration of the Transfer to such Non-U.S. Person of such
Residual Certificate. If a transfer of a Residual Certificate is
disregarded pursuant to the provisions of Treasury Regulations
Section 1.860E-1 or Section 1.860G-3, then the last preceding
Permitted Transferee shall be restored, to the extent permitted
by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such
Residual Certificate. The Trustee shall be under no liability to
any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.01(c)
or for making any payments due on such Certificate to the holder
thereof or for taking any other action with respect to such
holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 5.01(c) and to the extent that the retroactive
restoration of the rights of the Holder of such Residual
Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Company shall have
the right, without notice to the Holder or any prior Holder of
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such Residual Certificate, to sell such Residual Certificate to a
purchaser selected by the Company on such terms as the Company
may choose. Such purported Transferee shall promptly endorse and
deliver each Residual Certificate in accordance with the
instructions of the Company. Such purchaser may be the Company
itself or any affiliate of the Company. The proceeds of such
sale, net of the commissions (which may include commissions
payable to the Company or its affiliates), expenses and taxes
due, if any, shall be remitted by the Company to such purported
Transferee. The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion of the
Company, and the Company shall not be liable to any Person having
an Ownership Interest in a Residual Certificate as a result of
its exercise of such discretion.
The Company, on behalf of the Trustee, shall make available, upon
written request from the Trustee, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is not a
Permitted Transferee, including the information regarding "excess
inclusions" of such Residual Certificates required to be provided to
the Internal Revenue Service and certain Persons as described in
Treasury Regulation Section 1.860D-1(b)(5), and (B) as a result of any
regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organizations described in
Section 1381 of the Code having as among its record holders at any
time any Person who is not a Permitted Transferee. Reasonable
compensation for providing such information may be required by the
Company from such Person.
The provisions of this Section 5.01 set forth prior to this
Section (v) may be modified, added to or eliminated by the Company and
the Trustee, provided that there shall have been delivered to the
Trustee the following:
(A) written notification from each of the Rating Agencies
to the effect that the modification, addition to or elimination
of such provisions will not cause such Rating Agency to downgrade
its then-current Ratings of the Certificates(determined in the
case of the Insured Certificates, without giving effect to the
Certificate Insurance Policy); and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Company (as evidenced by a certificate of the
Company), to the effect that such modification, addition to or
absence of such provisions will not cause REMIC I and REMIC II to
cease to qualify as a REMIC and will not create a risk that (1)
REMIC I and REMIC II may be subject to an entity-level tax caused
by the Transfer of any Residual Certificate to a Person which is
not a Permitted Transferee or (2) a Certificateholder or another
Person will be subject to a REMIC-related tax caused by the
Transfer of a Residual Certificate to a Person which is not a
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Permitted Transferee.
The following legend shall appear on all Residual Certificates:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO
THE COMPANY AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT EITHER (A)
THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER
THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE,
(C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), OR (C)
BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR
(D) AN AGENT OF A DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH
TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN
REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS [R-
1] [R-2] CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A
DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF
NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF THE CLASS [R-1] [R-2] CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS PARAGRAPH.
The Tax Matters Person for each of REMIC I and REMIC II, while
not a Disqualified Organization, shall be the tax matters person for
the related REMIC within the meaning of Section 6231(a)(7) of the Code
and Treasury Regulation Section 1.860F-4(d).
(d) In the case of any ERISA Restricted Certificate presented for
registration in the name of any Person, the Trustee shall require either
(i) an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee and the Company to the effect that the purchase
or holding of an ERISA Restricted Certificate is permissible under
applicable law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and
will not subject the Trustee, the Master Servicer or the Company to any
obligation or liability (including obligations or liabilities under Section
406 of ERISA or Section 4975 of the Code) in addition to those undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Company or (ii) only in the case of an
ERISA Restricted Certificate that is not a Residual Certificate, an
officer's certificate substantially in the form of Exhibit N attached
hereto acceptable to and in form and substance satisfactory to the Trustee
and the Company, which officer's certificate shall not be an expense of the
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Trustee, the Master Servicer or the Company.
(e) No transfer, sale, pledge or other disposition of a Junior
Subordinate Certificate shall be made unless such transfer, sale, pledge or
other disposition is made in accordance with this Section 5.01(e) or
Section 5.01(f); provided that any transfer, sale, pledge or other
disposition of a Junior Subordinate Certificate shall be exempt from the
requirements of this Section 5.01(e) and Section 5.01(f) if each of the
Certificateholder desiring to effect such transfer and such
Certificateholder's transferee are among the following: (i) DLJ Mortgage
Capital, Inc., (ii) Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and
(iii) DLJ Mortgage Acceptance Corp. Each Person who, at any time, acquires
any ownership interest in any Junior Subordinate Certificate shall be
deemed by the acceptance or acquisition of such ownership interest to have
agreed to be bound by the following provisions of this Section 5.01(e) and
Section 5.01(f), as applicable. No transfer of a Junior Subordinate
Certificate shall be deemed to be made in accordance with this Section
5.01(e) unless such transfer is made pursuant to an effective registration
statement under the Securities Act or unless the Trustee is provided with
the certificates and an Opinion of Counsel, if required, on which the
Trustee may conclusively rely, to the effect that such transfer is exempt
from the registration requirements under the Securities Act, as follows:
In the event that a transfer is to be made in reliance upon an exemption
from the Securities Act, the Trustee shall require, in order to assure
compliance with the Securities Act, that the Certificateholder desiring to
effect such transfer certify to the Trustee in writing, in substantially
the form attached hereto as Exhibit F, the facts surrounding the transfer,
with such modifications to such Exhibit F as may be appropriate to reflect
the actual facts of the proposed transfer, and that the Certificateholder's
proposed transferee certify to the Trustee in writing, in substantially the
form attached hereto as Exhibit G, the facts surrounding the transfer, with
such modifications to such Exhibit G as may be appropriate to reflect the
actual facts of the proposed transfer. If such certificate of the proposed
transferee does not contain substantially the substance of Exhibit G, the
Trustee shall require an Opinion of Counsel that such transfer may be made
without registration, which Opinion of Counsel shall not be obtained at the
expense of the Trustee, the REMIC I Trust Fund, the REMIC II Trust Fund or
the Company. Such Opinion of Counsel shall allow for the forwarding, and
the Trustee shall forward, a copy thereof to the Rating Agencies.
Notwithstanding the foregoing, any Junior Subordinate Certificate may be
transferred, sold, pledged or otherwise disposed of in accordance with the
requirements set forth in Section 5.01(f).
(f) To effectuate a Certificate transfer of a Junior Subordinate
Certificate in accordance with this Section 5.01(f), the proposed
transferee of such Certificate must provide the Trustee and the Company
with an investment letter substantially in the form of Exhibit L attached
hereto, which investment letter shall not be an expense of the Trustee or
the Company, and which investment letter states that, among other things,
such transferee (i) is a "qualified institutional buyer" as defined under
Rule 144A, acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (ii) is aware that
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the proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act provided by Rule 144A.
Notwithstanding the foregoing, the proposed transferee of such Certificate
shall not be required to provide the Trustee or the Company with Annex 1 or
Annex 2 to the form of Exhibit L attached hereto if the Company so consents
prior to each such transfer. Such transfers shall be deemed to have
complied with the requirements of this Section 5.01(f). The Holder of a
Certificate desiring to effect such transfer does hereby agree to indemnify
the Trustee, the Company, and the Certificate Registrar against any
liability that may result if transfer is not made in accordance with this
Agreement.
Section 5.02. Certificates Issuable in Classes; Distributions of Principal
and Interest; Authorized Denominations. The aggregate principal amount of
the Certificates that may be authenticated and delivered under this
Agreement is limited to the aggregate Principal Balance of the Mortgage
Loans as of the Cut-Off Date, as specified in the Preliminary Statement to
this Agreement, except for Certificates authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Certificates pursuant to Section 5.03. Such aggregate principal amount
shall be allocated among one or more Classes having designations, types of
interests, initial per annum Certificate Interest Rates, initial Class
Principal Balances and Final Maturity Dates as specified in the Preliminary
Statement to this Agreement. The aggregate Percentage Interest of each
Class of Certificates of which the Class Principal Balance equals zero as
of the Cut-Off Date that may be authenticated and delivered under this
Agreement is limited to 100%. Certificates shall be issued in Authorized
Denominations.
Section 5.03. Registration of Transfer and Exchange of Certificates. The
Trustee shall cause to be maintained at one of its offices or at its
designated agent, a Certificate Register in which there shall be recorded
the name and address of each Certificateholder. Subject to such reasonable
rules and regulations as the Trustee may prescribe, the Certificate
Register shall be amended from time to time by the Trustee or its agent to
reflect notice of any changes received by the Trustee or its agent pursuant
to Section 10.06. The Trustee hereby appoints itself as the initial
Certificate Registrar.
Upon surrender for registration of transfer of any Certificate to the
Trustee at the Corporate Trust Office of the Trustee or at the office of
State Street Bank and Trust Company, N.A., 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Window, or such other address or agency
as may hereafter be provided to the Master Servicer in writing by the
Trustee, the Trustee shall execute, and the Trustee or any Authenticating
Agent shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of Authorized
Denominations of like Percentage Interest. At the option of the
Certificateholders, Certificates may be exchanged for other Certificates in
Authorized Denominations of like Percentage Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
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and the Trustee, or any Authenticating Agent, shall authenticate and
deliver, the Certificates which the Certificateholder making the exchange
is entitled to receive. Every Certificate presented or surrendered for
transfer shall (if so required by the Trustee or any Authenticating Agent)
be duly endorsed by, or be accompanied by a written instrument of transfer
in form satisfactory to the Trustee or any Authenticating Agent and duly
executed by, the Holder thereof or such Holder's attorney duly authorized
in writing.
A reasonable service charge may be made for any such exchange or
transfer of Certificates, and the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any exchange or transfer of Certificates.
All Certificates surrendered for exchange or transfer shall be
cancelled by the Trustee or any Authenticating Agent.
Section 5.04. Mutilated, Destroyed, Lost or Stolen Certificates. If (i)
any mutilated Certificate is surrendered to the Trustee or any
Authenticating Agent, or (ii) the Trustee or any Authenticating Agent
receives evidence to their satisfaction of the destruction, loss or theft
of any Certificate, and there is delivered to the Trustee or any
Authenticating Agent (and with respect to the Insured Certificates, the
Certificate Insurer) such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the
Trustee or any Authenticating Agent that such Certificate has been acquired
by a bona fide purchaser, the Trustee shall execute and the Trustee or any
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 Percentage Interest. Upon the issuance of any new
Certificate under this Section 5.04, the Trustee or any Authenticating
Agent 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 or any
Authenticating Agent) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.04 shall constitute complete and
indefeasible evidence of ownership in the REMIC II Trust Fund (or with
respect to the Class R-1 Certificates, the residual ownership interests in
the REMIC I Trust Fund) as if originally issued, whether or not the lost or
stolen Certificate shall be found at any time.
Section 5.05. Persons Deemed Owners. The Company, the Master Servicer, the
Trustee, the Certificate Insurer (with respect to the Insured Certificates)
and any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 4.01 and Section 4.04 and
for all other purposes whatsoever, and neither the Company, the Master
Servicer, the Trustee, the Certificate Registrar nor any agent of the
Company, the Master Servicer or the Trustee shall be affected by notice to
the contrary.
Section 5.06. Temporary Certificates. Upon the initial issuance of the
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Certificates, the Trustee may execute, and the Trustee or any
Authenticating Agent shall authenticate and deliver, temporary Certificates
which are printed, lithographed, typewritten or otherwise produced, in any
Authorized Denomination, of the tenor of the definitive Certificates in
lieu of which they are issued and with such variations in form from the
forms of the Certificates set forth as Exhibits A, B, C and H hereto as the
Trustee's officers executing such Certificates may determine, as evidenced
by their execution of the Certificates. Notwithstanding the foregoing, the
Certificates may remain in the form of temporary Certificates.
If temporary Certificates are issued, the Trustee shall cause
definitive Certificates to be prepared within ten Business Days after the
Closing Date or as soon as practicable thereafter. After 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 Trustee to be maintained as provided in Section
5.10 hereof, without charge to the holder. Any tax or governmental charge
that may be imposed in connection with any such exchange shall be borne by
the Master Servicer. Upon surrender for cancellation of any one or more
temporary Certificates, the Trustee shall execute and the Trustee or any
Authenticating Agent shall authenticate and deliver in exchange therefor a
like principal amount of definitive Certificates of Authorized
Denominations. Until so exchanged, the temporary Certificates shall in all
respects be entitled to the same benefits under this Agreement as
definitive Certificates.
Section 5.07. Book-Entry for Book-Entry Certificates. Notwithstanding the
foregoing, the Book-Entry Certificates, upon original issuance, shall be
issued in the form of one or more typewritten Certificates of Authorized
Denomination representing the Book-Entry Certificates, to be delivered to
DTC, the initial Clearing Agency, by, or on behalf of, the Company. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder shall receive a definitive
certificate representing such Beneficial Holder's interest in any Class of
Book-Entry Certificate, except as provided above and in Section 5.09. Each
Book-Entry Certificate shall bear the following legend:
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for registration
of transfer, exchange, or payment, and any Certificate issued is
registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
Unless and until definitive, fully registered Book-Entry Certificates (the
"Definitive Certificates") have been issued to the Beneficial Holders
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pursuant to Section 5.09:
(a) the provisions of this Section 5.07 shall be in full force
and effect with respect to the Book-Entry Certificates;
(b) the Master Servicer and the Trustee may deal with the
Clearing Agency for all purposes with respect to the Book-Entry
Certificates (including the making of distributions on the Book-Entry
Certificates) as the sole Certificateholder;
(c) to the extent that the provisions of this Section 5.07
conflict with any other provisions of this Agreement, the provisions
of this Section 5.07 shall control; and
(d) the rights of the Beneficial Holders shall be exercised only
through the Clearing Agency and the DTC Participants and shall be
limited to those established by law and agreements between such
Beneficial Holders and the Clearing Agency and/or the DTC
Participants. Pursuant to the Depositary Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.09, the
initial Clearing Agency will make book-entry transfers among the DTC
Participants and receive and transmit distributions of principal and
interest on the related Class of Book-Entry Certificates to such DTC
Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
Book-Entry Certificates evidencing a specified Percentage Interest, such
direction or consent may be given by the Clearing Agency at the direction
of Beneficial Holders owning Book-Entry Certificates evidencing the
requisite Percentage Interest represented by the Book-Entry Certificates.
The Clearing Agency may take conflicting actions with respect to the Book-
Entry Certificates to the extent that such actions are taken on behalf of
the Beneficial Holders.
Section 5.08. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the
related Certificateholders pursuant to Section 5.09, the Trustee shall give
all such notices and communications specified herein to be given to Holders
of the Book-Entry Certificates to the Clearing Agency which shall give such
notices and communications to the related DTC Participants in accordance
with its applicable rules, regulations and procedures.
Section 5.09. Definitive Certificates. If (a) the Master Servicer notifies
the Trustee in writing that the Clearing Agency is no longer willing or
able to discharge properly its responsibilities under the Depositary
Agreement with respect to the Book-Entry Certificates and the Trustee or
the Master Servicer is unable to locate a qualified successor, (b) the
Master Servicer, at its option, advises the Trustee in writing that it
elects to terminate the book-entry system with respect to the Book-Entry
Certificates through the Clearing Agency or (c) after the occurrence of an
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Event of Default, Certificateholders holding Book-Entry Certificates
evidencing Percentage Interests aggregating not less than 66% of the
aggregate Class Principal Balance of such Certificates advise the Trustee
and the Clearing Agency through DTC Participants in writing that the
continuation of a book-entry system with respect to the Book-Entry
Certificates through the Clearing Agency is no longer in the best interests
of the Certificateholders with respect to such Certificates, the Trustee
shall notify all Certificateholders of Book-Entry Certificates of the
occurrence of any such event and of the availability of Definitive
Certificates. Upon surrender to the Trustee of the Book-Entry Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Trustee shall execute and the Trustee
or any Authenticating Agent shall authenticate and deliver the Definitive
Certificates. Neither the Company, the Master Servicer 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 for all of the
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 Trustee, to the extent applicable with respect to such
Definitive Certificates, and the Trustee shall recognize the Holders of
Definitive Certificates as Certificateholders hereunder.
Section 5.10. Office for Transfer of Certificates. The Trustee shall
maintain in Massachusetts and in New York, New York, an office or agency
where Certificates may be surrendered for registration of transfer or
exchange. The Corporate Trust Office and State Street Bank and Trust
Company, N.A., 00 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Corporate Trust
Window are initially designated for said purposes.
ARTICLE VI
The Company and the Master Servicer
Section 6.01. Liability of the Company and the Master Servicer. The
Company and the Master Servicer shall be liable in accordance herewith only
to the extent of the obligations specifically imposed upon and undertaken
by the Company or the Master Servicer, as applicable, herein.
Section 6.02. Merger or Consolidation of the Company, or the Master
Servicer. Any corporation into which the Company or the Master Servicer may
be merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Company or the Master Servicer
shall be a party, or any corporation succeeding to the business of the
Company or the Master Servicer, shall be the successor of the Company or
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.
Section 6.03. Limitation on Liability of the Company, the Master Servicer
and Others. Neither the Company nor the Master Servicer nor any of the
directors, officers, employees or agents of the Company or the Master
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Servicer shall be under any liability to the Trust Fund or the REMIC I or
REMIC II Trust Fund or the Certificateholders for any action taken by such
Person or by a Servicer or for such Person's or Servicer's 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 Company, the Master Servicer or any such Person against any
liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or
by reason of reckless disregard of duties and obligations hereunder. The
Company, the Master Servicer and any director, officer, employee or agent
of the Company or the Master Servicer may rely in good faith on any
document of any kind properly executed and submitted by any Person
respecting any matters arising hereunder. The Company, the Master Servicer
and any director, officer, employee or agent of the Company or the Master
Servicer shall be indemnified by the Trust Fund and held harmless against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss,
liability or expense relating to any Mortgage Loan (other than as otherwise
permitted in this Agreement) or incurred by reason of willful misfeasance,
bad faith or gross negligence in the performance of duties hereunder or by
reason of reckless disregard of obligations and duties hereunder. The
Company and the Master Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its
duties to service the Mortgage Loans in accordance with this Agreement and
which in its opinion may involve it in any expense or liability; provided,
however, that the Company or the Master Servicer may in its discretion
undertake any such action which it may deem necessary or desirable with
respect to the Mortgage Loans, this Agreement, the Certificates or 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 Company and the Master
Servicer shall be entitled to be reimbursed therefor out of the Certificate
Account, as provided by Section 3.05.
Section 6.04. The Company and the Master Servicer not to Resign. The
Company shall not resign from the obligations and duties (including,
without limitation, its obligations and duties as initial Master Servicer)
hereby imposed on it except upon determination that its duties hereunder
are no longer permissible under applicable law. Any successor Master
Servicer shall not resign from the obligations and duties hereby imposed on
it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Company or any successor Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a successor
Master Servicer shall have assumed the Master Servicer's responsibilities
and obligations in accordance with Section 7.02 hereof.
If the Company is no longer acting as Master Servicer, then the
successor Master Servicer shall give prompt written notice to the Company
of any information received by such successor Master Servicer which affects
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or relates to an ongoing obligation or right of the Company under this
Agreement.
Section 6.05. Trustee Access. The Master Servicer shall afford the Company
and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained by the Master Servicer, in respect of its
rights and obligations hereunder and access to such of its officers as are
responsible for such obligations. Upon reasonable request, the Master
Servicer, shall furnish the Company and the Trustee with its most recent
financial statements (or, for so long as the Company is the Master
Servicer, the most recent consolidated financial statements for the Company
appearing in the audited financial statements of PNC Bank Corp., or the
entity with whose financial statements the financial statements of the
Company are consolidated) and such other information as it possesses, and
which it is not prohibited by law or, to the extent applicable, binding
obligations to third parties with respect to confidentiality from
disclosing, regarding its business, affairs, property and condition,
financial or otherwise.
ARTICLE VII
Default
Section 7.01. Events of Default. (a) In case one or more of the following
Events of Default by the Master Servicer or by a successor Master Servicer
shall occur and be continuing, that is to say:
(i) Any failure by the Master Servicer to deposit into the
Certificate Account any payment required to be deposited therein by
the Master Servicer under the terms of this Agreement which continues
unremedied for a period of ten days after the date upon which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master
Servicer and the Trustee by the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the REMIC II
Trust Fund; or
(ii) Failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Master Servicer contained in the
Certificates or in this Agreement which continues unremedied for a
period of 60 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 to the Master Servicer and the
Trustee by the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of the REMIC II Trust Fund; or
(iii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a trustee
in bankruptcy, conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
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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
(iv) The Master Servicer shall consent to the appointment of a trustee
in bankruptcy, conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities 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 bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(vi) Any failure of the Master Servicer to make any Monthly P&I
Advance (other than a Nonrecoverable Advance) which continues
unremedied at the opening of business on the Distribution Date in
respect of which such Monthly P&I Advance was to have been made;
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, either the Trustee, or the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of the REMIC
II Trust Fund, by notice in writing to the Company and the Master Servicer
(and to the Trustee if given by the Certificateholders, in which case such
notice shall set forth evidence reasonably satisfactory to the Trustee that
such Event of Default has occurred and shall not have been remedied) may
terminate all of the rights (other than its right to reimbursement for
advances) and obligations of the Master Servicer, including its right to
the Master Servicing Fee, under this Agreement and in and to the Mortgage
Loans and the proceeds thereof, if any. Such determination shall be final
and binding. On or after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer under this
Agreement, whether with respect to the Certificates or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section 7.01; and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the 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 Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the Trustee for administration by it of all
cash amounts which shall at the time be credited by the Master Servicer to
the Certificate Account or thereafter be received with respect to the
Mortgage Loans.
Notwithstanding the foregoing, if an Event of Default described in
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clause (vi) of this Section 7.01(a) shall occur, the Trustee shall, by
notice in writing to the Master Servicer, which may be delivered by
telecopy, immediately suspend all of the rights and obligations of the
Master Servicer thereafter arising under this Agreement, but without
prejudice to any rights it may have as a Certificateholder or to
reimbursement of Monthly P&I Advances and other advances of its own funds,
and the Trustee shall act as provided in Section 7.02 to carry out the
duties of the Master Servicer, including the obligation to make any Monthly
P&I Advance the nonpayment of which was an Event of Default described in
clause (vi) of this Section 7.01(a). Any such action taken by the Trustee
must be prior to the distribution on the relevant Distribution Date. If the
Master Servicer shall within two Business Days following such suspension
remit to the Trustee the amount of any Monthly P&I Advance the nonpayment
of which by the Master Servicer was an Event of Default described in
clause (vi) of this Section 7.01(a), the Trustee, subject to the last
sentence of this paragraph, shall permit the Master Servicer to resume its
rights and obligations as Master Servicer hereunder. The Master Servicer
agrees that it will reimburse the Trustee for actual, necessary and
reasonable costs incurred by the Trustee because of action taken pursuant
to clause (vi) of this Section 7.01(a). The Master Servicer agrees that if
an Event of Default as described in clause (vi) of this Section 7.01(a)
shall occur more than two times in any twelve month period, the Trustee
shall be under no obligation to permit the Master Servicer to resume its
rights and obligations as Master Servicer hereunder.
(b) In case one or more of the following Events of Default by the
Company shall occur and be continuing, that is to say:
(i) Failure on the part of the Company duly to observe or perform in
any material respect any of the covenants or agreements on the part of the
Company contained in the Certificates or in this Agreement which continues
unremedied for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Company by the Trustee, or to the Company and the Trustee by the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of the REMIC II Trust Fund; or
(ii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a trustee
in bankruptcy, conservator or receiver or liquidator in any
bankruptcy, 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
Company and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iii) The Company shall consent to the appointment of a trustee in
bankruptcy, conservator or receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Company or of
or relating to all or substantially all of its property; or
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(iv) The Company shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of creditors, or voluntarily suspend
payment of its obligations;
then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the REMIC II Trust
Fund, by notice in writing to the Company and the Trustee, may direct the
Trustee in accordance with Section 10.03 to institute an action, suit or
proceeding in its own name as Trustee hereunder to enforce the Company's
obligations hereunder.
(c) In any circumstances in which this Agreement states that
Certificateholders owning Certificates evidencing a certain percentage
Percentage Interest in the REMIC II Trust Fund may take certain action,
such action shall be taken by the Trustee, but only if the requisite
percentage of Certificateholders required under this Agreement for taking
like action or giving like instruction to the Trustee under this Agreement
shall have so directed the Trustee in writing.
Section 7.02. Trustee to Act; Appointment of Successor. On and after the
time the Master Servicer receives a notice of termination pursuant to
Section 7.01, the Trustee shall be the successor in all respects to the
Master Servicer under this Agreement and under the Selling and Servicing
Contracts with respect to the Mortgage Loans in the Mortgage Pool and with
respect to 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 arising after the Master Servicer
receives such notice of termination placed on the Master Servicer by the
terms and provisions hereof and thereof, and shall have the same
limitations on liability herein granted to the Master Servicer; provided,
that the Trustee shall not under any circumstances be responsible for any
representations and warranties or any Purchase Obligation of the Company or
any liability incurred by the Master Servicer at or prior to the time the
Master Servicer was terminated as Master Servicer and the Trustee shall not
be obligated to make a Monthly P&I Advance if it is prohibited by law from
so doing. As compensation therefor, the Trustee shall be entitled to all
funds relating to the Mortgage Loans which the Master Servicer would have
been entitled to retain or to withdraw from the Certificate Account if the
Master Servicer had continued to act hereunder, except for those amounts
due to the Master Servicer as reimbursement for advances previously made or
amounts previously expended and are otherwise reimbursable hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so
act, or shall if it is unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution having a net worth of not less than $10,000,000 as the
successor to the Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Pending any such appointment, the Trustee is obligated to act in
such capacity. In connection with such appointment and assumption, the
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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, together with the
compensation to the Trustee, be in excess of that permitted 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.
Section 7.03. Notification to Certificateholders. Upon any such
termination or appointment of a successor to the Master Servicer, the
Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register.
ARTICLE VIII
Concerning the Trustee
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement. In case an Event of Default has occurred
(which has not been cured or waived) the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree
of care and skill in its exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to
determine whether they are in the form required by this Agreement;
provided, however, that the Trustee shall not be responsible for the
accuracy or content of any such certificate, statement, opinion, report, or
other order or instrument furnished by the Company or Master Servicer to
the Trustee pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the
curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement,
(ii) the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee, and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as to the
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truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement; and
(iii) The Trustee shall not be personally liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Certificateholders holding Certificates
which evidence Percentage Interests aggregating not less than 25% of
the REMIC II Trust Fund relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
relating to the exercise of any trust or power conferred upon the
Trustee under this Agreement.
(d) Within ten days after the occurrence of any Event of Default
known to the Trustee, the Trustee shall transmit by mail to the Rating
Agencies notice of each Event of Default. Within 90 days after the
occurrence of any Event of Default known to the Trustee, the Trustee shall
transmit by mail to all Certificateholders (with a copy to the Rating
Agencies) notice of each Event of Default, unless such Event of Default
shall have been cured or waived; provided, however, the Trustee shall be
protected in withholding such notice if and so long as a Responsible
Officer of the Trustee in good faith determines that the withholding of
such notice is in the best interests of the Certificateholders; and
provided, further, that in the case of any Event of Default of the
character specified in Section 7.01(i) and Section 7.01(ii) no such notice
to Certificateholders or to the Rating Agencies shall be given until at
least 30 days after the occurrence thereof.
(e) Concurrently with the execution hereof, the Trustee shall execute
and deliver to the Certificate Insurer the Insurance Agreement dated of
even date herewith and shall perform its obligations thereunder in
accordance with the terms thereof. The Trustee shall have no duty to review
or otherwise determine the adequacy of the Insurance Agreement on behalf of
the Certificateholders.
Section 8.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 8.01:
(a) The Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, 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;
(b) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(c) The Trustee shall not be personally liable for any action taken
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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;
(d) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the
Holders of Certificates (including the Certificate Insurer, with
respect to the Insured Certificates) evidencing Percentage Interests
aggregating not less than 25% of the REMIC II Trust Fund; provided,
however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security, if any,
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition
to proceeding;
(e) The Trustee may execute the trust or any of the powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys;
(f) The Trustee shall not be deemed to have knowledge or notice of
any matter, including without limitation an Event of Default, unless
actually known by a Responsible Officer, or unless written notice
thereof referencing this Agreement or the Certificates is received at
the Corporate Trust Office at the address set forth in Section 10.06;
(g) In no event shall the Trustee be held liable for acts or
omissions of the Master Servicer (excepting the Trustee's own actions
as Master Servicer). No provision of this Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder
(except for the giving of required notices), or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing the repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it; and
(h) When the Trustee is acting as Master Servicer pursuant to Section
7.02, and to the extent permitted under applicable law, the Trustee is
hereby authorized, in making or disposing of any investment permitted
hereunder, to deal with itself (in its individual capacity) or with
any one or more of its affiliates, whether it or its affiliate is
acting as an agent of the Trustee or of any third person or dealing as
principal for its own account.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans. The
recitals contained herein (other than those relating to the due
organization, power and authority of the Trustee) and in the Certificates
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(other than the execution of, and certificate of authentication on, the
Certificates) shall be taken as the statements of the Company and the
Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or
of the Certificates or any Mortgage Loan. The Trustee shall not be
accountable for the use or application by the Company of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Master Servicer, the Servicers or the
Company in respect of the Mortgage Loans or deposited into the Custodial
Accounts for P&I, any Buydown Fund Account, or the Custodial Accounts for
P&I by any Servicer or into the Investment Account, or the Certificate
Account by the Master Servicer or the Company.
Section 8.04. Trustee May Own Certificates. The Trustee or any agent or
affiliate of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Certificates with the same rights it would
have if it were not Trustee.
Section 8.05. The Master Servicer to Pay Trustee's Fees and Expenses.
Subject to any separate written agreement with the Trustee, the Master
Servicer covenants and agrees to, and the Master Servicer shall, pay the
Trustee from time to time, and the Trustee shall be entitled to payment,
for all services rendered by it in the execution of the trust hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee. Except as otherwise expressly provided herein,
the Master Servicer shall pay or reimburse the Trustee upon the Trustee's
request for all reasonable expenses and disbursements incurred or made by
the Trustee in accordance with any of the provisions of this Agreement and
indemnify the Trustee from any loss, liability or expense incurred by it
hereunder (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its
employ) except any such expense or disbursement as may arise from its
negligence or bad faith. Such obligation shall survive the termination of
this Agreement or resignation or removal of the Trustee. The Company shall,
at its expense, prepare or cause to be prepared all federal and state
income tax and franchise tax and information returns relating to the REMIC
I Trust Fund or the REMIC II Trust Fund required to be prepared or filed by
the Trustee and shall indemnify the Trustee for any liability of the
Trustee arising from any error in such returns.
Section 8.06. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be (i) an institution insured by the FDIC, (ii) a
corporation or association organized and doing business under the laws of
the United States of America or of any state, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by
federal or state authority and (iii) acceptable to the Rating Agencies. If
such corporation or association publishes reports of condition at least
annually, pursuant to law or to the requirements of any aforementioned
supervising or examining authority, then for the purposes of this Section
8.06, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
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report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07.
Section 8.07. Resignation and Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Master Servicer. Upon receiving such notice
of resignation, the Master Servicer shall promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and shall
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Master Servicer, or if at any time the Trustee
shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Master Servicer may remove the
Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee
so removed, one copy to the successor.
The Holders of Certificates evidencing Percentage Interests
aggregating more than 50% of the REMIC II Trust Fund may at any time remove
the Trustee and appoint a successor trustee by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys in-
fact duly authorized, one complete set of which instruments shall be
delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 8.08. Any expenses associated with the
resignation of the Trustee shall be borne by the Trustee, and any expenses
associated with the removal of the Trustee shall be borne by the Master
Servicer.
Section 8.08. Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Master Servicer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee herein. The
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predecessor shall deliver to the successor trustee all Mortgage Files,
related documents, statements and all other property held by it hereunder,
and the Master Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the
successor trustee all such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such appointment such successor trustee
shall be eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Master Servicer shall mail notice of the succession
of such trustee hereunder to (i) all Certificateholders at their addresses
as shown in the Certificate Register, (ii) the Certificate Insurer and
(iii) the Rating Agencies. If the Master Servicer fails to mail such notice
within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed.
Section 8.09. Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such resulting or
successor corporation shall be eligible under the provisions of Section
8.06, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of
the REMIC I Trust Fund or the REMIC II Trust Fund may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all
or any part of the REMIC I Trust Fund or the REMIC II Trust Fund and to
vest in such Person or Persons, in such capacity, such title to the REMIC I
Trust Fund or the REMIC II Trust Fund, or any part thereof, and, subject to
the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Trustee may
consider necessary or desirable; provided, that the Trustee shall remain
liable for all of its obligations and duties under this Agreement. If the
Master Servicer shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Event of
Default shall have occurred and be continuing, the Trustee alone shall have
the power to make such appointment; provided, that the Trustee shall remain
liable for all of its obligations and duties under this Agreement. No co-
trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under Section 8.06 hereunder and no
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notice to Certificateholders of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or co-
trustee jointly and severally, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed by
the Trustee (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the REMIC I Trust Fund or
the REMIC II Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at
the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustee(s) and co-
trustee(s), as effectively as if given to each of them. Every instrument
appointing any separate trustee(s) or co-trustee(s) shall refer to this
Agreement and the conditions of this Article VIII. 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.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and the trust shall vest in
and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 8.11. Authenticating Agents. The Trustee may appoint one or more
Authenticating Agents which shall be authorized to act on behalf of the
Trustee in authenticating Certificates. 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 acceptable to the
Master Servicer and must be a corporation, trust company or banking
association organized and doing business under the laws of the United
States of America or of any state, having a principal office and place of
business in New York, New York or a principal office and place of business
in Boston, Massachusetts and a place of business in New York, New York,
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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.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent so long as it shall be eligible in accordance with
the provisions of the first paragraph of this Section 8.11 without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Master Servicer. The
Trustee may, upon prior written approval of the Master Servicer, at any
time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Master
Servicer. 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 the first paragraph of
this Section 8.11, the Trustee may appoint, upon prior written approval of
the Master Servicer, a successor Authenticating Agent, shall give written
notice of such appointment to the Master Servicer and shall mail notice of
such appointment to all Certificateholders. 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.
Any reasonable compensation paid to an Authenticating Agent shall be a
reimbursable expense pursuant to Section 8.05 if paid by the Trustee.
Section 8.12. Paying Agents. The Trustee may appoint one or more Paying
Agents which shall be authorized to act on behalf of the Trustee in making
withdrawals from the Certificate Account, and distributions to
Certificateholders as provided in Section 4.01, Section 4.04(a) and Section
9.01(b) to the extent directed to do so by the Master Servicer. Wherever
reference is made in this Agreement to the withdrawal from the Certificate
Account by the Trustee, such reference shall be deemed to include such a
withdrawal on behalf of the Trustee by a Paying Agent. Whenever reference
is made in this Agreement to a distribution by the Trustee or the
furnishing of a statement to Certificateholders by the Trustee, such
reference shall be deemed to include such a distribution or furnishing on
behalf of the Trustee by a Paying Agent. Each Paying Agent shall provide to
the Trustee such information concerning the Certificate Account as the
Trustee shall request from time to time. Each Paying Agent must be
reasonably acceptable to the Master Servicer and must be a corporation,
trust company or banking association organized and doing business under the
laws of the United States of America or of any state, having a principal
office and place of business in New York, New York or a principal office
and place of business in Boston, Massachusetts and a place of business in
New York, New York, having a combined capital and surplus of at least
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$15,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities.
Any corporation into which any Paying Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which any Paying Agent shall be a
party, or any corporation succeeding to the corporate agency business of
any Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion,
consolidation or succession meets the eligibility requirements of this
Section 8.12.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Master Servicer; provided, that the
Paying Agent has returned to the Certificate Account or otherwise
accounted, to the reasonable satisfaction of the Master Servicer, for all
amounts it has withdrawn from the Certificate Account. The Trustee may,
upon prior written approval of the Master Servicer, at any time terminate
the agency of any Paying Agent by giving written notice of termination to
such Paying Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any Paying
Agent shall cease to be eligible in accordance with the provisions of the
first paragraph of this Section 8.12, the Trustee may appoint, upon prior
written approval of the Master Servicer, a successor Paying Agent, shall
give written notice of such appointment to the Master Servicer and shall
mail notice of such appointment to all Certificateholders. Any successor
Paying 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 Paying
Agent. Any reasonable compensation paid to any Paying Agent shall be a
reimbursable expense pursuant to Section 8.05 if paid by the Trustee.
ARTICLE IX
Termination
Section 9.01. Termination Upon Repurchase by the Company or Liquidation of
All Mortgage Loans.
(a) Except as otherwise set forth in this Article IX, including,
without limitation, the obligation of the Master Servicer to make payments
to Certificateholders as hereafter set forth, the respective obligations
and responsibilities of the Company, the Master Servicer and the Trustee
created hereby shall terminate upon (i) the purchase or repurchase by the
Company pursuant to the following paragraph of this Section 9.01(a) of all
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund at a price equal, after the deduction of
related advances, to the sum of (x) the excess of (A) 100% of the aggregate
outstanding Principal Balance of such Mortgage Loans (other than Liquidated
Mortgage Loans) plus accrued interest at the applicable Pass-Through Rate
with respect to such Mortgage Loan (other than a Liquidated Mortgage Loan)
through the last day of the month of such purchase or repurchase, over (B)
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with respect to any Mortgage Loan which is not a Liquidated Mortgage Loan,
the amount of the Bankruptcy Loss incurred with respect to such Mortgage
Loan as of the date of such purchase or repurchase by the Company to the
extent that the Principal Balance of such Mortgage Loan has not been
previously reduced by such Bankruptcy Loss, and (y) the appraised fair
market value as of the effective date of the termination of the trust
created hereby of (A) all property in the Trust Fund which secured a
Mortgage Loan and which was acquired by foreclosure or deed in lieu of
foreclosure after the Cut-Off Date, including related Insurance Proceeds,
and (B) all other property in the Trust Fund, any such appraisal to be
conducted by an appraiser mutually agreed upon by the Company and the
Trustee, or (ii) the later of the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in
the Trust Fund or the disposition of all property acquired upon foreclosure
in respect of any Mortgage Loan, and the payment to the Certificateholders
and the Certificate Insurer of all amounts required to be paid to them
hereunder; provided, however, that in no event shall the trusts created
hereby continue beyond the expiration of 21 years from the death of the
survivor of the issue of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
On any Distribution Date after the first date on which the aggregate
Principal Balance of the Mortgage Loans is less than the Clean-Up Call
Percentage of the aggregate Principal Balance of the Mortgage Loans as of
the Cut-Off Date, the Company may purchase or repurchase the outstanding
Mortgage Loans and any Mortgaged Properties acquired by the Trust Fund at
the price stated in clause (i) of the preceding paragraph. If such right is
exercised, the Company shall provide to the Trustee and to the Certificate
Insurer (and to the Master Servicer, if the Company is no longer acting as
Master Servicer) the written certification of an officer of the Company
(which certification shall include a statement to the effect that all
amounts required to be paid in order to purchase or repurchase the Mortgage
Loans have been deposited in the Certificate Account) and the Trustee shall
promptly execute all instruments as may be necessary to release and assign
to the Company the Mortgage Files and any foreclosed Mortgaged Property
pertaining to the Trust Fund.
In no event shall the Company be required to expend any amounts other
than those described in the first paragraph of this Section 9.01(a) in
order to terminate the Trust Fund or purchase or repurchase the Mortgage
Loans under this Section 9.01.
(b) Notice of any termination, specifying the date upon which the
Certificateholders may surrender their Certificates to the Trustee for
payment and cancellation, shall be given promptly by letter from the
Trustee to Certificateholders mailed not less than 30 days prior to such
final distribution, specifying (i) the date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates
at the office of the Certificate Registrar therein designated (the
"Termination Date"), (ii) the amount of such final payment (the
"Termination Payment") and (iii) that the Record Date otherwise applicable
to the Distribution Date upon which the Termination Date occurs is not
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applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Registrar therein specified.
Upon any such notice, the Certificate Account shall terminate subject to
the Master Servicer's obligation to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the Termination
Date, the Company shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and
receive the Termination Payment with respect thereto. If within one year
after the second notice all the Certificates shall not have been
surrendered for cancellation, the Company may take appropriate steps to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain in trust hereunder.
Section 9.02. Additional Termination Requirements.
(a) In the event the Company exercises its purchase option as
provided in Section 9.01, the REMIC I Trust Fund and the REMIC II Trust
Fund shall be terminated in accordance with the following additional
requirements, unless the Company, at its own expense, obtains for the
Trustee and the Certificate Insurer an Opinion of Counsel to the effect
that the failure of the REMIC I Trust Fund and REMIC II Trust Fund to
comply with the requirements of this Section 9.02 will not (i) result in
the imposition of taxes on "prohibited transactions" of the REMIC I Trust
Fund and the REMIC II Trust Fund as described in Section 860F of the Code,
or (ii) cause the REMIC I Trust Fund or the REMIC II Trust Fund to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
Within 90 days prior to the final Distribution Date set forth in
the notice given by the Trustee under Section 9.01, the Tax Matters
Person shall prepare the documentation required and the Tax Matters
Person and the Trustee shall adopt a plan of complete liquidation on
behalf of the REMIC I Trust Fund and the REMIC II Trust Fund meeting
the requirements of a qualified liquidation under Section 860F of the
Code and any regulations thereunder, as evidenced by an Opinion of
Counsel obtained at the expense of the Company, on behalf of the REMIC
I Trust Fund and the REMIC II Trust Fund; and
At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Master
Servicer as agent of the Trustee shall sell all of the assets of the
REMIC I Trust Fund and the REMIC II Trust Fund to the Company for cash
in the amount specified in Section 9.01.
(b) By its acceptance of any Residual Certificate, the Holder thereof
hereby agrees to authorize the Tax Matters Person and the Trustee to adopt
such a plan of complete liquidation upon the written request of the Tax
Matters Person and the Trustee and to take such other action in connection
therewith as may be reasonably requested by the Tax Matters Person or the
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Trustee.
Section 9.03. Trusts Irrevocable. Except as expressly provided herein, the
trusts created hereby are irrevocable.
ARTICLE X
Miscellaneous Provisions
Section 10.01. Amendment.
(a) This Agreement may be amended from time to time by the Master
Servicer, the Company and the Trustee, without the consent of any of the
Certificateholders, but with the prior written consent of the Certificate
Insurer with respect to any amendment that adversely affects the interests
of any of the Holders of the Insured Certificates: (i) to cure any
ambiguity; (ii) to correct or supplement any provision herein which may be
defective or inconsistent with any other provisions herein; (iii) to comply
with any requirements imposed by the Code or any regulations thereunder;
(iv) to correct the description of any property at any time included in the
REMIC I Trust Fund or the REMIC II Trust Fund, or to assure the conveyance
to the Trustee of any property included in the REMIC I Trust Fund or the
REMIC II Trust Fund; and (v) pursuant to Section 5.01(c)(v). No such
amendment (other than one entered into pursuant to clause (iii) of the
preceding sentence) shall adversely affect in any material respect the
interest of any Certificateholder. Prior to entering into any amendment
without the consent of Certificateholders pursuant to this paragraph, the
Trustee may require an Opinion of Counsel to the effect that such amendment
is permitted under this paragraph. The placement of an "original issue
discount" legend on, or any change required to correct any such legend
previously placed on a Certificate shall not be deemed any amendment to
this Agreement.
(b) This Agreement may also be amended from time to time by the
Master Servicer, the Company and the Trustee with the consent of the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 66% of the REMIC II Trust Fund 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 Certificateholders; provided, however, that no such amendment shall,
without the consent of the Holder of each Certificate affected thereby (i)
reduce in any manner the amount of, or delay the timing of, distributions
of principal or interest required to be made hereunder or reduce the
Certificateholder's Percentage Interest, the Certificate Interest Rate or
the Termination Payment with respect to any of the Certificates, (ii)
reduce the percentage of Percentage Interests specified in this Section
10.01 which are required to amend this Agreement, (iii) create or permit
the creation of any lien against any part of the REMIC I Trust Fund or the
REMIC II Trust Fund, or (iv) modify any provision in any way which would
permit an earlier retirement of the Certificates.
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Promptly after the execution of any such amendment, the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder. Any failure to provide such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of
any such amendment.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Section 10.02. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or the
comparable jurisdictions in which any Mortgaged Property is situated, and
in any other appropriate public recording office or elsewhere, such
recordation to be effected by the Company and at its expense on direction
by the Trustee, but only upon direction accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders. Without limiting the
foregoing, the Trustee shall make the filings required by Chapter 182 of
the Massachusetts General Laws.
Section 10.03. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement, the REMIC I Trust Fund or the REMIC II Trust Fund, nor entitle
such Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition
or winding-up of the REMIC I Trust Fund or the REMIC II Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote or in any manner
otherwise to control the operation and management of the REMIC I Trust Fund
or the REMIC II Trust Fund or the obligations of the parties hereto (except
as provided in Section 5.09, Section 7.01, Section 8.01, Section 8.02,
Section 8.07, Section 10.01 and this Section 10.03), 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.
No 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
default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of the REMIC II Trust Fund shall have made
124
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 costs,
expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action,
suit or proceeding. However, the Trustee is under no obligation to exercise
any of the extraordinary trusts or powers vested in it by this Agreement or
to make any investigation of matters arising hereunder or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders unless such
Certificateholders have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby. It is understood and intended, and expressly covenanted
by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right
in any manner whatever by virtue or by availing 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 equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 10.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
For so long as no Certificate Insurer Default exists (and whether or
not any payments with respect to Deficiency Amounts or Preference Amounts
have been made), the Certificate Insurer shall be deemed to be the sole
Holder of all outstanding Insured Certificates with respect to any rights
hereunder (other than the right to receive distributions on such Insured
Certificates, except as provided in Section 3.21); provided that such
rights may not be used to reduce the rights of the Holders of the Insured
Certificates to receive distributions or to otherwise impair their rights
under this Agreement as further described in the definition of
"Certificateholder."
Section 10.04. Access to List of Certificateholders. The Certificate
Registrar shall furnish or cause to be furnished to the Trustee, within 30
days after receipt of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Certificateholders as of the most recent Record Date for payment of
distributions to such Certificateholders.
If three or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states
that the applicants desire to communicate with other Certificateholders
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 list from the Certificate Registrar, afford such
applicants access during normal business hours to the most recent list of
125
Certificateholders held by the Trustee. If such a list is as of a date more
than 90 days prior to the date of receipt of such applicants' request, the
Trustee shall promptly request from the Certificate Registrar a current
list as provided above, and shall afford such applicants access to such
list promptly upon receipt.
Every Certificateholder, by receiving and holding the same, agrees
with the Master Servicer and the Trustee that neither the Master Servicer
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 10.05. 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 giving effect to conflict of laws
principles.
Section 10.06. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered or certified mail to the
applicable Notice Address. Notices to the Rating Agencies shall also be
deemed to have been duly given if mailed by first class mail, postage
prepaid, to the above listed addresses of the Rating Agencies. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown
in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 10.07. 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 10.08. Counterpart Signatures. For the purpose of facilitating the
recordation of this Agreement as herein provided and for other purposes,
this Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same instrument.
Section 10.09. Benefits of Agreement. Nothing in this Agreement or in any
Certificate, expressed or implied, shall give to any Person, other than the
parties hereto and their respective successors hereunder, any separate
trustee or co-trustee appointed under Section 8.10 and the
Certificateholders, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
126
Section 10.10. Notices and Copies to Rating Agencies.
(a) The Trustee shall notify the Rating Agencies of the occurrence of
any of the following events, in the manner provided in Section 10.06:
the occurrence of an Event of Default pursuant to Section 7.01,
subject to the provisions of Section 8.01(d);
the appointment of a successor Master Servicer pursuant to
Section 7.02;
(b) The Master Servicer shall notify the Rating Agencies of the
occurrence of any of the following events, or in the case of clauses (iii),
(iv), (vii) and (viii) promptly upon receiving notice thereof, in the
manner provided in Section 10.06:
(i) any amendment of this Agreement pursuant to Section 10.01;
(ii) the appointment of a successor Trustee pursuant to Section 8.08;
(iii) the filing of any claim under or the cancellation or modifica-
tion of any fidelity bond and errors and omissions coverage pursuant to
Section 3.01 and Section 3.06 with respect to the Master Servicer or
any Servicer;
(iv) any change in the location of the Certificate Account, any
Custodial Account for P&I or any Custodial Account for Reserves;
(v) the purchase or repurchase of any Mortgage Loan pursuant to a
Purchase Obligation or as permitted by this Agreement or the purchase
or repurchase of the outstanding Mortgage Loans pursuant to Section
9.01;
(vi) the occurrence of the final Distribution Date or the termination
of the trust pursuant to Section 9.01(a)(ii);
(vii) the failure of the Master Servicer to make a Monthly P&I Advance
following a determination on the Determination Date that the Master
Servicer would make such advance pursuant to Section 4.02; and
(viii) the failure of the Master Servicer to make a determination on
the Determination Date regarding whether it would make a Monthly P&I
Advance when a shortfall exists between (x) payments scheduled to be
received in respect of the Mortgage Loans and (y) the amounts actually
deposited in the Certificate Account on account of such payments,
pursuant to Section 4.02.
The Master Servicer shall provide copies of the statements pursuant to
Section 4.02, Section 4.05, Section 3.12, Section 3.13 or Section 3.15 or
any other statements or reports to the Rating Agencies (with a copy to the
Certificate Insurer) in such time and manner that such statements or
determinations are required to be provided to Certificateholders. With
127
respect to the reports described in the second paragraph of Section 4.05,
the Master Servicer shall provide such reports to the Rating Agencies (with
a copy to the Certificate Insurer) in respect of each Distribution Date,
without regard to whether any Certificateholder or the Trustee has
requested such report for such Distribution Date.
128
IN WITNESS WHEREOF, the Company and the Trustee have caused their
names to be signed hereto by their respective officers, thereunto duly
authorized, and their respective seals, duly attested, to be hereunto
affixed, all as of the day and year first above written.
PNC MORTGAGE SECURITIES CORP.
By:_______________________________________
Its:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:_______________________________________
Its:
000
XXXXXXXXXXXXXXX XX XXXXXXXXXXX
XXXXX XX XXXXXXXX )
) SS.
COUNTY OF LAKE )
On this 28th day of September 2000 before me, a Notary Public in and
for said State, personally appeared Xxxxxxx X. Xxxxxx, known to me to be
the Vice President of PNC MORTGAGE SECURITIES CORP., one of the
corporations that executed the within instrument, and also known to me to
be the person who executed it on behalf of said Corporation, and
acknowledged to me that such corporation executed the within instrument
pursuant to its By-Laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in the certificate first above written.
/s/Xxxxx X. Xxxxxx
-------------------
Notary Public
(SEAL)
130
CERTIFICATE OF ACKNOWLEDGEMENT
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
On this 28th day of September 2000 before me, a Notary Public in and
for said State, personally appeared Xxxxx Xxxxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument
that the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature /s/Xxxxxxxxx Xxxxxx (SEAL)
-------------------
131
Exhibit A
CUSIP 69348R ZP4
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-1
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 28, 2000.
Unless this Certificate is presented by an authorized representative of The
132
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
Series 2000-6 Portion of the Class A-1 Principal
Balance as of the Cut-Off Date
Evidenced by this Certificate:
$135,000,000.00
Class A-1 Certificate Interest Rate: 7.750%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class A-1 Principal Balance
as of the Cut-Off Date: $135,000,000.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R ZQ2
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-2
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 28, 2000.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
133
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
Series 2000-6 Portion of the Class A-2 Principal
Balance as of the Cut-Off Date
Evidenced by this Certificate:
$13,197,000.00
Class A-2 Certificate Interest Rate: 7.750%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class A-2 Principal Balance
as of the Cut-Off Date: $13,197,000.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R ZR0
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-3
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 28, 2000.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
134
Certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
Series 2000-6 Portion of the Class A-3 Principal
Balance as of the Cut-Off Date
Evidenced by this Certificate:
$24,000,000.00
Class A-3 Certificate Interest Rate: 7.300%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class A-3 Principal Balance
as of the Cut-Off Date: $24,000,000.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R ZS 8
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-4
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 28, 2000.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or such other
135
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
Series 2000-6 Portion of the Class A-4 Principal
Balance as of the Cut-Off Date
Evidenced by this Certificate:
$20,362,661.00
Class A-4 Certificate Interest Rate: 7.750%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class A-4 Principal Balance
as of the Cut-Off Date: $20,362,661.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R ZT6
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-5
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 28, 2000.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
136
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
Series 2000-6 Portion of the Class A-5 Notional Amount
as of the Cut-Off Date Evidenced by this
Certificate: $1,230,000.00
Class A-5 Certificate Interest Rate:
8.000% applied to the Class A-5 Notional Amount
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class A-5 Principal Balance as of the Cut-Off Date: $0.00
Class A-5 Notional Amount as of the Cut-Off Date: $1,230,000.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R ZU3
MORTGAGE PASS-THROUGH CERTIFICATE
Class X
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 28, 2000.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
137
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
Series 2000-6 Portion of the Class X Notional Amount
as of the Cut-Off Date Evidenced by this
Certificate: $3,453,415.00
Class X Certificate Interest Rate:
7.750% applied to the Class X Notional
Amount
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class X Principal Balance as of the Cut-Off Date: $0.00
Class X Notional Amount as of the Cut-Off Date: $3,453,415.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R ZV1
MORTGAGE PASS-THROUGH CERTIFICATE
Class P
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 28, 2000.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
138
registered owner hereof, Cede & Co., has an interest herein.
Series 2000-6 Portion of the Class P Principal Balance as
of the Cut-Off Date Evidenced by this
Certificate: $378,022.00
Class P Certificate Interest Rate: 0.00%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class P Principal Balance as of the Cut-Off Date: $378,022.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R ZW9
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-1
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 28,
2000.
IN THE CASE OF ANY CLASS B-1 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-1 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
The Class B-1 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
139
the Pooling Agreement.
Series 2000-6 Portion of the Class B-1 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$_________________________________
Class B-1 Certificate Interest Rate: 7.750%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class B-1 Principal Balance
as of the Cut-Off Date: $4,988,892.00
_____________________
Registered Owner
Certificate No. _________
Exhibit A
CUSIP 69348R ZX7
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-2
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 28,
2000.
IN THE CASE OF ANY CLASS B-2 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-2 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
The Class B-2 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-6 Portion of the Class B-2 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
140
$_________________________________
Class B-2 Certificate Interest Rate: 7.750%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class B-2 Principal Balance
as of the Cut-Off Date: $2,341,726.00
_____________________
Registered Owner
Certificate No. _________
Exhibit A
CUSIP 69348R ZY5
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-3
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 28,
2000.
IN THE CASE OF ANY CLASS B-3 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-3 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
The Class B-3 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-6 Portion of the Class B-3 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$_________________________________
Class B-3 Certificate Interest Rate: 7.750%
141
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class B-3 Principal Balance
as of the Cut-Off Date: $1,323,584.00
_____________________
Registered Owner
Certificate No. _________
Exhibit A
CUSIP 69348R A30
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-4
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 28,
2000.
IN THE CASE OF ANY CLASS B-4 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-4 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e)
OF THE POOLING AGREEMENT.
The Class B-4 Certificates will be subordinate in right of payment to and
142
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-6 Portion of the Class B-4 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$916,327.00
Class B-4 Certificate Interest Rate: 7.750%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class B-4 Principal Balance
as of the Cut-Off Date: $916,327.00
_____________________
Registered Owner
Exhibit A
CUSIP 69348R A48
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-5
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 28,
2000.
IN THE CASE OF ANY CLASS B-5 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-5 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
143
REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e)
OF THE POOLING AGREEMENT.
The Class B-5 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-6 Portion of the Class B-5 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$509,071.00
Class B-5 Certificate Interest Rate: 7.750%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class B-5 Principal Balance
as of the Cut-Off Date: $509,071.00
_____________________
Registered Owner
Exhibit A
CUSIP 69348R A55
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-6
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another trust fund whose assets consists of, among other
things, a pool of conventional one- to four-family mortgage loans formed
and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 28,
2000.
IN THE CASE OF ANY CLASS B-6 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-6 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
144
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e)
OF THE POOLING AGREEMENT.
The Class B-6 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-6 Portion of the Class B-6 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$610,884.87
Class B-6 Certificate Interest Rate: 7.750%
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class B-6 Principal Balance
as of the Cut-Off Date: $610,884.87
_____________________
Registered Owner
Exhibit A
CUSIP 69348R A22
MORTGAGE PASS-THROUGH CERTIFICATE
Class R-2
Evidencing a Percentage Interest in certain distributions with respect to a
pool of conventional one- to four-family mortgage loans formed and
administered by
PNC MORTGAGE SECURITIES CORP.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
COMPANY AND THE CERTIFICATE REGISTRAR THAT (1) SUCH TRANSFEREE IS NOT
EITHER (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF,
ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE
TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO
THE TAX IMPOSED BY SECTION 511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED
IN SECTION 1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFER
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE
145
CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-2 CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-2 CERTIFICATE
BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
IN THE CASE OF ANY CLASS R-2 CERTIFICATE PRESENTED FOR REGISTRATION IN THE
NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE AN OPINION OF COUNSEL
ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE
COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A CLASS R-2
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE MASTER
SERVICER, THE REMIC I TRUST FUND, THE REMIC II TRUST FUND OR THE COMPANY.
Solely for U.S. federal income tax purposes, this Certificate represents a
"residual interest" in a "real estate mortgage investment conduit," as
those terms are defined in Sections 860G and 860D, respectively, of the
Internal Revenue Code of 1986, as amended.
Series 2000-6 Percentage Interest evidenced by this
Class R-2 Certificate in the
distributions to be made with respect to
the Class R-2 Certificates:
%
Class R-2 Certificate Interest Rate:
7.750%. Additionally the Class R-2
Certificates are entitled to the Residual
Distribution Amount as defined in the
Pooling Agreement.
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class R-2 Principal Balance as of the Cut-Off Date: $50.00
__________________
Registered Owner
Certificate No. _________
Exhibit B
146
CUSIP 69348R ZZ2
MORTGAGE PASS-THROUGH CERTIFICATE
Class R-1
Evidencing a Percentage Interest in certain distributions with respect to a
pool of conventional one- to four-family mortgage loans formed and
administered by
PNC MORTGAGE SECURITIES CORP.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
COMPANY AND THE CERTIFICATE REGISTRAR THAT (1) SUCH TRANSFEREE IS NOT
EITHER (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF,
ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE
TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO
THE TAX IMPOSED BY SECTION 511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED
IN SECTION 1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFER
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE
CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-1 CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-1 CERTIFICATE
BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
IN THE CASE OF ANY CLASS R-1 CERTIFICATE PRESENTED FOR REGISTRATION IN THE
NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE AN OPINION OF COUNSEL
ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE
COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A CLASS R-1
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE MASTER
SERVICER, THE REMIC I TRUST FUND, THE REMIC II TRUST FUND OR THE COMPANY.
Solely for U.S. federal income tax purposes, this Certificate represents a
147
"residual interest" in a "real estate mortgage investment conduit," as
those terms are defined in Sections 860G and 860D, respectively, of the
Internal Revenue Code of 1986, as amended.
Series 2000-6 Percentage Interest evidenced by this
Class R-1 Certificate in the
distributions to be made with respect to
the Class R-1 Certificates:
%
Class R-1 Certificate Interest Rate:
7.750%. Additionally the Class R-1
Certificates are entitled to Excess
Liquidation Proceeds and the Residual
Distribution Amount as defined in the
Pooling Agreement.
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: October 25, 2030
Class R-1 Principal Balance as of the Cut-Off Date: $50.00
__________________
Registered Owner
Certificate No. _________
This Certificate does not represent an obligation of or interest in
PNC Mortgage Securities Corp. or any of its affiliates, including PNC Bank
Corp. Neither this Certificate nor the underlying Mortgage Loans are
guaranteed by any agency or instrumentality of the United States.
This certifies that the above-named Registered Owner is the registered
owner of certain interests in a trust fund (the "REMIC I Trust Fund") whose
assets consist of, among other things, a pool (the "Mortgage Pool") of
conventional one- to four-family mortgage loans (the "Mortgage Loans"),
formed and administered by PNC Mortgage Securities Corp. (the "Company"),
which term includes any successor entity under the Pooling Agreement
referred to below. The Mortgage Pool was created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-Off Date stated above (the
"Pooling Agreement"), between the Company and State Street Bank and Trust
Company, as Trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling Agreement. Nothing herein shall be deemed inconsistent with such
meanings, and in the event of any conflict between the Pooling Agreement
and the terms of this Certificate, the Pooling Agreement shall control.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling Agreement, to which Pooling Agreement the
Holder of this Certificate, by virtue of the acceptance hereof, assents and
by which such Holder is bound.
Distributions will be made, pursuant to the Pooling Agreement, on the
25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name
148
this Certificate is registered at the close of business on the last day (or
if such last day is not a Business Day, the Business Day immediately
preceding such last day) of the month immediately preceding the month of
such distribution (the "Record Date"), to the extent of such
Certificateholder's Percentage Interest represented by this Certificate in
the portion of the REMIC I Available Distribution Amount for such
Distribution Date then distributable on the Certificates of this Class, as
specified in Section 4.01 of the Pooling Agreement.
Distributions on this Certificate will be made by the Trustee by wire
transfer or check mailed to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate
to the Certificate Registrar.
Reference is hereby made to the further provisions of this Certificate
set forth below, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Certificate shall
not be entitled to any benefit under the Pooling Agreement or be valid for
any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:
------------------------------
(TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Certificates referred to in the within-
mentioned Pooling Agreement.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
-----------------------
Dated:
149
PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATE
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series and Class
specified hereon (herein called the "Certificates") and representing
certain interests in the REMIC I Trust Fund.
The Certificates do not represent an obligation of, or an interest in,
the Company or any of its affiliates and are not insured or guaranteed by
any governmental agency. The Certificates are limited in right of payment
to certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth herein and in the Pooling Agreement. In the
event funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer from the related recoveries on such
Mortgage Loan or from other cash deposited in the Certificate Account to
the extent that such advance is not otherwise recoverable.
As provided in the Pooling Agreement, withdrawals from the Certificate
Account may be made from time to time for purposes other than distributions
to Certificateholders, such purposes including reimbursement to the Master
Servicer of advances made, or certain expenses incurred, by it.
The Pooling Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under
the Pooling Agreement at any time by the Company, the Master Servicer and
the Trustee with the consent of the Holders of the Certificates evidencing
Percentage Interests aggregating not less than 66% of the REMIC II Trust
Fund. The Pooling Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices of the Certificate Registrar or
the office maintained by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or
other written instrument of transfer in form satisfactory to the Trustee or
any Authenticating Agent duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of Authorized Denominations evidencing the same Percentage
Interest set forth hereinabove will be issued to the designated transferee
or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Authorized Denominations specified in the Pooling Agreement. As
provided in the Pooling Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
Authorized Denominations evidencing the same aggregate interest in the
portion of the REMIC I Available Distribution Amount distributable on this
150
Class of Certificate, as requested by the Holder surrendering the same.
A reasonable service charge may be made for any such registration of
transfer or exchange, and the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Company, the Trustee and the Certificate Registrar and any agent
of the Company, the Trustee or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Company, the Trustee, the Certificate
Registrar nor any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the trust funds
created thereby shall terminate upon (i) the later of the maturity or other
liquidation (including repurchase by the Company) of the last Mortgage Loan
remaining in the REMIC I Trust Fund or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage
Loan, and (ii) the payment to Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Pooling Agreement.
In the event that the Company repurchases any Mortgage Loan pursuant to the
Pooling Agreement, the Pooling Agreement generally requires that the
Trustee distribute to the Certificateholders in the aggregate an amount
equal to 100% of the unpaid Principal Balance of such Mortgage Loan, plus
unpaid accrued interest thereon at the applicable Pass-Through Rate to the
last day of the month in which such repurchase occurs. The Pooling
Agreement permits, but does not require, the Company to repurchase from the
REMIC I Trust Fund all Mortgage Loans at the time subject thereto and all
property acquired in respect of any Mortgage Loan upon payment to the
Certificateholders of the amounts specified in the Pooling Agreement. The
exercise of such right will effect early retirement of the Certificates,
the Company's right to repurchase being subject to the aggregate Principal
Balance of the Mortgage Loans at the time of repurchase being less than ten
percent (10%) of the aggregate Principal Balance of the Mortgage Loans as
of the Cut-Off Date.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and
transfer(s) unto
(Please print or typewrite name and address, including postal zip code of
assignee. Please insert social security or other identifying number of
assignee.)
the within Mortgage Pass-Through Certificate and hereby irrevocably
constitutes and appoints
Attorney to transfer said Certificate on the Certificate Register, with
full power of substitution in the premises.
151
Dated:
Signature Guaranteed
NOTICE:The signature to this assignment must
correspond with the name as written upon the
face of the within instrument in every
particular, without alteration or enlargement
or any change whatever. This Certificate does
not represent an obligation of or an interest
in PNC Mortgage Securities Corp. or any of its
affiliates, including PNC Bank Corp. Neither
this Certificate nor the underlying Mortgage
Loans are guaranteed by any agency or
instrumentality of the United States.
Exhibit C
[Reserved]
Exhibit D
Mortgage Loan Schedule
Copies of the Mortgage Loan Schedules (which have been intentionally
omitted from this filing) may be obtained from PNC Mortgage Securities
Corp. or State Street Bank and Trust Company by contacting,
in the case of PNC Mortgage Securities Corp.,
Xxxxxx Xxxxx
Master Servicing Department
PNC Mortgage Securities Corp.
00 X. Xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
in the case of State Street Bank and Trust Company,
Xxxxx Xxxxxx
Global Investor Services Group
Corporate Trust
State Street Bank and Trust Company
0 Xxxxxx Xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
152
Facsimile: (000) 000-0000
Exhibit E
SELLING AND SERVICING
CONTRACT
This Selling and Servicing Contract (this "Agreement") is made and entered
into by PNC Mortgage Securities Corp. and its successors and assigns ("PNC
Mortgage") and the entity identified below and its successors and assigns
(the "Company").
WITNESSETH:
WHEREAS, this Company wishes to sell first lien residential mortgage
loans to, and service first lien residential mortgage loans on behalf of,
PNC Mortgage; and
WHEREAS, the Company has submitted a Seller Application to PNC
Mortgage and has been approved by PNC Mortgage for participation in the PNC
Mortgage Purchase Programs; and
WHEREAS, the Company has received and reviewed the PNC Mortgage
Purchase Programs Seller Guide (the "Seller Guide"), as well as the PNC
Mortgage Servicing Guide (the "Servicing Guide" and, together with the
Seller Guide, the "Guides"), and understands each and every provision
thereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, PNC Mortgage and the Company hereby agree as
follows:
1. Guides. The Guides, which set forth the terms and conditions
under which PNC Mortgage may elect to purchase mortgage loans from the
Company, and the Company shall service mortgage loans on behalf of PNC
Mortgage, are a supplement to this Agreement and such Guides, as may be
amended or supplemented from time to time by PNC Mortgage, are incorporated
into this Agreement in full by reference and made a part hereof as fully as
if set forth at length herein. All capitalized terms used and not defined
herein have the meanings ascribed to them in the Guides.
2. Company's Duties. The Company shall diligently perform all
duties incident to the origination, sale and servicing of the mortgage
loans subject to this Agreement. In the performance of its servicing
duties, the Company shall exercise the same degree of care it exercises
when servicing mortgage loans for its own account, but in no event shall
the Company exercise less care than a reasonable prudent servicer would
153
exercise under similar circumstances. In addition, the Company shall
comply with all of the provisions of the Guides and with all other
requirements and instructions of PNC Mortgage. The Company shall perform
such duties at its sole expense, except as otherwise expressly provided in
the Guides.
3. Representations, Warranties and Covenants of the Company;
Remedies of PNC Mortgage. With respect to each mortgage loan sold by the
Company to PNC Mortgage pursuant to the terms of this Agreement, the
Company shall make all of the representations, warranties and covenants set
forth in the Guide and, in the event of the breach of any of such
representations, warranties and covenants, PNC Mortgage shall have all of
the remedies available at law or in equity, as well as all of the remedies
set forth in the Guide, including, but not limited to, repurchase and
indemnification. The representations and warranties made by the Company
with respect to any mortgage loan subject to this Agreement, as well as the
remedies available to PNC Mortgage upon the breach thereof, shall survive:
(a) any investigation regarding the mortgage loan conducted by PNC
Mortgage, its assignees or designees, (b) the liquidation of the mortgage
loan, (c) the purchase of the mortgage loan by PNC Mortgage, its assignee
or designee, (d) the repurchase of the mortgage loan by the Company and (e)
the termination of this Agreement.
4. Compensation. The Company shall be compensated for its services
hereunder as specified in the Guides.
5. No Assignment. This Agreement may not be assigned by the Company
without the prior written consent of PNC Mortgage. The Company hereby
consents to the assignment by PNC Mortgage of all or any part of its rights
and obligations under this Agreement to any affiliate designated by PNC
Mortgage. Any other transfer by PNC Mortgage will be allowed and be
effective upon written notice by PNC Mortgage to the Company.
6. Prior Agreements. This Agreement supersedes any prior agreements
and understandings between PNC Mortgage and the Company governing the
subject matter hereof; provided, however, the Company shall not be released
from any responsibility or liability that may have arisen under such
agreements and understanding.
7. Effective Date of Agreement. This Agreement is not effective
until it is executed and accepted by PNC Mortgage at its home office in
Illinois.
8. Notices. All notices, requests, demands or other communications
that are to be given under this Agreement shall be in writing, addressed to
the appropriate parties, and shall be sent by certified mail, return
receipt requested, postage prepaid, if to the Company, at the address below
and, if to PNC Mortgage, to the appropriate address or facsimile number
specified in the Guides. Any such notice, request, demand or other
communication shall be deemed effective upon receipt.
9. Independent Contractor. At no time shall the Company represent
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that it is acting as an agent, partner or joint venturer of PNC Mortgage.
The Company shall at all times act as an independent contracting party.
10. Amendment. This Agreement may not be amended or modified orally,
and no provision of this Agreement may be waived or amended, except in
writing signed by the party against whom enforcement is sought. Such a
written waiver or amendment must expressly reference this Agreement.
However, by their terms the Guides may be amended or supplemented by PNC
Mortgage from time to time. Any such amendment(s) to the Guides shall be
in writing and be binding upon the parties hereto on and after the
effective date specified therein.
11. Miscellaneous. This Agreement, including all documents
incorporated by reference herein, constitutes the entire understanding
between the parties hereto and supersedes all other agreements, covenants,
representations, warranties, understandings and communications between the
parties, whether written or oral, with respect to the transactions
contemplated by this Agreement. All section headings contained herein are
for convenience only and shall not be construed as part of this Agreement.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall as to such jurisdiction be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction, and to this end, the provisions hereof
are severable. This Agreement shall be governed by, and construed and
enforced in accordance with, applicable federal laws and laws of the State
of Illinois, without reference to conflict of laws principles. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original and all of which shall constitute the same
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by proper
officials duly authorized on the dates hereinafter set forth. This
Agreement shall take effect as of the date of its execution in original or
facsimile signature by a duly authorized officer of PNC Mortgage.
__________________________________ ___________________________________
Name of the Company Company I.D. Number
__________________________________ ___________________________________
Type of organization Organized under laws of
____________________________________________________________________________
Principal place of business: xxxxxx xxxxxxx, xxxx, xxxxx, zip code
________________________________________________________________
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Typed name and title of the Company's authorized officer
____________________________________________ __________________________
Signature of the Company's authorized Date
officer
Agreed to and accepted by PNC Mortgage Securities Corp.
____________________________________________________________________________
Typed name and title of authorized representative
____________________________________________ ___________________________
Signature of authorized representative Date
Exhibit F
FORM OF TRANSFEROR CERTIFICATE FOR
JUNIOR SUBORDINATE CERTIFICATES
[Date]
State Street Bank and Trust Company, as Trustee
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, PNC 2000-6
Re: Purchase of PNC Mortgage Securities Corp. Mortgage Pass-Through
Certificates Series 2000-6, Class [ ] (the "Certificates")
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act") and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, and (b) we have not offered or sold any
certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with respect
156
thereto, or taken any other action which would result in a violation of
Section 5 of the Act.
Very truly yours,
[Name of Transferor]
By:______________________
Authorized Officer
Exhibit G
FORM OF TRANSFEREE'S AGREEMENT FOR
JUNIOR SUBORDINATE CERTIFICATES
[Date]
State Street Bank and Trust Company, as Trustee
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, PNC 2000-6
PNC Mortgage Securities Corp.
00 X. Xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
The undersigned (the "Purchaser") proposes to purchase Class [
] Certificates evidencing an undivided interest in PNC Mortgage Securities
Corp. Mortgage Pass-Through Certificates, Series 2000-6 (the "Purchased
Certificates") in the principal amount of $______________. In doing so, the
Purchaser hereby acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and not
otherwise defined herein shall have the meaning ascribed to it in the
Pooling and Servicing Agreement, dated as of September 1, 2000 (the
"Pooling Agreement"), by and between PNC Mortgage Securities Corp. ("PNC")
and State Street Bank and Trust Company, as trustee (the "Trustee"), of the
PNC Mortgage Securities Corp. Mortgage Pass-Through Certificates, Series
2000-6.
Section 2. Representations and Warranties of the Purchaser. In
connection with the proposed transfer, the Purchaser represents and
warrants to PNC and the Trustee that:
157
(a) The Purchaser is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which the Purchaser is
organized, is authorized to invest in the Purchased Certificates, and to
enter into this Agreement, and duly executed and delivered this Agreement;
(b) The Purchaser is acquiring the Purchased Certificates for
its own account as principal and not with a view to the distribution
thereof, in whole or in part;
(c) The Purchaser is an "accredited investor" as such term is
defined in paragraph (a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) of Section
501 of Regulation D under the Securities Act of 1933, as amended (the
"Act"), has knowledge of financial and business matters and is capable of
evaluating the merits and risks of an investment in the Purchased
Certificates; the Purchaser has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment
decision; and the Purchaser is able to bear the economic risk of an
investment in the Purchased Certificates and can afford a complete loss of
such investment;
(d) The Purchaser is not affiliated with the Trustee;
(e) The Purchaser confirms that PNC has made available to the
Purchaser the opportunity to ask questions of, and receive answers from PNC
concerning the trust funds created pursuant to the Pooling Agreement (the
"Trust Funds"), the purchase by the Purchaser of the Purchased Certificates
and all matters relating thereto that PNC possesses or can acquire without
unreasonable effort or expense; and
(f) If applicable, the Purchaser has complied, and will continue
to comply, with the guidelines established by Thrift Bulletin 13a issued
April 23, 1998, by the Office of Regulatory Activities of the Federal Home
Loan Bank System; and
(g) The Purchaser will provide the Trustee and the Master
Servicer with affidavits substantially in the form of Exhibit A attached
hereto.
Section 3.Transfer of Purchased Certificates.
(a) The Purchaser understands that the Purchased Certificates
have not been registered under the Act, or any state securities laws and
that no transfer may be made unless the Purchased Certificates are
registered under the Act and under applicable state law or unless an
exemption from registration is available. The Purchaser further understands
that neither PNC nor the Trust Funds are under any obligation to register
the Purchased Certificates or make an exemption available. In the event
that such a transfer is to be made within two years from the Closing Date
without registration under the Act or applicable state securities laws, (i)
the Trustee shall require, in order to assure compliance with such laws,
that the Certificateholder's prospective transferee each certify to PNC and
the Trustee as to the factual basis for the registration or qualification
158
exemption relied upon, and (ii) the Trustee or PNC may require an Opinion
of Counsel that such transfer may be made pursuant to an exemption from the
Act and state securities laws, which Opinion of Counsel shall not be an
expense of the Trustee or PNC. Any such Certificateholder desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
and PNC against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
(b) No transfer of a Purchased Certificate shall be made unless
the transferee provides PNC and the Trustee with (i) a Transferee's
Agreement, substantially in the form of this Agreement, and (ii) either (a)
an affidavit substantially in the form of Exhibit A hereto that the
proposed transferee (x) is not an employee benefit plan or other plan or
arrangement subject to the prohibited transaction provisions of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended, or
comparable provisions of any subsequent enactments (a "Plan"), a trustee of
any Plan, or any other Person who is using the "plan assets" of any Plan to
effect such acquisition or (y) is an insurance company, the source of funds
to be used by it to purchase the Purchased Certificates is an "insurance
company general account" (within the meaning of Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 95-60), and the purchase is
being made in reliance upon the availability of the exemptive relief
afforded under Sections I and III of PTCE 95-60, or (b) a Benefit Plan
Opinion (as defined in Exhibit A hereto).
(c) The Purchaser acknowledges that its Purchased Certificates
bear a legend setting forth the applicable restrictions on transfer.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to
be validly executed by its duly authorized representative as of the day and
the year first above written.
[Purchaser]
By:_______________
Its:_____________
Exhibit A to Form of Transferee Agreement (Exhibit G)
PNC MORTGAGE SECURITIES CORP.
BENEFIT PLAN AFFIDAVIT
RE: PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-6
(THE "TRUST") CLASS [ ] CERTIFICATES
(THE "PURCHASED CERTIFICATES")
Under penalties of perjury, I, _____________________, declare that, to
the best of my knowledge and belief, the following representations are
true, correct and complete; and
159
1. That I am the _______________ of __________________ (the
"Purchaser"), whose taxpayer identification number is ___________, and on
behalf of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate
representing an interest in the Trust Funds.
3. That the Purchaser (i) is not an employee benefit plan or
other plan or arrangement subject to the prohibited transaction provisions
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"), or comparable provisions of any subsequent enactments (a
"Plan"), a trustee of any Plan, or any other Person who is using the "plan
assets" of any Plan to effect such acquisition, (ii) has provided a
"Benefit Plan Opinion" satisfactory to PNC Mortgage Securities Corp. (the
"Company") and the Trustee of the Trust Funds or (iii) is an insurance
company, the source of funds to be used by it to purchase the Purchased
Certificates is an "insurance company general account" (within the meaning
of Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-
60), and the purchase is being made in reliance upon the availability of
the exemptive relief afforded under Sections I and III of PTCE 95-60. A
Benefit Plan Opinion is an opinion of counsel to the effect that the
proposed transfer (a) is permissible under applicable law, (b) will not
constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code, and (c) will not subject the
Trustee, the Master Servicer or the Company to any obligation or liability
(including obligations or liabilities under Section 406 of ERISA or Section
4975 of the Code) in addition to those undertaken in this Agreement, which
Benefit Plan Opinion shall not be an expense of the Trustee, the Master
Servicer or the Company.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to
be duly executed on its behalf, by its duly authorized officer this _____
day of __________________, 20__.
[Purchaser]
By:
Its:
Personally appeared before me ______________________, known or
proved to me to be the same person who executed the foregoing instrument
and to be a ________________ of the Purchaser, and acknowledged to me that
(s)he executed the same as his/her free act and deed and as the free act
and deed of the Purchaser.
SUBSCRIBED and SWORN to before me this day of ____________, 20__.
Notary Public
160
Exhibit H
FORM OF ADDITIONAL MATTER INCORPORATED INTO
THE FORM OF THE CERTIFICATES (OTHER THAN THE CLASS R-1 CERTIFICATES)
This Certificate does not represent an obligation of or interest in
PNC Mortgage Securities Corp. or any of its affiliates, including PNC Bank
Corp. Neither this Certificate nor the underlying Mortgage Loans are
guaranteed by any agency or instrumentality of the United States.
This certifies that the above-named Registered Owner is the registered
owner of certain interests in a trust fund (the "REMIC II Trust Fund")
whose assets consist of, among other things, a pool (the "Mortgage Pool")
of conventional one- to four-family mortgage loans (the "Mortgage Loans"),
formed and administered by PNC Mortgage Securities Corp. (the "Company"),
which term includes any successor entity under the Pooling Agreement
referred to below. The Mortgage Pool was created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-Off Date stated above (the
"Pooling Agreement"), between the Company and State Street Bank and Trust
Company, as Trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling Agreement. Nothing herein shall be deemed inconsistent with such
meanings, and in the event of any conflict between the Pooling Agreement
and the terms of this Certificate, the Pooling Agreement shall control.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling Agreement, to which Pooling Agreement the
Holder of this Certificate, by virtue of the acceptance hereof, assents and
by which such Holder is bound.
Distributions will be made, pursuant to the Pooling Agreement, on the
25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last day (or
if such last day is not a Business Day, the Business Day immediately
preceding such last day) of the month immediately preceding the month of
such distribution (the "Record Date"), to the extent of such
Certificateholder's Percentage Interest represented by this Certificate in
the portion of the REMIC II Available Distribution Amount for such
Distribution Date then distributable on the Certificates of this Class, as
specified in Section 4.04 of the Pooling Agreement.
Distributions on this Certificate will be made by the Trustee by wire
transfer or check mailed to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate
to the Certificate Registrar.
161
Reference is hereby made to the further provisions of this Certificate
set forth below, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Certificate shall
not be entitled to any benefit under the Pooling Agreement or be valid for
any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:________________________________
(TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Certificates referred to in the within-
mentioned Pooling Agreement.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:_____________________
Dated:__________________
PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATE
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series and Class
specified hereon (herein called the "Certificates") and representing
certain interests in the REMIC II Trust Fund.
The Certificates do not represent an obligation of, or an interest in,
the Company or any of its affiliates and are not insured or guaranteed by
any governmental agency. The Certificates are limited in right of payment
to certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth herein and in the Pooling Agreement. In the
event funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer from the related recoveries on such
Mortgage Loan or from other cash deposited in the Certificate Account to
162
the extent that such advance is not otherwise recoverable.
As provided in the Pooling Agreement, withdrawals from the Certificate
Account may be made from time to time for purposes other than distributions
to Certificateholders, such purposes including reimbursement to the Master
Servicer of advances made, or certain expenses incurred, by it.
The Pooling Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under
the Pooling Agreement at any time by the Company, the Master Servicer and
the Trustee with the consent of the Holders of the Certificates evidencing
Percentage Interests aggregating not less than 66% of the REMIC II Trust
Fund. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is made upon this Certificate. The Pooling Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices of the Certificate Registrar or
the office maintained by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or
other written instrument of transfer in form satisfactory to the Trustee or
any Authenticating Agent duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of Authorized Denominations evidencing the same Percentage
Interest set forth hereinabove will be issued to the designated transferee
or transferees.
[to be used only in the case of the Junior Subordinate Certificates:]
[No transfer of a Certificate will be made unless such transfer is exempt
from or is made in accordance with the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") and any
applicable state securities laws. In the event that a transfer is to be
made without registration or qualification under applicable laws, (i) in
the event such transfer is made pursuant to Rule 144A under the Securities
Act, the Company and the Trustee shall require the transferee to execute an
investment letter in substantially the form attached as Exhibit L to the
Pooling Agreement, which investment letter shall not be an expense of the
Company, the Master Servicer or the Trustee and (ii) in the event that such
a transfer is not made pursuant to Rule 144A under the Securities Act, the
Company may require an Opinion of Counsel satisfactory to the Company that
such transfer may be made without such registration or qualification, which
Opinion of Counsel shall not be an expense of the Company, the Master
Servicer or the Trustee. Neither the Company nor the Trustee will register
the Certificate under the Securities Act, qualify the Certificate under any
state securities law or provide registration rights to any purchaser. Any
163
Holder desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Company and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws.]
The Certificates are issuable only as registered Certificates without
coupons in Authorized Denominations specified in the Pooling Agreement. As
provided in the Pooling Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
Authorized Denominations evidencing the same aggregate interest in the
portion of the REMIC II Available Distribution Amount distributable on this
Class of Certificate, as requested by the Holder surrendering the same.
A reasonable service charge may be made for any such registration of
transfer or exchange, and the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Company, the Trustee and the Certificate Registrar and any agent
of the Company, the Trustee or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Company, the Trustee, the Certificate
Registrar nor any such agent shall be affected by notice to the contrary.
[to be used only in the case of the Insured Certificates:] [Each
Holder of this Certificate hereby agrees for the benefit of the Certificate
Insurer that, to the extent the Certificate Insurer makes Insured Payments,
either directly or indirectly (as by paying through the Trustee), to the
Holders of the Insured Certificates, the Certificate Insurer will be
subrogated to the rights of such Holder to the extent of such payments.]
The obligations created by the Pooling Agreement and the trust funds
created thereby shall terminate upon (i) the later of the maturity or other
liquidation (including repurchase by the Company) of the last Mortgage Loan
remaining in the REMIC I Trust Fund or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage
Loan, and (ii) the payment to Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Pooling Agreement.
In the event that the Company repurchases any Mortgage Loan pursuant to the
Pooling Agreement, the Pooling Agreement generally requires that the
Trustee distribute to the Certificateholders in the aggregate an amount
equal to 100% of the unpaid Principal Balance of such Mortgage Loan, plus
unpaid accrued interest thereon at the applicable Pass-Through Rate to the
last day of the month in which such repurchase occurs. The Pooling
Agreement permits, but does not require, the Company to repurchase from the
REMIC I Trust Fund all Mortgage Loans at the time subject thereto and all
property acquired in respect of any Mortgage Loan upon payment to the
Certificateholders of the amounts specified in the Pooling Agreement. The
exercise of such right will effect early retirement of the Certificates,
the Company's right to repurchase being subject to the aggregate Principal
Balance of the Mortgage Loans at the time of repurchase being less than ten
percent (10%) of the aggregate Principal Balance of the Mortgage Loans as
164
of the Cut-Off Date.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and
transfer(s) unto
(Please print or typewrite name and address, including postal zip code of
assignee. Please insert social security or other identifying number of
assignee.)
the within Mortgage Pass-Through Certificate and hereby irrevocably
constitutes and appoints
Attorney to transfer said Certificate on the Certificate Register, with
full power of substitution in the premises.
Dated:
Signature Guaranteed
NOTICE:The signature to this assignment must
correspond with the name as written upon the
face of the within instrument in every
particular, without alteration or enlargement
or any change whatever. This Certificate does
not represent an obligation of or an interest
in PNC Mortgage Securities Corp. or any of its
affiliates, including PNC Bank Corp. Neither
this Certificate nor the underlying Mortgage
Loans are guaranteed by any agency or
instrumentality of the United States.
Exhibit I
TRANSFEROR CERTIFICATE
[Date]
State Street Bank and Trust Company, as Trustee
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, PNC 2000-6
Re: PNC Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2000-6, Class [R-1] [R-2]
Ladies and Gentlemen:
165
This letter is delivered to you in connection with the sale from
(the "Seller") to _______________________ (the "Purchaser") of
$____________________ initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 2000-6, Class [R-1][R-2] (the
"Certificate"), pursuant to Section 5.01 of the Pooling and Servicing
Agreement (the "Pooling Agreement"), dated as of September 1, 2000 among
PNC Mortgage Securities Corp., as depositor and master servicer (the
"Company") and State Street Bank and Trust Company, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Company and the Trustee
that:
1. No purpose of the Seller relating to the sale of the Certificate
by the Seller to the Purchaser is or will be to enable the Seller to impede
the assessment or collection of tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Company a transferee affidavit and agreement in the form
attached to the Pooling Agreement as Exhibit J. The Seller does not know or
believe that any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee
is not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificates.
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due,
and found no significant evidence to indicate that the Purchaser will not
continue to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificates constitute a noneconomic residual interest, it (i) understands
that as holder of a noneconomic residual interest it may incur tax
liabilities in excess of any cash flows generated by the interest, and (ii)
intends to pay taxes associated with its holding of the Certificates as
they become due.
Very truly yours,
[Seller]
By:_______________________
Name:___________________
Title:__________________
Exhibit J
166
TRANSFEREE AFFIDAVIT AND AGREEMENT
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the Class [R-1][R-2] Certificate (the "Owner")), a
[savings institution] [corporation] duly organized and existing under the
laws of [the State of ___________________] [the United States], on behalf of
which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code")
and will endeavor to remain other than a disqualified organization for so
long as it retains its ownership interest in the Class [R-1][R-2]
Certificates, and (ii) is acquiring the Class [R-1][R-2] Certificates for
its own account or for the account of another Owner from which it has
received an affidavit and agreement in substantially the same form as this
affidavit and agreement. (For this purpose, a disqualified organization"
means the United States, any state or political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and,
except for the Federal Home Loan Mortgage Corporation, a majority of whose
board of directors is not selected by any such governmental entity, or any
foreign government or international organization, or any agency or
instrumentality of such foreign government or organization, any rural
electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax
unless such organization is subject to the tax on unrelated business
taxable income).
3. That the Owner is aware (i) of the tax that would be imposed
on transfers of the Class [R-1][R-2] Certificates after March 31, 1988;
(ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middle-man)
for a disqualified organization, on the agent; (iii) that the person
otherwise liable for the tax shall be relieved of liability for the tax if
the transferee furnishes to such person an affidavit that the transferee is
not a disqualified organization and, at the time of transfer, such person
does not have actual knowledge that the affidavit is false; and (iv) that
the Class [R-1][R-2] Certificates may be a "noneconomic residual interest"
within the meaning of Treasury regulations promulgated pursuant to the Code
167
and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual
interest, if a significant purpose of the transfer was to enable the
transferor to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-
through entity" holding the Class [R-1][R-2] Certificates if at any time
during the taxable year of the pass-through entity a disqualified
organization is the record holder of an interest in such entity. (For this
purpose, a "pass through entity" includes a regulated investment company, a
real estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives.)
5. That the Owner is aware that the Trustee will not register
the Transfer of the Class [R-1][R-2] Certificates unless the transferee, or
the transferees' agent, delivers to it an affidavit and agreement, among
other things, in substantially the same form as this affidavit and
agreement. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained
in such affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on
the face of the Class [R-1][R-2] Certificates and the provisions of Section
5.01 of the Pooling Agreement under which the Class [R-1][R-2] Certificates
were issued (in particular, clauses (iii)(A) and (iii)(B) of Section
5.01(c) which authorize the Trustee to deliver payments to a person other
than the Owner and negotiate a mandatory sale by the Trustee in the event
the Owner holds such Certificates in violation of Section 5.01). The Owner
expressly agrees to be bound by and to comply with such restrictions and
provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [R-1][R-2]
Certificates will only be owned, directly or indirectly, by an Owner that
is not a disqualified organization.
8. The Owner's Taxpayer Identification Number is
_________________________.
9. That no purpose of the Owner relating to the purchase of the
Class [R-1][R-2] Certificates by the Owner is or will be to enable the
transferor to impede the assessment or collection of tax.
10. That the Owner anticipates that it will, so long as it holds
the Class [R-1][R-2] Certificates, have sufficient assets to pay any taxes
owed by the holder of such Certificates, and hereby represents to and for
the benefit of the person from whom it acquired the Class [R-1][R-2]
Certificates that the Owner intends to pay taxes associated with holding
such Certificates as they become due, fully understanding that it may incur
tax liabilities in excess of any cash flows generated by the Class [R-1][R-
2] Certificates. That the Owner has provided financial statements or other
168
financial information requested by the transferor in connection with the
transfer of the Class [R-1][R-2] Certificates to permit the transferor to
assess the financial capability of the Owner to pay such taxes.
11. That the Owner has no present knowledge or expectation that
it will be unable to pay any United States taxes owed by it so long as any
of the Class [R-1][R-2] Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that
it will become insolvent or subject to a bankruptcy proceeding for so long
as any of the Class [R-1][R-2] Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the
Class [R-1][R-2] Certificates by the Owner will be to impede the assessment
or collection of tax.
14. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under
the laws of, the United States or any political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
15. The Owner hereby agrees to cooperate with the Company and to
take any action required of it by the Code or Treasury regulations
thereunder (whether now or hereafter promulgated) in order to create or
maintain the REMIC status of the REMIC I Trust Fund and the REMIC II Trust
Fund (the "Trust Funds").
16. The Owner hereby agrees that it will not take any action
that could endanger the REMIC status of the Trust Funds or result in the
imposition of tax on the Trust Funds unless counsel for, or acceptable to,
the Company has provided an opinion that such action will not result in the
loss of such REMIC status or the imposition of such tax, as applicable.
17. The Owner as transferee of the Class [R-1][R-2] Certificates
has represented to their transferor that, if the Class [R-1][R-2]
Certificates constitute a noneconomic residual interest, the Owner (i)
understands that as holder of a noneconomic residual interest it may incur
tax liabilities in excess of any cash flows generated by the interest, and
(ii) intends to pay taxes associated with its holding of the Class [R-1][R-
2] Certificates as they become due.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of
Directors, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this day of
, 20 __ .
[Name of Owner]
169
By:________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument
and to be the [Title of Officer] of the Owner, and Acknowledged to me that
he executed the same as his free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ___ day of __________________,
20__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the day
of , 20
Exhibit K
[Reserved]
Exhibit L
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
170
The undersigned seller, as registered holder (the "Seller"), intends
to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the
Seller hereby certifies the following facts: Neither the Seller nor anyone
acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security from, or otherwise approached or negotiated with respect to the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Rule
144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant
thereto, and that the Seller has not offered the Rule 144A Securities to
any person other than the Buyer or another "qualified institutional buyer"
as defined in Rule 144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee and the Master Servicer (as defined in the Pooling and
Servicing Agreement (the "Agreement") dated as of September 1, 2000 between
PNC Mortgage Securities Corp., as Depositor and Master Servicer and State
Street Bank and Trust Company, as Trustee) pursuant to Section 5.01(f) of
the Agreement, as follows:
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any
state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
c. The Buyer has received and reviewed the Private Placement
Memorandum dated as of September 28, 2000 relating to the Rule 144A
Securities and has been furnished with all information regarding the
Rule 144A Securities that it has requested from the Seller, the
Trustee, the Company or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
171
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of
the 1933 Act or require registration pursuant thereto, nor will it
act, nor has it authorized or will it authorize any person to act, in
such manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has (1) completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2, or (2) obtained the waiver of the Company with
respect to Annex 1 and Annex 2 pursuant to Section 5.01(f) of the
Agreement. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on
Rule 144A, or (ii) pursuant to another exemption from registration
under the 1933 Act.
f. The Buyer is not affiliated with (i) the Trustee or (ii) any
Rating Agency that rated the Rule 144A Securities.
g. If applicable, the Buyer has complied, and will continue to
comply, with the guidelines established by Thrift Bulletin 13a issued
April 23, 1998, by the Office of Regulatory Activities of the Federal
Home Loan Bank System.
[Required only in the case of a transfer of a Class B Certificate] [3.
The Buyer warrants and represents to, and covenants with, the Trustee, the
Master Servicer and the Company that (1) the Buyer is not an employee
benefit plan (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), subject to the
prohibited transaction provisions of ERISA ("Plan"), or a plan (within the
meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986
("Code")) subject to Section 4975 of the Code (also a "Plan"), and the
Buyer is not directly or indirectly purchasing the Rule 144A Securities on
behalf of, as investment manager of, as named fiduciary of, as trustee of,
or with "plan assets" of any Plan, (2) the Buyer's purchase of the Rule
144A Securities is permissible under applicable law, will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and will not subject the Trustee, the Master
172
Servicer or the Company to any obligation or liability (including
obligations or liabilities under Section 406 of ERISA or Section 4975 of
the Code) in addition to those undertaken in this Agreement and the Buyer
has provided an Opinion of Counsel to such effect in accordance with
Section 5.01(d) of the Agreement or (3) the Buyer is an insurance company,
the source of funds to be used by it to purchase the Rule 144A Securities
is an "insurance company general account" (within the meaning of Department
of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60), and the
purchase is being made in reliance upon the availability of the exemptive
relief afforded under Sections I and III of PTCE 95-60.]
4. This document may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when
so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No.: No.:
Date: Date:
Annex 1 to Exhibit L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is
attached:
1. As indicated below, the undersigned is the President, Chief
173
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $______________________ (the Buyer must
own and/or invest on a discretionary basis at least $100,000,000 in
securities unless the Buyer is a dealer, and, in that case, the Buyer must
own and/or invest on a discretionary basis at least $10,000,000 in
securities) in securities (except for the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A) and (ii) the Buyer satisfies
the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is attached
hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over any
such institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State or territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
174
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA") and is subject to the fiduciary
responsibility provisions of ERISA.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
established and maintained by a State, its political subdivisions, or
any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees, or (b) employee
benefit plans within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, but is not a trust fund that includes as
participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer,
(ii) securities that are part of an unsold allotment to or subscription by
the Buyer, if the Buyer is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph. Further, in determining
such aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such subsidiaries are consolidated
with the Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such
securities were not included if the Buyer is a majority-owned, consolidated
subsidiary of another enterprise and the Buyer is not itself a reporting
company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule
144A.
175
Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own
account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance
on Rule 144A, the Buyer will only purchase for the account of a third party
that at the time is a "qualified institutional buyer" within the meaning of
Rule 144A. In addition, the Buyer agrees that the Buyer will not purchase
securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate
steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set
forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of Rule 144A
Securities will constitute a reaffirmation of this certification as of the
date of such purchase.
Print Name of Buyer
By:
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is
attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is
a "qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933 ("Rule 144A") because Buyer is part of a
176
Family of Investment Companies (as defined below), is such an officer of
the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is
an investment company registered under the Investment Company Act of 1940,
and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment
Companies, the cost of such securities was used.
____ The Buyer owned $___________________ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will
continue to rely on the statements made herein because one or more sales to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will
only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities
will constitute a reaffirmation of this certification by the undersigned as
of the date of such purchase.
177
Print Name of Buyer
By:
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Buyer
By:
Name:
Title:
Date:
(SEAL)
Exhibit M
[Date]
[Company]
Re: Pooling and Servicing Agreement dated as of September 1,
2000 by and between PNC Mortgage Securities Corp., as
Depositor and Master Servicer, and State Street Bank and
Trust Company, as Trustee, relating to PNC Mortgage
Securities Corp. Mortgage Pass-Through Certificates, Series
2000-6
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that,
except as noted on the attachment hereto, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attachment hereto) it or the Custodian on its behalf has
reviewed the documents delivered to it or to the Custodian on its behalf
pursuant to Section 2.01 of the Pooling and Servicing Agreement and has
determined that (i) all documents required (in the case of instruments
described in clauses (X)(v) and (Y)(x) of the definition of "Mortgage
178
File," known by the Trustee to be required) pursuant to the definition of
"Mortgage File" and Section 2.01 of the Pooling and Servicing Agreement
have been executed and received as of the date hereof are in its possession
or in the possession of the Custodian on its behalf and (ii) all such
documents have been executed and relate to the Mortgage Loans identified in
the Mortgage Loan Schedule. The Trustee has made no independent examination
of such documents beyond the review specifically required in the above
referenced Pooling and Servicing Agreement and has relied upon the
purported genuineness and due execution of any such documents and upon the
purported genuineness of any signature thereon. The Trustee makes no
representations as to: (i) the validity, legality, enforceability or
genuineness of any of the documents contained in each Mortgage File or any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
as Trustee
By:
Name:
Title:
EXHIBIT N
BENEFIT PLAN AFFIDAVIT
State Street Bank and Trust Company, as Trustee
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, PNC 2000-6
PNC Mortgage Securities Corp.
00 Xxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
RE: PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-6
(THE "TRUST") CLASS [B-_] CERTIFICATES
(THE "PURCHASED CERTIFICATES")
Under penalties of perjury, I, _____________________, declare that, to
179
the best of my knowledge and belief, the following representations are
true, correct and complete; and
1. That I am the _______________ of __________________ (the
"Purchaser"), whose taxpayer identification number is ___________, and on
behalf of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate
representing an interest in the Trust Funds.
3. That the Purchaser is either:
(a) not an employee benefit plan or other plan subject to the
prohibited transaction provisions 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") (a "Plan") or any other
person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting directly or indirectly on behalf of, or purchasing any of
the Purchased Certificates with "plan assets" of, any Plan within the
meaning of the Department of Labor ("DOL") regulation at 29 C.F.R. Section
2510.3-101; or
(b) an insurance company, the source of funds to be used by it to
purchase the Purchased Certificates is an "insurance company general
account" (within the meaning of DOL Prohibited Transaction Class Exemption
("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III of
PTCE 95-60.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to
be duly executed on its behalf, by its duly authorized officer this _____
day of __________________, 20__.
[Purchaser]
By:
Its:
Personally appeared before me ______________________, known or proved to me
to be the same person who executed the foregoing instrument and to be a
________________ of the Purchaser, and acknowledged to me that (s)he
executed the same as his/her free act and deed and as the free act and deed
of the Purchaser.
SUBSCRIBED and SWORN to before me this day of ____________, 20__.
Notary Public
Exhibit O
180
FORM OF LOAN SALE AGREEMENT
CLIPPER RECEIVABLES CORPORATION,
as Seller
STATE STREET BANK AND TRUST COMPANY,
as Trustee
LOAN SALE AGREEMENT
Dated as of September 1, 2000
This Loan Sale Agreement (this "Agreement") is dated as of September
1, 2000, by and between Clipper Receivables Corporation ("Clipper"), as
seller (the "Seller"), and State Street Bank and Trust Company ("State
Street"), as trustee (the "Trustee") under a Pooling and Servicing
Agreement, dated September 1, 2000 (the "Pooling Agreement") by and between
PNC Mortgage Securities Corp. ("PNC") and the Trustee. Pursuant to a
Revolving Loan Purchase Agreement, dated as of December 30, 1998 (the
"Revolving Loan Purchase Agreement"), among Fairway Drive Funding Corp.
("Fairway"), as seller, Clipper, as purchaser, State Street Capital
Corporation, as administrator, State Street, as relationship bank, and PNC,
as servicer, the Seller has purchased the Conveyed Mortgage Loans (as
defined herein) from Fairway. On the terms and conditions set forth
herein, the Seller desires to sell and the Trustee desires to purchase the
Conveyed Mortgage Loans and certain related rights.
In consideration of the premises and the mutual agreements hereinafter
set forth, the Seller and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms
181
Whenever used in this Agreement, the following words and phrases shall
have the following meanings specified in this Article:
Agreement: This Loan Sale Agreement, including all exhibits and
schedules hereto, amendments hereof and supplements hereto.
Clipper: The meaning given in the introductory paragraph hereto.
Closing Date: September 28, 2000.
Conveyance: The meaning given in Section 2.1.
Conveyed Assets: The meaning given in Section 2.1.
Conveyed Mortgage Loans: The Mortgage Loans sold, transferred,
assigned and conveyed to the Trustee by the Seller pursuant to Section 2.1
and identified in the Mortgage Loan Schedule.
Custodian: State Street, or any other party appointed as Custodian
under the Revolving Loan Purchase Agreement.
Cut-Off Date: September 1, 2000.
Fairway: The meaning given in the introductory paragraph hereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note.
Mortgage Loan: An individual mortgage loan, including the related
Mortgage Note and Mortgage.
Mortgage Loan File: With respect to any Conveyed Mortgage Loan, the
documents described in the definition of "Mortgage Loan File" in the
Revolving Loan Purchase Agreement.
Mortgage Loan Schedule: The schedule of Mortgage Loans attached
hereto as Schedule I.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
PNC: The meaning given in the introductory paragraph hereto.
Person: any individual, corporation, estate, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
Pooling Agreement: The meaning given in the introductory paragraph
hereto.
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Purchase Price: The meaning given in Section 2.1.
Revolving Loan Purchase Agreement: The meaning given in the
introductory paragraph hereto.
Seller: The meaning given in the introductory paragraph hereto.
State Street: The meaning given in the introductory paragraph hereto.
Trustee: The meaning given in the introductory paragraph hereto.
ARTICLE II
SALE AND CONVEYANCE OF MORTGAGE LOANS
Section 2.1 Sale and Conveyance of Mortgage Loans
Concurrently with the execution and delivery hereof, the Seller does
hereby irrevocably sell, transfer, assign, set over and otherwise convey to
the Trustee, without representation, warranty or recourse, and the Trustee
hereby accepts delivery of, all the Seller's right, title and interest in
and to (i) the Conveyed Mortgage Loans and all rights pertaining thereto,
(ii) all scheduled payments of principal and interest due after the Cut-Off
Date and received by the Seller with respect to the Conveyed Mortgage Loans
at any time, (iii) all principal prepayments received by the Seller after
the Cut-Off Date with respect to the Conveyed Mortgage Loans, and (iv) any
property which secured a Conveyed Mortgage Loan and which has been acquired
by foreclosure or deed in lieu of foreclosure after the Cut-Off Date (such
assets described in clauses (i) through (iv) collectively referred to
herein as the "Conveyed Assets," and the transfer and assignment by the
Seller thereof referred to herein as the "Conveyance").
Notwithstanding anything herein to the contrary, the transfer of the
Conveyed Assets shall not constitute the Trustee as an intended third-party
beneficiary under the Revolving Loan Purchase Agreement and nothing herein
shall entitle the Trustee to the benefit of any representation, warranty,
covenant or remedy contained therein or assigned thereby.
The price for the Conveyed Assets to be paid by the Trustee on the
Closing Date shall be an amount equal to $_________________ (the "Purchase
Price").
Section 2.2 Custodial Agreement; Release of Mortgage Loan Files
As of the Closing Date, the ownership of all records and documents
with respect to any Conveyed Mortgage Loan which come into the possession
of the Seller shall immediately vest in the Trustee and shall be promptly
forwarded to the Trustee.
Concurrently herewith, the Seller shall notify the Custodian of the
Conveyance of the Conveyed Mortgage Loans and cause the Custodian to
release the related Mortgage Loan Files to or upon the order of the Trustee
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by executing a Notice and Instruction to Custodian in the form attached
hereto as Exhibit A.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (including Section 5-1401 of the New York
General Obligations Law) and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws without
giving effect to conflict of laws principles other than Section 5-1401 of
the New York General Obligations Law.
Section 3.2 Notices
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or
mailed by registered or certified mail to (a) in the case of the Trustee,
at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Corporate Trust
Department, PNC Series 2000-6, or such other address as may hereafter be
furnished to the Seller in writing by the Trustee, or (b) in the case of
the Seller, at 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000,
Attention: Xxxxx Xxxx Xxxxxxx, facsimile no.: (000) 000-0000, with a copy
to State Street Capital Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Attention: Xxxxx Xxxx Xxxxxxx, facsimile no.: (000) 000-0000, or such other
address as may hereafter be furnished to the Trustee in writing by the
Seller.
Section 3.3 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.
Section 3.4 Waivers and Amendments, Non-contractual Remedies;
Preservation of Remedies
This Agreement may be amended, superseded, canceled, renewed or
extended and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a
waiver, by an authorized representative of the party waiving compliance.
No such written instrument shall be effective unless it expressly recites
that it is intended to amend, supersede, cancel, renew or extend this
Agreement or to waive compliance with one or more of the terms hereof, as
the case may be. No delay on the part of any party in exercising any
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right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or
privilege, or any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any
other such right, power or privilege. The rights and remedies herein
provided are cumulative to, and not exclusive of, any rights or remedies
that any party may otherwise have at law or in equity.
Section 3.5 Captions
All section titles or captions contained in this Agreement or in any
Schedule or Exhibit annexed hereto or referred to herein, and the table of
contents to this Agreement, are for convenience only, shall not be deemed a
part of this Agreement and shall not affect the meaning or interpretation
of this Agreement.
Section 3.6 Counterparts
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the
same instrument.
Section 3.7 Entire Agreement
This Agreement (including any Schedule or Exhibit annexed hereto or
referred to herein) between the parties hereto contains the entire
agreement between the parties with respect to the sale of the Conveyed
Assets and the transactions contemplated hereby and supersedes all prior
agreements, written or oral, with respect thereto.
Section 3.8 Condition Precedent
The Trustee's obligation to purchase the Conveyed Assets hereunder is
conditioned upon and subject to the Trustee's receipt of available funds
from PNC pursuant to the Pooling Agreement in an amount equal to the
Purchase Price.
Section 3.9 No Recourse
No recourse under any obligation, covenant or agreement of Clipper
contained in this Agreement shall be had against X X Management Corporation
("JHM") or any incorporator, stockholder, officer, director or employee of
Clipper or JHM, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise, it being
expressly agreed and understood that this Agreement is solely a corporate
obligation of Clipper, and that no personal liability whatever shall attach
to or be incurred by the incorporators, stockholders, officers, directors
or employees of Clipper or JHM, or any of them under or by reason of any of
the obligations, covenants or agreements of Clipper contained in this
Agreement, or implied therefrom. Trustee expressly waives, as a condition
of and in consideration for the execution of this Agreement, any and all
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personal liability against JHM and every such incorporator, stockholder,
officer, director or employee arising from breaches by Clipper of any such
obligations, covenants or agreements, either at common law or at equity, or
by statute or constitution.
Section 3.10 No Petition
The Trustee agrees that it shall not institute against, or join any
other Person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, for one
year and one day after the latest maturing Commercial Paper Note (as
defined in the Program Administration Agreement, dated as of September 24,
1992, between Clipper and State Street Boston Capital Corporation, as
program administrator, as it may be amended from time to time) is paid.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the date first above written.
CLIPPER RECEIVABLES CORPORATION
By: STATE STREET CAPITAL CORPORATION, as
Program Administrator
By:
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
solely in its capacity as Trustee and not
individually
By:
Name:
Title:
CONSENTED TO BY:
STATE STREET CAPITAL CORPORATION, as
Program Administrator
By:
Name:
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Title:
Schedule I to Exhibit O
Mortgage Loan Schedule
Exhibit A to Exhibit O
FORM OF NOTICE AND INSTRUCTION TO CUSTODIAN
[Closing Date]
State Street Bank and Trust
Company, as Custodian
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: Revolving Loan Purchase Agreement, dated as of December 30, 1998
(the "Revolving Loan Purchase Agreement"), among Fairway Drive
Funding Corp., as seller, Clipper Receivables Corporation, as
purchaser, State Street Capital Corporation, as administrator,
State Street Bank and Trust Company, as relationship bank, and
PNC Mortgage Securities Corp., as servicer
Ladies and Gentlemen:
We hereby advise you that the mortgage loans specified on Schedule I
hereto (the "Conveyed Mortgage Loans") have been transferred and assigned,
pursuant to a Loan Sale Agreement dated as of September 1, 2000 between
Clipper Receivables Corporation, as seller (the "Seller"), and State Street
Bank and Trust Company, as trustee (the "Trustee") under a Pooling and
Servicing Agreement dated as of September 1, 2000 by and between PNC
Mortgage Securities Corp. and the Trustee, by the Seller to the Trustee,
and you are hereby instructed to deliver the Mortgage Loan Files (as
defined in the Revolving Loan Purchase Agreement) relating to such Conveyed
Mortgage Loans to the Trustee pursuant to such instructions as it may
provide to you.
Very truly yours,
CLIPPER RECEIVABLES CORPORATION
By: STATE STREET CAPITAL CORPORATION, as
Program Administrator
By:
Name:
Title:
ACKNOWLEDGED:
STATE STREET BANK AND TRUST
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COMPANY, as Custodian
By:
Name:
Title:
Schedule I to Notice and Instruction to Custodian
Exhibit P
FORM OF PROTECTIVE TRANSFER AGREEMENT
This Protective Transfer Agreement (this "Agreement"), dated as of
September 1, 2000, is by and between Fairway Drive Funding Corp.
("Funding") and State Street Bank and Trust Company (the "Trustee Bank"),
as trustee (in such capacity, the "Trustee") under a Pooling and Servicing
Agreement dated September 1, 2000 by and between PNC Mortgage Securities
Corp. ("PNC") and the Trustee.
W I T N E S S E T H:
WHEREAS, Funding sold certain mortgage loans and related property (as
defined below, the "Conveyed Assets") to Clipper Receivables Corporation
("Clipper") pursuant to a Revolving Loan Purchase Agreement, dated as of
December 30, 1998 (the "Funding Sale Agreement"), among Funding, as Seller,
Clipper, as Purchaser, State Street Capital Corporation, as Administrator,
the Trustee Bank, as Relationship Bank and PNC, as Servicer;
WHEREAS, pursuant to a Loan Sale Agreement (the "Clipper Loan Sale
Agreement"), dated as of September 1, 2000, between Clipper and the
Trustee, Clipper is selling all of its right, title and interest in and to
the Conveyed Assets to the Trustee;
WHEREAS, the Trustee requires assurance of good title to the Conveyed
Assets, and pursuant to Section 13.2(a) of the Funding Sale Agreement,
Funding is obligated to take any action necessary to protect the interest
of Clipper in the Conveyed Assets.
NOW, THEREFORE, in consideration of the covenants made herein and
for other good and valuable consideration the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. The Funding Sale Agreement provides that it is the express intent
of the parties thereto that the sale, assignment and transfer of the
Conveyed Assets pursuant to the Funding Sale Agreement constituted a sale
of all of Fairway's right, title, and interest in and to the Conveyed
Assets to Clipper.
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2. Notwithstanding the foregoing, to the extent that Funding has
retained any interest in the Conveyed Assets, Funding hereby irrevocably
sells, transfers, assigns, sets over and otherwise conveys to the Trustee,
without representation, warranty or recourse, and the Trustee hereby
accepts delivery of, all of Funding's right, title and interest, if any, in
and to (i) the Mortgage Loans identified on the schedule of Mortgage Loans
attached as Schedule I to the Clipper Loan Sale Agreement (the "Conveyed
Mortgage Loans") and all rights pertaining thereto, (ii) all scheduled
payments of principal and interest due after September 1, 2000 (the "Cut-
Off Date") and received by Funding with respect to the Conveyed Mortgage
Loans at any time, (iii) all principal prepayments received by Funding
after the Cut-Off Date with respect to the Conveyed Mortgage Loans, and
(iv) any property which secured a Conveyed Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure after the Cut-Off
Date (such assets described in clauses (i) through (iv) collectively
referred to herein as the "Conveyed Assets").
3. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York (including Section 5-1401 of the New
York General Obligations Law) and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws
without giving effect to conflict of laws principles other than Section 5-
1401 of the New York General Obligations Law.
4. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the date first above written.
FAIRWAY DRIVE FUNDING CORP.
By:______________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, not
in its individual capacity, but solely
as Trustee
By:______________________________
Name:
Title:
