EXECUTION
================================================================================
GE CAPITAL MORTGAGE SERVICES, INC.,
Seller and Servicer
and
STATE STREET BANK AND TRUST COMPANY,
Trustee
_____________________________
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2000
_____________________________
GE Capital Mortgage Services, Inc.,
2000-12 Trust
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans................................
Section 2.02. Acceptance by Trustee.......................................
Section 2.03. Representations and Warranties of the Company; Mortgage
Loan Repurchase.............................................
Section 2.04. Execution of Certificates...................................
Section 2.05. Designations under the REMIC Provisions.....................
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Company to Act as Servicer..................................
Section 3.02. Collection of Certain Mortgage Loan Payments; Mortgage
Loan Payment Record; Certificate Account....................
Section 3.03. Collection of Taxes, Assessments and Other Items............
Section 3.04. Permitted Debits to the Mortgage Loan Payment Record........
Section 3.05. Maintenance of the Primary Insurance Policies...............
Section 3.06. Maintenance of Hazard Insurance.............................
Section 3.07. Assumption and Modification Agreements......................
Section 3.08. Realization Upon Defaulted Mortgage Loans...................
Section 3.09. Trustee to Cooperate; Release of Mortgage Files.............
Section 3.10. Servicing Compensation; Payment of Certain Expenses by
the Company.................................................
Section 3.11. Reports to the Trustee......................................
Section 3.12. Annual Statement as to Compliance...........................
Section 3.13. Annual Independent Public Accountants' Servicing Report.....
Section 3.14. Access to Certain Documentation and Information
Regarding the Mortgage Loans................................
Section 3.15. Maintenance of Certain Servicing Policies...................
Section 3.16. Optional Purchase of Defaulted Mortgage Loans...............
ARTICLE IV
PAYMENTS AND STATEMENTS
Section 4.01. Distributions...............................................
Section 4.02. Method of Distribution......................................
Section 4.03. Allocation of Losses........................................
Section 4.04. Monthly Advances; Purchases of Defaulted Mortgage Loans.....
Section 4.05. Statements to Certificateholders............................
Section 4.06. Servicer's Certificate......................................
Section 4.07. Reports of Foreclosures and Abandonments of Mortgaged
Property....................................................
Section 4.08. Reduction of Servicing Fees by Compensating Interest
Payments....................................................
Section 4.09. Surety Bond.................................................
Section 4.10. Distributions to Holders of Designated Retail
Certificates................................................
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates............................................
Section 5.02. Registration of Transfer and Exchange of Certificates.......
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...........
Section 5.04. Persons Deemed Owners.......................................
Section 5.05. Access to List of Certificateholders' Names and
Addresses...................................................
Section 5.06. Representation of Certain Certificateholders................
Section 5.07. Determination of COFI.......................................
Section 5.08. Determination of LIBOR......................................
ARTICLE VI
THE COMPANY
Section 6.01. Liability of the Company....................................
Section 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Company.................................
Section 6.03. Assignment..................................................
Section 6.04. Limitation on Liability of the Company and Others...........
Section 6.05. The Company Not to Resign...................................
ARTICLE VII
DEFAULT
Section 7.01. Events of Default...........................................
Section 7.02. Trustee to Act; Appointment of Successor....................
Section 7.03. Notification to Certificateholders..........................
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee...........................................
Section 8.02. Certain Matters Affecting the Trustee.......................
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.......
Section 8.04. Trustee May Own Certificates................................
Section 8.05. The Company to Pay Trustee's Fees and Expenses..............
Section 8.06. Eligibility Requirements for Trustee........................
Section 8.07. Resignation or Removal of Trustee...........................
Section 8.08. Successor Trustee...........................................
Section 8.09. Merger or Consolidation of Trustee..........................
Section 8.10. Appointment of Co-Trustee or Separate Trustee...............
Section 8.11. Compliance with REMIC Provisions; Tax Returns...............
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Repurchase by the Company or
Liquidation of All Mortgage Loans...........................
Section 9.02. Additional Termination Requirements.........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment...................................................
Section 10.02. Recordation of Agreement....................................
Section 10.03. Limitation on Rights of Certificateholders..................
Section 10.04. Governing Law...............................................
Section 10.05. Notices.....................................................
Section 10.06. Notices to the Rating Agencies..............................
Section 10.07. Severability of Provisions..................................
Section 10.08. Certificates Nonassessable and Fully Paid...................
Exhibits
--------
EXHIBIT A Forms of Certificates
EXHIBIT B Principal Balance Schedules
EXHIBIT C Mortgage Loans (including list of Cooperative Loans)
EXHIBIT D Form of Servicer's Certificate
EXHIBIT E Form of Transfer Certificate as to ERISA Matters for Definitive
ERISA-Restricted Certificates
EXHIBIT F Form of Residual Certificate Transferee Affidavit
EXHIBIT G Form of Residual Certificate Transferor Letter
EXHIBIT H Additional Servicer Compensation
EXHIBIT I Form of Investment Letter for Definitive Restricted Certificates
EXHIBIT J Form of Distribution Date Statement
EXHIBIT K Form of Special Servicing and Collateral Fund Agreement
EXHIBIT L Form of Lost Note Affidavit and Agreement
EXHIBIT M Schedule of Designated Loans
EXHIBIT N Schedule of Pledged Asset Mortgage Loans
EXHIBIT O Senior Principal Priorities
EXHIBIT P Schedule of CashSaver Mortgage Loans
THIS POOLING AND SERVICING AGREEMENT, dated as of September 1, 2000,
between GE CAPITAL MORTGAGE SERVICES, INC., a corporation organized and existing
under the laws of the State of New Jersey, and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts banking corporation, as Trustee.
W I T N E S S E T H T H A T :
- - - - - - - - - - - - - -
In consideration of the mutual agreements herein contained, GE
Capital Mortgage Services, Inc. and State Street Bank and Trust Company agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accretion Directed Certificate: None.
Accretion Directed Component: None.
Accretion Termination Date: None.
Accrual Amount: As to any Class of Accrual Certificates and any
Accrual Component and each Distribution Date through the related Accretion
Termination Date, the sum of (x) any amount of Accrued Certificate
Interest allocable to such Class or Component pursuant to Section
4.01(a)(i) on such Distribution Date and (y) any amount of Unpaid Class
Interest Shortfall allocable to such Class or Component pursuant to
Section 4.01(a)(ii) on such Distribution Date, to the extent that such
amounts are distributed to any Accretion Directed Certificates and any
Accretion Directed Components pursuant to Section 4.01(e). As to any Class
of Accrual Certificates and any Accrual Component and each Distribution
Date after the related Accretion Termination Date, zero.
Accrual Certificates: None.
Accrual Component: None.
Accrued Certificate Interest: As to any Distribution Date and any
Class of Certificates (other than any Class of Principal Only Certificates
and any Class of Certificates consisting of Specified Components),
interest accrued during the related Interest Accrual Period at the
applicable Certificate Interest Rate on the Class Certificate Principal
Balance (or, in the case of any Class of Notional Certificates other than
the Class S Certificates, on the aggregate Notional Principal Balance)
thereof immediately prior to (or, in the case of the Class S Certificates,
on the aggregate Notional Principal Balance thereof with respect to) such
Distribution Date, calculated on the basis of a 360-day year consisting of
twelve 30-day months. As to any Distribution Date and any Specified
Component (other than any Principal Only Component), interest accrued
during the related Interest Accrual Period at the applicable Component
Interest Rate on the Component Principal Balance (or Notional Component
Principal Balance) thereof immediately prior to such Distribution Date,
calculated on the basis of a 360-day year consisting of twelve 30-day
months. As to any Distribution Date and any Class of Certificates
consisting of Specified Components, the aggregate of Accrued Certificate
Interest on such Specified Components for such Distribution Date.
Accrued Certificate Interest on each Class of Certificates (other
than any Class of Principal Only Certificates and any Class of
Certificates consisting of Specified Components) and any Specified
Component (other than any Principal Only Component) shall be reduced by
such Class's or Specified Component's share of the amount of any Net
Interest Shortfall and Interest Losses for such Distribution Date. Any Net
Interest Shortfall and Interest Losses shall be allocated among (x) the
Classes of Certificates (other than any Class of Principal Only
Certificates and any Class of Certificates consisting of Specified
Components) and (y) the Specified Components (other than any Principal
Only Component) of any Component Certificate in proportion to the
respective amounts of Accrued Certificate Interest that would have
resulted absent such shortfall or losses.
Additional Collateral: With respect to any Mortgage 100SM Loan, the
marketable securities held from time to time as security for the repayment
of such Mortgage 100SM Loan and any related collateral. With respect to
any Parent PowerSM Loan, the third-party guarantee for such Parent PowerSM
Loan, together with (i) any marketable securities held from time to time
as security for the performance of such guarantee and any related
collateral or (ii) any mortgaged property securing the performance of such
guarantee, the related home equity line of credit loan and any related
collateral. With respect to any CashSaver Mortgage Loan, the cash and/or
marketable securities held from time to time as security for the repayment
of such CashSaver Mortgage Loan and any related collateral.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Allocable Share: (a) As to any Distribution Date and amounts
distributable pursuant to clauses (i) and (iii) of the definition of
Junior Optimal Principal Amount, and as to each Class of Junior
Certificates, the fraction, expressed as a percentage, the numerator of
which is the Class Certificate Principal Balance of such Class and the
denominator of which is the aggregate Class Certificate Principal Balance
of the Junior Certificates.
(b) As to any Distribution Date and amounts distributable pursuant
to clauses (ii), (iv) and (v) of the definition of Junior Optimal
Principal Amount, and as to the Class M Certificates and each Class of
Class B Certificates for which the related Prepayment Distribution Trigger
has been satisfied on such Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Class Certificate Principal
Balance of such Class and the denominator of which is the aggregate Class
Certificate Principal Balance of all such Classes. As to any Distribution
Date and each Class of Class B Certificates for which the related
Prepayment Distribution Trigger has not been satisfied on such
Distribution Date, 0%.
Amortization Payment: As to any REO Mortgage Loan and any month, the
payment of principal and accrued interest due in such month in accordance
with the terms of the related Mortgage Note as contemplated by Section
3.08(b).
Amount Held for Future Distribution: As to each Distribution Date,
the total of all amounts credited to the Mortgage Loan Payment Record as
of the preceding Determination Date on account of (i) Principal
Prepayments, Insurance Proceeds and Liquidation Proceeds received
subsequent to the preceding Prepayment Period applicable to such receipts,
and (ii) monthly payments of principal and interest due subsequent to the
preceding Due Date.
Anniversary Determination Date: The Determination Date occurring in
October of each year that the Certificates are outstanding, commencing in
October 2001.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
the assignment of the related Proprietary Lease from the Mortgagor to the
originator of the Cooperative Loan.
Assumed Monthly Payment Reduction: As of any Anniversary
Determination Date and as to any Non-Primary Residence Loan remaining in
the Mortgage Pool whose original principal balance was 80% or greater of
the Original Value thereof, the excess of (i) the Monthly Payment thereof
calculated on the assumption that the Mortgage Rate thereon was equal to
the weighted average (by principal balance) of the Net Mortgage Rates of
all Outstanding Mortgage Loans (the "Weighted Average Rate") as of such
Anniversary Determination Date over (ii) the Monthly Payment thereof
calculated on the assumption that the Net Mortgage Rate thereon was equal
to the Weighted Average Rate less 1.25% per annum.
Available Funds: As to each Distribution Date, an amount equal to
the sum of (i) all amounts credited to the Mortgage Loan Payment Record
pursuant to Section 3.02 as of the preceding Determination Date, (ii) any
Monthly Advance and any Compensating Interest Payment for such
Distribution Date, (iii) the Purchase Price of any Defective Mortgage
Loans and Defaulted Mortgage Loans deposited in the Certificate Account on
the Business Day preceding such Distribution Date (including any amounts
deposited in the Certificate Account in connection with any substitution
of a Mortgage Loan as specified in Section 2.03(b)), and (iv) the purchase
price of any defaulted Mortgage Loan purchased under an agreement entered
into pursuant to Section 3.08(e) as of the end of the preceding Prepayment
Period less the sum of (x) the Amount Held for Future Distribution, (y)
the amount of any Unanticipated Recovery credited to the Mortgage Loan
Payment Record pursuant to clause (vi) of Section 3.02(b), and (z) amounts
permitted to be debited from the Mortgage Loan Payment Record pursuant to
clauses (i) through (vii) and (ix) of Section 3.04.
Bankruptcy Coverage Termination Date: The Distribution Date upon
which the Bankruptcy Loss Amount has been reduced to zero or a negative
number (or the Cross-Over Date, if earlier).
Bankruptcy Loss Amount: As of any Determination Date prior to the
first Anniversary Determination Date, the Bankruptcy Loss Amount shall
equal $100,000, as reduced by the aggregate amount of Deficient Valuations
and Debt Service Reductions since the Cut-off Date. As of any
Determination Date after the first Anniversary Determination Date, other
than an Anniversary Determination Date, the Bankruptcy Loss Amount shall
equal the Bankruptcy Loss Amount on the immediately preceding Anniversary
Determination Date as reduced by the aggregate amount of Deficient
Valuations and Debt Service Reductions since such preceding Anniversary
Determination Date. As of any Anniversary Determination Date, the
Bankruptcy Loss Amount shall equal the lesser of (x) the Bankruptcy Loss
Amount as of the preceding Determination Date as reduced by any Deficient
Valuations and Debt Service Reductions for the preceding Distribution
Date, and (y) the greater of (i) the Fitch Formula Amount for such
Anniversary Determination Date and (ii) the Formula Amount for such
Anniversary Determination Date.
The Bankruptcy Loss Amount may be further reduced by the Company
(including accelerating the manner in which such coverage is reduced)
provided that prior to any such reduction, the Company shall obtain
written confirmation from each Rating Agency that such reduction shall not
adversely affect the then-current rating assigned to the related Classes
of Certificates by such Rating Agency and shall provide a copy of such
written confirmation to the Trustee.
BBA: The British Bankers' Association.
BIF: The Bank Insurance Fund of the FDIC, or its successor in
interest.
Book-Entry Certificate: Any Certificate registered in the name of
the Depository or its nominee, ownership of which is reflected on the
books of the Depository or on the books of a person maintaining an account
with such Depository (directly or as an indirect participant in accordance
with the rules of such Depository). As of the Closing Date, each Class of
Certificates, other than the Class B3, Class B4, Class B5, Class R, Class
PO and Class S Certificates, constitutes a Class of Book-Entry
Certificates.
Business Day: Any day other than a Saturday or a Sunday, or a day on
which banking institutions in New York City or the city in which the
Corporate Trust Office is located are authorized or obligated by law or
executive order to be closed.
Buydown Funds: Funds contributed by the Mortgagor or another source
in order to reduce the interest payments required from the Mortgagor for a
specified period in specified amounts.
Buydown Mortgage Loan: Any Mortgage Loan as to which the Mortgagor
pays less than the full monthly payment specified in the Mortgage Note
during the Buydown Period and the difference between the amount paid by
the Mortgagor and the amount specified in the Mortgage Note is paid from
the related Buydown Funds.
Buydown Period: The period during which Buydown Funds are required
to be applied to the related Buydown Mortgage Loan.
CashSaver Mortgage Loan: A Mortgage Loan identified on Exhibit P
hereof that has a Loan-to-Value Ratio at origination of a minimum of 97%
and a maximum of 100% and that is secured by Additional Collateral.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The trust account or accounts created and
maintained with the Trustee pursuant to Section 3.02 and which must be an
Eligible Account.
Certificate Interest Rate: With respect to any Class of
Certificates, other than the Class S Certificates, any COFI Certificates
or any LIBOR Certificates, and as of any Distribution Date, the per annum
rate specified or described in Section 5.01(b). With respect to any Class
of LIBOR Certificates, the per annum variable rate at any time at which
interest accrues on the Certificates of such Class, as determined pursuant
to Section 5.01(f). With respect to any Class of COFI Certificates, the
per annum variable rate at any time at which interest accrues on the
Certificates of such Class, as determined pursuant to Section 5.01(e).
With respect to the Class S Certificates and any Distribution Date, the
Strip Rate for such Distribution Date.
Certificate Owner: With respect to any Book-Entry Certificate, the
person who is the beneficial owner thereof.
Certificate Principal Balance: As to any Certificate other than a
Notional Certificate, and as of any Distribution Date, the Initial
Certificate Principal Balance of such Certificate (plus, in the case of
any Accrual Certificate, its Percentage Interest of any related Accrual
Amount for each previous Distribution Date) less the sum of (i) all
amounts distributed with respect to such Certificate in reduction of the
Certificate Principal Balance thereof on previous Distribution Dates
pursuant to Section 4.01, (ii) any Realized Losses allocated to such
Certificate on previous Distribution Dates pursuant to Section 4.03(b) and
(c), and (iii) in the case of a Subordinate Certificate, such
Certificate's Percentage Interest of the Subordinate Certificate Writedown
Amount allocated to such Certificate on previous Distribution Dates. The
Notional Certificates are issued without Certificate Principal Balances.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 5.02.
Certificateholder or Holder: 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, a Certificate
of any Class to the extent that the Company or any affiliate is the
Certificate Owner or Holder thereof (except to the extent the Company or
any affiliate thereof shall be the Certificate Owner or Holder of all
Certificates of such Class), shall be deemed not to be outstanding and the
Percentage Interest (or Voting Rights) evidenced thereby shall not be
taken into account in determining whether the requisite amount of
Percentage Interests (or Voting Rights) necessary to effect any such
consent has been obtained; provided, however, that in determining whether
the Trustee shall be protected in relying on such consent only the
Certificates that the Trustee knows to be so held shall be so disregarded.
Class: All Certificates bearing the same class designation.
Class B Certificate: Any Class B1, Class B2, Class B3, Class B4 or
Class B5 Certificate.
Class Certificate Principal Balance: As to any Class of
Certificates, other than any Class of Notional Certificates, and as of any
date of determination, the aggregate of the Certificate Principal Balances
of all Certificates of such Class. The Class Certificate Principal Balance
of each such Class of Certificates as of the Closing Date is specified in
Section 5.01(b).
Class Interest Shortfall: As to any Distribution Date and any Class
of Certificates (other than any Class of Principal Only Certificates or
any Class consisting of Specified Components) or any Specified Component,
any amount by which the amount distributed to Holders of such Class of
Certificates or in respect of such Specified Component (or added to the
Class Certificate Principal Balance of any Class of Accrual Certificates
or to the Component Principal Balance of any Accrual Component
constituting a Specified Component) on such Distribution Date pursuant to
Sections 4.01(a)(i), (a)(v), (a)(viii), (a)(xi), (a)(xiv), (a)(xvii) or
(a)(xx), as applicable), is less than the Accrued Certificate Interest
thereon or in respect thereof for such Distribution Date. As to any
Distribution Date and any Class of Certificates consisting of Specified
Components, the sum of the Class Interest Shortfalls for such Components
on such date.
Class PO Deferred Amount: As to any Distribution Date on or prior to
the Cross-Over Date, the aggregate of the applicable PO Percentage of the
principal portion of each Realized Loss, other than any Excess Loss, to be
allocated to the Class PO Certificates on such Distribution Date or
previously allocated to the Class PO Certificates and not yet paid to the
Holders of the Class PO Certificates pursuant to Section 4.01(a)(iv).
Class PO Principal Distribution Amount: As to any Distribution Date,
an amount equal to the sum of the applicable PO Percentage of:
(i) the principal portion of each Monthly Payment due on the related
Due Date on each Outstanding Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time applicable thereto
(after adjustments for previous Principal Prepayments and the principal
portion of Debt Service Reductions subsequent to the Bankruptcy Coverage
Termination Date but before any adjustment to such amortization schedule
by reason of any bankruptcy (except as aforesaid) or similar proceeding or
any moratorium or similar waiver or grace period);
(ii) all principal prepayments in part received during the related
Prepayment Period, together with the Scheduled Principal Balance (as
reduced by any Deficient Valuation occurring on or prior to the Bankruptcy
Coverage Termination Date) of each Mortgage Loan which was the subject of
a Voluntary Principal Prepayment in full during the related Prepayment
Period;
(iii) the sum of (A) all Net Liquidation Proceeds allocable to
principal received in respect of each Mortgage Loan that became a
Liquidated Mortgage Loan during the related Prepayment Period (other than
Mortgage Loans described in clause (B)) and (B) the principal balance of
each Mortgage Loan purchased by an insurer from the Trustee pursuant to
the related Primary Insurance Policy, in each case during the related
Prepayment Period;
(iv) the Scheduled Principal Balance (as reduced by any Deficient
Valuation occurring on or prior to the Bankruptcy Coverage Termination
Date) of each Mortgage Loan which was purchased on such Distribution Date
pursuant to Section 2.02, 2.03(a) or 3.16; and
(v) the Substitution Amount for any Mortgage Loan substituted during
the month of such Distribution Date; for purposes of this clause (v), the
definition of "Substitution Amount" shall be modified to reduce the
Scheduled Principal Balance of the Mortgage Loan that is substituted for
by any Deficient Valuation occurring on or prior to the Bankruptcy
Coverage Termination Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment
in full with respect to a Mortgage Loan serviced by a Primary Servicer
shall be deemed to have been received when the Company, as servicer,
receives notice thereof.
Closing Date: September 28, 2000.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time, any successor statutes thereto, and applicable U.S.
Department of the Treasury temporary or final regulations promulgated
thereunder.
COFI: The monthly weighted average cost of funds for savings
institutions the home offices of which are located in Arizona, California,
or Nevada that are member institutions of the Eleventh Federal Home Loan
Bank District, as computed from statistics tabulated and published by the
Federal Home Loan Bank of San Francisco in its monthly Information
Bulletin.
COFI Certificates: None.
COFI Determination Date: As to each Interest Accrual Period for any
COFI Certificates, the last Business Day of the calendar month preceding
the commencement of such Interest Accrual Period.
Company: GE Capital Mortgage Services, Inc., a corporation organized
and existing under the laws of the State of New Jersey, or its successor
in interest or, if any successor servicer is appointed as herein provided,
then such successor servicer.
Compensating Interest Payment: With respect to any Distribution
Date, an amount equal to the aggregate of the Interest Shortfalls
described in clauses (A) and (B) of the definition thereof with respect to
such Distribution Date; provided, however, that such amount shall not
exceed the lesser of (i) an amount equal to the product of (x) the Pool
Scheduled Principal Balance with respect to such Distribution Date and (y)
one-twelfth of 0.125%, and (ii) the aggregate of the Servicing Fees that
the Company would be entitled to retain on such Distribution Date (less
any portion thereof paid as servicing compensation to any Primary
Servicer) without giving effect to any Compensating Interest Payment.
Component: Any of the components of a Class of Component
Certificates having the designations and the initial Component Principal
Balances as follows:
Initial Component
Designation Principal Balance
----------- -----------------
N/A N/A
Component Certificate: None.
Component Interest Rate: None.
Component Principal Balance: As of any Distribution Date, and with
respect to any Component, other than any Notional Component, the initial
Component Principal Balance thereof (as set forth, as applicable, in the
definition of Component) (plus, in the case of any Accrual Component, any
related Accrual Amount for each previous Distribution Date) less the sum
of (x) all amounts distributed in reduction thereof on previous
Distribution Dates pursuant to Section 4.01 and (y) the amount of all
Realized Losses allocated thereto pursuant to Section 4.03(d).
Confirmatory Mortgage Note: With respect to any Mortgage Loan, a
note or other evidence of indebtedness executed by the Mortgagor
confirming its obligation under the note or other evidence of indebtedness
previously executed by the Mortgagor upon the origination of the related
Mortgage Loan.
Cooperative: A private, cooperative housing corporation organized in
accordance with applicable state laws which owns or leases land and all or
part of a building or buildings located in the relevant 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 one or more Proprietary
Leases.
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(s),
(iii) an assignment of the Proprietary Lease(s), (iv) financing statements
and (v) a stock power (or other similar instrument), and in addition
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. The Mortgage Loans identified as such in
Exhibit C hereto are Cooperative Loans.
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(s) or other instrument evidencing the related
Cooperative Stock.
Corporate Trust Office: The principal office of the Trustee at which
at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this instrument is located at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate
Trust Department.
Cross-Over Date: The first Distribution Date on which the aggregate
Class Certificate Principal Balance of the Junior Certificates has been
reduced to zero (giving effect to all distributions on such Distribution
Date).
Custodial Agreement: The Custodial Agreement, dated as of September
28, 2000, among the Company, the Trustee and the Custodian, as the same
may be amended or modified from time to time in accordance with the terms
thereof.
Custodian: First Union National Bank, or its successor in interest,
or if any successor Custodian is appointed pursuant to the terms of
Section 3.5 of the Custodial Agreement, such successor custodian.
Cut-off Date: September 1, 2000.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (a) the then current Monthly Payment for
such Mortgage Loan over (b) the amount of the monthly payment of principal
and interest required to be paid by the Mortgagor as established by a
court of competent jurisdiction as a result of a proceeding initiated by
or against the related Mortgagor under the Bankruptcy Code, as amended
from time to time (11 U.S.C.).
Deceased Holder: With respect to a Holder of any Designated Retail
Certificate, as defined in Section 4.10(b).
Defaulted Mortgage Loan: With respect to any Determination Date, a
Mortgage Loan as to which the related Mortgagor has failed to make
unexcused payment in full of a total of three or more consecutive
installments of principal and interest, and as to which such delinquent
installments have not been paid, as of the close of business on the last
Business Day of the month next preceding the month of such Determination
Date.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
purchased by the Company (or which the Company may replace with a
substitute Mortgage Loan) pursuant to Section 2.02 or 2.03(a).
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (a) the then outstanding indebtedness under such
Mortgage Loan over (b) the valuation by a court of competent jurisdiction
of the related Mortgaged Property as a result of a proceeding initiated by
or against the related Mortgagor under the Bankruptcy Code, as amended
from time to time (11 U.S.C.), pursuant to which such Mortgagor retained
such Mortgaged Property.
Definitive Certificate: Any Certificate, other than a Book-Entry
Certificate, issued in definitive, fully registered form.
Definitive Restricted Junior Certificate: Any Restricted Junior
Certificate that is in the form of a Definitive Certificate.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York, as amended, or any
successor provisions thereto.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for which, from time to time, the Depository
effects book-entry transfers and pledges of securities deposited with such
Depository.
Designated Loan Closing Documents: With respect to any Designated
Loan, a Lost Note Affidavit substantially in the form of Exhibit L, and an
assignment of the related Mortgage to the Trustee in recordable form
(except for the omission therein of recording information concerning such
Mortgage).
Designated Loans: The Mortgage Loans listed in Exhibit M hereto.
Designated Maturity: Fifteen years.
Designated Rate: 7.25% per annum.
Designated Retail Certificate: None.
Designated Telerate Page: The Dow Xxxxx Telerate Service page 3750
(or such other page as may replace page 3750 on that service or such other
service as may be nominated by the BBA for the purpose of displaying the
Interest Settlement Rates).
Determination Date: With respect to any Distribution Date, the fifth
Business Day prior thereto.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate
less than the Designated Rate.
Disqualified Organization: Any of the following: (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing (including but not limited to
state pension organizations); (ii) a foreign government, International
Organization 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 tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated
business taxable income); and (iv) a rural electric and telephone
cooperative described in Code section 1381(a)(2)(C). The terms "United
States," "State" and "International Organization" shall have the meanings
set forth in Code section 7701 or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its
activities are subject to tax and a majority of its board of directors is
not selected by such governmental unit.
Distribution Date: The 25th day of each calendar month after the
month of initial issuance of the Certificates, or, if such 25th day is not
a Business Day, the next succeeding Business Day.
Distribution Date Statement: The statement referred to in Section
4.05(a).
Document File: As defined in Section 2.01.
Due Date: The first day of the month of the related Distribution
Date.
Eligible Account: An account that is either (i) maintained with a
depository institution the debt obligations of which have been rated by
each Rating Agency in one of its two highest long-term rating categories
and has been assigned by S&P its highest short-term rating, (ii) an
account or accounts the deposits in which are fully insured by either the
BIF or the SAIF, (iii) an account or accounts, in a depository institution
in which such accounts are insured by the BIF or the SAIF (to the limits
established by the FDIC), the uninsured deposits in which accounts are
either invested in Permitted Investments or are otherwise secured to the
extent required by the Rating Agencies such that, as evidenced by an
Opinion of Counsel delivered to the Trustee, the Certificateholders have a
claim with respect to the funds in such account or a perfected first
security interest against any collateral (which shall be limited to
Permitted Investments) securing such funds that is superior to claims of
any other depositors or creditors of the depository institution with which
such account is maintained, (iv) a trust account maintained with the
corporate trust department of a federal or state chartered depository
institution or of a trust company with trust powers and acting in its
fiduciary capacity for the benefit of the Trustee hereunder or (v) such
account as will not cause either Rating Agency to downgrade or withdraw
its then-current rating assigned to the Certificates, as evidenced in
writing by the Rating Agencies.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Restricted Certificate: Any Junior Certificate.
Event of Default: An event described in Section 7.01.
Excess Bankruptcy Loss: Any Deficient Valuation or Debt Service
Reduction, or portion thereof, (i) occurring after the Bankruptcy Coverage
Termination Date or (ii) if on such date, in excess of the then-applicable
Bankruptcy Loss Amount.
Excess Fraud Loss: Any Fraud Loss, or portion thereof, (i) occurring
after the Fraud Coverage Termination Date or (ii) if on such date, in
excess of the then-applicable Fraud Loss Amount.
Excess Loss: Any Excess Bankruptcy Loss, Excess Fraud Loss or Excess
Special Hazard Loss.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion
thereof, (i) occurring after the Special Hazard Termination Date or (ii)
if on such date, in excess of the then-applicable Special Hazard Loss
Amount.
FDIC: The Federal Deposit Insurance Corporation, or its successor in
interest.
FHLMC: The Federal Home Loan Mortgage Corporation or its successor
in interest.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Fitch: Fitch, Inc. and its successors.
Fitch Formula Amount: As to each Anniversary Determination Date, the
greater of (i) $50,000 and (ii) the product of (x) the greatest Assumed
Monthly Payment Reduction for any Non-Primary Residence Loan whose
original principal balance was 80% or greater of the Original Value
thereof, (y) the weighted average remaining term to maturity (expressed in
months) of all the Non-Primary Residence Loans remaining in the Mortgage
Pool as of such Anniversary Determination Date, and (z) the sum of (A) one
plus (B) the number of all remaining Non-Primary Residence Loans divided
by the total number of Outstanding Mortgage Loans as of such Anniversary
Determination Date.
FNMA: The Federal National Mortgage Association or its successor in
interest.
Formula Amount: As to each Anniversary Determination Date, the
greater of (i) $100,000 and (ii) the product of (x) 0.06% and (y) the
Scheduled Principal Balance of each Mortgage Loan remaining in the
Mortgage Pool whose original principal balance was 75% or greater of the
Original Value thereof.
Fraud Coverage Termination Date: The Distribution Date upon which
the related Fraud Loss Amount has been reduced to zero or a negative
number (or the Cross-Over Date, if earlier).
Fraud Loss: Any Realized Loss attributable to fraud in the
origination of the related Mortgage Loan.
Fraud Loss Amount: As of any Distribution Date after the Cut-off
Date, (x) prior to the first anniversary of the Cut-off Date, an amount
equal to $1,264,748 minus the aggregate amount of Fraud Losses that would
have been allocated to the Junior Certificates in accordance with Section
4.03 in the absence of the Loss Allocation Limitation since the Cut-off
Date, and (y) from the first to the fifth anniversary of the Cut-off Date,
an amount equal to (1) the lesser of (a) the Fraud Loss Amount as of the
most recent anniversary of the Cut-off Date and (b) 1% (from the first to
but excluding the third anniversaries of the Cut-off Date) or 0.5% (from
and including the third to but excluding the fifth anniversaries of the
Cut-off Date) of the aggregate outstanding principal balance of all of the
Mortgage Loans as of the most recent anniversary of the Cut-off Date minus
(2) the Fraud Losses that would have been allocated to the Junior
Certificates in accordance with Section 4.03 in the absence of the Loss
Allocation Limitation since the most recent anniversary of the Cut-off
Date. On or after the fifth anniversary of the Cut-off Date the Fraud Loss
Amount shall be zero.
Initial Certificate Principal Balance: With respect to any
Certificate, other than a Notional Certificate, the Certificate Principal
Balance of such Certificate or any predecessor Certificate on the Closing
Date.
Initial LIBOR Rate: None.
Insurance Proceeds: Proceeds paid pursuant to the Primary Insurance
Policies, if any, and amounts paid by any insurer pursuant to any other
insurance policy covering a Mortgage Loan.
Insured Expenses: Expenses covered by the Primary Insurance
Policies, if any, or any other insurance policy or policies applicable to
the Mortgage Loans.
Interest Accrual Period: With respect to any Distribution Date and
any Class of Certificates (other than any Class of Principal Only
Certificates) or Component, the one-month period ending on the last day of
the month preceding the month in which such Distribution Date occurs.
Interest Losses: The interest portion of (i) on or prior to the
Cross-Over Date, any Excess Losses and (ii) after the Cross-Over Date, any
Realized Losses and Debt Service Reductions.
Interest Settlement Rate: With respect to any Interest Accrual
Period, the rate (expressed as a percentage per annum) for one-month U.S.
Dollar deposits reported by the BBA at 11:00 a.m. London time on the
related LIBOR Determination Date and as it appears on the Designated
Telerate Page.
Interest Shortfall: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the subject of
a Voluntary Principal Prepayment or constitutes a Relief Act Mortgage
Loan, an amount determined as follows:
(A) partial principal prepayments: one month's interest at the
applicable Net Mortgage Rate on the amount of such prepayment;
(B) principal prepayments in full received on or after the
sixteenth day of the month preceding the month of such Distribution
Date (or, in the case of the first Distribution Date, on or after
the Cut-off Date) but on or before the last day of the month
preceding the month of such Distribution Date, the difference
between (i) one month's interest at the applicable Net Mortgage Rate
on the Scheduled Principal Balance of such Mortgage Loan immediately
prior to such prepayment and (ii) the amount of interest for the
calendar month of such prepayment (adjusted to the applicable Net
Mortgage Rate) received at the time of such prepayment;
(C) principal prepayments in full received by the Company (or
of which the Company receives notice, in the case of a Mortgage Loan
serviced by a Primary Servicer) on or after the first day but on or
before the fifteenth day of the month of such Distribution Date:
none; and
(D) Relief Act Mortgage Loans: As to any Relief Act Mortgage
Loan, the excess of (i) 30 days' interest (or, in the case of a
Principal Prepayment in full, interest to the date of prepayment) on
the Scheduled Principal Balance thereof (or, in the case of a
Principal Prepayment in part, on the amount so prepaid) at the
related Net Mortgage Rate over (ii) 30 days' interest (or, in the
case of a Principal Prepayment in full, interest to the date of
prepayment) on such Scheduled Principal Balance (or, in the case of
a Principal Prepayment in part, on the amount so prepaid) at the Net
Mortgage Rate required to be paid by the Mortgagor as limited by
application of the Relief Act.
Junior Certificate: Any Class M or Class B Certificate.
Junior Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of the following (but in no event greater than the
aggregate Certificate Principal Balance of the Junior Certificates
immediately prior to such Distribution Date):
(i) the Junior Percentage of the applicable Non-PO Percentage of the
principal portion of each Monthly Payment due on the related Due Date on
each Outstanding Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time applicable thereto (after adjustment for
previous Principal Prepayments and the principal portion of Debt Service
Reductions subsequent to the Bankruptcy Coverage Termination Date but
before any adjustment to such amortization schedule by reason of any
bankruptcy (other than as aforesaid) or similar proceeding or any
moratorium or similar waiver or grace period);
(ii) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of all principal prepayments in part received during the
related Prepayment Period, and 100% of any Senior Optimal Principal Amount
not distributed to the Senior Certificates on such Distribution Date,
together with the Junior Prepayment Percentage of the applicable Non-PO
Percentage of the Scheduled Principal Balance of each Mortgage Loan which
was the subject of a Voluntary Principal Prepayment in full during the
related Prepayment Period;
(iii) the excess, if any, of (x) the applicable Non-PO Percentage of
the sum of (A) all Net Liquidation Proceeds allocable to principal
received during the related Prepayment Period (other than in respect of
Mortgage Loans described in clause (B)) and (B) the principal balance of
each Mortgage Loan that was purchased by an insurer from the Trustee
during the related Prepayment Period pursuant to the related Primary
Insurance Policy, over (y) the amount distributable pursuant to clause
(iii) of the definition of Senior Optimal Principal Amount on such
Distribution Date;
(iv) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of the Scheduled Principal Balance of each Mortgage Loan which
was purchased on such Distribution Date pursuant to Section 2.02, 2.03(a)
or 3.16; and
(v) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of the Substitution Amount for any Mortgage Loan substituted
during the month of such Distribution Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment
in full with respect to a Mortgage Loan serviced by a Primary Servicer
shall be deemed to have been received when the Company, as servicer,
receives notice thereof.
After the Class Certificate Principal Balances of the Junior
Certificates have been reduced to zero, the Junior Optimal Principal
Amount shall be zero.
Junior Percentage: As to any Distribution Date, the excess of 100%
over the Senior Percentage for such Distribution Date.
Junior Prepayment Percentage: As to any Distribution Date, the
excess of 100% over the Senior Prepayment Percentage for such Distribution
Date, except that (i) after the aggregate Certificate Principal Balance of
the Senior Certificates other than the Class PO Certificates has been
reduced to zero, the Junior Prepayment Percentage shall be 100%, and (ii)
after the Cross-Over Date, the Junior Prepayment Percentage shall be zero.
Latest Possible Maturity Date: October 25, 2015.
LIBOR: With respect to any Interest Accrual Period, the per annum
rate determined, pursuant to Section 5.08, on the basis of the Interest
Settlement Rate or as otherwise provided in such Section.
LIBOR Certificate: None.
LIBOR Determination Date: The second London Banking Day immediately
preceding the commencement of each Interest Accrual Period for any LIBOR
Certificates.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which
the Company has determined that all amounts which it expects to recover on
behalf of the Trust Fund from or on account of such Mortgage Loan have
been recovered, including any Mortgage Loan with respect to which the
Company determines not to foreclose upon the related Mortgaged Property
based on its belief that such Mortgaged Property may be contaminated with
or affected by hazardous or toxic wastes, materials or substances.
Liquidation Expenses: Expenses which are incurred by the Company in
connection with the liquidation of any defaulted Mortgage Loan and not
recovered by the Company under any Primary Insurance Policy for reasons
other than the Company's failure to comply with Section 3.05, such
expenses including, without limitation, legal fees and expenses, and,
regardless of when incurred, any unreimbursed amount expended by the
Company pursuant to Section 3.03 or Section 3.06 respecting the related
Mortgage Loan and any related and unreimbursed Property Protection
Expenses.
Liquidation Proceeds: Cash (other than Insurance Proceeds) received
in connection with the liquidation of any defaulted Mortgage Loan whether
through judicial foreclosure or otherwise.
Living Holder: Any Certificate Owner of a Designated Retail
Certificate, other than a Deceased Holder.
Loan-to-Value Ratio: With respect to each Mortgage Loan, the
original principal amount of such Mortgage Loan, divided by the Original
Value of the related Mortgaged Property.
London Banking Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England.
Loss Allocation Limitation: As defined in Section 4.03(g).
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or its successor in interest.
Minimum Servicing Standards: As defined in Section 3.13(a).
MLCC: Xxxxxxx Xxxxx Credit Corporation, or its successor in
interest.
Monthly Advance: With respect to any Distribution Date, the
aggregate of the advances required to be made by the Company pursuant to
Section 4.04(a) (or by the Trustee pursuant to Section 4.04(b)) on such
Distribution Date, the amount of any such Monthly Advance being equal to
(a) the aggregate of payments of principal and interest (adjusted to the
related Net Mortgage Rate) on the Mortgage Loans that were due on the
related Due Date, without regard to any arrangements entered into by the
Company with the related Mortgagors pursuant to Section 3.02(a)(ii), and
delinquent as of the close of business on the Business Day next preceding
the related Determination Date, less (b) the amount of any such payments
which the Company or the Trustee, as applicable, in its reasonable
judgment believes will not be ultimately recoverable by it either out of
late payments by the Mortgagor, Net Liquidation Proceeds, Insurance
Proceeds, REO Proceeds or otherwise. With respect to any Mortgage Loan,
the portion of any such advance or advances made with respect thereto.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
for any month allocable to principal or interest on such Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc. and its successors.
Mortgage: The mortgage or deed of trust creating a first lien on a
fee simple interest or leasehold estate in real property securing a
Mortgage Note.
Mortgage 100SM Loan: A Mortgage Loan identified on Exhibit N hereof
that has a Loan-to-Value Ratio at origination in excess of 80.00% and that
is secured by Additional Collateral and does not have a Primary Insurance
Policy.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents
required to be added to such documents pursuant to this Agreement.
Mortgage Loan Payment Record: The record maintained by the Company
pursuant to Section 3.02(b).
Mortgage Loan Schedule: As of any date of determination, the
schedule of Mortgage Loans included in the Trust Fund. The initial
schedule of Mortgage Loans as of the Cut-off Date is attached hereto as
Exhibit C.
Mortgage Loans: As of any date of determination, each of the
mortgage loans identified on the Mortgage Loan Schedule (as amended
pursuant to Section 2.03(b)) delivered and assigned to the Trustee
pursuant to Section 2.01 or 2.03(b), and not theretofore released from the
Trust Fund by the Trustee.
Mortgage Note: With respect to any Mortgage Loan, the note or other
evidence of indebtedness (which may consist of a Confirmatory Mortgage
Note) evidencing the indebtedness of a Mortgagor under such Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage Rate: The per annum rate of interest borne by a Mortgage
Loan as set forth in the related Mortgage Note.
Mortgaged Property: The underlying real property securing the
Mortgage Loan, or with respect to a Cooperative Loan, the related
Proprietary Lease and Cooperative Stock.
Mortgagor: With respect to any Mortgage Loan, each obligor on the
related Mortgage Note.
Net Interest Shortfall: With respect to any Distribution Date, the
excess, if any, of the aggregate Interest Shortfalls allocable to the
Certificates (as determined in accordance with the definition of Interest
Shortfall) for such Distribution Date over any Compensating Interest
Payment for such date.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, the
sum of (i) any Liquidation Proceeds therefor less the related Liquidation
Expenses, and (ii) any Insurance Proceeds therefor, other than any such
Insurance Proceeds applied to the restoration of the related Mortgaged
Property.
Net Mortgage Rate: With respect to any Mortgage Loan, the related
Mortgage Rate less the applicable Servicing Fee Rate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Rate greater than or equal to the Designated Rate.
Non-permitted Foreign Holder: As defined in Section 5.02(b).
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage
Rate of such Discount Mortgage Loan and the denominator of which is the
Designated Rate. As to any Non-Discount Mortgage Loan, 100%.
Non-Primary Residence Loan: Any Mortgage Loan secured by a Mortgaged
Property that is (on the basis of representations made by the Mortgagors
at origination) a second home or investor-owned property.
Nonrecoverable Advance: All or any portion of any Monthly Advance or
Monthly Advances previously made by the Company (or the Trustee) which, in
the reasonable judgment of the Company (or, as applicable, the Trustee)
will not be ultimately recoverable from related Net Liquidation Proceeds,
Insurance Proceeds, REO Proceeds or otherwise. The determination by the
Company that it has made a Nonrecoverable Advance or that any advance, if
made, would constitute a Nonrecoverable Advance, shall be evidenced by an
Officer's Certificate of the Company delivered to the Trustee and
detailing the reasons for such determination.
Non-U.S. Person: As defined in Section 4.02(c).
Notional Certificate: Any Class S Certificate.
Notional Component: None.
Notional Component Balance: None.
Notional Principal Balance: As to any Distribution Date and the
Class S Certificates, the aggregate Scheduled Principal Balance of the
Outstanding Non-Discount Mortgage Loans as of the Due Date in the month
preceding such Distribution Date. As to any Distribution Date and any
Class S Certificate, such Certificate's Percentage Interest of the
aggregate Notional Principal Balance of the Class S Certificates for such
Distribution Date.
Officer's Certificate: A certificate signed by the President, a
Senior Vice President or a Vice President of the Company and delivered to
the Trustee.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Company; provided, however, that any Opinion of Counsel with
respect to the interpretation or application of the REMIC Provisions or
the status of an account as an Eligible Account shall be the opinion of
independent counsel satisfactory to the Trustee.
Original Subordinate Principal Balance: As set forth in the
definition of Senior Prepayment Percentage.
Original Value: The value of the property underlying a Mortgage Loan
based, in the case of the purchase of the underlying Mortgaged Property,
on the lower of an appraisal satisfactory to the Company or the sales
price of such property or, in the case of a refinancing, on an appraisal
satisfactory to the Company.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage
Loan which, prior to such Due Date, was not the subject of a Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and was not
purchased pursuant to Section 2.02, 2.03(a) or 3.16 or replaced pursuant
to Section 2.03(b).
Outstanding Non-Discount Mortgage Loan: Any Outstanding Mortgage
Loan that is a Non-Discount Mortgage Loan.
PAC Balance: As to any Distribution Date and any Class of PAC
Certificates and any PAC Component, the balance designated as such for
such Distribution Date and such Class or Component as set forth in the
Principal Balance Schedules.
PAC Certificate: None.
PAC Component: None.
Parent PowerSM Loan: A Mortgage Loan identified on Exhibit N hereto
that has a Loan-to-Value Ratio at origination in excess of 80.00%, that is
supported by Additional Collateral and does not have a Primary Insurance
Policy.
Pay-out Rate: With respect to any Class of Certificates (other than
any Class of Principal Only Certificates) and any Distribution Date, the
rate at which interest is distributed on such Class on such Distribution
Date and which is equal to a fraction (expressed as an annualized
percentage) the numerator of which is the Accrued Certificate Interest for
such Class and Distribution Date, and the denominator of which is the
Class Certificate Principal Balance (or, in the case of the Notional
Certificates, the Notional Principal Balance) of such Class immediately
prior to such Distribution Date.
Percentage Interest: With respect to any Certificate, the percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by Certificates of the same Class as such Certificate. With
respect to any Certificate (other than any Designated Retail Certificate),
the Percentage Interest evidenced thereby shall equal the Initial
Certificate Principal Balance (or, in the case of a Notional Certificate,
the initial Notional Principal Balance) thereof divided by the aggregate
Initial Certificate Principal Balance (or, in the case of a Notional
Certificate, the aggregate initial Notional Principal Balance) of all
Certificates of the same Class. With respect to any Designated Retail
Certificate, the Percentage Interest evidenced thereby shall equal the
Certificate Principal Balance thereof divided by the aggregate Certificate
Principal Balance of all Certificates of the same Class.
Permitted Investments: One or more of the following; provided,
however, that no such Permitted Investment may mature later than the
Business Day preceding the Distribution Date after such investment except
as otherwise provided in Section 3.02(e) hereof, provided, further, that
such investments qualify as "cash flow investments" as defined in section
860G(a)(6) of the Code:
(i) obligations of, or guaranteed as to timely receipt of 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 specified in clause (i)
provided that the unsecured obligations of the party agreeing to
repurchase such obligations are at the time rated by each Rating Agency in
the highest long-term rating category;
(iii) federal funds, certificates of deposit, time deposits and
banker's acceptances, of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state provided
that the debt obligations of such depository institution or trust company
at the date of acquisition thereof have been rated by each Rating Agency
in the highest long-term rating category;
(iv) 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 short term rating of each Rating Agency; and
(v) other obligations or securities that are acceptable to each
Rating Agency as a Permitted Investment hereunder and will not, as
evidenced in writing, result in a reduction or withdrawal in the then
current rating of the Certificates.
Notwithstanding the foregoing, Permitted Investments shall not
include "stripped securities" and investments which contractually may
return less than the purchase price therefor.
Person: Any legal person, including any individual, corporation,
partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
Plan: Any Person which is an employee benefit plan subject to ERISA
or a plan subject to section 4975 of the Code.
Pledged Asset Loan-to-Value Ratio: With respect to any Pledged Asset
Mortgage Loan, (i) the original loan amount less the portion of any
required Additional Collateral which is covered by the Surety Bond,
divided by (ii) the Original Value of the related Mortgaged Property.
Pledged Asset Mortgage Loan: Each Mortgage 100SM Loan and Parent
PowerSM Loan purchased from MLCC that is supported by Additional
Collateral and identified on Exhibit N hereto.
Pledged Asset Mortgage Servicing Agreement: The Amended and Restated
Pledged Asset Mortgage Servicing Agreement, dated as of June 2, 1998,
between MLCC and the Company.
PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the excess of the
Designated Rate over the Net Mortgage Rate of such Discount Mortgage Loan
and the denominator of which is the Designated Rate. As to any
Non-Discount Mortgage Loan, 0%.
Pool Scheduled Principal Balance: With respect to any Distribution
Date, the aggregate Scheduled Principal Balance of all the Mortgage Loans
that were Outstanding Mortgage Loans on the Due Date in the month next
preceding the month of such Distribution Date (or, in the case of the
first Distribution Date, the Cut-off Date; or, if so specified, such other
date).
Prepayment Assumption: The assumed fixed schedule of prepayments on
a pool of new mortgage loans with such schedule given as a monthly
sequence of prepayment rates, expressed as annualized percent values.
These values start at 0.2% per year in the first month, increase by 0.2%
per year in each succeeding month until month 30, ending at 6.0% per year.
At such time, the rate remains constant at 6.0% per year for the balance
of the remaining term. Multiples of the Prepayment Assumption are
calculated from this prepayment rate series.
Prepayment Assumption Multiple: 225% of the Prepayment Assumption.
Prepayment Distribution Trigger: As of any Distribution Date and as
to each Class of Class B Certificates, the related Prepayment Distribution
Trigger is satisfied if (x) the fraction, expressed as a percentage, the
numerator of which is the aggregate Class Certificate Principal Balance of
such Class and each Class subordinate thereto, if any, on such
Distribution Date, and the denominator of which is the Pool Scheduled
Principal Balance for such Distribution Date, equals or exceeds (y) such
percentage calculated as of the Closing Date.
Prepayment Interest Excess: As to any Voluntary Principal Prepayment
in full received from the first day through the fifteenth day of any
calendar month (other than the calendar month in which the Cut-off Date
occurs), all amounts paid in respect of interest on such Principal
Prepayment. For purposes of determining the amount of Prepayment Interest
Excess for any month, a Voluntary Principal Prepayment in full with
respect to a Mortgage Loan serviced by a Primary Servicer shall be deemed
to have been received when the Company, as servicer, receives notice
thereof. All Prepayment Interest Excess shall be retained by the Company,
as servicer, as additional servicing compensation.
Prepayment Period: With respect to any Distribution Date and any
Voluntary Principal Prepayment in part or other Principal Prepayment other
than a Voluntary Principal Prepayment in full, the calendar month
preceding the month of such Distribution Date; with respect to any
Distribution Date and any Voluntary Principal Prepayment in full, the
period beginning on the sixteenth day of the calendar month preceding the
month of such Distribution Date (or, in the case of the first Distribution
Date, beginning on the Cut-off Date) and ending on the fifteenth day of
the month in which such Distribution Date occurs.
Primary Insurance Policy: The certificate of private mortgage
insurance relating to a particular Mortgage Loan, or an electronic screen
print setting forth the information contained in such certificate of
private mortgage insurance, including, without limitation, information
relating to the name of the mortgage insurance carrier, the certificate
number, the loan amount, the property address, the effective date of
coverage, the amount of coverage and the expiration date of the policy.
Each such policy covers defaults by the Mortgagor, which coverage shall
equal the portion of the unpaid principal balance of the related Mortgage
Loan that exceeds 75% (or such lesser coverage required or permitted by
FNMA or FHLMC) of the Original Value of the underlying Mortgaged Property.
Primary Servicer: Any servicer with which the Company has entered
into a servicing agreement, as described in Section 3.01(f).
Principal Balance Schedules: Any principal balance schedules
attached hereto, if applicable, as Exhibit B, setting forth the PAC
Balances of any PAC Certificates and PAC Components, the TAC Balances of
any TAC Certificates and TAC Components and the Scheduled Balances of any
Scheduled Certificates and Scheduled Components.
Principal Distribution Request: Any request for a distribution in
reduction of the Class Certificate Principal Balance of any Designated
Retail Certificate, submitted in writing to a Depository Participant or
Financial Intermediary (or, if such Designated Retail Certificate is no
longer represented by a Book-Entry Certificate, to the Trustee) by the
Certificate Owner (or Certificateholder) of such Designated Retail
Certificate pursuant to Section 4.10(c) or 4.10(g), as applicable.
Principal Only Certificate: Any Class PO Certificate.
Principal Only Component: None.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (including, for this purpose, any refinancing permitted by
Section 3.01 and any REO Proceeds treated as such pursuant to Section
3.08(b)) which is received in advance of its scheduled Due Date and is not
accompanied by an amount of interest representing scheduled interest for
any month subsequent to the month of prepayment.
Private Placement Memorandum: The Company's private placement
memorandum relating to the placement of the Restricted Junior Certificates
dated the date of the prospectus supplement referred to in the definition
of Prospectus.
Prohibited Transaction Exemption: U.S. Department of Labor
Prohibited Transaction Exemption 90-29, 55 Fed. Reg. 21459, May 24, 1990,
as amended.
Property Protection Expenses: With respect to any Mortgage Loan,
expenses paid or incurred by or for the account of the Company in
accordance with the related Mortgage for (a) real estate property taxes
and property repair, replacement, protection and preservation expenses and
(b) similar expenses reasonably paid or incurred to preserve or protect
the value of such Mortgage to the extent the Company is not reimbursed
therefor pursuant to the Primary Insurance Policy, if any, or any other
insurance policy with respect thereto.
Proprietary Lease: With respect to a Cooperative Loan, the
proprietary lease(s) 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.
Prospectus: The Company's prospectus supplement dated September 25,
2000, and the related prospectus dated January 25, 2000, relating to the
public offering of the Certificates other than the Restricted
Certificates.
Purchase Price: With respect to any Mortgage Loan required or
permitted to be purchased hereunder from the Trust Fund, an amount equal
to 100% of the unpaid principal balance thereof plus interest thereon at
the applicable Mortgage Rate from the date to which interest was last paid
to the first day of the month in which such purchase price is to be
distributed; provided, however, that if the Company is the servicer
hereunder, such purchase price shall be net of unreimbursed Monthly
Advances with respect to such Mortgage Loan, and the interest component of
the Purchase Price may be computed on the basis of the Net Mortgage Rate
for such Mortgage Loan.
QIB: A "qualified institutional buyer" as defined in Rule 144A under
the Securities Act of 1933, as amended.
Random Lot: With respect to any Distribution Date prior to the
Cross-Over Date, if the amount available for distribution in reduction of
the Class Certificate Principal Balance of any Class of Designated Retail
Certificates on such Distribution Date exceeds the amount needed to honor
all Principal Distribution Requests with respect to such Class on such
date, the method by which the Depository will determine which Depository
Participants holding interests in such Class of Certificates will receive
payments of amounts distributable in respect of principal on such Class on
such Distribution Date, using its established random lot procedures or, if
such Class of Certificates is no longer represented by Book-Entry
Certificates, the method by which the Trustee will determine which
Certificates of such Class will receive payments of amounts distributable
in respect of principal on such Class on such Distribution Date, using its
own random lot procedures comparable to those used by the Depository.
Rating Agency: Any statistical credit rating agency, or its
successor, that rated any of the Certificates at the request of the
Company at the time of the initial issuance of the Certificates. If such
agency or a successor is no longer in existence, "Rating Agency" shall be
such statistical credit rating agency, or other comparable Person,
designated by the Company, notice of which designation shall be given to
the Trustee. References herein to the two highest long-term rating
categories of a Rating Agency shall mean such ratings without any
modifiers. As of the date of the initial issuance of the Certificates, the
Rating Agencies are Fitch and S&P; except that for purposes of the Junior
Certificates, other than the Class B5 Certificates, Fitch shall be the
sole Rating Agency. The Class B5 Certificates are issued without ratings.
Realized Loss: Any (i) Deficient Valuation or (ii) as to any
Liquidated Mortgage Loan, (x) the unpaid principal balance of such
Liquidated Mortgage Loan plus accrued and unpaid interest thereon at the
Net Mortgage Rate through the last day of the month of such liquidation
less (y) the related Liquidation Proceeds and Insurance Proceeds (as
reduced by the related Liquidation Expenses).
Record Date: The last Business Day of the month immediately
preceding the month of the related Distribution Date.
Reference Banks: As defined in Section 5.08.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly
Payment thereof has been reduced due to the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the
meaning of section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Part IV of Subchapter M of Chapter 1 of the Code, and
related provisions, and U.S. Department of the Treasury temporary or final
regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
REO Mortgage Loan: Any Mortgage Loan which is not a Liquidated
Mortgage Loan and as to which the related Mortgaged Property is held as
part of the Trust Fund.
REO Proceeds: Proceeds, net of any related expenses of the Company,
received in respect of any REO Mortgage Loan (including, without
limitation, proceeds from the rental of the related Mortgaged Property).
Required Surety Payment: With respect to any Pledged Asset Mortgage
Loan that becomes a Liquidated Mortgage Loan, the lesser of (i) the
principal portion of the Realized Loss with respect to such Mortgage Loan
and (ii) the excess, if any, of (a) the amount of Additional Collateral
required at origination with respect to such Mortgage Loan which is
covered by the Surety Bond over (b) the net proceeds realized by MLCC from
the liquidation of the related Additional Collateral.
Reserve Fund: None.
Reserve Interest Rate: As defined in Section 5.08.
Residual Certificate: Any Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer or assistant officer assigned to and working in the Corporate
Trust Department of the Trustee 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.
Restricted Certificate: Any Restricted Junior Certificate, Class PO
Certificate or Class S Certificate.
Restricted Junior Certificate: Any Class B3, Class B4 or Class B5
Certificate.
Rounding Account: With respect to each Class of Designated Retail
Certificates, the respective segregated, non-interest bearing Eligible
Account created and maintained therefor pursuant to Section 4.10.
Rounding Account Depositor: None.
Rounding Amount: With respect to any Class of Designated Retail
Certificates and each Distribution Date prior to the earlier to occur of
the Cross-Over Date and the Distribution Date after the Distribution Date
on which the principal portion of any Realized Loss is allocated to such
Class of Designated Retail Certificates on which such Class of
Certificates is entitled to a distribution in reduction of the Class
Certificate Principal Balance thereof, the amount, if any, necessary to
round the aggregate of such distribution (after giving effect to any
deposit into the related Rounding Account on such 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., and its successors.
SAIF: The Savings Association Insurance Fund of the FDIC, or its
successor in interest.
Scheduled Balance: As to any Distribution Date and any Class of
Scheduled Certificates and any Scheduled Component, the balance designated
as such for such Distribution Date and such Class or Component as set
forth in the Principal Balance Schedules.
Scheduled Certificate: None.
Scheduled Component: None.
Scheduled Principal Balance: As to any Mortgage Loan and
Distribution Date, the principal balance of such Mortgage Loan as of the
Due Date in the month next preceding the month of such Distribution Date
(or, if so specified, such other date) as specified in the amortization
schedule at the time relating to such Mortgage Loan (before any adjustment
to such amortization schedule by reason of any bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period) after
giving effect to any previous Principal Prepayments, Deficient Valuations
incurred subsequent to the Bankruptcy Coverage Termination Date,
adjustments due to the application of the Relief Act and the payment of
principal due on such Due Date, irrespective of any delinquency in payment
by the related Mortgagor. As to any Mortgage Loan and the Cut-off Date,
the "unpaid balance" thereof specified in the initial Mortgage Loan
Schedule.
Security Agreement: With respect to a Cooperative Loan, the
agreement creating a security interest in favor of the originator in the
related Cooperative Stock and Proprietary Lease.
Senior Certificate: Any Certificate other than a Junior Certificate
or Class S Certificate.
Senior Certificate Principal Balance: As of any Distribution Date,
an amount equal to the sum of the Certificate Principal Balances of the
Senior Certificates (other than any Class PO Certificates).
Senior Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of:
(i) the Senior Percentage of the applicable Non-PO Percentage of the
principal portion of each Monthly Payment due on the related Due Date on
each Outstanding Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time applicable thereto (after adjustments
for previous Principal Prepayments and the principal portion of Debt
Service Reductions subsequent to the Bankruptcy Coverage Termination Date
but before any adjustment to such amortization schedule by reason of any
bankruptcy (except as aforesaid) or similar proceeding or any moratorium
or similar waiver or grace period);
(ii) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of all principal prepayments in part received during the
related Prepayment Period, together with the Senior Prepayment Percentage
of the applicable Non-PO Percentage of the Scheduled Principal Balance of
each Mortgage Loan which was the subject of a Voluntary Principal
Prepayment in full during the related Prepayment Period;
(iii) the lesser of (x) the Senior Percentage of the applicable
Non-PO Percentage of the sum of (A) the Scheduled Principal Balance of
each Mortgage Loan that became a Liquidated Mortgage Loan (other than
Mortgage Loans described in clause (B)) during the related Prepayment
Period and (B) the Scheduled Principal Balance of each Mortgage Loan that
was purchased by an insurer from the Trustee during the related Prepayment
Period pursuant to the related Primary Insurance Policy, as reduced in
each case by the Senior Percentage of the applicable Non-PO Percentage of
the principal portion of any Excess Losses (other than Excess Bankruptcy
Losses attributable to Debt Service Reductions), and (y) the Senior
Prepayment Percentage of the applicable Non-PO Percentage of the sum of
(A) all Net Liquidation Proceeds allocable to principal received in
respect of each such Liquidated Mortgage Loan (other than Mortgage Loans
described in clause (B)) and (B) the principal balance of each such
Mortgage Loan purchased by an insurer from the Trustee pursuant to the
related Primary Insurance Policy, in each case during the related
Prepayment Period;
(iv) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of the Scheduled Principal Balance of each Mortgage Loan which
was purchased on such Distribution Date pursuant to Section 2.02, 2.03(a)
or 3.16; and
(v) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of the Substitution Amount for any Mortgage Loan substituted
during the month of such Distribution Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment
in full with respect to a Mortgage Loan serviced by a Primary Servicer
shall be deemed to have been received when the Company, as servicer,
receives notice thereof.
Senior Percentage: As to any Distribution Date, the lesser of (i)
100% and (ii) the percentage (carried to six places rounded up) obtained
by dividing the Senior Certificate Principal Balance immediately prior to
such Distribution Date by an amount equal to the sum of the Certificate
Principal Balances of all the Certificates other than any Class PO
Certificates immediately prior to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date occurring
prior to the fifth anniversary of the first Distribution Date, 100%. For
any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date, an amount as follows:
(i) for any Distribution Date subsequent to September 2005 to and
including the Distribution Date in September 2006, the Senior Percentage
for such Distribution Date plus 70% of the Junior Percentage for such
Distribution Date;
(ii) for any Distribution Date subsequent to September 2006 to and
including the Distribution Date in September 2007, the Senior Percentage
for such Distribution Date plus 60% of the Junior Percentage for such
Distribution Date;
(iii) for any Distribution Date subsequent to September 2007 to and
including the Distribution Date in September 2008, the Senior Percentage
for such Distribution Date plus 40% of the Junior Percentage for such
Distribution Date;
(iv) for any Distribution Date subsequent to September 2008 to and
including the Distribution Date in September 2009, the Senior Percentage
for such Distribution Date plus 20% of the Junior Percentage for such
Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage for
such Distribution Date.
Notwithstanding the foregoing, if on any Distribution Date the
Senior Percentage exceeds the Senior Percentage as of the Closing Date,
the Senior Prepayment Percentage for such Distribution Date will equal
100%.
In addition, notwithstanding the foregoing, no reduction of the
Senior Prepayment Percentage below the level in effect for the most recent
prior period as set forth in clauses (i) through (iv) above shall be
effective on any Distribution Date unless at least one of the following
two tests is satisfied:
Test I: If, as of the last day of the month preceding such
Distribution Date, (i) the aggregate Scheduled Principal Balance of
Mortgage Loans delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and REO Mortgage Loans) as a percentage of
the aggregate Class Certificate Principal Balance of the Junior
Certificates as of such date, does not exceed 50%, and (ii) cumulative
Realized Losses with respect to the Mortgage Loans do not exceed (a) 30%
of the aggregate Class Certificate Principal Balance of the Junior
Certificates as of the Closing Date (the "Original Subordinate Principal
Balance") if such Distribution Date occurs between and including October
2005 and September 2006, (b) 35% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including October
2006 and September 2007, (c) 40% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including October
2007 and September 2008, (d) 45% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including October
2008 and September 2009 and (e) 50% of the Original Subordinate Principal
Balance if such Distribution Date occurs during or after October 2009; or
Test II: If, as of the last day of the month preceding such
Distribution Date, (i) the aggregate Scheduled Principal Balance of
Mortgage Loans delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and REO Mortgage Loans) averaged over the
last three months, as a percentage of the aggregate Scheduled Principal
Balance of Mortgage Loans averaged over the last three months, does not
exceed 4%, and (ii) cumulative Realized Losses with respect to the
Mortgage Loans do not exceed (a) 10% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including October
2005 and September 2006, (b) 15% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including October
2006 and September 2007, (c) 20% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including October
2007 and September 2008, (d) 25% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including October
2008 and September 2009 and (e) 30% of the Original Subordinate Principal
Balance if such Distribution Date occurs during or after October 2009.
Senior Principal Priorities: The priorities for the distribution of
principal to the Senior Certificates as set forth in Exhibit O hereto.
Servicer's Certificate: A certificate, completed by and executed on
behalf of the Company by a Servicing Officer in accordance with Section
4.06, substantially in the form of Exhibit D hereto or in such other form
as the Company and the Trustee shall agree.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an
amount equal to the product of (i) the Scheduled Principal Balance of such
Mortgage Loan as of the Due Date in the preceding calendar month and (ii)
the Servicing Fee Rate for such Mortgage Loan.
Servicing Fee Rate: As to any Mortgage Loan, the per annum rate
identified as such for such Mortgage Loan and set forth in the Mortgage
Loan Schedule.
Servicing Officer: Any officer of the Company involved in, or
responsible for, the administration and servicing of the Mortgage Loans
whose name appears on a list of servicing officers attached to an
Officer's Certificate furnished to the Trustee by the Company, as such
list may from time to time be amended.
Single Certificate: A Certificate with an Initial Certificate
Principal Balance, or initial Notional Principal Balance, of $1,000 or, in
the case of a Class of Certificates issued with an initial Class
Certificate Principal Balance or initial Notional Principal Balance of
less than $1,000, such lesser amount.
Special Event Loss: Any Fraud Loss, Special Hazard Loss or Deficient
Valuation.
Special Hazard Loss: (i) A Realized Loss suffered by a Mortgaged
Property on account of direct physical loss, exclusive of (a) any loss
covered by a hazard policy or a flood insurance policy required to be
maintained in respect of such Mortgaged Property under Section 3.06 and
(b) any loss caused by or resulting from:
(A) normal wear and tear;
(B) conversion or other dishonest act on the part of the
Trustee, the Company or any of their agents or employees; or
(C) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues;
or (ii) any Realized Loss suffered by the Trust Fund arising from or
related to the presence or suspected presence of hazardous wastes or
hazardous substances on a Mortgaged Property unless such loss to a
Mortgaged Property is covered by a hazard policy or a flood insurance
policy required to be maintained in respect of such Mortgaged Property
under Section 3.06.
Special Hazard Loss Amount: As of any Distribution Date, an amount
equal to $2,090,180 minus the sum of (i) the aggregate amount of Special
Hazard Losses that would have been allocated to the Junior Certificates in
accordance with Section 4.03 in the absence of the Loss Allocation
Limitation and (ii) the Adjustment Amount (as defined below) as most
recently calculated. On each anniversary of the Cut-off Date, the
"Adjustment Amount" shall be equal to the amount, if any, by which the
amount calculated in accordance with the preceding sentence (without
giving effect to the deduction of the Adjustment Amount for such
anniversary) exceeds the lesser of (x) the greater of (A) the product of
the Special Hazard Percentage for such anniversary multiplied by the
outstanding principal balance of all the Mortgage Loans on the
Distribution Date immediately preceding such anniversary and (B) twice the
outstanding principal balance of the Mortgage Loan which has the largest
outstanding principal balance on the Distribution Date immediately
preceding such anniversary, and (y) an amount calculated by the Company
and approved by each Rating Agency, which amount shall not be less than
$500,000.
Special Hazard Percentage: As of each anniversary of the Cut-off
Date, the greater of (i) 1.00% and (ii) the largest percentage obtained by
dividing (x) the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of the Mortgage Loans secured by
Mortgaged Properties located in a single, five-digit zip code area in the
State of California by (y) the outstanding principal balance of all the
Mortgage Loans as of the immediately preceding Distribution Date.
Special Hazard Termination Date: The Distribution Date upon which
the Special Hazard Loss Amount has been reduced to zero or a negative
number (or the Cross-Over Date, if earlier).
Specified Component: None.
Startup Day: As defined in Section 2.05(b).
Strip Rate: With respect to the Class S Certificates and any
Distribution Date, a variable rate per annum equal to the excess of (x)
the weighted average (by Scheduled Principal Balance) carried to six
decimal places, rounded down, of the Net Mortgage Rates of the Outstanding
Non-Discount Mortgage Loans as of the Due Date in the preceding calendar
month (or the Cut-off Date, in the case of the first Distribution Date)
over (y) the Designated Rate; provided, however, that such calculation
shall not include any Mortgage Loan that was the subject of a Voluntary
Principal Prepayment in full received by the Company (or of which the
Company received notice, in the case of a Mortgage Loan serviced by a
Primary Servicer) on or after the first day but on or before the 15th day
of such preceding calendar month.
Subordinate Certificates: As to any date of determination, first,
the Class B5 Certificates until the Class Certificate Principal Balance
thereof has been reduced to zero; second, the Class B4 Certificates until
the Class Certificate Principal Balance thereof has been reduced to zero;
third, the Class B3 Certificates until the Class Certificate Principal
Balance thereof has been reduced to zero; fourth, the Class B2
Certificates until the Class Certificate Principal Balance thereof has
been reduced to zero; fifth, the Class B1 Certificates until the Class
Certificate Principal Balance thereof has been reduced to zero; and sixth,
the Class M Certificates until the Class Certificate Principal Balance
thereof has been reduced to zero.
Subordinate Certificate Writedown Amount: As to any Distribution
Date, first, any amount distributed to the Class PO Certificates on such
Distribution Date pursuant to Section 4.01(a)(iv) and second, after giving
effect to the application of clause first above, the amount by which (i)
the sum of the Class Certificate Principal Balances of all the
Certificates (after giving effect to the distribution of principal and the
application of Realized Losses in reduction of the Certificate Principal
Balances of the related Certificates on such Distribution Date) exceeds
(ii) the Pool Scheduled Principal Balance on the first day of the month of
such Distribution Date less any Deficient Valuations occurring on or prior
to the Bankruptcy Coverage Termination Date.
Substitution Amount: With respect to any Mortgage Loan substituted
pursuant to Section 2.03(b), the excess of (x) the Scheduled Principal
Balance of the Mortgage Loan that is substituted for, over (y) the
Scheduled Principal Balance of the related substitute Mortgage Loan, each
balance being determined as of the date of substitution.
Surety: Ambac Assurance Corporation, or its successors in interest.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE),
dated February 28, 1996, issued by the Surety for the benefit of certain
beneficiaries, including the Trustee for the benefit of the Holders of the
Certificates, but only to the extent that such Limited Purpose Surety Bond
covers any Pledged Asset Mortgage Loans.
TAC Balance: As to any Distribution Date and any Class of TAC
Certificates and any TAC Component, the balance designated as such for
such Distribution Date and such Class or Component as set forth in the
Principal Balance Schedules attached as Exhibit B hereto.
TAC Certificates: None.
TAC Component: None.
Trigger Event: Any one or more of the following: (i) if the Company
is not a wholly-owned direct or indirect subsidiary of General Electric
Company or if General Electric Capital Corporation shall not own (directly
or indirectly) at least two-thirds of the voting shares of the capital
stock of the Company, (ii) if the long-term senior unsecured rating of
General Electric Capital Corporation is downgraded or withdrawn by Fitch
or S&P below their two highest rating categories, (iii) if General
Electric Capital Corporation is no longer obligated pursuant to the terms
of the support agreement, dated as of October 1, 1990, between General
Electric Capital Corporation and the Company, to maintain the Company's
net worth or liquidity (as such terms are defined therein) at the levels
specified therein, or if such support agreement, including any amendment
thereto, has been breached, terminated or otherwise held to be
unenforceable and (iv) if such support agreement, including any amendment
thereto, is amended or modified.
Trust Fund: The corpus of the trust created by this Agreement
evidenced by the Certificates and consisting of:
(i) the Mortgage Loans;
(ii) all payments on or collections in respect of such Mortgage
Loans, except as otherwise described in the first paragraph of Section
2.01, including the proceeds from the liquidation of any Additional
Collateral for any Pledged Asset Mortgage Loan;
(iii) the obligation of the Company to deposit in the Certificate
Account the amounts required by Sections 3.02(d), 3.02(e) and 4.04(a), and
the obligation of the Trustee to deposit in the Certificate Account any
amount required pursuant to Section 4.04(b);
(iv) the obligation of the Company to purchase or replace any
Defective Mortgage Loan pursuant to Section 2.02 or 2.03;
(v) all property acquired by foreclosure or deed in lieu of
foreclosure with respect to any REO Mortgage Loan;
(vi) the proceeds of the Primary Insurance Policies, if any, and the
hazard insurance policies required by Section 3.06, in each case, in
respect of the Mortgage Loans, and the Company's interest in the Surety
Bond transferred to the Trustee pursuant to Section 2.01;
(vii) the Certificate Account established pursuant to Section
3.02(d);
(viii) the Eligible Account or Accounts, if any, established
pursuant to Section 3.02(e);
(ix) any collateral funds established to secure the obligations of
the Holder of the Class B4 and Class B5 Certificates, respectively, under
any agreements entered into between such holder and the Company pursuant
to Section 3.08(e) (which collateral funds will not constitute a part of
any REMIC established hereunder);
(x) all rights of the Company as assignee under any security
agreements, pledge agreements or guarantees relating to the Additional
Collateral supporting any Pledged Asset Mortgage Loan (which rights will
not constitute a part of any REMIC established hereunder); and
(xi) all rights of the Company as assignee under any security
agreements or pledge agreements relating to the Additional Collateral
supporting any CashSaver Mortgage Loan (which rights will not constitute a
part of any REMIC established hereunder).
Trustee: The institution executing this Agreement as Trustee, or its
successor in interest, or if any successor trustee is appointed as herein
provided, then such successor trustee so appointed.
Unanticipated Recovery: As defined in Section 4.01(f) herein.
Uninsured Cause: Any cause of damage to property subject to a
Mortgage such that the complete restoration of the property is not fully
reimbursable by the hazard insurance policies required to be maintained
pursuant to Section 3.06.
Unpaid Class Interest Shortfall: As to any Distribution Date and any
Class of Certificates (other than any Class of Principal Only Certificates
and any Class consisting of Specified Components) or any Specified
Component (other than any Principal Only Component), the amount, if any,
by which the aggregate of the Class Interest Shortfalls for such Class or
in respect of such Specified Component for prior Distribution Dates is in
excess of the aggregate amounts distributed on prior Distribution Dates to
Holders of such Class of Certificates or in respect of such Specified
Component (or added to the Class Certificate Principal Balance of any
Class of Accrual Certificates, or to the Component Principal Balance of
any Accrual Component constituting a Specified Component) pursuant to
Section 4.01(a)(ii), in the case of the Senior Certificates (other than
any Class of Principal Only Certificates) and any Specified Component
thereof (other than any Principal Only Component) and the Class S
Certificates, Section 4.01(a)(vi), in the case of the Class M
Certificates, Section 4.01(a)(ix), in the case of the Class B1
Certificates, Section 4.01(a)(xii), in the case of the Class B2
Certificates, Section 4.01(a)(xv), in the case of the Class B3
Certificates, Section 4.01(a)(xviii), in the case of the Class B4
Certificates, and Section 4.01(a)(xxi), in the case of the Class B5
Certificates. As to any Class of Certificates consisting of Specified
Components and any Distribution Date, the sum of the Unpaid Class Interest
Shortfalls for the Specified Components thereof on such date.
Voluntary Principal Prepayment: With respect to any Distribution
Date, any prepayment of principal received from the related Mortgagor on a
Mortgage Loan.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the
voting provisions of Section 10.01. At all times during the term of this
Agreement, 99% of all Voting Rights shall be allocated to the Certificates
other than the Class S Certificates, and 1% of all Voting Rights shall be
allocated to the Class S Certificates. Voting Rights allocated to the
Class S Certificates shall be allocated among the Certificates of such
Class in proportion to their Notional Principal Balances. Voting Rights
allocated to the other Classes of Certificates shall be allocated among
such Classes (and among the Certificates within each such Class) in
proportion to their Class Certificate Principal Balances (or Certificate
Principal Balances), as the case may be.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans. (a) The Company,
concurrently with the execution and delivery of this Agreement, does hereby
transfer, assign, set-over and otherwise convey to the Trustee without recourse
(except as provided herein) all the right, title and interest of the Company in
and to the Mortgage Loans, including all interest and principal received by the
Company on or with respect to the Mortgage Loans (other than payments of
principal and interest due and payable on the Mortgage Loans on or before, and
all Principal Prepayments received on or before, the Cut-off Date). The Company
acknowledges it has sold all right, title and interest in and to the Mortgage
Loans to the Trustee to the extent provided above and that retention of record
title of Mortgages (subject to Section 2.01(d) of this Agreement) is for
convenience only and that the Company holds record title solely as custodian for
the Trustee for benefit of the Certificateholders. The Company agrees that it
will take no action inconsistent with ownership of the Mortgage Loans by the
Trustee and will not deliver any instrument of satisfaction or conveyance with
respect to a Mortgage or a Mortgage Loan, or convey or purport to convey any
interest in a Mortgage Loan, except in accordance with the terms and the intent
of this Agreement.
With respect to any Pledged Asset Mortgage Loan, the Company does
hereby transfer, assign, set-over and otherwise convey to the Trustee without
recourse (except as provided herein) (i) its rights as assignee under any
security agreements, pledge agreements or guarantees relating to the Additional
Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security
interest in and to any Additional Collateral, (iii) its right to receive
payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged
Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the
Surety Bond in respect of any Pledged Asset Mortgage Loan.
In addition, with respect to any CashSaver Mortgage Loan, the
Company does hereby transfer, assign, set-over and otherwise convey to the
Trustee without recourse (except as provided herein) (i) its rights as assignee
under any security agreements, pledge agreements or guarantees relating to the
Additional Collateral supporting any CashSaver Mortgage Loan, (ii) its security
interest in and to any Additional Collateral and (iii) its right to receive
payments in respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company
does hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee)
the following documents or instruments with respect to:
(1) Each Mortgage Loan (other than any Cooperative Loan or
Designated Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in
blank by the Company, including all intervening endorsements showing
a complete chain of endorsement from the originator to the Company;
provided, however, that if such Mortgage Note is a Confirmatory
Mortgage Note, such Confirmatory Mortgage Note may be payable
directly to the Company or may show a complete chain of endorsement
from the named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the
name of MERS or its designee, an assignment in recordable form
(which may be included in a blanket assignment or assignments) of
the Mortgage to the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so
transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in
blank by the Company and showing an unbroken chain of endorsements
from the originator to the Company; provided, however, that if such
Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory
Mortgage Note may be payable directly to the Company or may show a
complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment
of Proprietary Lease executed in blank or to the originator of the
Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with
an undated stock power (or other similar instrument) executed in
blank;
(iv) A counterpart of the recognition agreement by the
Cooperative of the interests of the mortgagee with respect to the
related Cooperative Loan;
(v) The Security Agreement;
(vi) 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 in the Cooperative Stock
and the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the
security interest described in clause (vi) above, sent to the
appropriate public office for filing, showing an unbroken chain of
title from the originator to the Company, evidencing the security
interest of the originator in the Cooperative Stock and the
Proprietary Lease;
(viii) An executed assignment (which may be a blanket
assignment for all Cooperative Loans) of the interest of the Company
in the Security Agreement, Assignment of Proprietary Lease and the
recognition agreement described in clause (iv) above, showing an
unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the
security interest described in clause (vi) above, in form suitable
for filing, otherwise complete except for filing information
regarding the original UCC-1 if unavailable (which may be included
in a blanket assignment to the Trustee).
Except for any Mortgage which has been recorded in the name of MERS
or its designee, in instances where a completed assignment of the Mortgage in
recordable form cannot be delivered by the Company to the Trustee (or the
Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or concurrently
with the execution and delivery of this Agreement, due to a delay in connection
with recording of the Mortgage, the Company may, in lieu of delivering the
completed assignment in recordable form, deliver to the Trustee (or the
Custodian) the assignment in such form, otherwise complete except for recording
information. With respect to any Mortgage that has been recorded in the name of
MERS or its designee, no assignment of the Mortgage in favor of the Trustee
shall be required to be prepared or delivered; instead, the Company shall take
all actions as are necessary to cause the Trust Fund to be shown as the owner of
the related Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS, and
shall provide evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby
deliver to the Trustee (or the Custodian) the Designated Loan Closing
Documents.
(c) In connection with each Mortgage Loan transferred and assigned
to the Trustee, the Company shall deliver to the Trustee (or the Custodian) the
following documents or instruments as promptly as practicable, but in any event
within 30 days, after receipt by the Company of all such documents and
instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other
than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to
a Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the
Company, the related recorded intervening assignment or assignments of
Mortgage, showing a complete chain of assignment from the originator to
the Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to
the Company, the related filed intervening UCC-3 financing statements (not
previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a
complete chain of assignment from the named originator to the Company.
Pending such delivery, the Company shall retain in its files (a) copies of the
documents described in clauses (1) and (3) of the preceding sentence, without
evidence of recording thereon, and (b) title insurance binders with respect to
the Mortgage Loans (other than with respect to a Cooperative Loan). The Company
shall also retain in its files the Primary Insurance Policy evidencing any
primary mortgage insurance relating to the Mortgage Loans during the period when
the related insurance is in force. (The copies of the Mortgage, intervening
assignments of Mortgage, if any, title insurance binder and the Primary
Insurance Policy, if any, described in the two preceding sentences are
collectively referred to herein as the "Document File" with respect to each
Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery
to the Trustee (and the Custodian) shall not have occurred on or before the
first anniversary of the Closing Date. The Company shall promptly furnish to the
Trustee (or the Custodian) the documents included in the Document Files (other
than any such documents previously delivered to the Trustee (or the Custodian)
as originals or copies) either (a) upon the written request of the Trustee or
(b) when the Company or the Trustee obtains actual notice or knowledge of a
Trigger Event. The Trustee shall have no obligation to request delivery of the
Document Files unless a Responsible Officer of the Trustee has actual notice or
knowledge of the occurrence of a Trigger Event.
In the case of Mortgage Loans which have been prepaid in full after
the Cut-off Date and prior to the date of execution and delivery of this
Agreement, the Company, in lieu of delivering the above documents to the
Trustee, herewith delivers to the Trustee a certification of a Servicing Officer
of the nature set forth in Section 3.09.
(d) The Company shall not be required to record the assignments of
the Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3
assignments referred to in Section 2.01(b)(2)(ix) to the Trustee unless the
Company or the Trustee obtains actual notice or knowledge of the occurrence of
any Trigger Event; provided, however, that such recording or filing shall not be
required if the Company delivers to the Trustee a letter from each Rating Agency
to the effect that the failure to take such action will not cause such Rating
Agency to reduce or withdraw its then current ratings of the Certificates. The
party obtaining actual notice or knowledge of any of such events shall give the
other party (and the Custodian, if applicable) prompt written notice thereof.
For purposes of the foregoing (as well as for purposes of determining whether
the Company shall be required to deliver the Document Files to the Trustee
following the occurrence of a Trigger Event), the Company shall be deemed to
have knowledge of any such downgrading referred to in the definition of Trigger
Event if, in the exercise of reasonable diligence, the Company has or should
have had knowledge thereof. As promptly as practicable subsequent to the
Company's delivery or receipt of such written notice, as the case may be, the
Company shall insert the recording or filing information in the assignments of
the Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be
recorded or filed, at the Company's expense, in the appropriate public office
for real property records or UCC financing statements, except that the Company
need not cause to be so completed and recorded any assignment of mortgage which
relates to a Mortgage Loan secured by property in a jurisdiction under the laws
of which, on the basis of an Opinion of Counsel reasonably satisfactory to the
Trustee and satisfactory to each Rating Agency (as evidenced in writing),
recordation of such assignment is not necessary to protect the Trustee against
discharge of such Mortgage Loan by the Company or any valid assertion that any
Person other than the Trustee has title to or any rights in such Mortgage Loan.
In the event that the Company fails or refuses to record or file the assignment
of Mortgages or UCC-3 financing statement in the circumstances provided above,
the Trustee shall record or cause to be recorded or filed such assignment or
UCC-3 financing statement at the expense of the Company. In connection with any
such recording or filing, the Company shall furnish such documents as may be
reasonably necessary to accomplish such recording or filing. Notwithstanding the
foregoing, at any time the Company may record or file, or cause to be recorded
or filed, the assignments of Mortgages or UCC-3 financing statement at the
expense of the Company.
Section 2.02. Acceptance by Trustee. Subject to the examination
hereinafter provided, the Trustee acknowledges receipt (or shall cause the
Custodian to acknowledge receipt) of the Mortgage Notes, the assignments of the
Mortgages to the Trustee (except for any Mortgage which has been recorded in the
name of MERS or its designee), the assumption and modification agreements, if
any, the documents specified in Section 2.01(b)(2) (subject to any permitted
delayed delivery of the documents described in Section 2.01(c)(4)), and the
Designated Loan Closing Documents, if any, delivered pursuant to Section 2.01,
and declares that the Trustee (or the Custodian on its behalf) holds and will
hold such documents and each other document delivered to it pursuant to Section
2.01 in trust, upon the trusts herein set forth, for the use and benefit of all
present and future Certificateholders. The Trustee agrees, for the benefit of
the Certificateholders, to review (or cause the Custodian to review) each
Mortgage File within 45 days after (i) the execution and delivery of this
Agreement, in the case of the Mortgage Notes, the assignments of the Mortgages
to the Trustee, the assumption and modification agreements, if any, the
documents specified in Section 2.01(b)(2) (subject to any permitted delayed
delivery of the documents described in Section 2.01(c)(4)), and the Designated
Loan Closing Documents, if any, (ii) delivery to the Trustee (or the Custodian)
after the Closing Date of the Mortgage Notes and the assumption and modification
agreements, if any, with respect to each Designated Loan, and (iii) delivery of
the recorded Mortgages, title insurance policies, recorded intervening
assignments of Mortgage, if any, and filed intervening UCC-3 financing
statements, if any, with respect to any Cooperative Loan to ascertain that all
required documents set forth in Section 2.01 have been executed, received and
recorded, if applicable, and that such documents relate to the Mortgage Loans
identified in Exhibit C hereto. In performing such examination, the Trustee (or
the Custodian, if applicable) may conclusively assume the due execution and
genuineness of any such document and the genuineness of any signature thereon.
It is understood that the scope of the Trustee's (or the Custodian's, if
applicable) examination of the Mortgage Files is limited solely to confirming,
after receipt of the documents listed in Section 2.01, that such documents have
been executed, received and recorded, if applicable, and relate to the Mortgage
Loans identified in Exhibit C to this Agreement. If in the course of such review
the Trustee (or the Custodian, if applicable) finds (1) that any document
required to be delivered as aforesaid has not been delivered, or (2) any such
document has been mutilated, defaced or physically altered without the
borrower's authorization or approval, or (3) based upon its examination of such
documents, the information with respect to any Mortgage Loan set forth on
Exhibit C is not accurate, the Trustee shall promptly so notify the Company in
writing, which shall have a period of 60 days after receipt of such notice to
correct or cure any such defect. The Company hereby covenants and agrees that,
if any such material defect cannot be corrected or cured, the Company will on a
Distribution Date which is not later than the first Distribution Date which is
more than ten days after the end of such 60-day period repurchase the related
Mortgage Loan from the Trustee at the Purchase Price therefor or replace such
Mortgage Loan pursuant to Section 2.03(b); provided, however, that if the defect
(or breach pursuant to Section 2.03(a)) is one that, had it been discovered
before the Startup Day, would have prevented the Mortgage Loan from being a
"qualified mortgage" within the meaning of the REMIC Provisions, such defect or
breach shall be cured, or the related Mortgage Loan shall be repurchased or
replaced, on a Distribution Date which falls within 90 days of the date of
discovery of such defect or breach. The Purchase Price for the repurchased
Mortgage Loan, or any amount required in respect of a substitution pursuant to
Section 2.03(b), shall be deposited by the Company in the Certificate Account
pursuant to Section 3.02(d) on the Business Day prior to the applicable
Distribution Date and, upon receipt by the Trustee of written notification of
such deposit signed by a Servicing Officer, the Trustee shall release or cause
to be released to the Company the related Mortgage File and shall execute and
deliver or cause to be executed and delivered such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
Company any Mortgage Loan released pursuant hereto. It is understood and agreed
that the obligation of the Company to repurchase or replace any Mortgage Loan as
to which a material defect in a constituent document exists shall constitute the
sole remedy respecting such defect available to Certificateholders or the
Trustee on behalf of Certificateholders.
Upon receipt by the Trustee (or the Custodian, if applicable) of the
original Mortgage Note with respect to a Designated Loan that is not defective
in accordance with the fifth sentence of the preceding paragraph, the related
Lost Note Affidavit delivered pursuant to Section 2.01 shall be void and the
Trustee (or Custodian, if applicable) shall return it (or cause to be returned)
to the Company.
Section 2.03. Representations and Warranties of the Company;
Mortgage Loan Repurchase. (a) The Company hereby represents and warrants to the
Trustee that:
(i) The information set forth in Exhibit C hereto was true and
correct in all material respects at the date or dates respecting which
such information is furnished;
(ii) As of the date of the initial issuance of the Certificates,
other than with respect to Cooperative Loans, each Mortgage is a valid and
enforceable first lien on the property securing the related Mortgage Note
subject only to (a) the lien of current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
of such Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally in the area wherein the property
subject to the Mortgage is located or specifically reflected in the
appraisal obtained in connection with the origination of the related
Mortgage Loan obtained by the Company and (c) 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 such Mortgage;
(iii) Immediately prior to the transfer and assignment herein
contemplated, the Company had good title to, and was the sole owner of,
each Mortgage Loan and all action had been taken to obtain good record
title to each related Mortgage. Each Mortgage Loan has been transferred
free and clear of any liens, claims and encumbrances;
(iv) As of the date of the initial issuance of the Certificates, no
payment of principal of or interest on or in respect of any Mortgage Loan
is 30 or more days past due and none of the Mortgage Loans have been past
due 30 or more days more than once during the preceding 12 months;
(v) As of the date of the initial issuance of the Certificates,
other than with respect to Cooperative Loans, there is no mechanics' lien
or claim for work, labor or material affecting the premises subject to any
Mortgage which is or may be a lien prior to, or equal or coordinate with,
the lien of such Mortgage except those which are insured against by the
title insurance policy referred to in (x) below;
(vi) As of the date of the initial issuance of the Certificates,
other than with respect to Cooperative Loans, there is no delinquent tax
or assessment lien against the property subject to any Mortgage;
(vii) As of the date of the initial issuance of the Certificates,
there is no valid offset, defense or counterclaim to any Mortgage Note or
Mortgage, including the obligation of the Mortgagor to pay the unpaid
principal and interest on such Mortgage Note;
(viii) As of the date of the initial issuance of the Certificates,
the physical property subject to any Mortgage (or, in the case of a
Cooperative Loan, the related Cooperative Apartment) is free of material
damage and is in good repair;
(ix) Each Mortgage Loan at the time it was made complied in all
material respects with applicable state and federal laws, including,
without limitation, usury, equal credit opportunity and disclosure laws;
(x) Other than with respect to Cooperative Loans, a lender's title
insurance policy or binder, or other assurance of title insurance
customary in the relevant jurisdiction therefor was issued on the date of
the origination of each Mortgage Loan and each such policy or binder is
valid and remains in full force and effect;
(xi) Each Mortgage Loan (other than a Pledged Asset Mortgage Loan)
that had, as of the Cut-off Date, a Loan-to-Value Ratio of more than 80%
is covered by a Primary Insurance Policy so long as its then outstanding
principal amount exceeds 80% of the greater of (a) the Original Value and
(b) the then current value of the related Mortgaged Property as evidenced
by an appraisal thereof satisfactory to the Company, except to the extent
such coverage may otherwise be terminable under applicable law. Each
Primary Insurance Policy is issued by a private mortgage insurer
acceptable to FNMA or FHLMC;
(xii) Each Mortgage Note is payable on the first day of each month
in self-amortizing monthly installments of principal and interest, with
interest payable in arrears, over an original term of not more than the
Designated Maturity;
(xiii) Other than with respect to Cooperative Loans, the
improvements on the Mortgaged Properties are insured against loss under a
hazard insurance policy with extended coverage and conforming to the
requirements of Section 3.06 hereof. As of the date of initial issuance of
the Certificates, all such insurance policies are in full force and
effect;
(xiv) As to each condominium securing a Mortgage Loan or the related
Mortgage Loan, (a) the related condominium is in a project that is on the
FNMA or FHLMC approved list, (b) the related condominium is in a project
that, upon submission of appropriate application, could be so approved by
either FNMA or FHLMC, (c) the related Mortgage Loan meets the requirements
for purchase by FNMA or FHLMC, (d) the related Mortgage Loan is of the
type that could be approved for purchase by FNMA or FHLMC but for the
principal balance of the related Mortgage Loan or the pre-sale
requirements or (e) the related Mortgage Loan has been approved by a
nationally recognized mortgage pool insurance company for coverage under a
mortgage pool insurance policy issued by such insurer;
(xv) Other than with respect to Cooperative Loans, no Mortgage Loan
is secured by a leasehold interest in the related Mortgaged Property and
each Mortgagor holds fee title to the related Mortgaged Property;
(xvi) The Mortgage Loans and the Mortgaged Properties, individually
and in the aggregate, conform in all material respects to the applicable
descriptions thereof contained in the Prospectus;
(xvii) All appraisals have been prepared substantially in accordance
with the description contained under the caption "The Trusts --
Appraisals" in the Prospectus;
(xviii) No selection procedures, other than those necessary to
comply with the representations and warranties set forth herein or the
description of the Mortgage Loans made in any disclosure document
delivered to prospective investors in the Certificates, have been utilized
in selecting the Mortgage Loans from the Company's portfolio which would
be adverse to the interests of the Certificateholders;
(xix) Other than with respect to Cooperative Loans, to the best of
the Company's knowledge, at origination no improvement located on or being
part of a Mortgaged Property was in violation of any applicable zoning and
subdivision laws and ordinances;
(xx) None of the Mortgage Loans is a temporary construction loan.
With respect to any Mortgaged Property which constitutes new construction,
the related construction has been completed substantially in accordance
with the specifications therefor and any incomplete aspect of such
construction shall not be material or interfere with the habitability or
legal occupancy of the Mortgaged Property. Mortgage Loan amounts
sufficient to effect any such completion are in escrow for release upon or
in connection with such completion or a performance bond or completion
bond is in place to provide funds for this purpose and such completion
shall be accomplished within 120 days after weather conditions permit the
commencement thereof;
(xxi) As of the Closing Date, each Mortgage Loan is a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code;
(xxii) As of the Closing Date, the Company possesses the Document
File with respect to each Mortgage Loan, and, other than with respect to
Cooperative Loans, the related Mortgages and intervening assignment or
assignments of Mortgages, if any, have been delivered to a title insurance
company for recording;
(xxiii) With respect to each Mortgage Loan identified in Exhibit C
as a Cooperative Loan:
(A) The Security Agreement creates a first lien in the stock
ownership and leasehold rights associated with the related
Cooperative Apartment;
(B) The lien created by the related Security Agreement is a
valid, enforceable and subsisting first priority 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. There are no liens against or security
interest in the Cooperative Stock relating to such Cooperative Loan
(except for unpaid maintenance, assessments and other amounts owed
to the related Cooperative which individually or in the aggregate do
not have a material adverse effect on such Cooperative Loan), which
have priority over the Trustee's security interest in such
Cooperative Stock;
(C) The Cooperative Stock that is pledged as security for the
Mortgage Loan is held by a person as a "tenant-stockholder" within
the meaning of section 216 of the Code, the related Cooperative that
owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of section 216
of the Code, and such Cooperative is in material compliance with
applicable federal, state and local laws which, if not complied
with, could have a material adverse effect on the Mortgaged
Property; and
(D) There is no prohibition against pledging the Cooperative
Stock or assigning the Proprietary Lease; and
(xxiv) With respect to each Mortgage Loan identified on Exhibit C as
having been originated or acquired under the Company's Enhanced
Streamlined Refinance program, the value of the related Mortgaged
Property, as of the date of such origination or acquisition under the
Company's Enhanced Streamlined Refinance program, is no less than the
value thereof established at the time the mortgage loan that is the
subject of the refinancing was originated.
It is understood and agreed that the representations and warranties
set forth in this Section 2.03(a) shall survive delivery of the respective
Mortgage Files to the Trustee (or the Custodian, if applicable). Upon discovery
by either the Company or the Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other. Subject
to the following sentence, within 60 days of its discovery or its receipt of
notice of breach, or, with the prior written consent of a Responsible Officer of
the Trustee, such longer period specified in such consent, the Company shall
cure such breach in all material respects or shall repurchase such Mortgage Loan
from the Trustee or replace such Mortgage Loan pursuant to Section 2.03(b). Any
such repurchase by the Company shall be accomplished in the manner set forth in
Section 2.02, subject to the proviso of the third-to-last sentence thereof, and
at the Purchase Price. It is understood and agreed that the obligation of the
Company to repurchase or replace any Mortgage Loan as to which a breach occurred
and is continuing shall constitute the sole remedy respecting such breach
available to Certificateholders or the Trustee on behalf of Certificateholders
and such obligation of the Company to repurchase or replace any such Mortgage
Loan shall not be assumed by any Person which may succeed the Company as
servicer hereunder, but shall continue as an obligation of the Company.
Notwithstanding the preceding sentence, if a breach of the representation and
warranty of the Company contained in Section 2.03(a)(ix) occurs as a result of a
violation of the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., as
amended ("TILA") or any state truth-in lending or similar statute, and the
Trustee or the Trust Fund is named as a defendant in a TILA suit or a suit under
any such statutes in respect of such violation and liability in respect thereof
is imposed upon the Trustee or the Trust Fund as assignees of the related
Mortgage Loan pursuant to Section 1641 of TILA, or any analogous provision of
any such statute, the Company shall indemnify the Trustee and the Trust Fund
from, and hold them harmless against, any and all losses, liabilities, damages,
claims or expenses (including reasonable attorneys' fees) to which the Trustee
and the Trust Fund, or either of them, become subject pursuant to TILA or any
such statute, insofar as such losses, damages, claims or expenses (including
reasonable attorneys' fees) result from such violation. The Company's
obligations under the preceding sentence shall not impair or derogate from the
Company's obligations to the Trustee under Section 8.05.
(b) If the Company is required to repurchase any Mortgage Loan
pursuant to Section 2.02 or 2.03(a), the Company may, at its option, within the
applicable time period specified in such respective Sections, remove such
Defective Mortgage Loan from the terms of this Agreement and substitute one or
more other mortgage loans for such Defective Mortgage Loan, in lieu of
repurchasing such Defective Mortgage Loan, provided that no such substitution
shall occur more than two years after the Closing Date. Any substitute Mortgage
Loan shall (a) have a Scheduled Principal Balance (together with that of any
other Mortgage Loan substituted for the same Defective Mortgage Loan) as of the
first Distribution Date following the month of substitution not in excess of the
Scheduled Principal Balance of the Defective Mortgage Loan as of such date (the
amount of any difference, plus one month's interest thereon at the respective
Net Mortgage Rate, to be deposited by the Company in the Certificate Account
pursuant to Section 2.02), (b) have a Mortgage Rate not less than, and not more
than one percentage point greater than, the Mortgage Rate of the Defective
Mortgage Loan, (c) have the same Net Mortgage Rate as the Defective Mortgage
Loan, (d) have a remaining term to stated maturity not later than, and not more
than one year less than, the remaining term to stated maturity of the Defective
Mortgage Loan, (e) be, in the reasonable determination of the Company, of the
same type, quality and character as the Defective Mortgage Loan as if the defect
or breach had not occurred, (f) have a ratio of its current principal amount to
its Original Value not greater than that of the removed Mortgage Loan and (g)
be, in the reasonable determination of the Company, in compliance with the
representations and warranties contained in Section 2.03(a), other than
subparagraph (xvi) thereof, as of the date of substitution.
The Company shall amend the Mortgage Loan Schedule to reflect the
withdrawal of any Defective Mortgage Loan and the substitution of a substitute
Mortgage Loan therefor. Upon such amendment the Company shall be deemed to have
made as to such substitute Mortgage Loan the representations and warranties set
forth in Section 2.03(a), other than subparagraph (xvi) thereof, as of the date
of such substitution, which shall be continuing as long as any Certificate shall
be outstanding or this Agreement has not been terminated, and the remedies for
breach of any such representation or warranty shall be as set forth in Section
2.03(a). Upon such amendment, the Trustee (or the Custodian, if applicable)
shall review the Mortgage File delivered to it relating to the substitute
Mortgage Loan, within the time and in the manner and with the remedies specified
in Section 2.02, except that for purposes of this Section 2.03(b) (other than
the two-year period specified in the first sentence of the preceding paragraph
of this Section 2.03(b)), such time shall be measured from the date of the
applicable substitution.
Section 2.04. Execution of Certificates. The Trustee has caused to
be executed, countersigned and delivered to or upon the order of the Company, in
exchange for the Mortgage Loans, the Certificates in authorized denominations
evidencing the entire ownership of the Trust Fund.
Section 2.05. Designations under the REMIC Provisions. (a) The
Company hereby designates the Classes of Certificates identified in Section
5.01(b), other than the Residual Certificate, as "regular interests," and the
Class R Certificate as the single class of "residual interest," in the REMIC
established hereunder for purposes of the REMIC Provisions. The assets of the
REMIC established hereunder will consist of the assets and rights specified in
clauses (i) though (viii) of the definition of the term Trust Fund, and any
Rounding Accounts.
(b) The Closing Date will be the "Startup Day" for the REMIC
established hereunder for purposes of the REMIC Provisions.
(c) The "tax matters person" with respect to the REMIC established
hereunder for purposes of the REMIC Provisions shall be (i) the Company, if the
Company is the owner of a Class R Certificate, or (ii) in any other case, the
beneficial owner of the Class R Certificate having the largest Percentage
Interest of such Class; provided, however, that such largest beneficial owner
and, to the extent relevant, each other holder of a Class R Certificate, by its
acceptance thereof irrevocably appoints the Company as its agent and
attorney-in-fact to act as "tax matters person" with respect to the REMIC
established hereunder for purposes of the REMIC Provisions.
(d) The "latest possible maturity date" of the regular interests in
the REMIC established hereunder is the Latest Possible Maturity Date for
purposes of section 860G(a)(1) of the Code.
(e) In the event that the Servicing Fee exceeds the amount
reasonable for such services (within the meaning of Treasury Regulation
1.860D-1(b)(1)(ii)), the portion or portions of such fee that can be measured as
a fixed number of basis points on some or all of the Mortgage Loans and can be
treated as one or more stripped coupons within the meaning of Treasury
Regulation 1.860D-1(b)(2)(iii) shall be treated as such stripped coupons and
shall not be treated as a REMIC asset.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Company to Act as Servicer. (a) It is intended that
the REMIC established hereunder shall constitute, and that the affairs of the
REMIC shall be conducted so as to qualify the Trust Fund (other than any
collateral fund established under the agreement referred to in Section 3.08(e))
as, a "real estate mortgage investment conduit" as defined in and in accordance
with the REMIC Provisions. In furtherance of such intention, the Company
covenants and agrees that it shall act as agent (and the Company is hereby
appointed to act as agent) on behalf of the Trust Fund and the Holders of the
Residual Certificates and that in such capacity it shall:
(i) prepare and file, or cause to be prepared and filed, in a timely
manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax Return
(Form 1066) and prepare and file or cause to be prepared and filed with
the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to
the REMIC established hereunder, using the calendar year as the taxable
year and the accrual method of accounting, containing such information and
at the times and in the manner as may be required by the Code or state or
local tax laws, regulations, or rules, and shall furnish or cause to be
furnished to Certificateholders the schedules, statements or information
at such times and in such manner as may be required thereby;
(ii) within thirty days of the Closing Date, shall furnish or cause
to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title, address, and
telephone number of the person that the holders of the Certificates may
contact for tax information relating thereto (and the Company shall act as
the representative of the REMIC established hereunder for this purpose),
together with such additional information as may be required by such Form,
and shall update such information at the time or times and in the manner
required by the Code;
(iii) make or cause to be made an election, on behalf of the REMIC
established hereunder, to be treated as a REMIC, and make the appropriate
designations, if applicable, in accordance with Section 2.05 hereof on the
federal tax return of the Trust Fund for its first taxable year (and, if
necessary, under applicable state law);
(iv) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and to the Internal Revenue Service and, if
necessary, state tax authorities, all information returns or reports, or
furnish or cause to be furnished by telephone, mail, publication or other
appropriate method such information, as and when required to be provided
to them in accordance with the REMIC Provisions, including without
limitation, the calculation of any original issue discount using the
Prepayment Assumption Multiple and the furnishing of Schedule Q to Form
1066 to Holders of the Class R Certificates;
(v) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Disqualified Organization,
or an agent (including a broker, nominee or other middleman) of a
Disqualified Organization, or a pass-through entity in which a
Disqualified Organization is the record holder of an interest (the
reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax);
(vi) use its best reasonable efforts to conduct the affairs of the
REMIC established hereunder at all times that any Certificates are
outstanding so as to maintain the status thereof as a REMIC under the
REMIC Provisions;
(vii) 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 or that would subject the Trust Fund to tax;
(viii) exercise reasonable care not to allow the creation of any
"interests" in the REMIC within the meaning of section 860D(a)(2) of the
Code other than the interests represented by the Classes of Certificates
identified in Section 5.01(b);
(ix) exercise reasonable care not to allow the occurrence of any
"prohibited transactions" within the meaning of section 860F of the Code,
unless the Company shall have provided an Opinion of Counsel to the
Trustee that such occurrence would not (a) result in a taxable gain, (b)
otherwise subject the Trust Fund to tax, or (c) cause any REMIC
established hereunder to fail to qualify as a REMIC;
(x) exercise reasonable care not to allow the Trust Fund to receive
income from the performance of services or from assets not permitted under
the REMIC Provisions to be held by a REMIC;
(xi) pay the amount of any federal or state tax, including
prohibited transaction taxes, taxes on certain contributions to the REMIC
after the Startup Day, and taxes on net income from foreclosure property,
imposed on the 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);
(xii) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be
required to sign such returns by the Code or state or local laws,
regulations or rules;
(xiii) maintain such records relating to the REMIC established
hereunder, including but not limited to the income, expenses, individual
Mortgage Loans (including Mortgaged Property), other assets and
liabilities thereof, and the fair market value and adjusted basis of the
property of each determined at such intervals as may be required by the
Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and
(xiv) ensure that no modification of a Mortgage Loan would be a
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
The Company shall be entitled to be reimbursed pursuant to Section
3.04 for any federal income taxes paid by it pursuant to clause (xi) of the
preceding sentence, except to the extent that such taxes are imposed as a result
of the bad faith, misfeasance or negligence of the Company in the performance of
its obligations hereunder. With respect to any reimbursement of prohibited
transaction taxes, the Company shall inform the Trustee of the circumstances
under which such taxes were incurred.
(b) The Company shall service and administer the Mortgage Loans and
shall have full power and authority, acting alone or through one or more Primary
Servicers, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Company shall continue, and is hereby
authorized and empowered by the Trustee, to execute and deliver, or file, as
appropriate, on behalf of itself, the Certificateholders and the Trustee or any
of them, any and all continuation statements, termination statements,
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the properties subject to the Mortgages. Without
limitation of the foregoing, if the Company in its individual capacity agrees to
refinance any Mortgage Loan upon the request of the related Mortgagor, the
Company, as servicer hereunder, may execute an instrument of assignment in
customary form to the Company in its individual capacity. In connection with any
such refinancing, the Trustee shall, upon certification of a Servicing Officer
to the effect that an amount equal to the principal balance of the related
Mortgage Loan together with accrued and unpaid interest thereon at the
applicable Net Mortgage Rate to the date of such certification has been credited
to the Mortgage Loan Payment Record, release the related Mortgage File to the
Company whereupon the Company may cancel the related Mortgage Note. Upon request
by the Company after the execution and delivery of this Agreement, the Trustee
shall furnish the Company with any powers of attorney and other documents
necessary or appropriate to enable the Company to carry out its servicing and
administrative duties hereunder. Except as otherwise provided herein, the
Company shall maintain servicing standards substantially equivalent to those
required for approval by FNMA or FHLMC. The Company shall not agree to any
modification of the material terms of any Mortgage Loan except as provided in
the second sentence of Section 3.02(a) and in Section 3.07. The Company shall
not release any portion of any Mortgaged Property from the lien of the related
Mortgage unless the related Mortgage Loan would be a "qualified mortgage" within
the meaning of the REMIC Provisions following such release.
(c) [Intentionally Omitted.]
(d) The relationship of the Company (and of any successor to the
Company as servicer under this Agreement) to the Trustee under this Agreement is
intended by the parties to be that of an independent contractor and not that of
a joint venturer, partner or agent.
(e) All costs incurred by the Company in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage Loans
shall not, for the purpose of calculating monthly distributions to
Certificateholders, be added to the amount owing under the related Mortgage
Loans, notwithstanding that the terms of such Mortgage Loans so permit, and such
costs shall be recoverable by the Company to the extent permitted by Section
3.04. The Company shall collect such amounts from the Mortgagor and shall credit
the Mortgage Loan Payment Record accordingly.
(f) If the Company enters into a servicing agreement with any
servicer (a "Primary Servicer") pursuant to which such Primary Servicer shall
directly service certain Mortgage Loans and the Company shall perform master
servicing with respect thereto, the Company shall not be released from its
obligations to the Trustee and Certificateholders with respect to the servicing
and administration of the Mortgage Loans in accordance with the provisions of
Article III hereof and such obligations shall not be diminished by virtue of any
such servicing agreement or arrangement and the Company shall be obligated to
the same extent and under the same terms and conditions as if the Company alone
were servicing and administering the Mortgage Loans. Any amounts received by a
Primary Servicer in respect of a Mortgage Loan shall be deemed to have been
received by the Company whether or not actually received by it. Any servicing
agreement that may be entered into and any transactions or services relating to
the Mortgage Loans involving a Primary Servicer in its capacity as such shall be
deemed to be between the Company and the Primary Servicer alone, and the Trustee
and the Certificateholders shall have no claims, obligations, duties or
liabilities with respect thereto. Notwithstanding the foregoing, in the event
the Company has been removed as the servicer hereunder pursuant to Section 6.05
or Section 7.01, the Trustee or any successor servicer appointed pursuant to
Section 7.02 shall succeed to all of the Company's rights and interests (but not
to any obligations or liabilities of the Company arising prior to the date of
succession) under any servicing agreement with any Primary Servicer in respect
of the Mortgage Loans, subject to the limitation on the Trustee's
responsibilities under Section 7.02.
(g) With respect to any CashSaver Mortgage Loan, the Company shall
use reasonable efforts to cause the Primary Servicer to perform its obligations
under the agreements related to the Additional Collateral for such CashSaver
Mortgage Loan.
(h) In no event shall any collateral fund established under the
agreement referred to in Section 3.08(e) constitute an asset of any REMIC
established hereunder.
Section 3.02. Collection of Certain Mortgage Loan Payments; Mortgage
Loan Payment Record; Certificate Account. (a) The Company shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Mortgage Loans, and shall, to the extent such procedures shall be consistent
with this Agreement, follow such collection procedures as it follows with
respect to mortgage loans comparable to the Mortgage Loans in its servicing
portfolio. Consistent with the foregoing, the Company may in its discretion (i)
waive any late payment charge or any assumption fees or other fees which may be
collected in the ordinary course of servicing such Mortgage Loan and (ii) if a
default on the Mortgage Loan has occurred or is reasonably foreseeable, arrange
at any time prior to foreclosure with a Mortgagor a schedule for the payment of
due and unpaid principal and interest for a period extending not longer than two
years after the date that such schedule is arranged. Any arrangement of the sort
described in clause (ii) above shall not affect the amount or timing of the
Company's obligation to make Monthly Advances with respect to any Mortgage Loan
which Monthly Advances shall be made pursuant to the original amortization
schedule applicable to such Mortgage Loan.
(b) The Company shall establish and maintain a Mortgage Loan Payment
Record in which the following payments on and collections in respect of each
Mortgage Loan shall as promptly as practicable be credited by the Company for
the account of the Holders of the Certificates:
(i) All payments on account of principal, including Principal
Prepayments (other than (A) payments of principal due and payable on the
Mortgage Loans on or before, and all Principal Prepayments received
before, the Cut-off Date, (B) in the case of a substitute Mortgage Loan,
payments of principal due and payable on such Mortgage Loan on or before
the Determination Date in the month of substitution, and all Principal
Prepayments received before the first day of the month of substitution,
and (C) in the case of a replaced Mortgage Loan, payments of principal due
and payable on such Mortgage Loan after the Determination Date in the
month of substitution, and all Principal Prepayments received in the month
of substitution);
(ii) All payments (other than (A) those due and payable on or before
the Cut-off Date, (B) in the case of a substitute Mortgage Loan, those due
and payable on such Mortgage Loan on or before the Determination Date in
the month of substitution, and (C) in the case of a replaced Mortgage
Loan, those due and payable on such Mortgage Loan after the Determination
Date in the month of substitution) on account of interest at the
applicable Net Mortgage Rate on the Mortgage Loan received from the
related Mortgagor, including any Buydown Funds applied with respect to
interest at the applicable Net Mortgage Rate on any Buydown Mortgage Loan;
(iii) All Liquidation Proceeds received by the Company with respect
to such Mortgage Loan and the Purchase Price for any Mortgage Loan
purchased by the Company pursuant to Sections 2.02, 2.03 and 3.16
(including any amounts received in respect of a substitution of a Mortgage
Loan);
(iv) All Insurance Proceeds (including, for this purpose, any
amounts required to be credited by the Company pursuant to the last
sentence of Section 3.06) received by the Company for the benefit of the
Trust Fund, other than proceeds to be applied to the restoration or repair
of the property subject to the related Mortgage or released, or to be
released, to the related Mortgagor in accordance with the normal servicing
procedures of the Company;
(v) All REO Proceeds;
(vi) All Unanticipated Recoveries;
(vii) All amounts received by the Company with respect to any
Pledged Asset Mortgage Loan pursuant to the liquidation of any Additional
Collateral or pursuant to any recovery under the Surety Bond in accordance
with Section 4.09; and
(viii) All amounts received by the Company with respect to any
CashSaver Mortgage Loan pursuant to the liquidation of any Additional
Collateral.
The foregoing requirements respecting credits to the Mortgage Loan
Payment Record are exclusive, it being understood that, without limiting the
generality of the foregoing, the Company need not enter in the Mortgage Loan
Payment Record collections, Liquidation Proceeds or Insurance Proceeds in
respect of Mortgage Loans which have been previously released from the terms of
this Agreement, amounts representing fees or late charge penalties payable by
Mortgagors, or amounts received by the Company for the account of Mortgagors for
application towards the payment of taxes, insurance premiums, assessments and
similar items.
(c) Subject to subsection (e) below, until the Business Day prior to
each Distribution Date on which amounts are required to be transferred to the
Certificate Account pursuant to subsection (d) of this Section 3.02, the Company
may retain and commingle such amounts with its own funds and shall be entitled
to retain for its own account any gain or investment income thereon, and any
such investment income shall not be subject to any claim of the Trustee or
Certificateholders. To the extent that the Company realizes any net loss on any
such investments, the Company shall deposit in the Certificate Account an amount
equal to such net loss at the time the Company is required to deposit amounts in
the Certificate Account pursuant to subsection (d) of this section 3.02. Any
such deposit shall not increase the Company's obligation under said subsection
(d).
(d) The Trustee shall establish and maintain with the Trustee in its
corporate trust department a single separate trust account designated in the
name of the Trustee for the benefit of the Holders of the Certificates issued
hereunder (the "Certificate Account") into which the Company shall transfer, not
later than 11:00 a.m. New York time on the Business Day prior to each
Distribution Date, an amount in next day funds equal to the sum of Available
Funds for such Distribution Date and any Unanticipated Recoveries received in
the calendar month preceding the month of such Distribution Date. If the Trustee
does not receive such transfer by 2:00 p.m. on such Business Day, it shall give
the Company written notice thereof.
(e) If the Company or a Responsible Officer of the Trustee obtains
actual notice of or knowledge of the occurrence of either (x) any Trigger Event
or (y) the downgrade by S&P of General Electric Capital Corporation's short-term
senior unsecured debt rating below A-1+ then, notwithstanding subsection (c)
above, the Company shall promptly establish, and thereafter maintain, one or
more Eligible Accounts in the name of the Trustee and bearing a designation
indicating that amounts therein are held for the benefit of the Trustee and the
Certificateholders, into which the Company and any Primary Servicer shall
deposit within two Business Days after receipt, all amounts otherwise required
to be credited to the Mortgage Loan Payment Record pursuant to Section 3.02(b);
provided, however, that such action shall not be required if the Company
delivers to the Trustee a letter from each Rating Agency to the effect that the
failure to take such action will not cause such Rating Agency to withdraw or
reduce its then current ratings of the Certificates. All amounts so deposited
shall be held in trust for the benefit of Certificateholders. Amounts so
deposited may be invested at the written instruction of the Company in Permitted
Investments in the name of the Trustee maturing no later than the Business Day
preceding the Distribution Date following the date of such investment; provided,
however, that any such Permitted Investment which is an obligation of State
Street Bank and Trust Company, in its individual capacity and not in its
capacity as Trustee, may mature on such Distribution Date; and, provided
further, that no such Permitted Investment shall be sold before the maturity
thereof if the sale thereof would result in the realization of gain prior to
maturity unless the Company has obtained an Opinion of Counsel that such sale or
disposition will not cause the Trust Fund to be subject to the tax on prohibited
transactions under section 860F of the Code, or otherwise subject the Trust Fund
to tax or cause the REMIC established hereunder to fail to qualify as a REMIC.
The Trustee is hereby authorized, in making or disposing of any investment
permitted by this Section, to deal with itself (in its individual capacity) or
with any one or more of its affiliates, whether it or such affiliate is acting
as an agent of the Trustee or for any third person or dealing as principal for
its own account. The Trustee shall maintain physical possession of all Permitted
Investments, other than Permitted Investments maintained in book-entry form. The
Company, as servicer, shall be entitled to retain for its own account any gain
or other income from Permitted Investments, and neither the Trustee nor
Certificateholders shall have any right or claim with respect to such income.
The Company shall deposit an amount equal to any loss realized on any Permitted
Investment as soon as any such loss is realized. If the provisions in this
subsection (e) become operable, references in this Agreement to the Mortgage
Loan Payment Record and credits and debits to such Record shall be deemed to
refer to Eligible Accounts and transfers to and withdrawals from such Eligible
Accounts. Any action which may be necessary to establish the terms of an account
pursuant to this Section 3.02(e) may be taken by an amendment or supplement to
this Agreement or pursuant to a written order of the Company, which amendment,
supplement or order shall not require the consent of Certificateholders,
provided that the Company has delivered to the Trustee a letter from each Rating
Agency to the effect that such amendment, supplement or order will not cause
such Rating Agency to withdraw or reduce its then current ratings of the
Certificates.
Section 3.03. Collection of Taxes, Assessments and Other Items.
Other than with respect to any Cooperative Loan, the Company shall establish and
maintain with one or more depository institutions one or more accounts into
which it shall deposit all collections of taxes, assessments, private mortgage
or hazard insurance premiums or comparable items for the account of the
Mortgagors. As servicer, the Company shall effect the timely payment of all such
items for the account of Mortgagors. Withdrawals from such account or accounts
may be made only to effect payment of taxes, assessments, private mortgage or
standard hazard insurance premiums or comparable items, to reimburse the Company
out of related collections for any payments made regarding taxes and assessments
or for any payments made pursuant to Section 3.05 regarding premiums on Primary
Insurance Policies and Section 3.06 regarding premiums on standard hazard
insurance policies, to refund to any Mortgagors any sums determined to be
overages, or to pay interest owed to Mortgagors to the extent required by law.
Section 3.04. Permitted Debits to the Mortgage Loan Payment Record.
The Company (or any successor servicer pursuant to Section 7.02) may, from time
to time, make debits to the Mortgage Loan Payment Record for the following
purposes:
(i) To reimburse the Company or the applicable Primary Servicer for
Liquidation Expenses theretofore incurred in respect of any Mortgage Loan
in an amount not to exceed the amount of the related Liquidation Proceeds
credited to the Mortgage Loan Payment Record pursuant to Section
3.02(b)(iii); provided that the Company or the applicable Primary Servicer
shall not be entitled to reimbursement for Liquidation Expenses incurred
after the initiation of foreclosure proceedings in respect of any
Defaulted Mortgage Loan that is repurchased pursuant to Section 3.16;
(ii) To reimburse the Company or the applicable Primary Servicer for
Insured Expenses and amounts expended by it pursuant to Section 3.08 in
good faith in connection with the restoration of property damaged by an
Uninsured Cause, in an amount not to exceed the amount of the related
Insurance Proceeds and Liquidation Proceeds (net of any debits pursuant to
clause (i) above) and amounts representing proceeds of other insurance
policies covering the property subject to the related Mortgage credited to
the Mortgage Loan Payment Record pursuant to Section 3.02(b) (iii) and
(iv);
(iii) To reimburse the Company to the extent permitted by Sections
3.01(a) and 6.04;
(iv) To pay to the Company amounts received in respect of any
Defective Mortgage Loan or Defaulted Mortgage Loan purchased by the
Company to the extent that the distribution of any such amounts on the
Distribution Date upon which the proceeds of such purchase are distributed
would make the total amount distributed in respect of any such Mortgage
Loan on such Distribution Date greater than the Purchase Price therefor,
net of any unreimbursed Monthly Advances made by the Company;
(v) To reimburse the Company (or the Trustee, as applicable) for
Monthly Advances theretofore made in respect of any Mortgage Loan to the
extent of late payments, REO Proceeds, Insurance Proceeds and Liquidation
Proceeds in respect of such Mortgage Loan;
(vi) To reimburse the Company from any Mortgagor payment of interest
or other recovery with respect to a particular Mortgage Loan, to the
extent not previously retained by the Company, for unpaid Servicing Fees
with respect to such Mortgage Loan, subject to Section 3.08(d);
(vii) To reimburse the Company (or the Trustee, as applicable) for
any Nonrecoverable Advance (which right of reimbursement of the Trustee
pursuant to this clause shall be prior to such right of the Company);
(viii) To make transfers of funds to the Certificate Account
pursuant to Section 3.02(d);
(ix) To pay to the Company amounts received in respect of any
Mortgage Loan purchased by the Company pursuant to Section 9.01 to the
extent that the distribution of any such amounts on the final Distribution
Date upon which the proceeds of such purchase are distributed would make
the total amount distributed in respect of any such Mortgage Loan on such
Distribution Date greater than the purchase price therefor specified in
clause (x) of the first sentence of Section 9.01; and
(x) To deduct any amount credited to the Mortgage Loan Payment
Record in error.
The Company shall keep and maintain separate accounting records, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for debits
to the Mortgage Loan Payment Record pursuant to clauses (i), (ii), (iv), (v) and
(vi) of this Section 3.04; provided, however, that it is understood and agreed
that the records of such accounting need not be retained by the Company for a
period longer than the five most recent fiscal years.
Section 3.05. Maintenance of the Primary Insurance Policies. (a) The
Company shall not take any action which would result in non-coverage under any
applicable Primary Insurance Policy of any loss which, but for the actions of
the Company, would have been covered thereunder. To the extent coverage is
available, the Company shall keep or cause to be kept in full force and effect
each such Primary Insurance Policy until the principal balance of the related
Mortgage Note is 80% or less of the greater of (i) the related Original Value
and (ii) the then current value of the property underlying the related Mortgage
Note as evidenced by an appraisal thereof satisfactory to the Company; provided
that no such Primary Insurance Policy shall be kept in effect if doing so would
violate applicable law, including, without limitation, the Federal Homeowners
Protection Act of 1998. The Company shall not cancel or refuse to renew any such
Primary Insurance Policy applicable to a Mortgage Loan that is in effect at the
Closing Date and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy is
maintained with an insurer whose claims-paying ability is acceptable to each
Rating Agency for mortgage pass-through certificates having ratings equal to or
better than the ratings then assigned to the Certificates by such Rating Agency.
The Company agrees to effect the timely payment of the premium on each Primary
Insurance Policy, and such costs not otherwise recoverable shall be recoverable
by the Company from related Insurance Proceeds and Liquidation Proceeds pursuant
to Section 3.04.
(b) In connection with its activities as administrator and servicer
of the Mortgage Loans, the Company agrees to present, on behalf of itself, the
Trustee and the Certificateholders, claims to the insurer under each Primary
Insurance Policy and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policy respecting a
related defaulted Mortgage Loan. To the extent provided in Section 3.02(b), any
amounts collected by the Company under any Primary Insurance Policy in respect
of the Mortgage Loans (including, without limitation, a Mortgage Loan purchased
by a related insurer) shall be credited to the Mortgage Loan Payment Record.
Section 3.06. Maintenance of Hazard Insurance. The Company shall
cause to be maintained for each Mortgage Loan, other than a Cooperative Loan,
hazard insurance with a standard mortgagee clause and with extended coverage in
an amount which is at least equal to the maximum insurable value of the
improvements securing such Mortgage Loan from time to time or the principal
balance owing on such Mortgage Loan from time to time, whichever is less. The
Company shall also maintain on property (other than Cooperative Apartments)
acquired upon foreclosure, or by deed in lieu of foreclosure, hazard insurance
with extended coverage in an amount which is at least equal to the lesser of (i)
the maximum insurable value from time to time of the improvements which are a
part of such property or (ii) the unpaid principal balance of such Mortgage Loan
at the time of such foreclosure or deed in lieu of foreclosure plus accrued
interest and the good-faith estimate of the Company of related Liquidation
Expenses to be incurred in connection therewith. To the extent provided in
Section 3.02(b)(iv), amounts collected by the Company under any such policies in
respect of the Mortgage Loans shall be credited to the Mortgage Loan Payment
Record. Such costs shall be recoverable by the Company pursuant to Sections 3.03
and 3.04. In cases in which property securing any Mortgage Loan other than a
Cooperative Loan is located in a federally designated flood area, the hazard
insurance to be maintained for such Mortgage Loan shall include flood insurance.
All such flood insurance shall be in such amounts as are required under
applicable guidelines of FNMA. The Company shall be under no obligation to
require that any Mortgagor maintain earthquake or other additional insurance and
shall be under no obligation itself to maintain any such additional insurance on
property acquired in respect of a Mortgage Loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Company shall obtain and maintain a
blanket policy insuring against hazard losses on all of the Mortgage Loans
(whether or not including Cooperative Loans), it shall conclusively be deemed to
have satisfied its obligations as set forth in the first sentence of this
Section 3.06, it being understood and agreed that such policy may contain a
deductible clause, in which case the Company shall, in the event that there
shall not have been maintained on the related Mortgaged Property a policy
complying with the first sentence of this Section 3.06, and there shall have
been a loss which would have been covered by such policy, credit to the Mortgage
Loan Payment Record the amount not otherwise payable under the blanket policy
because of such deductible clause.
Section 3.07. Assumption and Modification Agreements. (a) In any
case in which property subject to a Mortgage has been or is about to be conveyed
by the Mortgagor, the Company shall exercise its right to accelerate the
maturity of such Mortgage Loan under any "due-on-sale" clause applicable
thereto, unless in the reasonable discretion of the Company, such exercise would
adversely affect or jeopardize coverage under the related Primary Insurance
Policy, if any; provided, however, that if the Company is prevented, as provided
in Section 3.07(b), from enforcing any such clause, the Company is authorized to
make or enter into an assumption and modification agreement from or with the
Person to whom such property has been or is about to be conveyed, pursuant to
which such Person becomes liable under the Mortgage Note and the Mortgagor
remains liable thereon. In connection with any such assumption and modification
agreement, the Company shall apply its then current underwriting standards to
such Person. The Company shall not make or enter into any such assumption and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation of the continued
effectiveness of any applicable Primary Insurance Policy and hazard insurance
policy. The Company shall notify the Trustee that any assumption and
modification agreement has been completed by forwarding to the Trustee the
original copy thereof, which copy shall be added by the Trustee to the related
Mortgage File and shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting a
part thereof. In connection with any such agreement, the Mortgage Rate, mortgage
term and any other material term of such Mortgage Loan shall not be changed. Any
fee collected by the Company for entering into any such agreement will be
retained by the Company as additional servicing compensation.
(b) Notwithstanding Section 3.07(a) or any other provision of this
Agreement, the Company 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, or transfer of the property subject to a Mortgage without the assumption
thereof, by operation of law or any assumption or transfer which the Company
reasonably believes it may be restricted by law from preventing, for any reason
whatsoever.
Section 3.08. Realization Upon Defaulted Mortgage Loans. (a) The
Company shall foreclose upon or otherwise comparably convert the ownership of
properties securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 3.02. In connection with such
foreclosure or other conversion the Company shall, consistent with Section 3.05,
follow such practices and procedures as it shall deem necessary or advisable and
as shall be normal and usual in its general mortgage servicing activities. The
foregoing is subject to the proviso that the Company shall not be required to
expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it shall determine (i) that such restoration
or foreclosure 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 either through Liquidation Proceeds or
Insurance Proceeds. Notwithstanding the foregoing, the Company shall not be
entitled to recover legal expenses incurred in connection with foreclosure
proceedings where the Mortgage Loan is reinstated and such foreclosure
proceedings are terminated prior to completion, other than sums received from
the Mortgagor for such expenses.
Notwithstanding anything to the contrary contained herein, the
Company shall be under no obligation to foreclose upon or otherwise convert the
ownership of any Mortgaged Property which it believes may be contaminated with
or affected by hazardous or toxic wastes, materials or substances. The Company
may, but shall not be obligated to, make such determination on the basis of a
Phase I environmental assessment with respect to the related Mortgaged Property.
Neither the Trustee nor the Company shall be liable to the Trust Fund or the
Certificateholders if, based on the Company's belief that such contamination or
effect exists, the Company does not foreclose upon or otherwise convert the
ownership of a Mortgaged Property. In addition, neither the Trustee nor the
Company shall be liable to the Trust Fund or the Certificateholders if, based on
the Company's belief that no such contamination or effect exists, the Company
forecloses upon a Mortgaged Property and the Trustee or its nominee on behalf of
the Trust Fund takes title to such Mortgaged Property, and thereafter such
Mortgaged Property is determined to be so contaminated or affected.
(b) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee on behalf of the Trust Fund.
Notwithstanding any such acquisition of title and cancellation of the related
Mortgage Loan, such Mortgage Loan shall (except for purposes of Section 9.01) be
considered to be an Outstanding Mortgage Loan until such time as the Mortgaged
Property shall be sold and such Mortgage Loan becomes a Liquidated Mortgage
Loan. Consistent with the foregoing, for purposes of all calculations hereunder
so long as such Mortgage Loan shall be considered to be an Outstanding Mortgage
Loan, it shall be assumed that the related Mortgage Note and its amortization
schedule in effect on and after such acquisition of title (after giving effect
to any previous Principal Prepayments and Deficient Valuations incurred
subsequent to the related Bankruptcy Coverage Termination Date and before any
adjustment thereto by reason of any bankruptcy (other than as aforesaid) or any
similar proceeding or any moratorium or similar waiver or grace period) remain
in effect (notwithstanding that the indebtedness evidenced by such Mortgage Note
shall have been discharged), subject to adjustment to reflect the application of
REO Proceeds received in any month. REO Proceeds received in any month shall be
applied to the payment of the installments of principal due and interest accrued
on the related REO Mortgage Loan in accordance with the terms of such Mortgage
Note. REO Proceeds received in any month in excess of the Amortization Payment
for such month due on any REO Mortgage Loan shall be treated as a Principal
Prepayment received in respect of such Mortgage Loan.
(c) In the event that the Trust Fund acquires any Mortgaged Property
as aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Company shall dispose of such Mortgaged Property prior to the
close of the third calendar year after the year of its acquisition by the Trust
Fund unless (a) the Trustee shall have been supplied with an Opinion of Counsel
to the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to such period (and specifying the period beyond such period for
which the Mortgaged Property may be held) will not result in the imposition of
taxes on "prohibited transactions" of the Trust Fund as defined in section 860F
of the Code, or cause the REMIC established hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel), or (b) the Trustee (at the Company's
expense) or the Company shall have applied for, not later than 61 days prior to
the expiration of such period, an extension of such period in the manner
contemplated by section 856(e)(3) of the Code, in which case such period shall
be extended by the time period permitted by section 856(e)(3) of the Code.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used for the production of income by or on behalf of the Trust Fund
or sold in such a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify at any time as "foreclosure property"
within the meaning of section 860G(a)(8) of the Code, (ii) subject the Trust
Fund to the imposition of any federal or state income taxes on "net income from
foreclosure property" with respect to such Mortgaged Property within the meaning
of section 860G(c) of the Code, or (iii) cause the sale of such Mortgaged
Property to result in the receipt by the Trust Fund of any income from
non-permitted assets as described in section 860F(a)(2)(B) of the Code, unless
the Company has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes.
(d) Any collection of Insurance Proceeds or Liquidation Proceeds
will be applied in the following order of priority: first, to reimburse the
Company for any related unreimbursed Liquidation Expenses and to reimburse the
Company or the Trustee, as applicable, for any related unreimbursed Monthly
Advances; second, to accrued and unpaid interest on the Mortgage Loan at the
Mortgage Rate from the date to which interest was last paid or advanced to the
Due Date prior to the Distribution Date on which such amounts are to be
distributed; and third, as a recovery of principal of the Mortgage Loan. If the
amount so allocated to interest is less than the full amount of accrued and
unpaid interest due on such Mortgage Loan, the amount of such recovery will be
allocated between the Servicing Fee and interest at the Net Mortgage Rate in
proportion to the amount of such accrued interest which would have been
allocated to each such category in the absence of any shortfall.
(e) Notwithstanding anything to the contrary contained herein, the
Company shall have the right to enter into an agreement substantially in the
form of Exhibit K hereto with any Person that is the Holder of 100% of the Class
B5 Certificates (provided that such form may be revised to delete the option on
the part of such Person to purchase a defaulted Mortgage Loan as set forth in
Section 2.02(f) thereof). Prior to entering into any such agreement with any
Person, the Company shall obtain a certification from such Person to the effect
that (i) such Person is not an "affiliate" (within the meaning of the Prohibited
Transaction Exemption) of the Trustee and (ii) such Person will not purchase any
Certificates if such purchase would cause such Person to hold more than a ten
percent interest in the Mortgage Pool. It is understood that the right of the
Company to be reimbursed for Monthly Advances and Nonrecoverable Advances under
this Agreement shall not be affected in any way by the provisions of any such
agreement. The Trustee hereby agrees to perform such obligations as may be
expressly required of it pursuant to the provisions of such agreement and to
promptly notify each party to such agreement if a Responsible Officer of the
Trustee (with direct responsibility for administration of this Agreement)
becomes aware of any discussions, plans or events that might lead to the
Trustee's becoming an "affiliate" (within the meaning of the Prohibited
Transaction Exemption) of any Person with which the Company has entered into
such agreement, provided that the contents of any such notification shall be
kept confidential by the parties to such agreement. The Company agrees to
promptly notify the Trustee upon entering into any such agreement. In addition,
the Company shall provide the Trustee with such information as may be necessary
for the Trustee to perform its obligations thereunder, including written
instructions, clearly identifying the source, amount and application of funds to
be deposited or withdrawn from the Collateral Fund (as defined in such
agreement). The Trustee shall provide the Company with such information
concerning credits and debits to the Collateral Fund on account of income, gains
and losses realized from Collateral Fund Permitted Investments (as defined in
such agreement), and costs associated with the purchase and sale thereof, as the
Company may request in order to prepare the instructions described in the
preceding sentence.
In addition, subject to the provisions of the preceding paragraph,
the Company shall have the right to enter into an agreement substantially in the
form of Exhibit K hereto with the Person that is the Holder of 100% of the Class
B4 Certificates, provided that (i) such Person is also the Holder of 100% of the
Class B5 Certificates, (ii) such Person shall have no rights under such
agreement until the date on which the Class Certificate Principal Balance of the
Class B5 Certificates has been reduced to zero, and (iii) any rights of such
Person under such agreement shall terminate in the event that such Person
transfers, directly or indirectly, the Class B4 Certificates to any other
Person.
(f) Additional Collateral may be liquidated and the proceeds applied
to cover any shortfalls upon the liquidation of a Mortgaged Property; provided,
however, that the Trust Fund in no event shall acquire ownership of the
Additional Collateral unless the Trustee shall have received an Opinion of
Counsel that such ownership shall not cause the Trust Fund to fail to qualify as
a REMIC or subject the REMIC to any tax.
Section 3.09. Trustee to Cooperate; Release of Mortgage Files. Upon
the payment in full of any Mortgage Loan, the Company will immediately notify
the Trustee (or Custodian, if applicable) 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 credited to the
Mortgage Loan Payment Record pursuant to Section 3.02 have been so credited) of
a Servicing Officer and shall request delivery to it of the Mortgage File. If a
Buydown Mortgage Loan is the subject of a Principal Prepayment in full during
the related Buydown Period, the related Buydown Funds will be applied or
returned to the Person entitled thereto in accordance with the terms of such
Buydown Mortgage Loan. Upon receipt of such certification and request in form
satisfactory to the Trustee (or Custodian, if applicable), the Trustee (or
Custodian, if applicable) shall promptly, but in any event within five Business
Days, release the related Mortgage File to the Company; provided, that the
Trustee (or Custodian, if applicable) shall not be responsible for any delay in
the release of a Mortgage File resulting from acts beyond its control, including
without limitation, acts of God, strikes, lockouts, riots, acts of war or
terrorism, epidemics, nationalization, governmental regulations imposed after
the fact, fire, communication line failures, computer viruses, power failures,
earthquakes or other disasters. Upon any such payment in full, the Company is
authorized to execute, pursuant to the authorization contained in Section 3.01,
an instrument of satisfaction regarding such Mortgage, which instrument of
satisfaction shall be recorded by the Company if required by applicable law and
be delivered to the Person entitled thereto, it being understood and agreed that
no expenses incurred in connection with such instrument of satisfaction shall be
reimbursed from amounts at the time credited to the Mortgage Loan Payment
Record. From time to time and as appropriate for the servicing or foreclosure of
any Mortgage Loan (including, without limitation, collection under any Primary
Insurance Policy), the Trustee (or Custodian) shall, upon request of the Company
and delivery to the Trustee (and Custodian, if applicable) of a receipt signed
by a Servicing Officer, release the related Mortgage File to the Company. The
Trustee shall, upon request of the Company, execute such documents as shall be
necessary to the prosecution of any such proceedings. Such receipt shall
obligate the Company to return the Mortgage File to the Trustee (or Custodian)
when the need therefor by the Company 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 hereinabove specified, the receipt shall be released by
the Trustee (or Custodian) to the Company.
Section 3.10. Servicing Compensation; Payment of Certain Expenses by
the Company. (a) As compensation for its activities and obligations hereunder,
the Company shall be entitled to withhold and pay to itself out of each payment
received by it on account of interest on each Mortgage Loan (including the
portion of any Buydown Funds applied to the related Buydown Mortgage Loan for
the applicable period) an amount equal to the Servicing Fee. The aggregate of
the Servicing Fees payable to the Company on any Distribution Date shall be
reduced by the amount of any Compensating Interest Payment for such Distribution
Date. Additional servicing compensation in the form of Prepayment Interest
Excess, assumption fees, modification fees, late payment charges, interest
income or gain with respect to amounts deposited in the Certificate Account and
invested by the Company or otherwise shall be retained by the Company, subject
to Section 3.10(b), if applicable. The Company shall be required to pay all
expenses incurred by it in connection with its activities hereunder (including
payment of Trustee fees and all other fees and expenses not expressly stated
hereunder to be for the account of the Certificateholders) and shall not be
entitled to reimbursement therefor except as provided in Sections 3.01, 3.03,
3.04 and 3.08.
(b) The Company may, as a condition to granting any request by a
Mortgagor for any consent, modification, waiver or amendment or any other matter
or thing, the granting of which is in the Company's discretion pursuant to the
terms of the instruments evidencing or securing the related Mortgage Loan and is
permitted by other sections of this Agreement, require (to the extent permitted
by applicable law) that such Mortgagor pay to it a reasonable or customary fee
in accordance with the schedule set forth as Exhibit H (which may be amended
from time to time by provision of a revised schedule of such fees to the
Trustee, whereupon such revised schedule shall be deemed to be Exhibit H
hereunder) for the additional services performed in connection with such
request, together with any related costs and expenses incurred by it. Such fees
shall be additional servicing compensation to the Company.
Section 3.11. Reports to the Trustee. Not later than 15 days after
each Distribution Date, the Company shall forward to the Trustee a statement,
certified by a Servicing Officer, setting forth the status of the Mortgage Loan
Payment Record as of the close of business on such Distribution Date and
showing, for the period covered by such statement, the aggregate of credits to
the Mortgage Loan Payment Record for each category of credit specified in
Section 3.02 and each category of debit specified in Section 3.04.
Section 3.12. Annual Statement as to Compliance. The Company will
deliver to the Trustee, on or before March 31 of each year, beginning with March
31, 2001, an Officer's Certificate stating that (a) a review of the activities
of the Company during the preceding calendar year and of its performance under
this Agreement has been made under such Officer's supervision and (b) to the
best of such Officer's knowledge, based on such review, the Company has
fulfilled all its material 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.
Section 3.13. Annual Independent Public Accountants' Servicing
Report. On or before March 31 of each year, beginning with March 31, 2001, the
Company shall:
(a) furnish to a firm of independent public accountants (which may
also render other services to the Company) a statement substantially to the
effect that the Company has complied in all material respects with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers (the "Minimum Servicing Standards") with respect to the
mortgage loans in the Company's servicing portfolio (which may exclude home
equity loans) or, if there has been material noncompliance with such servicing
standards, containing a description of such noncompliance; and
(b) at its expense cause such firm of independent public accountants
to furnish a report to the Trustee stating its opinion as to the Company's
assertion contained in the statement delivered pursuant to Section 3.13(a),
which opinion shall be based on an examination conducted by such firm in
accordance with the standards established by the American Institute of Certified
Public Accountants, including examining, on a test basis, evidence about the
Company's compliance with the Minimum Servicing Standards. Such opinion shall be
to the effect that the Company has complied in all material respects with the
Minimum Servicing Standards with respect to the mortgage loan portfolio
described in the Company's statement delivered pursuant to Section 3.13(a)
hereof or if there has been material noncompliance with the Minimum Servicing
Standards, shall contain a description of such noncompliance in accordance with
applicable accounting standards. In rendering such report, such firm may rely,
as to matters relating to direct servicing of Mortgage Loans by any primary
servicer, upon comparable reports of independent public accountants with respect
to such primary servicer.
Section 3.14. Access to Certain Documentation and Information
Regarding the Mortgage Loans. To the extent permitted by applicable law, the
Company shall provide to the Trustee, Certificateholders which are regulated
insurance entities and the applicable insurance regulatory agencies thereof,
Certificateholders which are federally insured savings and loan associations,
the Office of Thrift Supervision, the FDIC and the supervisory agents and
examiners thereof access to the documentation regarding the Mortgage Loans
required by applicable regulations of the Office of Thrift Supervision or of
such insurance regulatory agencies, as the case may be, such access being
afforded without charge but only upon reasonable request and during normal
business hours at the offices of the Company. Nothing in this Section 3.14 shall
derogate from the obligation of the Company to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Company to provide access as provided in this Section 3.14 as a result of
such obligation shall not constitute a breach of this Section 3.14.
Section 3.15. Maintenance of Certain Servicing Policies. The Company
shall during the term of its service as servicer maintain in force (i) a policy
or policies of insurance covering errors and omissions in the performance of its
obligations as servicer hereunder and (ii) a fidelity bond in respect of its
officers, employees or agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA for persons
performing servicing for mortgage loans purchased by such association.
Section 3.16. Optional Purchase of Defaulted Mortgage Loans. The
Company shall have the right, but not the obligation, to purchase (i) any
Defaulted Mortgage Loan or (ii) any Mortgage Loan as to which the Company has a
right against the originator or former owner of such Mortgage Loan for breach of
a representation or warranty regarding the characteristics of such Mortgage Loan
made by such originator or former owner, in each case for a price equal to the
Purchase Price therefor. Any such purchase shall be accomplished as provided in
Section 4.04(a) hereof. At the time of any such repurchase by the Company
pursuant to clause (ii) herein, the Company agrees either promptly to (x)
liquidate such Mortgage Loan, to the extent the Company's rights against such
originator or former owner consist for a claim for indemnity or (y) transfer
such Mortgage Loan to such originator or former owner at a price not less than
the Purchase Price of such Mortgage Loan.
ARTICLE IV
PAYMENTS AND STATEMENTS
Section 4.01. Distributions. (a) On each Distribution Date, the
Trustee shall withdraw the Available Funds from the Certificate Account and
shall make distributions to Holders of the Certificates as of the preceding
Record Date in the following order of priority, to the extent of the remaining
Available Funds:
(i) to each Class of Senior Certificates (other than any Class of
Principal Only Certificates) and the Class S Certificates, the Accrued
Certificate Interest thereon for such Distribution Date; provided,
however, that any shortfall in available amounts shall be allocated among
such Classes in proportion to the amount of Accrued Certificate Interest
that would otherwise be distributable thereto;
(ii) to each Class of Senior Certificates (other than any Class of
Principal Only Certificates) and the Class S Certificates, any related
Unpaid Class Interest Shortfall for such Distribution Date; provided,
however, that any shortfall in available amounts shall be allocated among
such Classes in proportion to the Unpaid Class Interest Shortfall for each
such Class on such Distribution Date;
(iii) to the Classes of Senior Certificates entitled to
distributions of principal, in reduction of the Class Certificate
Principal Balances thereof, as set forth in the Senior Principal
Priorities hereto; provided, however, that defined terms used in the
Senior Principal Priorities shall have the meanings assigned thereto in
Article I hereof;
(iv) to the Class PO Certificates, any Class PO Deferred Amount for
such Distribution Date, up to an amount not to exceed the Junior Optimal
Principal Amount for such Distribution Date, until the Class Certificate
Principal Balance of such Class has been reduced to zero; provided, that
any such amounts distributed to the Class PO Certificates pursuant to this
clause (iv) shall not reduce the Class Certificate Principal Balance
thereof;
(v) to the Class M Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(vi) to the Class M Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date;
(vii) to the Class M Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(viii) to the Class B1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
(ix) to the Class B1 Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date;
(x) to the Class B1 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(xi) to the Class B2 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xii) to the Class B2 Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date;
(xiii) to the Class B2 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(xiv) to the Class B3 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xv) to the Class B3 Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date;
(xvi) to the Class B3 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(xvii) to the Class B4 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
(xviii) to the Class B4 Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date;
(xix) to the Class B4 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(xx) to the Class B5 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xxi) to the Class B5 Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date; and
(xxii) to the Class B5 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date.
Notwithstanding the foregoing, amounts otherwise distributable pursuant to
clauses (vii), (x), (xiii), (xvi), (xix) and (xxii) on any Distribution Date
shall be reduced, in inverse order of priority, by any amount distributed
pursuant to clause (iv) on such date, such that such amount distributed pursuant
to clause (iv) on such date shall be applied first to reduce the amount
distributable pursuant to clause (xxii), and then, to the extent of any excess,
applied second, to reduce the amount distributable pursuant to clause (xix),
third, to reduce the amount distributable pursuant to clause (xvi), fourth, to
reduce the amount distributable pursuant to clause (xiii), fifth, to reduce the
amount distributable pursuant to clause (x) and sixth, to reduce the amount
distributable pursuant to clause (vii).
(b) On each Distribution Date, the Trustee shall distribute to the
holder of the Class R Certificate any remaining Available Funds for such
Distribution Date after application of all amounts described in clause (a) of
this Section 4.01, together with any Unanticipated Recoveries received by the
Company in the calendar month preceding the month of such Distribution Date and
not distributed on such Distribution Date to the holders of outstanding
Certificates of any other Class pursuant to Section 4.01(f), plus any amounts
distributable to the holder of the Class R Certificate pursuant to Sections
4.01(e) and 4.10(e). Any distributions pursuant to this subsection (b) shall not
reduce the Class Certificate Principal Balance of the Class R Certificate.
(c) If on any Distribution Date the Class Certificate Principal
Balances of the Junior Certificates have each been reduced to zero, the amount
distributable to the Senior Certificates other than the Class PO Certificates
pursuant to Section 4.01(a)(iii) for such Distribution Date and each succeeding
Distribution Date shall be allocated among such Classes of Senior Certificates,
pro rata, on the basis of their respective Class Certificate Principal Balances
immediately prior to such Distribution Date, regardless of the priorities and
amounts set forth in Section 4.01(a)(iii).
(d) If on any Distribution Date (i) the Class Certificate Principal
Balance of the Class M Certificates or any Class of Class B Certificates for
which the related Prepayment Distribution Trigger was satisfied on such
Distribution Date is reduced to zero and (ii) amounts distributable pursuant to
clauses (ii), (iv) and (v) of the Junior Optimal Principal Amount remain
undistributed on such Distribution Date after all amounts otherwise
distributable on such date pursuant to clauses (iv) through (xxii) of Section
4.01(a) have been distributed, such amounts shall be distributed on such
Distribution Date to the remaining Classes of Junior Certificates in order of
priority, such that no such distribution shall be made to any Class of Junior
Certificates while a prior such Class is outstanding.
(e) (i) On each Distribution Date prior to the earlier to occur of
the Cross-Over Date and the next Distribution Date after the Distribution Date
on which the principal portion of any Realized Loss is allocated to any Class of
Designated Retail Certificates, distributions in reduction of the Class
Certificate Principal Balances of any Designated Retail Certificates will be
made in accordance with the provisions of Section 4.10.
With respect to any Class of Designated Retail Certificates, upon
the earliest of (A) the Cross-Over Date, (B) the next Distribution Date
after the Distribution Date on which the principal portion of any Realized
Loss is allocated to such Class of Designated Retail Certificates and (C)
the next Distribution Date after the Distribution Date on which the Class
Certificate Principal Balance of such Class of Designated Retail
Certificates has been reduced to zero, (x) to the extent the balance of
funds remaining in the related Rounding Account is less than $999.99, the
balance in such Rounding Account shall be restored to $999.99 (or, if
less, the sum of such remaining balance and the amount so distributable)
from Available Funds otherwise available for distribution on all
outstanding Classes of Certificates and (y) such Rounding Account shall be
cleared and terminated, and the amounts therein shall be distributed to
the Class R Certificates on such date (which distribution shall not reduce
the Class Certificate Principal Balance thereof).
(ii) As provided in Section 4.10(f), notwithstanding any provisions
herein to the contrary, on the earlier to occur of the Cross-Over Date and
the next Distribution Date after the Distribution Date on which the
principal portion of any Realized Loss is allocated to any Class of
Designated Retail Certificates, and on each subsequent Distribution Date,
distributions in reduction of the Class Certificate Principal Balances of
any Class of Designated Retail Certificates shall be made on a pro rata
basis among the outstanding Certificates of the respective Class, based on
the Percentage Interest in each such Class represented by each
Certificate. The Trustee shall notify the Depository prior to the first
Distribution Date on which distributions in respect of principal on any
Class of Designated Retail Certificates are to be made on a pro rata basis
in accordance with the preceding sentence. On the earlier to occur of the
Cross-Over Date and the next Distribution Date after the Distribution Date
on which the principal portion of any Realized Loss is allocated to any
Class of Designated Retail Certificates, and on each subsequent
Distribution Date, the Trustee shall not, and the Depository is not
authorized to, make distributions or payments in respect of any Class of
Designated Retail Certificates in accordance with any Principal
Distribution Request or by Random Lot.
(f) In the event that in any calendar month the Company recovers an
amount (an "Unanticipated Recovery") in respect of principal of a Mortgage Loan
which had previously been allocated as a Realized Loss to any Class of
Certificates pursuant to Section 4.03, on the Distribution Date in the next
succeeding calendar month the Trustee shall withdraw from the Certificate
Account and distribute to the holders of each outstanding Class to which such
Realized Loss had previously been allocated its share (determined as described
in the succeeding paragraph) of such Unanticipated Recovery in an amount not to
exceed the amount of such Realized Loss previously allocated to such Class. When
the Class Certificate Principal Balance of a Class of Certificates has been
reduced to zero, the holders of such Class shall not be entitled to any share of
an Unanticipated Recovery, and such Unanticipated Recovery shall be allocated
among all outstanding Classes of Certificates entitled thereto in accordance
with the preceding sentence, subject to the remainder of this subsection (f). In
the event that (i) any Unanticipated Recovery remains undistributed in
accordance with the preceding sentence or (ii) the amount of an Unanticipated
Recovery exceeds the amount of the Realized Loss previously allocated to any
outstanding Classes with respect to the related Mortgage Loan, on the applicable
Distribution Date the Trustee shall distribute to the holders of all outstanding
Classes of the related Certificates to which Realized Losses had previously been
allocated and not reimbursed their pro rata share (determined as described
below) of such excess in an amount not to exceed the aggregate amount of any
Realized Loss previously allocated to such Class with respect to any other
Mortgage Loan that has not been recovered in accordance with this subsection
(f). Any distributions made pursuant to this subsection (f) shall not reduce the
Class Certificate Principal Balance of the related Certificate.
For purposes of the preceding paragraph, the share of an
Unanticipated Recovery allocable to any Class of Certificates with respect to a
Mortgage Loan shall be (i) with respect to the Class PO Certificates, based on
the applicable PO Percentage of the principal portion of the Realized Loss
previously allocated thereto with respect to such Mortgage Loan (or all Mortgage
Loans for purposes of the next to last sentence of the preceding paragraph), and
(ii) with respect to any other Class of Certificates, based on its pro rata
share (in proportion to the Class Certificate Principal Balances thereof with
respect to such Distribution Date) of the applicable Non-PO Percentage of the
principal portion of any such Realized Loss previously allocated with respect to
such Mortgage Loan (or Loans); provided, however, that (i) the share of an
Unanticipated Recovery allocable to a Class PO Certificate with respect to any
Mortgage Loan (or Loans) shall be reduced by the aggregate amount previously
distributed to such Class on account of the applicable Class PO Deferred Amount
in respect of such Mortgage Loan (or Loans) and (ii) the amount by which the
distributions to the Class PO Certificates have been so reduced shall be
distributed to the Classes of Certificates described in clause (ii) of the
preceding paragraph in the same proportion as described in such clause (ii). For
purposes of the preceding sentence, any Class PO Deferred Amount distributed to
a Class PO Certificate on previous Distribution Dates shall be deemed to have
been allocated in respect of the Mortgage Loans as to which the applicable PO
Percentage of the principal portion of Realized Losses has previously been
allocated to such Class on a pro rata basis (based on the amount of Realized
Losses so allocated).
Section 4.02. Method of Distribution. (a) Except as set forth in
Section 4.10 in respect of any Designated Retail Certificates, all distributions
with respect to each Class of Certificates on each Distribution Date shall be
made pro rata among the outstanding Certificates of such Class, based on the
Percentage Interest in such Class represented by each Certificate. Payments to
the Certificateholders on each Distribution Date will be made by the Trustee to
the Certificateholders of record on the related Record Date (other than as
provided in Section 9.01 respecting the final distribution) by check or money
order mailed to a Certificateholder at the address appearing in the Certificate
Register, or upon written request by such Certificateholder to the Trustee made
not later than the applicable Record Date, by wire transfer to a U.S. depository
institution acceptable to the Trustee, or by such other means of payment as such
Certificateholder and the Trustee shall agree.
(b) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each Financial
Intermediary for which it acts as agent. Each Financial Intermediary shall be
responsible for disbursing funds to the Certificate Owners that it represents.
Except as otherwise provided in Section 4.10(g), the Depository shall be
responsible for the allocation of the aggregate amount of distributions in
reduction of the Class Certificate Principal Balances of any Class of Designated
Retail Certificates among the Depository Participants in accordance with Section
4.10, and each Depository Participant (and each respective Financial
Intermediary for which such Depository Participant acts as agent) shall be
responsible for the allocation of the amount allocated thereto among the related
Certificate Owners. All such credits and disbursements with respect to a
Book-Entry Certificate are to be made by the Depository and the Depository
Participants in accordance with the provisions of the applicable Certificates.
Neither the Trustee nor the Company shall have any responsibility therefor
except as otherwise provided by applicable law.
(c) The Trustee shall withhold or cause to be withheld such amounts
as it reasonably determines are required by the Code (giving full effect to any
exemptions from withholding and related certifications required to be furnished
by Certificateholders or Certificate Owners and any reductions to withholding by
virtue of any bilateral tax treaties and any applicable certification required
to be furnished by Certificateholders or Certificate Owners with respect
thereto) from distributions to be made to Non-U.S. Persons. If the Trustee
reasonably determines that a more accurate determination of the amount required
to be withheld for a distribution can be made within a reasonable period after
the scheduled date for such distribution, it may hold such distribution in trust
for a holder of a Residual Certificate until such determination can be made. For
the purposes of this paragraph, a "Non-U.S. Person" is (i) an individual other
than a citizen or resident of the United States, (ii) a partnership, corporation
or entity treated as a partnership or corporation for U.S. federal income tax
purposes not formed under the laws of the United States, any state thereof or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations provide otherwise), (iii) any estate, the income of which is not
subject to U.S. federal income taxation, regardless of source, and (iv) any
trust, other than a trust that a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have the authority to control all substantial decisions of the
trust.
Section 4.03. Allocation of Losses. (a) On or prior to each
Determination Date, the Company shall determine the amount of any Realized Loss
in respect of each Mortgage Loan that occurred during the immediately preceding
calendar month.
(b) With respect to any Distribution Date, the principal portion of
each Realized Loss (other than any Excess Loss) shall be allocated as follows:
(i) the applicable PO Percentage of the principal portion of any
such Realized Loss shall be allocated to the Class PO Certificates until
the Class Certificate Principal Balance thereof has been reduced to zero;
and
(ii) the applicable Non-PO Percentage of the principal portion of
any such Realized Loss shall be allocated in the following order of
priority:
first, to the Class B5 Certificates until the Class
Certificate Principal Balance thereof has been reduced to zero;
second, to the Class B4 Certificates until the Class
Certificate Principal Balance thereof has been reduced to zero;
third, to the Class B3 Certificates until the Class
Certificate Principal Balance thereof has been reduced to zero;
fourth, to the Class B2 Certificates until the Class
Certificate Principal Balance thereof has been reduced to zero;
fifth, to the Class B1 Certificates until the Class
Certificate Principal Balance thereof has been reduced to zero;
sixth, to the Class M Certificates until the Class Certificate
Principal Balance thereof has been reduced to zero; and
seventh, to the Classes of Senior Certificates other than the
Class PO Certificates, pro rata, in accordance with their Class
Certificate Principal Balances; provided, that any such loss
allocated to any Class of Accrual Certificates (and any Accrual
Component) shall be allocated (subject to Section 4.03(d)) on the
basis of the lesser of (x) the Class Certificate Principal Balance
(or Component Principal Balance) thereof immediately prior to the
applicable Distribution Date and (y) the Class Certificate Principal
Balance (or Component Principal Balance) thereof on the Closing Date
(as reduced by any Realized Losses previously allocated thereto).
(c) With respect to any Distribution Date, the principal portion of
any Excess Loss (other than Excess Bankruptcy Losses attributable to Debt
Service Reductions) shall be allocated as follows: (1) the PO Percentage of any
such loss shall be allocated to the Class PO Certificates, and (2) the Non-PO
Percentage of any such loss shall be allocated (i) to the Senior Certificates
other than the Class PO Certificates, and (ii) to each Class of Junior
Certificates pro rata, based on, in the case of such Senior Certificates, the
Senior Certificate Principal Balance and, in the case of such Junior
Certificates, the respective Class Certificate Principal Balances thereof. The
portion of any such loss allocated to the Senior Certificates (other than the
Class PO Certificates) shall be allocated to each such Class of Senior
Certificates, pro rata, based on the respective Class Certificate Principal
Balances thereof; provided, that any such loss allocated to any Class of Accrual
Certificates (and any Accrual Component) shall be allocated (subject to Section
4.03(d)) on the basis of the lesser of (x) the Class Certificate Principal
Balance (or Component Principal Balance) thereof immediately prior to the
applicable Distribution Date and (y) the Class Certificate Principal Balance (or
Component Principal Balance) thereof on the Closing Date (as reduced by any
Realized Losses previously allocated thereto).
(d) Any Realized Losses allocated to a Class of Certificates
pursuant to Section 4.03(b) or (c) shall be allocated among the Certificates of
such Class in proportion to their respective Certificate Principal Balances. In
addition, any Realized Losses allocated to any Class of Component Certificates
on a Distribution Date shall be allocated in reduction of the Component
Principal Balances of the related Components (other than any Notional Component)
in proportion to their respective Component Principal Balances immediately prior
to such Distribution Date. Any allocation of Realized Losses pursuant to this
paragraph (d) shall be accomplished by reducing the Certificate Principal
Balance (or, in the case of any Component, the Component Principal Balance) of
the related Certificates (or Components) on the related Distribution Date in
accordance with Section 4.03(e).
(e) Realized Losses allocated in accordance with this Section 4.03
shall be allocated on the Distribution Date in the month following the month in
which such loss was incurred and, in the case of the principal portion thereof,
after giving effect to distributions made on such Distribution Date, except that
the aggregate amount of Realized Losses to be allocated to the Class PO
Certificates on such Distribution Date will be taken into account in determining
distributions in respect of any Class PO Deferred Amount for such date.
(f) On each Distribution Date, the Company shall determine the
Subordinate Certificate Writedown Amount, if any. Any such Subordinate
Certificate Writedown Amount shall effect, without duplication of any other
provision in this Section 4.03 that provides for a reduction in the Certificate
Principal Balance of the Subordinate Certificates, a corresponding reduction in
the Certificate Principal Balance of the Subordinate Certificates, which
reduction shall occur on such Distribution Date after giving effect to
distributions made on such Distribution Date.
(g) Notwithstanding the foregoing, no such allocation of any
Realized Loss shall be made on a Distribution Date to a Class of Certificates to
the extent that such allocation would result in the reduction of the aggregate
Certificate Principal Balances of all the Certificates as of such Distribution
Date, after giving effect to all distributions and prior allocations of Realized
Losses on such date, to an amount less than the aggregate Scheduled Principal
Balance of the Mortgage Loans as of the first day of the month of such
Distribution Date, less any Deficient Valuations occurring on or prior to the
Bankruptcy Coverage Termination Date (such limitation, the "Loss Allocation
Limitation").
Section 4.04. Monthly Advances; Purchases of Defaulted Mortgage
Loans. (a) The Company shall be required to make Monthly Advances in the manner
and to the extent provided herein. Prior to the close of business on each
Determination Date, the Company shall determine (i) the amount of the Monthly
Advance which it is required to make on the related Distribution Date and (ii)
whether it has elected to purchase any Defaulted Mortgage Loan or Loans on such
Distribution Date. If the Company so elects to purchase any Defaulted Mortgage
Loans or other Mortgage Loan in accordance with Section 3.16 (or is required to
purchase any Mortgage Loan pursuant to Section 2.02 or 2.03(a)), no Monthly
Advance shall be required with respect thereto for the month in which such
purchase occurs. The Company shall include information as to each of such
determinations in the Servicer's Certificate furnished by it to the Trustee in
accordance with Section 4.06 and shall be obligated to transfer to the
Certificate Account pursuant to Section 3.02(d) on or before 11:00 a.m. New York
time on the Business Day next preceding the following Distribution Date in
next-day funds the respective amounts applicable to such determinations
appearing in such Servicer's Certificate. Upon receipt by the Trustee (and
Custodian, if applicable) of written notification signed by a Servicing Officer
of any such deposit relating to the purchase by the Company of such a Mortgage
Loan, the Trustee (or Custodian, as the case may be) shall release to the
Company the related Mortgage File and the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Company any Mortgage Loan released pursuant hereto.
(b) In the event that the Company transfers or expects to transfer
less than the Available Funds required to be deposited by it pursuant to Section
3.02(d), the Company shall so notify the Trustee no later than 9:00 a.m. on the
Business Day preceding the related Distribution Date, and the amount so
transferred, if any, shall be deemed to have been transferred first pursuant to
clause (i) of the definition of Available Funds, second pursuant to clause (iii)
of the definition of Available Funds, and third pursuant to clause (ii) of the
definition of Available Funds. Such notice shall specify each Mortgage Loan
delinquent as of the preceding Determination Date. In such event, the Trustee
shall make any Monthly Advance required to be made hereunder, in the manner and
to the extent required; provided, the Trustee shall not be so obligated if
prohibited by applicable law.
(c) In the event that the Company is succeeded hereunder as
servicer, the obligation to make Monthly Advances in the manner and to the
extent required by Section 4.04(a) shall be assumed by the successor servicer
(subject to Section 7.02).
Section 4.05. Statements to Certificateholders. Each month, at least
two Business Days prior to each Distribution Date, the Company shall deliver to
the Trustee a statement (each, a "Distribution Date Statement") substantially in
the form of Exhibit J hereto. On the first two Distribution Dates immediately
following the Closing Date, the Trustee shall mail to each Certificateholder the
related Distribution Date Statement. Beginning on the second (or on any
succeeding) Distribution Date immediately following the Closing Date, the
Trustee may provide a notice that future Distribution Date Statements shall be
made available on the Trustee's website maintained on the internet; such notice
shall (a) specify the Trustee's website address, and (b) provide for any
Certificateholder to request any future Distribution Date Statement(s) to be
mailed to such requesting Certificateholder. If on the third (or on any
succeeding) Distribution Date immediately following the Closing Date the Trustee
elects to make available such Distribution Date Statements on the Trustee's
website maintained on the internet, on each Distribution Date the Trustee shall
(y) make such Distribution Date Statements available on the Trustee's website,
and (z) mail the applicable Distribution Date Statement to any such
Certificateholder who so requests or has previously so requested. In addition,
the Trustee shall promptly notify the Certificateholders of any changes in the
internet address of the Trustee's website. If on any Distribution Date the
Trustee is unable to make or otherwise determines not to make the applicable
Distribution Date Statement available on the Trustee's website, then the Trustee
shall mail such Distribution Date Statement to each Certificateholder on such
Distribution Date. Each Distribution Date Statement shall set forth:
(i) The amount of such distribution to the Certificateholders of
each Class (and in respect of any Component), other than any Notional
Certificates (and any Notional Component), allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
included therein (including, for this purpose, the Scheduled Principal
Balances of all Defaulted Mortgage Loans and Defective Mortgage Loans
purchased pursuant to Section 2.02, 2.03(b) or 3.16, respectively, and any
amounts deposited pursuant to Section 2.03(b) in connection with the
substitution of any Mortgage Loans pursuant to Section 2.02 or 2.03(a),
the proceeds of which purchases or substitutions are being distributed on
such Distribution Date);
(ii) The amount of such distribution to the Certificateholders of
each Class (other than any Class of Principal Only Certificates) allocable
to interest, including any Accrual Amount added to the Class Certificate
Principal Balance or Component Principal Balance of any Class of Accrual
Certificates or any Accrual Components;
(iii) The amount of servicing compensation paid to the Company
during the month preceding the month of distribution in respect of the
Mortgage Loans and such other customary information as the Company deems
necessary or desirable to enable Certificateholders to prepare their tax
returns;
(iv) The Pool Scheduled Principal Balance and the aggregate number
of the Mortgage Loans on the preceding Due Date after giving effect to all
distributions allocable to principal made on such Distribution Date;
(v) The Class Certificate Principal Balance (or Notional Principal
Balance) of each Class, the Component Principal Balance of each Component
and the Certificate Principal Balance (or Notional Principal Balance) of a
Single Certificate of each Class after giving effect to (i) all
distributions allocable to principal (or reductions in the Notional
Principal Balance, in the case of the Notional Certificates, or the
addition of any Accrual Amount, in the case of any Class of Accrual
Certificates) made on such Distribution Date and (ii) the allocation of
any Realized Losses and any Subordinate Certificate Writedown Amount for
such Distribution Date;
(vi) The Pay-out Rate applicable to each Class of Certificates;
(vii) The book value and unpaid principal balance of any real estate
acquired on behalf of Certificateholders through foreclosure, or grant of
a deed in lieu of foreclosure or otherwise, of any REO Mortgage Loan, and
the number of the related Mortgage Loans;
(viii) The aggregate Scheduled Principal Balances and number of
Mortgage Loans which, as of the close of business on the last day of the
month preceding the related Distribution Date, were (a) delinquent as to a
total of (x) 30-59 days, (y) 60-89 days and (z) 90 days or more, and (b)
in foreclosure;
(ix) The Scheduled Principal Balance of any Mortgage Loan replaced
pursuant to Section 2.03(b);
(x) The Certificate Interest Rates of any LIBOR Certificates, any
COFI Certificates and the Class S Certificates applicable to the Interest
Accrual Period relating to such Distribution Date and such Class;
(xi) The Senior Percentage and the Junior Percentage for such
Distribution Date;
(xii) The Senior Prepayment Percentage and the Junior Prepayment
Percentage for such Distribution Date; and
(xiii) The amount of such distribution to the Certificateholders of
each Class allocable to Unanticipated Recoveries.
In the case of information furnished pursuant to clauses (i) through
(iii) above, the amounts shall be expressed as a dollar amount per Single
Certificate.
In connection with any proposed transfer of a Certificate that is
purported to be made in reliance on Rule 144A under the Securities Act, the
Company shall be responsible for furnishing such information as may be required
thereunder to a proposed transferee. In furtherance of the Company's obligations
hereunder, the Company hereby instructs the Trustee, at the Company's expense
and on its behalf, and the Trustee agrees, to promptly make available to the
proposed transferee, upon request of the holder, (i) all statements furnished to
Certificateholders pursuant to this Section 4.05 on previous Distribution Dates,
(ii) all certificates furnished to the Trustee pursuant to Section 4.06 in prior
months, (iii) Officer's Certificates furnished to the Trustee pursuant to
Section 3.12 for the two years preceding such request, (iv) reports of
independent accountants furnished to the Trustee pursuant to Section 3.13 for
the two years preceding such request and (v) a copy of the Private Placement
Memorandum relating to such Certificate, together with any amendments or
supplements thereto issued by the Company, which may be accompanied by a legend
to the effect that the information contained in the Private Placement Memorandum
and any amendment or supplement thereto is current only as of its date and the
delivery thereof does not create an implication that such information is correct
as of any subsequent date of delivery (it being understood that the Company has
no obligation hereunder to update or supplement the Private Placement Memorandum
unless otherwise required pursuant to Rule 144A(d)(4)) (which copy and legend
shall be furnished to the Trustee by the Company); provided, however, that the
Trustee shall in no event be required to make available such statements or
certificates pursuant to clauses (i) and (ii) above relating to Distribution
Dates occurring more than twenty-four months preceding the month in which such
request was received; provided, further, however, that notwithstanding the
Trustee's agreement as aforesaid to provide such materials to a proposed
transferee, the Trustee does not assume, and shall not thereby be deemed to have
assumed, any responsibility for compliance by the Company with Rule 144A
(subject to the Trustee's agreement set forth in the second sentence of this
paragraph) and shall be entitled to include a notice with such statements or
certificates to the effect that such materials have not been prepared or
assembled by the Trustee and that the Trustee assumes no responsibility for the
adequacy, sufficiency or contents thereof. In connection with any such proposed
transfer, the Company shall make available to the proposed holder, at the
request of the related transferor, such additional information, if any, as may
be required to be delivered pursuant to Rule 144A(d)(4).
Section 4.06. Servicer's Certificate. Each month, not later than the
second Business Day next preceding each Distribution Date, the Company shall
deliver to the Trustee a completed Servicer's Certificate.
Section 4.07. Reports of Foreclosures and Abandonments of Mortgaged
Property. The Trustee (or the Company on behalf of the Trustee) shall, in each
year beginning after 2000, make the reports of foreclosures and abandonments of
any Mortgaged Property as required by section 6050J of the Code. In order to
facilitate this reporting process, the Company, on or before January 15th of
each year, shall provide to the Trustee reports relating to each instance
occurring during the previous calendar year in which the Company (i) on behalf
of the Trustee acquires an interest in a Mortgaged Property through foreclosure
or other comparable conversion in full or partial satisfaction of a Mortgage
Loan, or (ii) knows or has reason to know that a Mortgaged Property has been
abandoned. Reports from the Company shall be in form and substance sufficient to
meet the reporting requirements imposed by section 6050J of the Code.
Section 4.08. Reduction of Servicing Fees by Compensating Interest
Payments. The aggregate amount of the Servicing Fees subject to retention by the
Company as servicer in respect of any Distribution Date shall be reduced by the
amount of any Compensating Interest Payment for such Distribution Date.
Section 4.09. Surety Bond. (a) If a Required Surety Payment is
payable pursuant to the Surety Bond with respect to any Pledged Asset Mortgage
Loan, the Company shall so notify the Trustee as soon as reasonably practicable
and shall, on behalf of the Trustee for the benefit of the Certificateholders,
promptly complete the notice in the form of Attachment 1 to the Surety Bond and
shall promptly submit such notice to the Surety as a claim for a Required Surety
Payment.
(b) Upon receipt of a Required Surety Payment from the Surety on
behalf of the Certificateholders, the Company shall promptly credit such amount
to the Mortgage Loan Payment Record.
Section 4.10. Distributions to Holders of Designated Retail
Certificates. (a) Except as provided in subsections (d) and (f) below, on each
Distribution Date on which distributions in reduction of the Class Certificate
Principal Balance of a Class of Designated Retail Certificates are made, such
distributions will be made in the following order of priority:
(i) first, in respect of any Principal Distribution Request by the
personal representative of a Deceased Holder of such Class of
Certificates, a surviving tenant by the entirety, a surviving joint
tenant, a surviving tenant in common or such other Person empowered to act
on behalf of such Deceased Holder upon his or her death, in an amount up
to but not exceeding $100,000 per request; and
(ii) second, in respect of any Principal Distribution Request by a
Living Holder of such Class of Certificates, in an amount up to but not
exceeding $10,000 per request.
Thereafter, distributions in respect of such Class submitted on
behalf of each Deceased Holder will be made as provided in clause (i) above up
to a second $100,000 per request and distributions in respect of such Class
submitted on behalf of each Living Holder will be made as provided in clause
(ii) above up to a second $10,000 per request. This sequence of priorities will
be repeated until all such requests have been honored to the extent of amounts
available for distribution in reduction of the Class Certificate Principal
Balance of such Class of Designated Retail Certificates.
Principal Distribution Requests presented on behalf of Deceased
Holders in accordance with the provisions of clause (i) above will be accepted
in the order of their receipt by the Depository. Principal Distribution Requests
presented in accordance with the provisions of clause (ii) above will be
accepted in the order of their receipt by the Depository after all requests
presented in accordance with clause (i) have been honored. All Principal
Distribution Requests with respect to any Distribution Date shall be made in
accordance with Section 4.10(c) below and must be received by the Depository no
later than the close of business on the related Record Date. Principal
Distribution Requests that are received by the Depository after the related
Record Date and requests, in either case, for distributions timely received but
not accepted with respect to any Distribution Date, will be treated as Principal
Distribution Requests 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 4.10(c). Requests on behalf of Deceased
Holders that are not so withdrawn shall retain their order of priority, all in
accordance with the procedures of the Depository and the Trustee. Upon the
transfer of beneficial ownership of any Designated Retail Certificate, any
Principal Distribution Request previously submitted with respect to such
Certificate will be deemed to have been withdrawn only upon the receipt by the
Trustee of notification of such withdrawal using a form required by the
Depository.
Principal Distribution Requests for a Class of Designated Retail
Certificates will be applied, in the aggregate, in an amount equal to the
portion of the Available Funds distributable to such Class of Certificates
pursuant to Section 4.01(a), plus any amounts available for distribution from
the related Rounding Account pursuant to Section 4.10(e), provided that the
aggregate distribution in reduction of the Class Certificate Principal Balance
of any Class of Designated Retail Certificates on any Distribution Date shall be
made in an integral multiple of $1,000, subject to Section 4.10(f).
(b) A "Deceased Holder" is a beneficial owner of a Designated Retail
Certificate who was living at the time such interest 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 owner upon his or her death, causes to be furnished to
the Trustee a certified copy of the death certificate of such Deceased Holder,
evidence of such person's status as an authorized representative of the Deceased
Holder, such as surviving tenant (whether by the entirety, joint tenancy or
tenancy in common), which evidence shall be satisfactory to the Trustee, and any
additional evidence of death required by and satisfactory to the Trustee and any
tax waivers requested by the Trustee. Designated 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 beneficial owner, and any Designated Retail Certificates so
beneficially owned will be eligible for priority with respect to distributions
in reduction of the Class Certificate Principal Balance of such Class of
Certificates, subject to the limitations contained in this Section 4.10.
Designated 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 beneficial owners of a number of
individual Designated Retail Certificates greater than the number of individual
Designated Retail Certificates of which such trust is the beneficial owner. The
death of a beneficiary of a trust will be deemed to be the death of a beneficial
owner of the Designated 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 that is the beneficiary of a trust will be deemed to be the death
of the beneficiary of the trust. The death of a person who, immediately prior to
his or her death, was entitled to substantially all of the beneficial ownership
interest in a Designated Retail Certificate will be deemed to be the death of
the beneficial owner of such Certificate regardless of the registration of
ownership of such Certificate, if such beneficial ownership interest can be
established to the satisfaction of the Trustee. The Trustee's decision regarding
whether a Deceased Holder's beneficial interest is substantial for purposes of
the preceding sentence shall be conclusive and binding. 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 interests shall include the power to sell, transfer or
otherwise dispose of a Designated Retail Certificate, and the right to receive
the proceeds therefrom, as well as interest and distributions in reduction of
the Certificate Principal Balance of such Certificates payable with respect
thereto. The Trustee shall not be under any duty to determine independently the
occurrence of the death of any beneficial owner. The Trustee may rely entirely
upon documentation delivered to it in establishing the eligibility of any
beneficial owner to receive the priority accorded Deceased Holders in Section
4.10(a). Expenses incurred by the Trustee in an effort to determine the
beneficial ownership interest with respect to any Principal Distribution Request
presented on behalf of a Deceased Holder, including, without limitation,
attorneys fees, shall be paid by the Person presenting such Principal
Distribution Request.
(c) Requests for distributions in reduction of the Certificate
Principal Balance of a Class of Designated Retail Certificate must be made by
delivering a Principal Distribution Request therefor to the Depository
Participant or Financial Intermediary that maintains the account evidencing the
beneficial owner's interest in such Certificate. Such Depository Participant or
Financial Intermediary should in turn make the request of the Depository (or, in
the case of an Financial Intermediary, such Financial Intermediary should notify
the related Depository Participant of such request, which Depository Participant
should make the request of the Depository) on a form required by the Depository
and provided to the Depository Participant. In the case of a request on behalf
of a Deceased Holder, a certified copy of the death certificate and any
additional appropriate evidence of death and any tax waivers must be forwarded
to the Trustee under separate cover. Any such requests of Deceased Holders that
are incomplete may not be honored by the Trustee and, if not honored, will lose
their priority and must be resubmitted in proper form. Upon receipt of such
Principal Distribution Request, the Depository will date and time stamp such
request and forward such request to the Trustee. Such requests will be honored
on any Distribution Date only to the extent that they are received by the
Depository on or before the Record Date for such Distribution Date. The
Depository 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. Principal Distribution Requests delivered to the Depository
after the Record Date for a particular Distribution Date and requests received
in a timely manner but not accepted with respect to a particular Distribution
Date will be treated as Principal Distribution Requests for the next succeeding
Distribution Date and each succeeding Distribution Date thereafter until each
request is accepted or is withdrawn as provided below. In the case of Principal
Distribution Requests on behalf of Living Holders, the Depository will establish
a new order of priority for each Distribution Date. This order will apply both
to previously unsatisfied Principal Distribution Requests and to newly submitted
requests. A Principal Distribution Request submitted on behalf of a Living
Holder who later dies will become entitled to the priority of a newly submitted
request on behalf of a Deceased Holder upon satisfaction of the requirements set
forth above for requests of a Deceased Holder. Such priority will be effective
for each subsequent Distribution Date if the Trustee has received a certified
copy of the death certificate for such Deceased Holder and any additional
appropriate evidence of death and any requested tax waivers by the last business
day of the preceding calendar month. Each Principal Distribution Request
submitted by a beneficial owner of a Designated Retail Certificate will be held
by the Depository until such request has been accepted or has been withdrawn in
writing as provided herein. Neither the Trustee nor the Company shall be liable
for any delay in delivery of Principal Distribution Requests or Withdrawals (as
defined below) of such requests by the Depository, a Depository Participant or
any Financial Intermediary.
In the event that any Principal Distribution Requests are rejected
by the Trustee for failure to comply with the requirements of this Section 4.10,
the Trustee shall return such requests to the appropriate Depository Participant
with a copy to the Depository with an explanation as to the reason for such
rejection.
The Trustee shall maintain a list of those Depository Participants
representing the Certificate Owners of Designated Retail Certificates that have
submitted Principal Distribution Requests, together with the order of receipt
and the amounts of such requests. The Trustee shall notify the Depository and
the appropriate Depository Participants as to which requests should be honored
on each Distribution Date. Requests shall be honored by the Depository in
accordance with the procedures, and subject to the priorities and limitations,
described in this Section 4.10. The exact procedures to be followed by the
Trustee and the Depository for purposes of determining such priorities and
limitations shall be those established from time to time by the Trustee or the
Depository, as the case may be. The decisions of the Trustee and the Depository
concerning such matters shall be final and binding on all affected Persons.
Any beneficial owner of a Designated Retail Certificate that has
made a Principal Distribution Request may withdraw its request by so notifying
in writing the Depository Participant or Financial Intermediary that maintains
such beneficial owner's account (each such withdrawal, a "Withdrawal"). The
Depository Participant should forward the Withdrawal to the Depository on a form
required by the Depository. In the event that such account is maintained by a
Financial Intermediary, such Financial Intermediary should notify the related
Depository Participant which in turn should forward the Withdrawal of such
request, on a form required by the Depository, to the Depository. If such
Withdrawal has not been received by the Depository and forwarded to the Trustee
on or before the Record Date for the next Distribution Date, the previously made
Principal Distribution Request will be irrevocable with respect to the making of
distributions in reduction of the Certificate Principal Balance of such
Designated Retail Certificate on such Distribution Date.
(d) To the extent, if any, that amounts available for distribution
in reduction of the Class Certificate Principal Balance of a Class of Designated
Retail Certificates on a Distribution Date pursuant to Section 4.01(a) exceed
the dollar amount of Principal Distribution Requests that have been received in
respect of such Class by the related Record Date, as provided in Section 4.10(c)
above, distributions in reduction of the Class Certificate Principal Balance of
such Class of Certificates will be made by mandatory distributions on a Random
Lot basis, in integral multiples equal to $1,000, in reduction thereof without
regard to whether such Certificate Owners have submitted Principal Distribution
Requests. The Trustee shall notify the Depository of the aggregate amount of the
mandatory distribution by Random Lot in reduction of the Class Certificate
Principal Balance of such Designated Retail Certificates to be made on the next
Distribution Date. The Depository shall then allocate such aggregate amount
among its Depository Participants on a Random Lot basis. Each Depository
Participant and, in turn, each Financial Intermediary, will then select, in
accordance with its own procedures, Designated Retail Certificates of such Class
from among those held in its accounts to receive mandatory distributions in
reduction of the Class Certificate Principal Balance of such Certificates, such
that the total amount so selected is equal to the aggregate amount of such
mandatory distributions allocated to such Depository Participant by the
Depository and to such Financial Intermediary by its related Depository
Participant, as the case may be. Depository Participants and Financial
Intermediaries that hold a Class of Designated Retail Certificates selected for
mandatory distributions in reduction of the Class Certificate Principal Balance
thereof should provide notice of such mandatory distributions to the affected
Certificate Owners.
(e) On the Closing Date, a separate Rounding Account shall be
established with the Trustee for each Class of Designated Retail Certificates
and the Rounding Account Depositor for such Rounding Account shall cause to be
initially deposited the sum of $999.99 in each such Rounding Account. On each
Distribution Date on which a distribution is to be made in reduction of the
Class Certificate Principal Balance of a Class of Designated Retail Certificates
pursuant to Section 4.01(a), funds on deposit in the related Rounding Account
shall be, to the extent needed, withdrawn by the Trustee and applied to round
upward to an integral multiple of $1,000 the aggregate distribution in reduction
of the Class Certificate Principal Balance to be made on such Class of
Certificates. Rounding of such distribution on such Class of Designated Retail
Certificates shall be accomplished, on the first such Distribution Date, by
withdrawing from the related Rounding Account the amount of funds, if any,
needed to round the amount otherwise available for such distribution in
reduction of the Class Certificate Principal Balance of such Certificates upward
to the next integral multiple of $1,000. On each succeeding Distribution Date on
which distributions in reduction of the Class Certificate Principal Balance of
such Class of Designated Retail Certificates are to be made pursuant to Section
4.01(a), the aggregate amount of such distributions allocable to such
Certificates shall be applied first to repay any funds withdrawn from the
related Rounding Account and not previously repaid, and then the remainder of
such allocable amount, if any, shall be similarly rounded upward to the next
integral multiple of $1,000 and applied as distributions in reduction of the
Class Certificate Principal Balance of the related Class of Certificates; this
process shall continue on succeeding principal Distribution Dates prior to the
earlier to occur of the Cross-Over Date and the next Distribution Date after the
Distribution Date on which the principal portion of any Realized Loss is
allocated to such Class of Designated Retail Certificates until the Class
Certificate Principal Balance of each such Class of Certificates has been
reduced to zero. Each Rounding Account shall be maintained as a non-interest
bearing account; the Rounding Accounts shall not be an asset of the Trust Fund,
but shall be an asset in the REMIC. On the earliest of (1) the Cross-Over Date,
(2) the next Distribution Date after the Distribution Date on which the
principal portion of any Realized Loss is allocated to any Class of Designated
Retail Certificates and (3) the first Distribution Date after the Class
Certificate Principal Balance of any Class of Designated Retail Certificates has
been reduced to zero, any remaining amounts in the related Rounding Account
shall be distributed to the Class R Certificate.
(f) Notwithstanding any provisions herein to the contrary, on each
Distribution Date coinciding with or after the earlier to occur of the
Cross-Over Date and the next Distribution Date after the Distribution Date on
which the principal portion of any Realized Loss is allocated to any Class of
Designated Retail Certificates, all distributions in reduction of the Class
Certificate Principal Balance of any Class of Designated Retail Certificates
will be made among the Holders and Certificate Owners of such Class of
Certificates, pro rata, based on their Certificate Principal Balances, and will
not be made in integral multiples of $1,000 or pursuant to requested
distributions or mandatory distributions by Random Lot.
(g) In the event that Definitive Certificates representing any Class
of Designated Retail Certificates are issued pursuant to Section 5.02(f) (other
than Section 5.02(f)(z)), all requests for distributions or withdrawals of such
requests relating to such Class must be submitted to the Trustee, and the
Trustee shall perform the functions described in Section 4.10(a) through (d)
using its own procedures, which procedures shall, to the extent practicable, be
consistent with the procedures described in Section 4.10(a) through (d). In the
event that Definitive Certificates representing any Class of Designated Retail
Certificates are issued pursuant to Section 5.02(f)(z), all distributions of
principal shall be made pro rata in accordance with Section 4.10(f).
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates. (a) The Certificates shall be
substantially in the forms set forth in Exhibit A hereto, as applicable, and
shall, on original issue, be executed by the Trustee, not in its individual
capacity but solely as Trustee, and countersigned and delivered by the Trustee
to or upon the order of the Company as provided in Article II.
(b) The Certificates shall be issued in an aggregate Initial
Certificate Principal Balance of $126,474,758.58. Such aggregate original
principal balance shall be divided among the Classes having the designations,
Class Certificate Principal Balances, Certificate Interest Rates and minimum
denominations as follows:
INITIAL CERTIFICATE
CLASS CERTIFICATE INTEREST MINIMUM
DESIGNATION PRINCIPAL BALANCE RATE DENOMINATIONS
----------- ------------------ ----------- -------------
Class A $ 123,028,824.00 7.25% $ 25,000
Class PO 916,238.06 0.00% (1)
Class M 948,000.00 7.25% 100,000
Class B1 506,000.00 7.25% 100,000
Class B2 442,000.00 7.25% 100,000
Class B3 253,000.00 7.25% (1)
Class B4 190,000.00 7.25% (1)
Class B5 190,596.17 7.25% (1)
Class S (2) (2) (3)
Class R 100.00 7.25% 100
-------------------
(1) This Class of Certificates will be issued as a single Certificate
evidencing the entire Class Certificate Principal Balance of such Class.
(2) The Class S Certificates are issued with an initial Notional Principal
Balance of $109,670,603.18 and shall bear interest at the Strip Rate.
(3) The Class S Certificates will be issued in minimum denominations of
Notional Principal Balance of $25,000,000.
(c) The Certificates shall be issuable in registered form only. The
Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the minimum dollar denominations
in Certificate Principal Balance or Notional Principal Balance, as applicable,
specified in Section 5.01(b), and integral multiples of $1,000 in excess
thereof. The Non-Book-Entry Certificates other than the Residual Certificate
shall each be issued in the minimum dollar denominations in Certificate
Principal Balance or Notional Principal Balance, as applicable, specified in
Section 5.01(b), and integral multiples of $1,000 in excess thereof (and, if
necessary, in the amount of the remaining Class Certificate Principal Balance or
Notional Principal Balance, as applicable, of each Class, in the case of one
Certificate of such Class). The Residual Certificate shall be issued as a single
certificate evidencing the entire Class Certificate Principal Balance of such
Class and having a Percentage Interest of 100%. If necessary, one Certificate of
each Class of Book-Entry Certificates may evidence an additional amount equal to
the remainder of the Class Certificate Principal Balance of such Class.
(d) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer under its seal,
which may be in facsimile form and be imprinted or otherwise reproduced thereon.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trustee shall bind the Trustee, notwithstanding that such individuals or any
of them have ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless such Certificate shall have been
manually countersigned by the Trustee substantially in the forms set forth in
Exhibit A hereto, and such countersignature upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
executed and delivered hereunder. All Certificates issued on the Closing Date
shall be dated the Closing Date; all Certificates issued thereafter shall be
dated the date of their countersignature.
(e) The Strip Rate for each Interest Accrual Period shall be
determined by the Company and included in the Servicer's Certificate for the
related Distribution Date.
Section 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at an office or agency in the city in
which the Corporate Trust Office of the Trustee is located or in the City of New
York, New York a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein
provided. The Trustee shall initially serve as Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided.
Subject to Sections 5.02(b) and 5.02(c), upon surrender for
registration of transfer of any Certificate at the Corporate Trust Office, the
Trustee shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class in
authorized denominations of a like Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class and
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, countersign and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trustee and a
certificate of destruction shall be delivered by the Trustee to the Company.
(b) No legal or beneficial interest in all or any portion of the
Residual Certificates may be transferred directly or indirectly to (i) a
Disqualified Organization or an agent of a Disqualified Organization (including
a broker, nominee, or middleman) or (ii) an individual, corporation, partnership
or other person unless such transferee (A) is not a Non-U.S. Person or (B) is a
Non-U.S. Person that holds a Residual Certificate in connection with the conduct
of a trade or business within the United States and has furnished the transferor
and the Trustee with an effective Internal Revenue Service Form 4224 or (C) is a
Non-U.S. Person that has delivered to both the transferor and the Trustee an
opinion of a nationally recognized tax counsel to the effect that the transfer
of a Residual Certificate to it is in accordance with the requirements of the
Code and the regulations promulgated thereunder and that such transfer of a
Residual Certificate will not be disregarded for federal income tax purposes
(any such person who is not covered by clause (A), (B) or (C) above being
referred to herein as a "Non-permitted Foreign Holder"), and any such purported
transfer shall be void and have no effect. The Trustee shall not execute, and
shall not authenticate and deliver, a Residual Certificate in connection with
any transfer thereof unless the transferor shall have provided to the Trustee an
affidavit, substantially in the form attached as Exhibit F hereto, signed by the
transferee, to the effect that the transferee is not such a Disqualified
Organization, an agent (including a broker, nominee, or middleman) for any
entity as to which the transferee has not received a substantially similar
affidavit or a Non-permitted Foreign Holder, which affidavit shall contain the
consent of the transferee to any such amendments of this Agreement as may be
required to further effectuate the foregoing restrictions on transfer of the
Residual Certificates to Disqualified Organizations or Non-permitted Foreign
Holders, and an agreement by the Transferee that it will not transfer a Residual
Certificate without providing to the Trustee an affidavit substantially in the
form attached as Exhibit F hereto and a letter substantially in the form
attached as Exhibit G hereto. Such affidavit shall also contain the statement of
the transferee that (i) it does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to the Residual Certificates and (ii) it understands that it may
incur tax liabilities in excess of cash flows generated by a Residual
Certificate and that it intends to pay taxes associated with holding a Residual
Certificate as they become due.
The affidavit described in the preceding paragraph, if not executed
in connection with the initial issuance of the Residual Certificates, shall be
accompanied by a written statement in the form attached as Exhibit G hereto,
signed by the transferor, to the effect that as of the time of the transfer, the
transferor has (i) no actual knowledge that the transferee is a Disqualified
Organization or Non-permitted Foreign Holder, (ii) no reason to believe that the
transferee has the intention to impede the assessment or collection of any
federal, state or local taxes legally required to be paid with respect to a
Residual Certificate, and (iii) conducted a reasonable investigation and found
that the transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the transferee will not continue to pay
its debts as they become due. The Residual Certificates shall bear a legend
referring to the foregoing restrictions contained in this paragraph and the
preceding paragraph.
Upon notice to the Company that any legal or beneficial interest in
any portion of the Residual Certificates has been transferred, directly or
indirectly, to a Disqualified Organization or agent thereof (including a broker,
nominee, or middleman) in contravention of the foregoing restrictions, (i) such
transferee shall be deemed to hold the Residual Certificate in constructive
trust for the last transferor who was not a Disqualified Organization or agent
thereof, and such transferor shall be restored as the owner of such Residual
Certificate as completely as if such transfer had never occurred, provided that
the Company may, but is not required to, recover any distributions made to such
transferee with respect to the Residual Certificate and return such recovery to
the transferor, and (ii) the Company agrees to furnish to the Internal Revenue
Service and to any transferor of the Residual Certificate or such agent (within
60 days of the request therefor by the transferor or agent) such information
necessary to the application of section 860E(e) of the Code as may be required
by the Code, including but not limited to the present value of the total
anticipated excess inclusions with respect to the Residual Certificate (or
portion thereof) for periods after such transfer. At the election of the
Company, the cost to the Company of computing and furnishing such information
may be charged to the transferor or such agent referred to above; however, the
Company shall in no event be excused from furnishing such information.
The restrictions on transfers of the Residual Certificates set forth
in the preceding three paragraphs shall cease to apply to transfers (and the
applicable portions of the legend to the Residual Certificates may be deleted)
after delivery to the Trustee of an Opinion of Counsel to the effect that the
elimination of such restrictions will not cause the REMIC established hereunder
to fail to qualify as a REMIC at any time that the Certificates are outstanding.
No transfer of a Restricted Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), and any applicable state
securities laws, in each case as evidenced by an Officer's Certificate, or is
exempt from the registration requirements of the Act and any applicable state
securities laws. In the event of such registration, any restrictive legends set
forth in the form of the relevant Restricted Certificate in Exhibit A hereto
with respect to the Act and state securities law restrictions shall be removed
by the Trustee upon request of the Holder thereof and automatically upon
exchange or registration of transfer thereof. As a condition to any transfer
that is to be made in reliance upon an exemption from the Act and such laws of a
(i) Class PO or Class S Certificate or (ii) Restricted Junior Certificate to any
person other than a QIB (as certified by the proposed transferee in the form of
assignment attached to the related Certificate), either (x) the Trustee shall
require the transferee to execute an investment letter in the form substantially
as set forth in Exhibit I hereto or in such other form as may be acceptable to
the Trustee, certifying as to the facts surrounding such transfer, or (y) in
lieu of such investment letter, the Trustee may accept a written Opinion of
Counsel (in form and substance acceptable to the Trustee) that such proposed
transfer may be made pursuant to an exemption from the Act. As an additional
condition to any transfer of a Restricted Certificate, either (i) the transferor
and the transferee shall complete the form of assignment attached to the
Certificate proposed to be transferred, or (ii) the Trustee shall have received
the above-referenced Opinion of Counsel. The holder of any Restricted
Certificate desiring to effect the transfer thereof to a person other than a QIB
shall, and hereby agrees to, comply with any applicable conditions set forth in
the preceding two sentences and indemnify the Trustee and the Company against
any liability that may result if the transfer thereof is not so exempt or is not
made in accordance with such federal and state laws. Such agreement to so
indemnify the Trustee and the Company shall survive the termination of this
Agreement. Notwithstanding the foregoing, no Opinion of Counsel or investment
letter shall be required upon the original issuance of (i) the Restricted Junior
Certificates to the Initial Purchaser (as defined in the Private Placement
Memorandum) or its nominee and (ii) the Class PO or Class S Certificates to the
Company or upon any subsequent transfer of any Class PO or Class S Certificate
by the Company, provided that if any Restricted Junior Certificates are, at the
request of the Initial Purchaser, registered in the name of its nominee, the
Initial Purchaser shall be deemed to acknowledge and agree with the Company and
the Trustee that no transfer of a beneficial interest in such Certificates will
be made without registering such Certificates in the name of the transferee,
which shall be a Person other than such nominee. Any opinion or letter required
pursuant to this paragraph shall not be at the expense of the Trust Fund or the
Trustee.
(c) (i) No transfer of an ERISA-Restricted Certificate in the form
of a Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate (substantially in the form of Exhibit E or such other
form as is acceptable to the Company and the Trustee) from such transferee to
the effect that such transferee (i) is not a Plan or a Person that is using the
assets of a Plan to acquire such ERISA-Restricted Certificate or (ii) in the
case of a Junior Certificate, is an insurance company investing assets of its
general account and the exemptions provided by Section III(a) of Department of
Labor Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12,
1995) (the "Exemptions") apply to the transferee's acquisition and holding of
any ERISA-Restricted Certificate or (B) an opinion of counsel satisfactory to
the Trustee and the Company to the effect that the purchase and holding of such
a Certificate will not constitute or result in the assets of the Trust Fund
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the Trustee
or the Company to any obligation in addition to those undertaken in the
Agreement; provided, however, that the Trustee will not require such certificate
or opinion in the event that, as a result of a change of law or otherwise,
counsel satisfactory to the Trustee has rendered an opinion to the effect that
the purchase and holding of an ERISA-Restricted Certificate by a Plan or a
Person that is purchasing or holding such a Certificate with the assets of a
Plan will not constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code. The preparation and delivery of the certificate and
opinions referred to above shall not be an expense of the Trust Fund, the
Trustee or the Company. Notwithstanding the foregoing, no opinion or certificate
shall be required for the initial issuance of the ERISA-Restricted Certificates
or any subsequent transfer of any Class PO or Class S Certificate by the
Company. Any transferee of a beneficial interest in an ERISA-Restricted
Certificate in the form of a Book-Entry Certificate will be deemed to have made
one of the representations set forth in Exhibit F hereto, unless the Trustee has
received an opinion of counsel referred to in this Section 5.02(c)(i).
Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA-Restricted Certificate to or on behalf of a Plan, without the delivery
to the Trustee and the Company of an opinion of counsel as described above,
shall be void and of no effect.
(ii) No transfer of a Residual Certificate shall be made to any
Person unless the Trustee has received a certification (substantially in
the form of paragraph 4 of Exhibit F) from such transferee to the effect
that, among other things, such transferee is not a Plan or a Person that
is using the assets of a Plan to acquire any such Certificate. The
preparation and delivery of such certificate shall not be an expense of
the Trust Fund, the Trustee or the Company.
(d) Subject to Section 8.01(i) hereof, the Trustee may conclusively
rely upon any certificate, affidavit or opinion delivered pursuant to Section
5.02(b) or (c). Any certificate or affidavit required to be delivered by a
transferee under this Section 5.02 may be executed and delivered in the name of
such transferee by its attorney-in-fact duly authorized in writing in form and
substance satisfactory to the Trustee.
(e) Except as to any additional Certificate of any Class of
Book-Entry Certificates held in physical certificated form pursuant to Section
5.02(g) or any Restricted Junior Certificate of any Class of Book-Entry
Certificates that is transferred to an entity other than a QIB, the Book-Entry
Certificates shall, subject to Section 5.02(f), at all times remain registered
in the name of the Depository or its nominee and at all times: (i) registration
thereof may not be transferred by the Trustee except to another Depository; (ii)
the Depository shall maintain book-entry records with respect to the Certificate
Owners and with respect to ownership and transfers of such Certificates; (iii)
ownership and transfers of registration of the Certificates issued in book-entry
form on the books of the Depository shall be governed by applicable rules
established by the Depository and the rights of Certificate Owners with respect
to Book-Entry Certificates shall be governed by applicable law and agreements
between such Certificate Owners and the Depository, Depository Participants, and
indirect participating firms; (iv) the Depository may collect its usual and
customary fees, charges and expenses from its Depository Participants; (v) the
Trustee shall deal with the Depository, Depository Participants and indirect
participating firms as authorized representatives of the Certificate Owners of
the Certificates issued in book-entry form for all purposes including the making
of payments due on the Book-Entry Certificates and exercising the rights of
Holders under this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; (vi) the Trustee may rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners; (vii) Certificate Owners shall not be entitled to certificates for the
Book-Entry Certificates and (viii) the Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures. Except as provided
herein, the Trustee shall have no duty to monitor or restrict the transfer of
Certificates or interests therein, and shall have no liability for any transfer,
including any transfer made through the book-entry facilities of the Depository
or between or among Depository Participants or Certificate Owners, made in
violation of applicable restrictions set forth herein, except in the event of
the failure of the Trustee to perform its duties and fulfill its obligations
under this Agreement.
(f) If (w)(i) the Company or the Depository advises the Trustee in
writing that the Depository is no longer willing, qualified or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or the
Company is unable to locate a qualified successor, (x) the Company at its option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, (y) after the occurrence of an Event of Default,
Certificate Owners representing not less than 51% of the aggregate Voting Rights
allocated to the Book-Entry Certificates together advise the Trustee and the
Depository through the Depository Participants in writing that the continuation
of a book-entry system through the Depository is no longer in the best interests
of the Certificate Owners or (z) the Depository advises the Trustee that it is
unable to make any pro rata distributions required by Sections 4.01(e)(ii) and
4.10(f), the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of such Certificates by the Depository, accompanied by
registration instructions from the Depository for registration, the Trustee
shall issue the Definitive Certificates. Neither the Company nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository 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 the Definitive Certificates as Certificateholders hereunder.
(g) On or prior to the Closing Date, there shall be delivered to the
Depository (or to State Street Bank and Trust Company acting as custodian for
the Depository pursuant to the Depository's procedures) one certificate for each
Class of Book-Entry Certificates registered in the name of the Depository's
nominee, Cede & Co. The face amount of each such Certificate shall represent
100% of the initial Class Certificate Principal Balance thereof, except for such
amount that does not constitute an acceptable denomination to the Depository. An
additional Certificate of each Class of Book-Entry Certificates may be issued
evidencing such remainder and, if so issued, will be held in physical
certificated form by the Holders thereof. Each Certificate issued in book-entry
form 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 Issuer or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as 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."
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Company, the Certificate Registrar and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Certificate Registrar or the Trustee that such Certificate has
been acquired by a bona fide purchaser, the Trustee shall execute, countersign
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like tenor, Class and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Company, the Trustee, the
Certificate Registrar and any agent of the Company, the Trustee or the
Certificate Registrar 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 for all other purposes whatsoever,
and neither the Company, the Trustee, the Certificate Registrar nor any agent of
the Company, the Trustee or the Certificate Registrar shall be affected by any
notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar will furnish or cause to be furnished to
the Company, within 15 days after receipt by the Certificate Registrar of
request therefor from the Company in writing, a list, in such form as the
Company may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date for payment of
distributions to 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 application, afford such applicants access during
normal business hours to the most recent list of Certificateholders held by the
Trustee. If such 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 a Certificate, agrees with the Certificate Registrar
and the Trustee that neither the Certificate Registrar nor the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section 5.06. Representation of Certain Certificateholders. The
fiduciary of any Plan which becomes a Holder of a Certificate, by virtue of its
acceptance of such Certificate, will be deemed to have represented and warranted
to the Trustee and the Company that such Plan is an "accredited investor" as
defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and
Exchange Commission under the Securities Act of 1933.
Section 5.07. Determination of COFI. (a) If the outstanding
Certificates include any COFI Certificates, then on each COFI Determination Date
the Trustee shall determine the value of COFI on the basis of the most recently
available Information Bulletin referred to in the definition of "COFI". The
establishment of COFI by the Trustee and the Trustee's subsequent calculation of
the rates of interest applicable to the COFI Certificates for each Interest
Accrual Period shall (in the absence of manifest error) be final and binding.
During each Interest Accrual Period, the Certificate Interest Rate for the COFI
Certificates for the current and immediately preceding Interest Accrual Period
shall be made available by the Trustee to Certificate Owners and
Certificateholders at the following telephone number: (000) 000-0000.
(b) The failure by the Federal Home Loan Bank of San Francisco to
publish COFI for a period of 65 calendar days will constitute an "Alternative
Rate Event" for purposes hereof. Upon the occurrence of an Alternative Rate
Event, the Company will calculate the Certificate Interest Rates for the COFI
Certificates for the subsequent Interest Accrual Periods by using, in place of
COFI, (i) the replacement index, if any, published or designated by the Federal
Home Loan Bank of San Francisco or (ii) if no replacement index is so published
or designated, an alternative index to be selected by the Company that has
performed, or that the Company expects to perform, in a manner substantially
similar to COFI. At the time an alternative index is first selected by the
Company, the Company shall determine the average number of basis points, if any,
by which the alternative index differed from COFI for such period as the
Company, in its sole discretion, reasonably determines to reflect fairly the
long-term difference between COFI and the alternative index, and shall adjust
the alternative index by such average. The Company shall select a particular
index as an alternative only if it receives an Opinion of Counsel to the effect
that the selection of such index will not cause any REMIC established hereunder
to fail to qualify as a REMIC for federal income tax purposes. In the absence of
manifest error, the selection of any alternative index as provided by this
Section 5.07(b) shall be final and binding for each subsequent Interest Accrual
Period. Upon the occurrence of an Alternative Rate Event, the Trustee shall have
no responsibility for the determination of any alternative index or the
calculation of the Certificate Interest Rates for the COFI Certificates.
(c) If at any time after the occurrence of an Alternative Rate Event
the Federal Home Loan Bank of San Francisco resumes publication of COFI, the
Certificate Interest Rates for the COFI Certificates for each Interest Accrual
Period commencing thereafter will be calculated by reference to COFI.
Section 5.08. Determination of LIBOR. (a) If the outstanding
Certificates include any LIBOR Certificates, then on each LIBOR Determination
Date the Trustee shall determine LIBOR for the related Interest Accrual Period
as such rate equal to the Interest Settlement Rate. If such rate does not appear
on the Designated Telerate Page as of 11:00 a.m., London time, on the applicable
LIBOR Determination Date:
(i) The Trustee will request the principal London office of each
Reference Bank (as defined in Section 5.08(e)) to provide such bank's
offered quotation (expressed as a percentage per annum) to prime banks in
the London interbank market for one-month U.S. Dollar deposits as of 11:00
a.m., London time, on the applicable LIBOR Determination Date.
(ii) If on any LIBOR Determination Date, two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Interest Accrual Period will be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards, if necessary, to the
nearest whole multiple of 1/16%). If on any LIBOR Determination Date only
one or none of the Reference Banks provide such offered quotations, LIBOR
for the next Interest Accrual Period will be the rate per annum the
Trustee determines to be the arithmetic mean (rounding such arithmetic
mean upwards, if necessary, to the nearest whole multiple of 1/16%) of the
one-month Eurodollar lending rate that three major banks in New York City
selected by the Trustee are quoting as of approximately 11:00 a.m., New
York City time, on the first day of the applicable Interest Accrual
Period.
(iii) If on any LIBOR Determination Date the Trustee is required but
unable to determine LIBOR in the manner provided in subparagraph (ii) of
this Section 5.08(a), LIBOR for the next Interest Accrual Period will be
LIBOR as determined on the previous LIBOR Determination Date, or, in the
case of the first LIBOR Determination Date, the Initial LIBOR Rate.
(b) The establishment of LIBOR by the Trustee and the Trustee's
subsequent calculation of the Certificate Interest Rates applicable to the LIBOR
Certificates for the relevant Interest Accrual Period, in the absence of
manifest error, will be final and binding.
(c) Within five Business Days of the Trustee's calculation of the
Certificate Interest Rates of the LIBOR Certificates, the Trustee shall furnish
to the Company by telecopy (or by such other means as the Trustee and the
Company may agree from time to time) such Certificate Interest Rates.
(d) The Trustee shall provide to Certificateholders who inquire of
it by telephone the Certificate Interest Rates of the LIBOR Certificates for the
current and immediately preceding Interest Accrual Period.
(e) As used herein, "Reference Banks" shall mean no more than four
leading banks engaged in transactions in Eurodollar deposits in the
international Eurocurrency market (i) with an established place of business in
London, England, (ii) whose quotations appear on the display designated "LIBO"
on the Reuters Monitor Money Rates Service (the "Reuters Screen LIBO Page") on
the applicable LIBOR Determination Date and (iii) which have been designated as
such by the Trustee and are able and willing to provide such quotations to the
Trustee on each LIBOR Determination Date. The Reference Banks initially shall
be: Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company
and Bankers Trust Company. If any of the initial Reference Banks should be
removed from the Reuters Screen LIBO Page or in any other way fail to meet the
qualifications of a Reference Bank, or if such page is no longer published, the
Trustee, after consultation with the Company, shall use its best efforts to
designate alternate Reference Banks.
ARTICLE VI
THE COMPANY
Section 6.01. Liability of the Company. The Company shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed upon and undertaken by the Company herein.
Section 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Company. Any corporation into which the Company may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Company shall be a party, or any corporation
succeeding to the business of the Company, or any corporation, more than 50% of
the voting stock of which is, directly or indirectly, owned by General Electric
Company, or any limited partnership, the sole general partner of which is either
the Company or a corporation, more than 50% of the voting stock of which is
owned, directly or indirectly, by General Electric Company, which executes an
agreement of assumption to perform every obligation of the Company hereunder,
shall be the successor of the Company 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. Assignment. The Company may assign its rights and
delegate its duties and obligations as servicer under this Agreement; provided,
that (i) the purchaser or transferee accepting such assignment or delegation is
qualified to service mortgage loans for FNMA or FHLMC, is reasonably
satisfactory to the Trustee and executes and delivers to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such purchaser or transferee of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the Company as servicer hereunder from and after the date of such
agreement and (ii) each Rating Agency's rating of any Classes of Certificates in
effect immediately prior to such assignment or delegation would not be
qualified, downgraded or withdrawn as a result thereof. In the case of any such
assignment or delegation, the Company will be released from its obligations as
servicer hereunder except for liabilities and obligations as servicer incurred
prior to such assignment or delegation.
Section 6.04. Limitation on Liability of the Company and Others.
Neither the Company nor any of the directors or officers or employees or agents
of the Company shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action by the Company pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Company 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
of the Company or by reason of reckless disregard of obligations and duties of
the Company hereunder. The Company and any director or officer or employee or
agent of the Company may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Company and any director or officer or employee or agent
of the Company 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 related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense 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 shall be under no 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 may
in its sole discretion undertake any such action which it may deem necessary or
desirable in respect of this Agreement, and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust Fund and the Company shall
be entitled to be reimbursed therefor from amounts credited to the Mortgage Loan
Payment Record as provided by Section 3.04.
Section 6.05. The Company Not to Resign. Subject to the provisions
of Sections 6.02 and 6.03, the Company shall not resign from the obligations and
duties hereby imposed on it except upon determination that the performance of
its duties hereunder is no longer permissible under applicable law. Any such
determination permitting the resignation of the Company 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 servicer shall have
assumed the responsibilities and obligations of the Company in accordance with
Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(i) Any failure by the Company to make any payment to the Trustee of
funds pursuant to Section 3.02(d) out of which distributions to
Certificateholders of any Class are required to be made under the terms of
the Certificates and this Agreement which failure continues unremedied for
a period of three Business Days after the date upon which written notice
of such failure shall have been given to the Company by the Trustee or to
the Company and the Trustee by Holders of Certificates of each Class
affected thereby evidencing, as to each such Class, Percentage Interests
aggregating not less than 25%; or
(ii) Failure on the part of the Company duly to observe or perform
in any material respect any other covenants or agreements of the Company
set forth in the Certificates or in this Agreement, which covenants and
agreements (A) materially affect the rights of Certificateholders and (B)
continue 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 of each Class affected thereby
evidencing, as to each such Class, Percentage Interests aggregating not
less than 25%; or
(iii) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Company, or for the winding up or
liquidation of the Company's affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(iv) The consent by the Company to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Company or of or relating to substantially all of its
property; or 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 insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by the Company, either the Trustee, or the Holders of
Certificates of each Class affected thereby evidencing, as to each such Class,
Percentage Interests aggregating not less than 51%, by notice then given in
writing to the Company (and to the Trustee if given by the Certificateholders)
may terminate all of the rights and obligations of the Company as servicer under
this Agreement. On or after the receipt by the Company of such written notice,
all authority and power of the Company 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 Company, 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 of the Mortgage
Loans and related documents, or otherwise, including, without limitation, the
recordation of the assignments of the Mortgage Loans to it. The Company agrees
to cooperate with the Trustee in effecting the termination of the
responsibilities and rights of the Company hereunder, including, without
limitation, the transfer to the Trustee for the administration by it of all cash
amounts that shall at the time be held by the Company and that have been or
should have been credited by it to the Mortgage Loan Payment Record, or that
have been deposited by the Company in the Certificate Account or are thereafter
received by the Company with respect to the Mortgage Loans. In addition to any
other amounts which are then, or, notwithstanding the termination of its
activities as servicer, may become, payable to the Company under this Agreement,
the Company shall be entitled to receive out of any delinquent payment on
account of interest on a Mortgage Loan, due during the period prior to the
notice pursuant to this Section 7.01 which terminates the obligation and rights
of the Company hereunder and received after such notice, that portion of such
payment which it would have been entitled to retain pursuant to Section 3.04(vi)
if such notice had not been given.
Section 7.02. Trustee to Act; Appointment of Successor. (a) On and
after the time the Company receives a notice of termination pursuant to Section
7.01, the Trustee shall be the successor in all respects to the Company in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall succeed to all the rights of and be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Company in its capacity as servicer by the terms and provisions hereof;
provided, however, that the responsibilities and duties of the Company pursuant
to Sections 2.02 and 2.03(a) and, if the Trustee is prohibited by law or
regulation from making Monthly Advances, the responsibility to make Monthly
Advances pursuant to Section 4.04, shall not be the responsibilities, duties or
obligations of the Trustee; and provided further, that any failure of the
Trustee to perform such duties and responsibilities that is caused by the
Company's failure to cooperate with the Trustee as required by Section 7.01
shall not be considered a default by the Trustee hereunder. As compensation
therefor, the Trustee shall, except as provided in Section 7.01, be entitled to
such compensation as the Company would have been entitled to hereunder if no
such notice of termination had been given. Notwithstanding the above, the
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution approved to
service mortgage loans for either FNMA or FHLMC, having a net worth of not less
than $10,000,000, as the successor to the Company hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Company
hereunder. Pending appointment of a successor to the Company pursuant to this
Article VII, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Company hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) Any successor, including the Trustee, to the Company as servicer
pursuant to this Article VII shall during the term of its service as servicer
maintain in force (i) a policy or policies of insurance covering errors and
omissions in the performance of its obligations as servicer hereunder, and (ii)
a fidelity bond in respect of its officers, employees and agents to the same
extent as the Company is so required pursuant to Section 3.15.
Section 7.03. Notification to Certificateholders. Upon any
termination or appointment of a successor to the Company pursuant to this
Article VII, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee. 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. If an Event of Default has
occurred (which has not been cured), the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
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
conform to the requirements of this Agreement.
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 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, 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
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;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in performing its
duties in accordance with the terms of this Agreement;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates of each Class
affected thereby evidencing, as to each such Class, Percentage Interests
aggregating not less than 25%, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The Trustee shall not be charged with knowledge of (A) any
failure by the Company to comply with the obligations of the Company
referred to in clauses (i) and (ii) of Section 7.01, (B) the rating
downgrade referred to in the definition of "Trigger Event" or (C) any
failure by the Company to comply with the obligations of the Company to
record the assignments of Mortgages referred to in Section 2.01 unless a
Responsible Officer of the Trustee at the Corporate Trust Office obtains
actual knowledge of such failures, occurrence or downgrade or the Trustee
receives written notice of such failures, occurrence or downgrade from the
Company or the Holders of Certificates of each Class affected thereby
evidencing, as to each such Class, Percentage Interests aggregating not
less than 25%.
Subject to any obligation of the Trustee to make Monthly Advances as
provided herein, the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Company under this Agreement, except during such time,
if any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Company in accordance with the terms of
this Agreement.
Section 8.02. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(i) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) 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;
(iii) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligations, upon the occurrence of an Event of Default (which has not
been cured), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default 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
documents, unless requested in writing so to do by Holders of Certificates
of each Class affected thereby evidencing, as to each such Class,
Percentage Interests aggregating not less than 25%; 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 afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such cost, expense or
liability as a condition to such proceeding. The reasonable expense of
every such investigation shall be paid by the Company or, if paid by the
Trustee, shall be reimbursed by the Company upon demand. Nothing in this
clause (v) shall derogate from the obligation of the Company to observe
any applicable law prohibiting disclosure of information regarding the
Mortgagors; and
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian. The Trustee shall have no responsibility or
liability hereunder for the acts or omissions of the Custodian.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the signature
and countersignature of the Trustee on the Certificates) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Agreement or of the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) or of any
Mortgage Loan or related document. 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
Company in respect of the Mortgage Loans or deposited in or withdrawn from the
Certificate Account by the Company.
Section 8.04. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not Trustee.
Section 8.05. The Company to Pay Trustee's Fees and Expenses. The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
(including any Monthly Advances of the Trustee not previously reimbursed thereto
pursuant to Section 3.04) incurred or made by the Trustee in accordance with any
of the provisions of this Agreement (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, disbursement or advance as may arise
from its negligence or bad faith or which is the responsibility of
Certificateholders hereunder. In addition, the Company covenants and agrees to
indemnify the Trustee from, and hold it harmless against, any and all losses,
liabilities, damages, claims or expenses other than those resulting from the
negligence or bad faith of the Trustee. From time to time, the Trustee may
request that the Company debit the Mortgage Loan Payment Record pursuant to
Section 3.04 to reimburse the Trustee for any Monthly Advances and
Nonrecoverable Advances.
Section 8.06. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation having its principal office either
in the State of New York or in the same state as that in which the initial
Trustee under this Agreement has its principal office and organized and doing
business under the laws of such State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 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
report of condition so published. The Trustee shall not be an affiliate of the
Company. 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 or 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 Company. Upon receiving such notice of
resignation, the Company 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 having 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 the conditions in any of the following clauses (i), (ii) or (iii)
shall occur at any time, the Company may remove the Trustee: (i) 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 Company; (ii) the
Trustee shall be legally unable to act, or shall be adjudged a 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; or (iii) the replacement of the Trustee with a successor Trustee
will enable the Company to avoid (and should, based on the information included
in the notice referred to below, result in the avoidance of) a downgrading of
the ratings assigned to the Certificates by the Rating Agencies (whether or not
other actions could avoid such downgrading) and no Event of Default, as provided
by Section 7.01 hereof, shall have occurred or be continuing; provided, however,
that no action shall be taken pursuant to this clause (iii) unless reasonable
notice shall have been provided to the Trustee, which notice shall set forth the
basis for any rating downgrade as contemplated by the Rating Agencies and shall
also indicate the manner in which such proposed action is intended to avoid such
downgrade. If it removes the Trustee under the authority of the immediately
preceding sentence, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
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
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Section 8.08. Successor Trustee. Any successor Trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Company
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. The predecessor Trustee shall deliver to the successor Trustee
all Mortgage Files and related documents and statements held by it hereunder;
and the Company and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for 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 acceptance 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 Company shall mail notice of the succession of such
Trustee hereunder to all holders of Certificates at their addresses as shown in
the Certificate Register. If the Company fails to mail such notice within 10
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Company.
Section 8.09. Merger or Consolidation of Trustee. Any corporation
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 that such 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 of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Company 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, of all or any part of the Trust Fund, or separate trustee or separate
trustees of any part of the Trust Fund, and to vest in such Person or Persons,
in such capacity and for the benefit of the Certificateholders, such title to
the 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
Company and the Trustee may consider necessary or desirable. If the Company
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. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Company hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) The Company and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this 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 and a copy thereof given to the
Company.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Compliance with REMIC Provisions; Tax Returns. The
Trustee shall at all times act in such a manner in the performance of its duties
hereunder as shall be necessary to prevent the Trust Fund from failing to
qualify as a REMIC and to prevent the imposition of a tax on the Trust Fund or
the REMIC established hereunder. The Trustee, upon request, will furnish the
Company with all such information within its possession as may be reasonably
required in connection with the preparation of all tax returns of the Trust Fund
and any Reserve Fund, and shall, upon request, execute such returns.
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Repurchase by the Company or
Liquidation of All Mortgage Loans. Subject to Section 9.02, the respective
obligations and responsibilities of the Company and the Trustee created hereby
(other than the obligation of the Trustee to make certain payments to
Certificateholders after the final Distribution Date and the obligation of the
Trustee to send certain notices as hereinafter set forth) shall terminate upon
the last action required to be taken by the Trustee on the final Distribution
Date pursuant to this Article IX following the earlier of (a) the repurchase by
the Company of all Mortgage Loans and all REO Mortgage Loans remaining in the
Trust Fund at a price equal to the sum of (x) 100% of the unpaid principal
balance of each Mortgage Loan (other than any REO Mortgage Loans described in
the following clause) as of the first day of the month in which such purchase
price is to be distributed to Certificateholders plus accrued and unpaid
interest thereon at the applicable Net Mortgage Rate (less any amounts
constituting previously unreimbursed Monthly Advances) to the first day of the
month in which such purchase price is to be distributed to Certificateholders
and (y) the appraised value of any REO Mortgage Loan (less the good faith
estimate of the Company of Liquidation Expenses to be incurred in connection
with its disposal thereof), such appraisal to be conducted by an appraiser
mutually agreed upon by the Company and the Trustee, and (b) the later of the
final payment or other liquidation (or any Monthly Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund or the disposition of all
property acquired upon foreclosure or by deed in lieu of foreclosure of any
Mortgage Loan; provided, however, that in no event shall the Trust Fund created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States of America to the Court of St. James's, living on the date of this
Agreement. The right of the Company to repurchase all Mortgage Loans pursuant to
clause (a) above shall be conditioned upon the aggregate of the Scheduled
Principal Balance of the Outstanding Mortgage Loans, at the time of any such
repurchase, aggregating less than 10 percent of the aggregate of the Scheduled
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Notice of any termination, specifying the Distribution Date upon
which the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders mailed not earlier than the 15th day
and not later than the 25th day of the month next preceding the month of such
final distribution specifying (A) the Distribution Date upon which final payment
of the Certificates will be made upon presentation and surrender of the
Certificates at the office of the Trustee therein designated, (B) the amount of
any such final payment and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Trustee therein
specified. The Trustee shall give such notice to the Certificate Registrar at
the time such notice is given to Certificateholders. In the event such notice is
given in connection with the exercise by the Company of its right of repurchase,
the Company shall deposit in the Certificate Account not later than 11:00 a.m.
on the Business Day prior to the final Distribution Date in next-day funds an
amount equal to the price described above. Upon presentation and surrender of
the Certificates, the Trustee shall cause to be distributed to
Certificateholders an amount equal to the price calculated as above provided,
any such repurchase being in lieu of the distribution otherwise required to be
made on the Distribution Date upon which the repurchase is effected. Upon
certification to the Trustee by a Servicing Officer following such final
deposit, the Trustee (or Custodian, if applicable) shall promptly release to the
Company the Mortgage Files for the repurchased Mortgage Loans.
On the final Distribution Date, the Trustee shall distribute amounts
on deposit in the Certificate Account and, if applicable, in any Rounding
Account, in accordance with the applicable priorities and uses provided by
Sections 4.01 and 4.10. Distributions on each Certificate shall be made on the
final Distribution Date in the manner specified in Section 4.02 but only upon
presentation and surrender of the Certificates.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to 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 subject
hereto.
Section 9.02. Additional Termination Requirements. In the event the
Company exercises its purchase option as provided in Section 9.01, the Trust
Fund and the REMIC established hereunder shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel to the effect that the failure to comply with the
requirements of this Section 9.02 will not (i) result in the imposition of taxes
on "prohibited transactions" of any such REMIC as defined in section 860F of the
Code, or (ii) cause the Trust Fund to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(i) The notice given by the Trustee under Section 9.01 shall provide
that such notice constitutes the adoption of a plan of complete
liquidation for such REMIC within the meaning of section 860F(a)(4)(A)(i)
of the Code and the Company shall specify the date of such termination in
a statement attached to the final tax return of the REMIC.
(ii) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of the
Trust Fund to the Company for cash in accordance with Section 9.01.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment. This Agreement may be amended from time to
time by the Company and the Trustee, without the consent of any of the
Certificateholders, to cure any ambiguity or mistake, to correct or supplement
any provisions herein or therein which may be defective or inconsistent with any
other provisions herein or in the Prospectus, or to surrender any right or power
herein conferred upon the Company, or to add any other provisions with respect
to matters or questions arising under this Agreement, which shall not be
materially inconsistent with the provisions of this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder.
Notwithstanding the foregoing, without the consent of the Certificateholders,
the Trustee and the Company may at any time and from time to time amend this
Agreement to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or appropriate to maintain the qualification of the Trust
Fund as a REMIC under the Code or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund pursuant to the Code that would be a
claim against the Trust Fund at any time prior to the final redemption of the
Certificates, provided that the Trustee has obtained an opinion of independent
counsel (which opinion also shall be addressed to the Company) to the effect
that such action is necessary or appropriate to maintain such qualification or
to avoid or minimize the risk of the imposition of such a tax.
This Agreement may also be amended from time to time by the Company
and the Trustee with the consent of Holders of Certificates evidencing (i) not
less than 66% of the Voting Rights of all the Certificates or (ii) Percentage
Interests aggregating not less than 66% of each Class affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement, or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (a) reduce in any manner the amount of, or delay the timing
of, collections of payments on the Mortgage Loans or distributions which are
required to be made on any Certificate without the consent of the Holder of such
Certificate, (b) adversely affect in any material respects the interests of the
Holders of any Class of Certificates in any manner other than as described in
(a), without the consent of the Holders of Certificates evidencing Percentage
Interests aggregating not less than 66% of such Class, or (c) reduce the
aforesaid percentages of Certificates of any Class required to consent to any
such amendment, without the consent of the Holders of all Certificates of such
Class then outstanding. For purposes of this paragraph, references to "Holder"
or "Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel to the effect that such amendment will
not subject the Trust Fund to tax or cause the Trust Fund to fail to qualify as
a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any such amendment or consent the
Trustee shall furnish written notification of the substance of such amendment to
each Certificateholder.
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 requirements as the Trustee may prescribe.
Section 10.02. Recordation of Agreement. This Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are 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
of the Trustee accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
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 10.03. Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the 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 (except as
provided in Section 10.01) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions 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 of each Class affected thereby evidencing, as
to each such Class, Percentage Interests aggregating not less than 25% shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the 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; it being
understood and intended, and being 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 itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the 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, subject to the priority of payments pursuant
to Section 4.01 and the allocation of losses pursuant to Section 4.03, 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.
Section 10.04. 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.
Section 10.05. 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 certified mail, return receipt requested,
(a) in the case of the Company, to GE Capital Mortgage Services, Inc., 0
Xxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: General Counsel, (b)
in the case of the Trustee, to State Street Bank and Trust Company, Corporate
Trust Department, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, (c) in the
case of Fitch, to Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Structured Finance Surveillance, and (d) in the case of S&P, Standard
and Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Surveillance, or, as to each such Person,
at such other address as shall be designated by such Person in a written notice
to each other named Person. 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 10.06. Notices to the Rating Agencies. The Company shall
deliver written notice of the following events to each Rating Agency promptly
following the occurrence thereof: material amendment to this Agreement; any
Event of Default; any Trigger Event; change in or termination of the Trustee;
removal of the Company or any successor servicer as servicer; repurchase or
replacement of any Defective Mortgage Loan pursuant to Section 2.03; and final
payment to Certificateholders. In addition, the Company shall deliver copies of
the following documents to each Rating Agency at the time such documents are
required to be delivered pursuant to this Agreement: monthly statements to
Certificateholders pursuant to Section 4.05, annual report of independent
accountants pursuant to Section 3.13 and annual servicer compliance report
pursuant to Section 3.12. Notwithstanding the foregoing, the failure to deliver
such notices or copies shall not constitute an Event of Default under this
Agreement.
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 to the extent permitted by law 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. Certificates Nonassessable and Fully Paid. It is the
intention of the Trustee that Certificateholders shall not be personally liable
for obligations of the Trust Fund, that the beneficial ownership interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust Fund or for any reason whatsoever, and that Certificates
upon execution, countersignature and delivery thereof by the Trustee are and
shall be deemed fully paid.
* * *
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Agreement to be duly executed by their respective officers and their respective
seals, duly attested, to be hereunto affixed, all as of the day and year first
above written.
GE CAPITAL MORTGAGE SERVICES, INC.
By:____________________________________
Name:
Title:
[SEAL]
Attest:
By:____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:______________________________________
Name:
Title:
[SEAL]
Attest:
By:____________________________________
Name:
Title:
State of New Jersey )
) ss.:
County of Camden )
On the ____ day of September, 2000 before me, a notary public in and
for the State of New Jersey, personally appeared _______________________, known
to me who, being by me duly sworn, did depose and say that he/she resides at
_________________________________________________________; that he/she is a(n)
_________________________ of GE Capital Mortgage Services, Inc., a corporation
formed under the laws of the State of New Jersey, one of the parties that
executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he/she signed his/her name thereto by like order.
----------------------------------
Notary Public
[Notarial Seal]
The Commonwealth of Massachusetts )
) ss.:
County of Suffolk )
On the ____ day of September, 2000 before me, a notary public in and
for the Commonwealth of Massachusetts, personally appeared ____________________,
known to me who, being by me duly sworn, did depose and say that he/she resides
at _____________________________________________________________; that he/she is
a(n) __________________________________ of State Street Bank and Trust Company,
one of the parties that executed the foregoing instrument; that he/she knows the
seal of said Bank; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said Bank;
and that he/she signed his/her name thereto by order of the Board of Directors
of said Bank.
----------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A
FORMS OF CERTIFICATES
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class A Initial Class A Certificate
Principal Balance:
$123,028,824.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.250% Balance of this Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date: CUSIP: 36157N MB 7
October 25, 2000
THIS CERTIFIES THAT ______________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
initial Certificate Principal Balance of this Certificate by the aggregate
initial Certificate Principal Balance of all Class A Certificates, both as
specified above) in certain distributions with respect to the Trust Fund,
consisting primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 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 Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE SECURITIES ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class PO Initial Class PO Certificate
Principal Balance:
$916,238.06
Certificate Interest Initial Certificate Principal
Rate per annum: Balance of this Certificate:
non-interest bearing $
Cut-off Date:
September 1, 2000
First Distribution Date:
October 25, 2000
THIS CERTIFIES THAT ______________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
initial Certificate Principal Balance of this Certificate by the aggregate
initial Certificate Principal Balance of all Class PO Certificates, both as
specified above) in certain distributions with respect to the Trust Fund,
consisting primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
Except for certain transfers by the Company as set forth in the Agreement, no
transfer of any Class PO Certificate which is in the form of a Definitive
Certificate shall be made to any Person unless the Trustee has received (i) a
certificate from such transferee to the effect that such transferee is not an
employee benefit plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or a plan subject to Section 4975 of the Internal
Revenue Code of 1986, as amended ("Section 4975") (a "Plan") or a Person that is
using the assets of a Plan to acquire such Certificate or (ii) an opinion of
counsel satisfactory to the Trustee, which opinion shall not be an expense of
the Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
PO Certificate by a Plan or a Person that is purchasing or holding such
Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under ERISA or Section 4975.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class PO Certificate to or on behalf of a Plan, without the delivery to the
Trustee and the Company of an opinion of counsel as described above, shall be
void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
PRINCIPAL WILL NOT BE DISTRIBUTABLE IN RESPECT OF THIS CERTIFICATE. INTEREST IS
CALCULATED ON THIS CERTIFICATE BASED ON THE CLASS S NOTIONAL PRINCIPAL BALANCE,
WHICH, AS OF ANY DISTRIBUTION DATE, IS EQUAL TO THE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE OUTSTANDING NON-DISCOUNT MORTGAGE LOANS AS SET FORTH IN
THE AGREEMENT (AS DEFINED HEREIN). CONSEQUENTLY, THE NOTIONAL PRINCIPAL BALANCE
OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE SECURITIES ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class S Initial Class S Notional
Principal Balance:
$109,670,603.18
Certificate Interest Initial Notional
Rate per annum: variable Principal Balance of this
Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date:
October 25, 2000
THIS CERTIFIES THAT ______________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
initial Notional Principal Balance of this Certificate by the aggregate initial
Notional Principal Balance of all Class S Certificates, both as specified above)
in certain distributions with respect to the Trust Fund, consisting primarily of
a pool (the "Pool") of conventional, fixed rate, one- to four-family mortgage
loans (the "Mortgage Loans"), sold and serviced by GE Capital Mortgage Services,
Inc., a corporation organized and existing under the laws of the State of New
Jersey (the "Company"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of September 1, 2000 (the "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 herein
below. To the extent not defined herein, the terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement. This Class S Certificate will not be entitled to distributions in
respect of principal.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
Except for certain transfers by the Company as set forth in the Agreement, no
transfer of any Class S Certificate which is in the form of a Definitive
Certificate shall be made to any Person unless the Trustee has received (i) a
certificate from such transferee to the effect that such transferee is not an
employee benefit plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or a plan subject to Section 4975 of the Internal
Revenue Code of 1986, as amended ("Section 4975") (a "Plan") or a Person that is
using the assets of a Plan to acquire such Certificate or (ii) an opinion of
counsel satisfactory to the Trustee, which opinion shall not be an expense of
the Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class S
Certificate by a Plan or a Person that is purchasing or holding such Certificate
with the assets of a Plan will not constitute or result in a prohibited
transaction under ERISA or Section 4975.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class S Certificate to or on behalf of a Plan, without the delivery to the
Trustee and the Company of an opinion of counsel as described above, shall be
void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees. The Certificates are issuable only as
registered Certificates without coupons in denominations specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class of authorized denominations evidencing the same aggregate Percentage
Interest as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class M Initial Class M Certificate
Principal Balance:
$948,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.250% Balance of this Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date: CUSIP: 36157N MD 3
October 25, 2000
THIS CERTIFIES THAT ______________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
initial Certificate Principal Balance of this Certificate by the aggregate
initial Certificate Principal Balance of all Class M Certificates, both as
specified above) in certain distributions with respect to the Trust Fund,
consisting primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the delivery to the Trustee and the Company of an opinion of counsel as
described above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class B1 Initial Class B1 Certificate
Principal Balance:
$506,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.250% Balance of this Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date: CUSIP: 36157N ME 1
October 25, 2000
THIS CERTIFIES THAT ______________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
initial Certificate Principal Balance of this Certificate by the aggregate
initial Certificate Principal Balance of all Class B1 Certificates, both as
specified above) in certain distributions with respect to the Trust Fund,
consisting primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the delivery to the Trustee and the Company of an opinion of counsel as
described above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class B2 Initial Class B2 Certificate
Principal Balance:
$442,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.250% Balance of this Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date: CUSIP: 36157N MF 8
October 25, 2000
THIS CERTIFIES THAT ______________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
initial Certificate Principal Balance of this Certificate by the aggregate
initial Certificate Principal Balance of all Class B2 Certificates, both as
specified above) in certain distributions with respect to the Trust Fund,
consisting primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the delivery to the Trustee and the Company of an opinion of counsel as
described above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES ("BLUE SKY LAWS"), AND SUCH CERTIFICATE MAY NOT BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT, IN EACH CASE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
ANY APPLICABLE BLUE SKY LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THIS CERTIFICATE.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class B3 Initial Class B3 Certificate
Principal Balance:
$253,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.250% Balance of this Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date: CUSIP: 36157N MK 7
October 25, 2000
THIS CERTIFIES THAT __________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class B3 Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the delivery to the Trustee and the Company of an opinion of counsel as
described above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
In connection with any transfer of this Certificate, the undersigned registered
holder hereof confirms that without utilizing any general solicitation or
general advertising:
(Check One) -
|_| (a) This Certificate is being transferred by the
undersigned to a person whom the undersigned reasonably
believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933,
as amended) pursuant to the exemption from registration
under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
|_| (b) This Certificate is being transferred by the
undersigned to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as
amended) and that the undersigned has been advised by
the prospective purchaser that it intends to hold this
Certificate for investment and not for distribution or
resale.
Dated ___________________ _________________________________________
(Signature)
If none of the foregoing boxes is checked, the Trustee shall not be obligated to
register this Certificate in the name of any person other than the registered
holder thereof unless and until the conditions to any such transfer of
registration set forth herein, and in the Pooling and Servicing Agreement have
been satisfied.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended)
and acknowledges that it has received such information as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the registered holder is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated ___________________ _________________________________________
(Signature)
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED:
The undersigned represents and warrants that it is an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act of 1933, as amended).
Dated ___________________ _________________________________________
(Signature)
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES ("BLUE SKY LAWS"), AND SUCH CERTIFICATE MAY NOT BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT, IN EACH CASE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
ANY APPLICABLE BLUE SKY LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THIS CERTIFICATE.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class B4 Initial Class B4 Certificate
Principal Balance:
$190,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.250% Balance of this Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date: CUSIP: 36157N ML 5
October 25, 2000
THIS CERTIFIES THAT ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
initial Certificate Principal Balance of this Certificate by the aggregate
initial Certificate Principal Balance of all Class B4 Certificates, both as
specified above) in certain distributions with respect to the Trust Fund,
consisting primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the delivery to the Trustee and the Company of an opinion of counsel as
described above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
In connection with any transfer of this Certificate, the undersigned registered
holder hereof confirms that without utilizing any general solicitation or
general advertising:
(Check One) -
|_| (a) This Certificate is being transferred by the
undersigned to a person whom the undersigned reasonably
believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933,
as amended) pursuant to the exemption from registration
under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
|_| (b) This Certificate is being transferred by the
undersigned to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as
amended) and that the undersigned has been advised by
the prospective purchaser that it intends to hold this
Certificate for investment and not for distribution or
resale.
Dated ___________________ _________________________________________
(Signature)
If none of the foregoing boxes is checked, the Trustee shall not be obligated to
register this Certificate in the name of any person other than the registered
holder thereof unless and until the conditions to any such transfer of
registration set forth herein, and in the Pooling and Servicing Agreement have
been satisfied.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended)
and acknowledges that it has received such information as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the registered holder is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated ___________________ _________________________________________
(Signature)
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED:
The undersigned represents and warrants that it is an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act of 1933, as amended).
Dated ___________________ _________________________________________
(Signature)
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES ("BLUE SKY LAWS"), AND SUCH CERTIFICATE MAY NOT BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT, IN EACH CASE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
ANY APPLICABLE BLUE SKY LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THIS CERTIFICATE.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class B5 Initial Class B5 Certificate
Principal Balance:
$190,596.17
Certificate Interest Initial Certificate Principal
Rate per annum: 7.250% Balance of this Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date: CUSIP: 36157N MM 3
October 25, 2000
THIS CERTIFIES THAT __________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class B5 Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the delivery to the Trustee and the Company of an opinion of counsel as
described above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
In connection with any transfer of this Certificate, the undersigned registered
holder hereof confirms that without utilizing any general solicitation or
general advertising:
(Check One) -
|_| (a) This Certificate is being transferred by the
undersigned to a person whom the undersigned reasonably
believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933,
as amended) pursuant to the exemption from registration
under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
|_| (b) This Certificate is being transferred by the
undersigned to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as
amended) and that the undersigned has been advised by
the prospective purchaser that it intends to hold this
Certificate for investment and not for distribution or
resale.
Dated ___________________ _________________________________________
(Signature)
If none of the foregoing boxes is checked, the Trustee shall not be obligated to
register this Certificate in the name of any person other than the registered
holder thereof unless and until the conditions to any such transfer of
registration set forth herein, and in the Pooling and Servicing Agreement have
been satisfied.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended)
and acknowledges that it has received such information as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the registered holder is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated ___________________ _________________________________________
(Signature)
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED:
The undersigned represents and warrants that it is an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act of 1933, as amended).
Dated ___________________ _________________________________________
(Signature)
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE,
BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THE AGREEMENT, AND SHALL
BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE
EFFECT THAT IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5) OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION, AND TO HAVE AGREED TO SUCH
AMENDMENTS TO THE AGREEMENT AS MAY BE REQUIRED TO FURTHER EFFECTUATE THE
RESTRICTIONS ON TRANSFERS TO DISQUALIFIED ORGANIZATIONS AND AGENTS THEREOF.
THE HOLDER OF THIS CLASS R CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
IRREVOCABLY APPOINTED THE COMPANY (AS DEFINED HEREIN) AS ITS AGENT AND
ATTORNEY-IN-FACT TO ACT AS "TAX MATTERS PERSON" OF THE REMIC TO PERFORM THE
FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63
OF SUBTITLE F OF THE CODE, WITH RESPECT TO THE TRUST FUND.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY DISQUALIFIED
ORGANIZATION OR NON-PERMITTED FOREIGN HOLDER, AS DEFINED IN THE AGREEMENT OR TO
ANY EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS
USING THE ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED
HEREIN. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER
RESTRICTIONS AS SET FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-12 evidencing a
beneficial ownership interest in a trust fund which consists
primarily of a pool of conventional, fixed rate, one- to
four-family mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Class R Initial Class R Certificate
Principal Balance:
$100.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.250% Balance of this Certificate:
$
Cut-off Date:
September 1, 2000
First Distribution Date: CUSIP: 36157N MC 5
October 25, 2000
THIS CERTIFIES THAT _______________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
initial Certificate Principal Balance of this Certificate by the aggregate
initial Certificate Principal Balance of all Class R Certificates, both as
specified above) in certain distributions with respect to the Trust Fund,
consisting primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of September 1, 2000 (the
"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 herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution 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 in October 2000, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise`provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-12, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The 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 Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. 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 Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class R Certificate shall be made to any Person unless the
Trustee has received a certificate from such transferee to the effect that,
among other things, such transferee is not an employee benefit plan subject to
ERISA or a Plan or a Person that is using the assets of a Plan to acquire any
such Class R Certificate.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of 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 Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:
---------------------------------
Name:
Title:
Countersigned:
By
----------------------------------
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto _______________________________________________________________________
Please insert social security or other identifying number of assignee
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:________________________________
______________________________________
Signature by or on behalf of assignor
_______________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
EXHIBIT B
PRINCIPAL BALANCE SCHEDULES
None.
EXHIBIT C
INTENTIONALLY OMITTED
EXHIBIT D
FORM OF SERVICER'S CERTIFICATE
________________, ______
(month) (year)
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC Mortgage Pass-Through Certificates,
Series 2000-12
Pursuant to the Pooling and Servicing Agreement dated as of
September 1, 2000 (the "Agreement") between GE Capital Mortgage Services, Inc.
(the "Company"), and State Street Bank and Trust Company (the "Trustee"),
governing the Certificates referred to above, the Company hereby certifies to
the Trustee:
With respect to the Agreement and as of the Determination Date for
this month:
A. Mortgage Loan Information:
(1) Aggregate Scheduled Monthly
Payments:
(a) Principal $________
(b) Interest $________
(c) Total $________
(2) Aggregate Monthly Payments received
and Monthly Advances made this
Month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(3) Aggregate Principal Prepayments in part received and applied
in the applicable Prepayment Period:
(a) Principal $________
(b) Interest $________
(c) Total $________
(4) Aggregate Principal Prepayments in
full received in the applicable
Prepayment Period:
(a) Principal $________
(b) Interest $________
(c) Total $________
(5) Aggregate Insurance Proceeds (including purchases of Mortgage
Loans by primary mortgage insurers) for prior month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(6) Aggregate Liquidation Proceeds for
prior month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(7) Aggregate Purchase Prices for
Defaulted Mortgage Loans:
(a) Principal $________
(b) Interest $________
(c) Total $________
(8) Aggregate Purchase Prices (and
substitution adjustments) for
Defective Mortgage Loans:
(a) Principal $________
(b) Interest $________
(c) Total $________
(9) Pool Scheduled Principal Balance: $________
(10) Available Funds: $________
(11) Realized Losses for prior month: $________
(12) Aggregate Realized Losses and Debt
Service Reductions:
(a) Deficient Valuations $________
(b) Special Hazard Losses $________
(c) Fraud Losses $________
(d) Excess Bankruptcy Losses $________
(i) Debt Service Reductions $________
(ii) Deficient Valuations $________
(e) Excess Special Hazard Losses $________
(f) Excess Fraud Losses $________
(g) Debt Service Reductions $________
(13) Compensating Interest Payment: $________
(14) Accrued Certificate Interest,
Unpaid Class Interest Shortfalls
and Pay-out Rate:
Class A $__________ $__________ ____%
Class M $__________ $__________ ____%
Class B1 $__________ $__________ ____%
Class B2 $__________ $__________ ____%
Class B3 $__________ $__________ ____%
Class B4 $__________ $__________ ____%
Class B5 $__________ $__________ ____%
Class R $__________ $__________ ____%
Class S $__________ $__________ ____%
(15) Accrual amount:
N/A
(16) Principal distributable:
Class A $__________
Class PO $__________
Class M $__________
Class B1 $__________
Class B2 $__________
Class B3 $__________
Class B4 $__________
Class B5 $__________
Class R $__________
(17) Additional distributions to the
Class R Certificate pursuant to
Section 4.01(b):
Class R $__________
(18) Certificate Interest Rate of:
Class S Certificates__________%
(19) Distributions Allocable to
Unanticipated Recoveries:
Class A $__________
Class PO $__________
Class M $__________
Class B1 $__________
Class B2 $__________
Class B3 $__________
Class B4 $__________
Class B5 $__________
Class R $__________
B. Other Amounts:
1. Senior Percentage for such Distribution Date: _____________%
2. Senior Prepayment Percentage for such
Distribution Date: _____________%
3. Junior Percentage for such Distribution Date: _____________%
4. Junior Prepayment Percentage for such
Distribution Date: _____________%
5. Subordinate Certificate Writedown Amount
for such Distribution Date: $_____________
6. Prepayment Distribution Triggers
satisfied: Yes No
--- --
Class B1 _____ _____
Class B2 _____ _____
Class B3 _____ _____
Class B4 _____ _____
Class B5 _____ _____
7. Servicing Fee: $_____________
Capitalized terms used in this Certificate shall have the same
meanings as in the Agreement.
EXHIBIT E
FORM OF TRANSFER CERTIFICATE AS TO ERISA MATTERS FOR
DEFINITIVE ERISA-RESTRICTED CERTIFICATES
State Street Bank and Trust Company
Corporate Trust Department
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
[NAME OF OFFICER] ______________________ hereby certifies that:
1. That he [she] is [title of officer] ___________________________________
of [name of Investor] _______________________________________ (the "Investor"),
a __________ ______________________ [description of type of entity] duly
organized and existing under the laws of the [State of ____________] [United
States], on behalf of which he [she] makes this affidavit.
2. The Investor (i) is not, and on ________________ [insert date of
transfer of Certificate to Investor] will not be, and on such date will not be
investing the assets of, an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or a plan subject
to Section 4975 of the Code or (ii) is an insurance company investing assets of
its general account and the exemptions provided by Section III(a) of Department
of Labor Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July
12, 1995) (the "Exemptions") apply to the Investor's acquisition and holding of
any ERISA-Restricted Certificate. All capitalized terms used and not defined in
this certificate shall have the meanings ascribed thereto in the Agreement
referred to in paragraph 3 hereof.
3. The Investor hereby acknowledges that under the terms of the Pooling
and Servicing Agreement (the "Agreement") between State Street Bank and Trust
Company, as Trustee and GE Capital Mortgage Services, Inc., dated as of
September 1, 2000, no transfer of any ERISA-Restricted Certificate shall be
permitted to be made to any Person unless the Trustee has received (i) a
certificate from such transferee to the effect that (x) such transferee is not
an employee benefit plan subject to ERISA or a plan subject to Section 4975 of
the Code (a "Plan") or a Person that is using the assets of a Plan to acquire
any such Certificate or (y) such transferee is an insurance company investing
assets of its general account and the Exemptions apply to such transferee's
acquisition and holding of any such Certificate or (ii) an opinion of counsel
satisfactory to the Trustee and the Company to the effect that the purchase and
holding of any such Certificate will not constitute or result in the assets of
the Trust Fund created by the Agreement being deemed to be "plan assets" subject
to the prohibited transaction provisions of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Company to any obligation in addition to
those undertaken in the Agreement (provided, however, that the Trustee will not
require such certificate or opinion in the event that, as a result of change of
law or otherwise, counsel satisfactory to the Trustee has rendered an opinion to
the effect that the purchase and holding of any such Certificate by a Plan or a
Person that is purchasing or holding any such Certificate with the assets of a
Plan will not constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code).
[4. The ERISA-Restricted Certificates shall be registered in the name
of ______________________________________________ as nominee for the
Investor.]
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] __________________ and its corporate seal to be hereunder attached,
attested by its [Assistant] Secretary, this ____ day of _________, _______.
_______________________________________
[name of Investor]
By:____________________________________
Name:
Title:
The undersigned hereby
acknowledges that it is holding
and will hold the ERISA-Restricted
Certificates at the exclusive
direction of and as nominee of
the Investor named above.
___________________________________
[name of nominee]
By:____________________________
Name:
Title:
EXHIBIT F
FORM OF RESIDUAL CERTIFICATE TRANSFEREE AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and says:
1. That he [she] is [title of officer] ________________________ of [name
of Purchaser] _________________________________________ (the "Purchaser"), a
_________________ ____________________ [description of type of entity] duly
organized and existing under the laws of the [State of __________] [United
States], on behalf of which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code") and will not be a "disqualified organization" as of ______________
[insert date of transfer of Residual Certificate to Purchaser], and that the
Purchaser is not acquiring a Residual Certificate (as defined below) for the
account of, or as agent (including a broker, nominee, or other middleman) for,
any person or entity from which it has not received an affidavit substantially
in the form of this affidavit. For these purposes, a "disqualified organization"
means the United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (other than an instrumentality if all of its activities are
subject to tax and a majority of its board of directors is not selected by such
governmental entity), any cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as described in Code
Section 1381(a)(2)(C), or any organization (other than a farmers' cooperative
described in Code Section 521) that is exempt from federal income tax unless
such organization is subject to the tax on unrelated business income imposed by
Code Section 511. As used herein, "Residual Certificate" means any Certificate
designated as a "Class R Certificate" of GE Capital Mortgage Services, Inc.'s
REMIC Mortgage Pass-Through Certificates, Series 2000-12.
4. That the Purchaser is not, and on _____________ [insert date of
transfer of Residual Certificate to Purchaser] will not be, and is not and on
such date will not be investing the assets of, an employee benefit plan subject
to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
a plan subject to Code Section 4975 or a person or entity that is using the
assets of any employee benefit plan or other plan to acquire a Residual
Certificate.
5. That the Purchaser hereby acknowledges that under the terms of the
Pooling and Servicing Agreement (the "Agreement") between State Street Bank and
Trust Company, as Trustee, and GE Capital Mortgage Services, Inc., dated as of
September 1, 2000, no transfer of the Residual Certificates shall be permitted
to be made to any person unless the Trustee has received a certificate from such
transferee to the effect that such transferee is not an employee benefit plan
subject to ERISA or a plan subject to Section 4975 of the Code and is not using
the assets of any employee benefit plan or other plan to acquire Residual
Certificates.
6. That the Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to such Residual Certificate.
7. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3 or paragraph 9 hereof are not satisfied or
that the Purchaser has reason to believe does not satisfy the requirements set
forth in paragraph 6 hereof, and (ii) without obtaining from the prospective
Purchaser an affidavit substantially in this form and providing to the Trustee a
written statement substantially in the form of Exhibit G to the Agreement.
8. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated with
holding such Residual Certificate as they become due.
9. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Trustee with an effective Internal Revenue Service Form 4224 or successor
form at the time and in the manner required by the Code or (iii) is a Non-U.S.
Person that has delivered to both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the transfer of such
Residual Certificate to it is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax purposes. "Non-U.S.
Person" means an individual, corporation, partnership or other person other than
(i) a citizen or resident of the United States; (ii) a corporation (or entity
treated as a corporation for tax purposes) created or organized in the United
States or under the laws of the United States or of any state thereof,
including, for this purpose, the District of Columbia; (iii) a partnership (or
entity treated as a partnership for tax purposes) organized in the United States
or under the laws of the United States or of any state thereof, including, for
this purpose, the District of Columbia (unless provided otherwise by future
Treasury regulations); (iv) an estate whose income is includible in gross income
for United States income tax purposes regardless of its source; or (v) a trust,
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last clause
of the preceding sentence, to the extent provided in Treasury regulations,
certain trusts in existence on August 20, 1996, and treated as U.S. Persons
prior to such date, may elect to continue to be U.S. Persons.
10. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of any Residual Certificate to such a "disqualified organization," an
agent thereof, or a person that does not satisfy the requirements of paragraph 7
and paragraph 10 hereof.
11. That the Purchaser consents to the designation of the Company as its
agent to act as "tax matters person" of the Trust Fund, pursuant to the Pooling
and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[title of officer] this _____ day of __________, _____.
_________________________________
[name of Purchaser]
By:______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer] _____________
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _______________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, _____.
NOTARY PUBLIC
______________________________
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, _____.
EXHIBIT G
[LETTER FROM TRANSFEROR OF RESIDUAL CERTIFICATE]
___________________
Date
State Street Bank and Trust Company
Corporate Trust Department
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: GE Capital Mortgage Services, Inc.
REMIC Mortgage Pass-Through
Certificates, Series 2000-12
----------------------------------
Ladies and Gentlemen:
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate. In addition, the Transferor has conducted a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
EXHIBIT H
ADDITIONAL SERVICER COMPENSATION
QUALIFIED ADMINISTRATIVE EXPENSES
(Conventional, Non-Conforming Loans)
Assumption Fees $550 - $800
Late Charges Per Loan Documents
Appraisal/Inspection Fees Reasonable and Customary Charges
Partial Release Fees $300
Easements $150
Insufficient Funds Charges $15
Document Requests (copies of loan file
documents, additional pay-off quotations,
amortization schedules, payment histories) $0
Modification Fees Reasonable and Customary Charges
EXHIBIT I
FORM OF INVESTMENT LETTER FOR
DEFINITIVE RESTRICTED CERTIFICATES
_____________________
Date
State Street Bank and Trust Company
Corporate Trust Department
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: GE Capital Mortgage Services, Inc.
REMIC Mortgage Pass Through
Certificates, Series 2000-12
----------------------------------
Ladies and Gentlemen:
1. The undersigned, a [title of officer] _______________ of [name of
Investor] _________________________________________ (the "Investor"), a
______________ ___________________ [description of type of entity] duly
organized and existing under the laws of the [State of __________________]
[United States], hereby certifies as follows:
2. The Investor hereby acknowledges that under the terms of the
Pooling and Servicing Agreement between State Street Bank and Trust Company, as
Trustee, and GE Capital Mortgage Services, Inc. (the "Company"), dated as of
September 1, 2000 (the "Agreement"), no transfer of a Restricted Certificate may
be made unless such transfer is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and any applicable
state securities laws, or is made in accordance with the Securities Act and such
laws.
3. The Investor understands that (a) the Restricted Certificates
have not been and will not be registered or qualified under the Securities Act,
or the securities laws of any state, (b) neither the Company nor the Trustee is
required, and neither intends, to so register or qualify the Restricted
Certificates, (c) the Restricted Certificates cannot be resold unless (i) they
are registered and qualified under the Securities Act and the applicable state
securities laws or (ii) such sale is exempt from the requirements of the
Securities Act, (d) the Agreement contains restrictions regarding the transfer
of the Restricted Certificates and (e) the Restricted Certificates will bear a
legend to the foregoing effect.
4. The Investor is acquiring the Restricted Certificates for its own
account for investment only and not with a view to or for sale or other transfer
in connection with any distribution of the Restricted Certificates in any manner
that would violate the Securities Act or any applicable state securities laws.
5. The Investor (a) is a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters,
and in particular in such matters related to securities similar to the
Restricted Certificates, such that it is capable of evaluating the merits and
risks of investment in the Restricted Certificates, (b) is able to bear the
economic risks of such an investment and (c) is an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) promulgated pursuant to the
Securities Act.
6. The Investor will not authorize nor has it authorized any person
to (a) offer, pledge, sell, dispose of or otherwise transfer any Restricted
Certificate, any interest in any Restricted Certificate or any other similar
security to any person in any manner, (b) solicit any offer to buy or to accept
a pledge, disposition or other transfer of any Restricted Certificate, any
interest in any Restricted Certificate or any other similar security from any
person in any manner, (c) otherwise approach or negotiate with respect to any
Restricted Certificate, any interest in any Restricted Certificate or any other
similar security with any person in any manner, (d) make any general
solicitation by means of general advertising or in any other manner, or (e) take
any other action that would constitute a distribution of any Restricted
Certificate under the Securities Act, that would render the disposition of any
Restricted Certificate a violation of Section 5 of the Securities Act or any
state securities law, or that could require registration or qualification
pursuant thereto. Neither the Investor nor anyone acting on its behalf has
offered the Restricted Certificates for sale or made any general solicitation by
means of general advertising or in any other manner with respect to the
Restricted Certificates. The Investor will not sell or otherwise transfer any of
the Restricted Certificates, except in compliance with the provisions of the
Agreement.
7. If an Investor in a Restricted Certificate sells or otherwise
transfers any such Certificate to a transferee other than a "qualified
institutional buyer" under Rule 144A of the Securities Act, such Investor will
obtain (a) from any subsequent purchaser the same certifications,
representations, warranties and covenants contained in the foregoing paragraphs
and in this paragraph or (b) an opinion of counsel in form and substance
satisfactory to the Trustee pursuant to the Agreement.
8. The Investor hereby indemnifies the Trustee and the Company
against any liability that may result if the Investor's transfer of a Restricted
Certificate (or any portion thereof) is not exempt from the registration
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws. Such indemnification
of the Trustee and the Company shall survive the termination of the Agreement.
[9. The Restricted Certificates shall be registered in the name
of _____________________________ as nominee for the Investor.]
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[title of officer] _____________ this _____ day of __________, _____.
_________________________________
[name of Investor]
By:______________________________
Name:
Title:
The undersigned hereby
acknowledges that it is holding
and will hold the Restricted
Certificates at the exclusive
direction of and as nominee
of the Investor named above.
_______________________________
[name of nominee]
By:__________________________
Name:
Title:
EXHIBIT J
FORM OF DISTRIBUTION DATE STATEMENT
___________________, ___________
(month) (year)
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC Mortgage Pass-Through Certificates,
Series 2000-12
Pursuant to the Pooling and Servicing Agreement dated as of
September 1, 2000 (the "Agreement") between GE Capital Mortgage Services, Inc.
(the "Company"), and State Street Bank and Trust Company (the "Trustee"),
governing the Certificates referred to above, the Company hereby certifies to
the Trustee:
With respect to the Agreement and as of the Determination Date for
this month:
The amounts below are for a Single Certificate of $1,000:
(1) Amount of distribution allocable to
principal:
Class A $__________
Class PO $__________
Class M $__________
Class B1 $__________
Class B2 $__________
Class B3 $__________
Class B4 $__________
Class B5 $__________
Class R $__________
(2) Aggregate principal prepayments included in distribution:
Class A $__________
Class PO $__________
Class M $__________
Class B1 $__________
Class B2 $__________
Class B3 $__________
Class B4 $__________
Class B5 $__________
Class R $__________
(3) Amount of distribution allocable to interest; Pay-out
Rate:
Class A $__________ ____%
Class M $__________ ____%
Class B1 $__________ ____%
Class B2 $__________ ____%
Class B3 $__________ ____%
Class B4 $__________ ____%
Class B5 $__________ ____%
Class R $__________ ____%
Class S $__________ ____%
(4) Accrual Amount:
N/A
(5) Amount of distribution allocable to Unanticipated
Recoveries:
Class A $__________ ____%
Class PO $__________ ____%
Class M $__________ ____%
Class B1 $__________ ____%
Class B2 $__________ ____%
Class B3 $__________ ____%
Class B4 $__________ ____%
Class B5 $__________ ____%
Class R $__________ ____%
(6) Servicing Compensation: $__________
The amounts below are for the aggregate of all Certificates:
(7) Pool Scheduled Principal
Balance; number of Mortgage
Loans: $__________ __________
(8) Class Certificate Principal
Balance (or Notional Principal
Balance) of each Class;
Certificate Principal Balance
(or Notional Principal Balance)
of Single Certificate of each
Class:
Single
Certificate
Class Balance Balance
---------- -------------- --------------
Class A $__________ $__________
Class PO $__________ $__________
Class M $__________ $__________
Class B1 $__________ $__________
Class B2 $__________ $__________
Class B3 $__________ $__________
Class B4 $__________ $__________
Class B5 $__________ $__________
Class R $__________ $__________
Class S $__________ $__________
(9) Book value of real estate
acquired on behalf of
Certificateholders; number of
related Mortgage Loans: $__________ __________
(10) Aggregate Scheduled Principal
Balance and number of
delinquent Mortgage Loans:
30-59 days delinquent $__________ __________
60-89 days delinquent $__________ __________
90 or more days delinquent $__________ __________
In foreclosure $__________ __________
(11) Aggregate Scheduled Principal
Balance and number of replaced
Mortgage Loans: $__________ __________
(12) Certificate Interest Rate of:
Class S Certificate: __________%
(13) Senior Percentage for such
Distribution Date: __________%
(14) Senior Prepayment Percentage
for such Distribution Date: __________%
(15) Junior Percentage for such
Distribution Date: __________%
(16) Junior Prepayment Percentage
for such Distribution Date: __________%
Capitalized terms used in this Statement shall have the same
meanings as in the Agreement.
EXHIBIT K
FORM OF SPECIAL SERVICING
AND COLLATERAL FUND AGREEMENT
This SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT (the
"Agreement") is made and entered into as of ____________________, ______,
between GE Capital Mortgage Services, Inc. (the "Company") and
_____________________________ (the "Purchaser").
PRELIMINARY STATEMENT
___________________________ or an affiliate thereof is the holder of
the entire interest in REMIC Mortgage Pass-Through Certificates, Series
_____-__, Class B_ (the "Class B_ Certificates"). The Class B_ Certificates were
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of ________ 1, _____ between the Company (in its capacity
as servicer thereunder, the "Servicer") and State Street Bank and Trust Company
as Trustee.
____________________________ or an affiliate thereof intends to
resell all of the Class B_ Certificates directly to the Purchaser on or promptly
after the date hereof.
In connection with such sale, the parties hereto have agreed that
the Company, as Servicer, will engage in certain special servicing procedures
relating to foreclosures for the benefit of the Purchaser, and that the
Purchaser will deposit funds in a collateral fund to cover any losses
attributable to such procedures as well as all advances and costs in connection
therewith, as set forth herein.
[The parties hereto have further agreed that the Purchaser will have
no rights, and the Company will have no obligations under this Agreement until
the Class Certificate Principal Balance of the REMIC Mortgage Pass-Through
Certificates, Series _____-__, Class B5 (the "Class B5 Certificates") has been
reduced to zero, and any Special Servicing and Collateral Fund Agreement in
respect of such Class between the Company and the Purchaser has been
terminated.]
In consideration of the mutual agreements herein contained, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser agree that the following provisions shall become effective and shall
be binding on and enforceable by the Company and the Purchaser upon the
acquisition by the Purchaser of the Class B_ Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday of (ii)
a day on which banking institutions in New York City or Boston, Massachusetts
are required or authorized by law or executive order to be closed.
Collateral Fund: The fund established and maintained pursuant to
Section 3.01 hereof.
Collateral Fund Permitted Investments: Either (i) obligations of, or
obligations fully guaranteed as to principal and interest by, the United States,
or any agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States, (ii) repurchase agreements on
obligations specified in clause (i) provided that the unsecured obligations of
the party agreeing to repurchase such obligations are at the time rated by each
Rating Agency in the highest long-term rating category, (iii) federal funds,
certificates of deposit, time deposits and banker's acceptances of any U.S.
depository institution or trust company incorporated under the laws of the
United States or any state provided that the debt obligations of such depository
institution or trust company at the date of acquisition thereof have been rated
by each Rating Agency in the highest long-term rating category, (iv) 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 short term rating
of each Rating Agency, and (v) other obligations or securities that are
acceptable to each Rating Agency as a Collateral Fund Permitted Investment
hereunder and will not, as evidenced in writing, result in a reduction or
withdrawal in the then current rating of the Certificates and, for each of the
preceding clauses, the maturity thereof shall be not later than the earlier to
occur of (A) 30 days from the date of the related investment and (B) the
Business Day preceding the next succeeding Distribution Date.
Commencement of Foreclosure: The first official action required
under local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, the posting, publishing, filing or
delivery of a notice of sale, but not including in either case (x) any notice of
default, notice of intent to foreclose or sell or any other action prerequisite
to the actions specified in (i) or (ii) above and, upon the consent of the
Purchaser which will be deemed given unless expressly withheld within two
Business Days of notification, (y) the acceptance of a deed-in-lieu of
foreclosure (whether in connection with a sale of the related property or
otherwise) or (z) initiation and completion of a short pay-off.
Current Appraisal: With respect to any Mortgage Loan as to which the
Purchaser has made an Election to Delay Foreclosure, an appraisal of the related
Mortgaged Property obtained by the Purchaser as nearly contemporaneously as
practicable to the time of the Purchaser's election, prepared based on the
Company's customary requirements for such appraisals.
Election to Delay Foreclosure: Any election by the Purchaser to
delay the Commencement of Foreclosure, made in accordance with Section
2.02(b).
Election to Foreclose: Any election by the Purchaser to proceed
with the Commencement of Foreclosure, made in accordance with Section 2.03(a).
Required Collateral Fund Balance: As of any date of determination,
an amount equal to the aggregate of all amounts previously required to be
deposited in the Collateral Fund pursuant to Section 2.02(d) (after adjustments
for all withdrawals and deposits prior to such date pursuant to Section 2.02(e))
and Section 2.03(b) (after adjustment for all withdrawals and deposits prior to
such date pursuant to Section 2.03(c)) and Section 3.02, reduced by all
withdrawals therefrom prior to such date pursuant to Section 2.02(g) and Section
2.03(d).
Section 1.02. Definitions Incorporated by Reference. All capitalized
terms not otherwise defined in this Agreement shall have the meanings
assigned in the Pooling and Servicing Agreement.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
the Company as Servicer shall provide to the Purchaser the following notices and
reports:
(i) Within five Business Days after each Distribution Date (or
included in or with the monthly statements to Certificateholders pursuant
to the Pooling and Servicing Agreement), the Company, as Servicer, shall
provide to the Purchaser a report, using the same methodology and
calculations in its standard servicing reports, indicating for the Trust
Fund the number of Mortgage Loans that are (A) thirty days, (B) sixty
days, (C) ninety days or more delinquent or (D) in foreclosure, and
indicating for each such Mortgage Loan the loan number and outstanding
principal balance.
(ii) Prior to the Commencement of Foreclosure in connection with any
Mortgage Loan, the Company shall provide the Purchaser with a notice (sent
by facsimile transmission) of such proposed and imminent foreclosure,
stating the loan number and the aggregate amount owing under the Mortgage
Loan. Such notice may be provided to the Purchaser in the form of a copy
of a referral letter from the Company to an attorney requesting the
institution of foreclosure or a copy of a request to foreclose received by
the Company from the related primary servicer which has been approved by
the Company.
(b) If requested by the Purchaser, the Company shall make its servicing
personnel available (during their normal business hours) to respond to
reasonable inquiries, in writing by facsimile transmission, by the Purchaser in
connection with any Mortgage Loan identified in a report under subsection (a)(i)
or (a)(ii) which has been given to the Purchaser, provided, that (1) the Company
shall only be required to provide information that is readily accessible to its
servicing personnel and is non-confidential and (2) the Company shall respond
within five Business Days orally or in writing by facsimile transmission.
(c) In addition to the foregoing, the Company shall provide to the
Purchaser such information as the Purchaser may reasonably request concerning
each Mortgage Loan that is at least sixty days delinquent and each Mortgage Loan
which has become real estate owned, through the final liquidation thereof,
provided, that the Company shall only be required to provide information that is
readily accessible to its servicing personnel and is non-confidential.
Section 2.02. Purchaser's Election to Delay Foreclosure Proceedings.
(a) The Purchaser shall be deemed to direct the Company that in the event
that the Company does not receive written notice of the Purchaser's election
pursuant to subsection (b) below within 24 hours (exclusive of any intervening
non-Business Days) of transmission of the notice provided by the Company under
Section 2.01(a)(ii) subject to extension as set forth in Section 2.02(b), the
Company may proceed with the Commencement of Foreclosure in respect of such
Mortgage Loan in accordance with its normal foreclosure policies without further
notice to the Purchaser. Any foreclosure that has been initiated may be
discontinued (i) without notice to the Purchaser if the Mortgage Loan has been
brought current or if a refinancing or prepayment occurs with respect to the
Mortgage Loan (including by means of a short payoff approved by the Company) or
(ii) with notice to the Purchaser if the Company has reached the terms of a
forbearance agreement with the borrower. In such latter case the Company may
complete such forbearance agreement unless instructed otherwise by the Purchaser
within two Business Days of notification.
(b) In connection with any Mortgage Loan with respect to which a notice
under Section 2.01(a)(ii) has been given to the Purchaser, the Purchaser may
elect to instruct the Company to delay the Commencement of Foreclosure until
such time as the Purchaser determines that the Company may proceed with the
Commencement of Foreclosure. Such election must be evidenced by written notice
received within 24 hours (exclusive of any intervening non-Business Days) of
transmission of the notice provided by the Company under Section 2.01(a)(ii).
The Purchaser shall send a copy of such notice of election to each Rating Agency
as soon as practicable thereafter. Such 24-hour period shall be extended for no
longer than an additional four Business Days after the receipt of the
information if the Purchaser requests additional information related to such
foreclosure within such 24-hour period; provided, however, that the Purchaser
will have at least one Business Day to make such election following its receipt
of any requested additional information. Any such additional information shall
(i) not be confidential in nature and (ii) be obtainable by the Company from
existing reports, certificates or statements or otherwise be readily accessible
to its servicing personnel. The Purchaser agrees that it has no right to deal
with the mortgagor. However, if the Company's normal foreclosure policies
include acceptance of a deed-in-lieu of foreclosure or short payoff, the
Purchaser will be notified and given two Business Days to respond.
(c) With respect to any Mortgage Loan as to which the Purchaser has made
an Election to Delay Foreclosure, the Purchaser shall obtain a Current Appraisal
as soon as practicable, and shall provide the Company with a copy of such
Current Appraisal.
(d) Within two Business Days of making any Election to Delay Foreclosure,
the Purchaser shall remit by wire transfer to the Trustee, for deposit in the
Collateral Fund, an amount, as calculated by the Company, equal to the sum of
(i) 125% of the greater of the Scheduled Principal Balance of the Mortgage Loan
and the value shown in the Current Appraisal referred to in subsection (c) above
(or, if such Current Appraisal has not yet been obtained, the Company's estimate
thereof, in which case the required deposit under this subsection shall be
adjusted upon obtaining such Current Appraisal), and (ii) three months' interest
on the Mortgage Loan at the applicable Mortgage Rate. If any Election to Delay
Foreclosure extends for a period in excess of three months (such excess period
being referred to herein as the "Excess Period"), the Purchaser shall remit by
wire transfer in advance to the Trustee for deposit in the Collateral Fund the
amount of each additional month's interest, as calculated by the Company, equal
to interest on the Mortgage Loan at the applicable Mortgage Rate for the Excess
Period. The terms of this Agreement will no longer apply to the servicing of any
Mortgage Loan upon the failure of the Purchaser to deposit the above amounts
relating to the Mortgage Loan within two Business Days of (i) the Election to
Delay Foreclosure or (ii) the beginning of the related Excess Period, as the
case may be.
(e) With respect to any Mortgage Loan as to which the Purchaser has made
an Election to Delay Foreclosure, the Company or the Trustee may withdraw from
the Collateral Fund from time to time amounts necessary to reimburse the Company
for all related Monthly Advances and Liquidation Expenses thereafter made by the
Company as Servicer in accordance with the Pooling and Servicing Agreement. To
the extent that the amount of any such Liquidation Expense is determined by the
Company based on estimated costs, and the actual costs are subsequently
determined to be higher, the Company or the Trustee may withdraw the additional
amount from the Collateral Fund to reimburse the Company. In the event that the
Mortgage Loan is brought current by the mortgagor, the amounts so withdrawn from
the Collateral Fund shall be redeposited therein as and to the extent that
reimbursement therefor from amounts paid by the mortgagor is not prohibited
pursuant to the Pooling and Servicing Agreement as of the date hereof. Except as
provided in the preceding sentence, amounts withdrawn from the Collateral Fund
to cover Monthly Advances and Liquidation Expenses shall not be redeposited
therein or otherwise reimbursed to the Purchaser. If and when any such Mortgage
Loan is brought current by thE mortgagor, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
previous withdrawals and deposits pursuant to this subsection and after
reimbursement to the Servicer for all related Monthly Advances) shall be
released to the Purchaser.
(f) With respect to any Mortgage Loan as to which the Purchaser has made
an Election to Delay Foreclosure, the Company shall continue to service the
Mortgage Loan in accordance with its customary procedures (other than the delay
in Commencement of Foreclosure as provided herein). If and when, following such
election, the Purchaser shall notify the Company that it believes that it is
appropriate to do so, the Company shall proceed with the Commencement of
Foreclosure; provided that, in any event, if the Mortgage Loan is not brought
current by the mortgagor by the time the loan becomes 6 months delinquent, the
Purchaser's election shall no longer be effective, unless the Purchaser shall
have purchased the related Mortgage Loan promptly following (and in any event
not later than the third Business Day after) the end of such 6-month period in
the manner provided in the following two sentences, and the Company shall be
entitled to proceed with the Commencement of Foreclosure. Any purchase of such
Mortgage Loan by the Purchaser pursuant to the preceding sentence shall be at a
purchase price equal to the unpaid principal balance of the Mortgage Loan plus
accrued interest at the Mortgage Rate from the date last paid by the mortgagor.
Such purchase price shall be deposited by the Purchaser into the Collateral Fund
in immediately available funds on the Business Day which is the date of purchase
and the Purchaser shall instruct the Trustee (with notice to the Company) to
withdraw such amount therefrom on such Business Day and remit the same to the
Trust Fund for application as Liquidation Proceeds pursuant to the Pooling and
Servicing Agreement. Following such withdrawal, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
previous withdrawals and deposits pursuant to this Agreement and after
reimbursement to the Servicer for all related Monthly Advances) shall be
released to the Purchaser.
(g) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Delay Foreclosure and as to which
the Company proceeded with the Commencement of Foreclosure in accordance with
subsection (f) above, the Company shall calculate the amount, if any, by which
the value shown on the Current Appraisal obtained under subsection (c) exceeds
the actual sales price obtained for the related Mortgaged Property (net of
Liquidation Expenses and unreimbursed Monthly Advances related to the extended
foreclosure period), and the Company or the Trustee shall withdraw the amount of
such excess from the Collateral Fund and shall remit the same to the Trust Fund
for application as additional Liquidation Proceeds pursuant to the Pooling and
Servicing Agreement. After making such withdrawal, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
withdrawals and deposits pursuant to subsection (e) and after reimbursement to
the Servicer for all related Monthly Advances) shall be released to the
Purchaser.
Section 2.03. Purchaser's Election to Commence Foreclosure Proceedings.
(a) In connection with any Mortgage Loan identified in a report under
Section 2.01(a)(i)(B), the Purchaser may elect to instruct the Company to
proceed with the Commencement of Foreclosure as soon as practicable. Such
election must be evidenced by written notice received by the Company by 5:00
p.m., New York City time, on the third Business Day following the delivery of
such report under Section 2.01(a)(i).
(b) Within two Business Days of making any Election to Foreclose, the
Purchaser shall remit to the Trustee, for deposit in the Collateral Fund, an
amount, as calculated by the Company, equal to 125% of the current Scheduled
Principal Balance of the Mortgage Loan and three months' interest on the
Mortgage Loan at the applicable Mortgage Rate. If and when any such Mortgage
Loan is brought current by the mortgagor, all amounts in the Collateral Fund in
respect of such Mortgage Loan (after adjustment for all withdrawals and deposits
pursuant to subsection (c) below) shall be released to the Purchaser. The terms
of this Agreement will no longer apply to the servicing of any Mortgage Loan
upon the failure of the Purchaser to deposit the above amounts relating to the
Mortgage Loan within two Business Days of the Election to Foreclose.
(c) With respect to any Mortgage Loan as to which the Purchaser has made
an Election to Foreclose, the Company shall continue to service the Mortgage
Loan in accordance with its customary procedures. In connection therewith, the
Company shall have the same rights to make withdrawals for Monthly Advances and
Liquidation Expenses from the Collateral Fund as are provided under Section
2.02(e), and the Company shall make reimbursements thereto to the limited extent
provided under such subsection. The Company shall not be required to proceed
with the Commencement of Foreclosure if (i) the same is stayed as a result of
the mortgagor's bankruptcy or is otherwise barred by applicable law, or to the
extent that all legal conditions precedent thereto have not yet been complied
with, or (ii) the Company believes there is a breach of representations or
warranties by the Company, which may result in a repurchase or substitution of
such Mortgage Loan, or (iii) the Company has or expects to have the right under
the Pooling and Servicing Agreement to purchase the defaulted Mortgage Loan and
intends to exercise such right or (iv) the Company reasonably believes the
Mortgaged Property may be contaminated with or affected by hazardous wastes or
hazardous substances (and the Company supplies the Purchaser with information
supporting such belief) or (v) the same is prohibited by or is otherwise
inconsistent with the provisions of the Pooling and Servicing Agreement. Any
foreclosure that has been initiated may be discontinued (i) without notice to
the Purchaser if the Mortgage Loan has been brought current or if a refinancing
or prepayment occurs with respect to the Mortgage Loan (including by means of a
short payoff approved by the Purchaser) or (ii) with notice to the Purchaser if
the Company has reached the terms of a forbearance agreement unless instructed
otherwise by the Purchaser within two Business Days of notification.
(d) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Foreclose and as to which the
Company proceeded with the Commencement of Foreclosure in accordance with
subsection (c) above, the Company shall calculate the amount, if any, by which
the Scheduled Principal Balance of the Mortgage Loan at the time of liquidation
(plus all unreimbursed Monthly Advances and Liquidation Expenses in connection
therewith other than those previously paid from the Collateral Fund) exceeds the
actual sales price obtained for the related Mortgaged Property, and the Company
or the Trustee shall withdraw the amount of such excess from the Collateral Fund
and shall remit the same to the Trust Fund for application as additional
Liquidation Proceeds pursuant to the Pooling and Servicing Agreement. After
making such withdrawal, all amounts remaining in the Collateral Fund (after
adjustment for all withdrawals and deposits pursuant to subsection (c) above and
after reimbursement to the Servicer for all related Monthly Advances) in respect
of such Mortgage Loan shall be released to the Purchaser.
Section 2.04. Termination.
(a) With respect to all Mortgage Loans included in the Trust Fund, the
Purchaser's right to make any Election to Delay Foreclosure or any Election to
Foreclose and the Company's obligations under Section 2.01 shall terminate on
the earliest to occur of the following: (i) at such time as the Class
Certificate Principal Balance of the Class B_ Certificates has been reduced to
zero, (ii) if the greater of (x) 43% (or such lower or higher percentage that
represents the Company's actual loss experience with respect to the Mortgage
Loans) of the aggregate principal balance of all Mortgage Loans that are in
foreclosure or are more than 90 days delinquent on a contractual basis and the
aggregate book value of REO properties or (y) the aggregate amount that the
Company estimates through its normal servicing practices will be required to be
withdrawn from the Collateral Fund with respect to Mortgage Loans as to which
the Purchaser has made an Election to Delay Foreclosure or an Election to
Foreclose exceeds (z) the then-current Class Certificate Principal Balance of
the Class B_ Certificates, or (iii) upon any transfer by the Purchaser of any
interest (other than the minority interest therein, but only if the transferee
provides written acknowledgment to the Company of the Purchaser's right
hereunder and that such transferee will have no rights hereunder) in the Class
B_ Certificates [or in the Class B5 Certificates] (whether or not such transfer
is registered under the Pooling and Servicing Agreement), including any such
transfer in connection with a termination of the Trust Fund. Unless earlier
terminated as set forth herein, this Agreement and the respective rights,
obligations and responsibilities of the Purchaser and the Company hereunder
shall terminate immediately upon (x) the later to occur of (i) the final
liquidation of the last Mortgage Loan as to which the Purchaser made any
Election to Delay Foreclosure or any Election to Foreclose and the withdrawal of
all remaining amounts in the Collateral Fund as provided herein and (ii) ten
(10) Business Days' notice or (y) the occurrence of any event that results in
the Purchaser becoming an "affiliate" of the Trustee within the meaning of the
Prohibited Transaction Exemption (as defined in the Pooling and Servicing
Agreement).
(b) The Purchaser's rights pursuant to Section 2.02 or 2.03 of this
Agreement shall terminate with respect to a Mortgage Loan as to which the
Purchaser has exercised its rights under Section 2.02 or 2.03 hereof, upon
Purchaser's failure to deposit any amounts required pursuant to Section 2.02(d)
or 2.03(b) after one Business Day's notice of such failure.
Section 2.05. Notification. The Purchaser shall promptly notify the
Trustee and the Company if such Purchaser becomes aware of any discussions,
plans or events that might lead to such Person's becoming an "affiliate" (within
the meaning of the Prohibited Transaction Exemption) of the Trustee, provided
that the contents of any such notification shall be kept confidential by the
parties to this Agreement.
ARTICLE III
COLLATERAL FUND; SECURITY INTEREST
Section 3.01. Collateral Fund. Upon payment by the Purchaser of the
initial amount required to be deposited in the Collateral Fund pursuant to
Article II, the Company shall request the Trustee to establish and maintain with
the Trustee a segregated account entitled "REMIC Mortgage Pass-Through
Certificates 20__-__ Collateral Fund, for the benefit of GE Capital Mortgage
Services, Inc. and State Street Bank and Trust Company on behalf of
Certificateholders, as secured parties" (the "Collateral Fund"). Amounts held in
the Collateral Fund shall continue to be the property of the Purchaser, subject
to the first priority security interest granted hereunder for the benefit of
such secured parties, until withdrawn from the Collateral Fund pursuant to the
Section 2.02 or 2.03 hereof.
Upon the termination of this Agreement and the liquidation of all
Mortgage Loans as to which the Purchaser has made any Election to Delay
Foreclosure or any Election to Foreclose pursuant to Section 2.04 hereof, the
Company shall distribute to the Purchaser all amounts remaining in the
Collateral Fund together with any investment earnings thereon (after giving
effect to all withdrawals therefrom permitted under this Agreement).
The Purchaser shall not take or direct the Company or the Trustee to
take any action contrary to any provision of the Pooling and Servicing
Agreement. In no event shall the Purchaser (i) take or cause the Trustee or the
Company to take any action that could cause any REMIC established under the
Pooling and Servicing Agreement to fail to qualify as a REMIC or cause the
imposition on any such REMIC of any "prohibited transaction" or "prohibited
contribution" taxes or (ii) cause the Trustee or the Company to fail to take any
action necessary to maintain the status of any such REMIC as a REMIC. The
Purchaser acknowledges that the Collateral Fund is an "outside reserve fund"
within the meaning of the REMIC Provisions and that the Purchaser will be the
beneficial owner thereof, and will be taxable on all income or gain with respect
thereto.
Section 3.02. Collateral Fund Permitted Investments. The Company shall, at
the written direction of the Purchaser, direct the Trustee to invest the funds
in the Collateral Fund in the name of the Trustee in Collateral Fund Permitted
Investments. Such direction shall not be changed more frequently then quarterly.
In the absence of any direction, the Company shall direct the Trustee select
such investments in accordance with the definition of Collateral Fund Permitted
Investments in its discretion.
All income and gain realized from any investment as well as any
interest earned on deposits in the Collateral Fund (net of any losses on such
investments) and any payments of principal made in respect of any Collateral
Fund Permitted Investment shall be deposited in the Collateral Fund upon
receipt. All costs and realized losses associated with the purchase and sale of
Collateral Fund Permitted Investments shall be borne by the Purchaser and the
amount of net realized losses shall be promptly deposited by the Purchaser in
the Collateral Fund. The Company shall periodically (but not more frequently
than monthly) direct the Trustee to distribute to the Purchaser upon request an
amount of cash, to the extent cash is available therefor in the Collateral Fund,
equal to the amount by which the balance of the Collateral Fund, after giving
effect to all other distributions to be made from the Collateral Fund on such
date, exceeds the Required Collateral Fund Balance. Any amounts so distributed
shall be released from the lien and security interest of this Agreement.
Section 3.03. Grant of Security Interest. In order to secure the
obligations of the Purchaser hereunder to the Company and the Trustee for the
benefit of Certificateholders (other than its obligations under Section 4.10),
the Purchaser hereby grants to the Company and to the Trustee for the benefit of
the Certificateholders a security interest in and lien on all of the Purchaser's
right, title and interest, whether now owned or hereafter acquired, in and to:
(1) the Collateral Fund, (2) all amounts deposited in the Collateral Fund and
Collateral Fund Permitted Investments in which such amounts are invested (and
the distributions and proceeds of such investments) and (3) all cash and
non-cash proceeds of any of the foregoing, including proceeds of the voluntary
or involuntary conversion thereof (all of the foregoing collectively, the
"Collateral").
The Purchaser acknowledges the lien on and security interest in the
Collateral for the benefit of the Company and the Trustee on behalf of the
Certificateholders. The Purchaser shall take all actions requested by the
Company or the Trustee as may be reasonably necessary to perfect the security
interest created under this Agreement in the Collateral and cause it to be prior
to all other security interests and liens, including the execution and delivery
to the Company or at its direction the Trustee for filing of appropriate
financing statements in accordance with applicable law.
Section 3.04. Collateral Shortfalls. In the event that amounts on deposit
in the Collateral Fund at any time are insufficient to cover any withdrawals
therefrom that the Company or the Trustee is then entitled to make hereunder,
the Purchaser shall be obligated to pay such amounts to the Company or the
Trustee immediately upon demand. Such obligation shall constitute a general
corporate obligation of the Purchaser. The failure to pay such amounts within
two Business Days of such demand (except for amounts to cover interest on a
Mortgage Loan pursuant to Sections 2.02(d) and 2.03(b)), shall cause an
immediate termination of the Purchaser's right to make any Election to Delay
Foreclosure or Election to Foreclose and the Company's obligations under this
Agreement with respect to all Mortgage Loans to which such insufficiencies
relate, without the necessity of any further notice or demand on the part of the
Company.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Amendment. This Agreement may be amended from time to time
by the Company and the Purchaser by written agreement signed by the Company and
the Purchaser provided that no such amendment shall have a material adverse
effect on the holders of other Classes of Certificates.
Section 4.02. Counterparts. 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 4.03. 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.
Section 4.04. Notices. All demands, notices and direction hereunder shall
be in writing or by telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company, with respect to notices pursuant to
Sections 2.02 and 2.03 hereto,
GE Capital Mortgage Services, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxx Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with respect to all other notices pursuant to this Agreement,
GE Capital Mortgage Services, Inc.
Three Executive Campus
Cherry Hill, New Jersey 08002
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as may hereafter be furnished in writing by the
Company, or
(b) in the case of the Purchaser, with respect to notices pursuant to
Section 2.01,
________________________________
________________________________
________________________________
Attention:______________________
Telephone:______________________
Facsimile:______________________
with respect to all other notices pursuant to this Agreement,
________________________________
________________________________
________________________________
Attention:______________________
Telephone:______________________
Facsimile:______________________
or such other address as may hereafter be furnished in writing by the
Purchaser, or
(c) in the case of the Trustee,
State Street Bank and Trust Company
Corporate Trust Department
8th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 4.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever, including regulatory, 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 4.06. Successor and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and the
respective successors and assigns of the parties hereto; provided, however, that
the rights under this Agreement cannot be assigned by the Purchaser without the
consent of the Company.
Section 4.07. Article and Section Headings. The article and section
headings herein are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
Section 4.08. Third Party Beneficiaries. The Trustee on behalf of
Certificateholders is the intended third party beneficiary of this Agreement.
Section 4.09. Confidentiality. The Purchaser agrees that all information
supplied by or on behalf of the Company pursuant to Section 2.01 or 2.02,
including individual account information, is the property of the Company and the
Purchaser agrees to use such information solely for the purposes set forth in
this Agreement and to hold such information confidential and not to disclose
such information.
Section 4.10. Indemnification. The Purchaser agrees to indemnify and hold
harmless the Company against any and all losses, claims, damages or liabilities
to which it may be subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
actions taken by the Company in accordance with the provisions of this Agreement
and which actions conflict or are alleged to conflict with the Company's
obligations under the Pooling and Servicing Agreement. The Purchaser hereby
agrees to reimburse the Company on demand for the reasonable legal or other
expenses incurred by it in connection with investigating or defending any such
loss, claim, damage, liability or action.
[Section 4.11. Delayed Effectiveness. The Purchaser agrees that,
notwithstanding any other provision of this Agreement, the Purchaser shall have
no rights hereunder, and the Company shall have no obligations hereunder, until
the Class Certificate Principal Balance of the Class B5 Certificates has been
reduced to zero and any Special Servicing and Collateral Fund Agreement between
the Company and the Purchaser relating to such Class B5 Certificates has been
terminated.]
IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
GE CAPITAL MORTGAGE SERVICES, INC.
By:________________________________
Name:
Title:
[PURCHASER]
By:_______________________________
Name:
Title:
Acknowledged and agreed to:
STATE STREET BANK AND TRUST COMPANY
By:___________________________________
Name:
Title:
EXHIBIT L
FORM OF LOST NOTE AFFIDAVIT AND AGREEMENT
I, _________________________________________, being duly sworn, do
hereby state under oath that:
1. I am a duly elected ______________________ of GE Capital Mortgage
Services, Inc. (the "Company") and am duly authorized to make this affidavit.
2. This affidavit is being delivered in connection with the transfer of
the Mortgage Loan described in Paragraph 3 hereof by the Company pursuant to the
Pooling and Servicing Agreement dated as of [date] between the Company, Seller
and Servicer, and State Street Bank and Trust Company, Trustee, relating to the
Company's REMIC Mortgage Pass-Through Certificates, Series [____] ("Agreement").
Such Mortgage Loan constitutes a Designated Loan.
3. The Company is the payee under the following described Mortgage Note
("Mortgage Note") which evidences the obligation of the borrower(s) to repay the
Mortgage Loan:
Loan Number: __________________________________
Mortgage Note Date:_____________________________
Borrower(s): ___________________________________
Original Payee (if not the Company): ___________
Original Amount:________________________________
Mortgage Rate: _________________________________
Address of Mortgaged Property: _________________
________________________________________________
4. The Company is the lawful owner of the Mortgage Note and has not
cancelled, altered, assigned or hypothecated the Mortgage Note.
5. A thorough and diligent search for the executed original Mortgage
Note was undertaken and was unsuccessful.
6. Attached hereto is a true and correct copy of the Mortgage Note.
7. The Mortgage Note has not been endorsed by the Company in any manner
inconsistent with its transfer of the Mortgage Loan under the Agreement.
8. Without limiting the generality of the rights and remedies of the
Trustee contained in the Agreement, the Company hereby confirms and agrees that
in the event the inability to produce the executed original Mortgage Note
results in a breach of the representations and warranties appearing in Agreement
subsections 2.03(a)(ii) (the validity and enforceability of the lien created by
the Mortgage Loan) or (x) (no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage), the Company shall repurchase the Mortgage Loan at
the Purchase Price and otherwise in accordance with Section 2.03(b) of the
Agreement. In addition, the Company covenants and agrees to indemnify the
Trustee and the Trust Fund from and hold them harmless against any and all
losses, liabilities, damages, claims or expenses (other than those resulting
from negligence or bad faith of the Trustee) arising from the Company's failure
to have delivered the Mortgage Note to the Trustee, including without limitation
any such losses, liabilities, damages, claims or expenses arising from any
action to enforce the indebtedness evidenced by the Mortgage Note or any claim
by any third party who is the holder of such indebtedness by virtue of
possession of the Mortgage Note.
9. In the event that the Company locates the executed original Mortgage
Note, it shall promptly provide the Mortgage Note to the Trustee.
10. Capitalized terms not otherwise defined herein shall have the
meanings given them in the Agreement.
Date: _______________________
______________________________
(signature)
______________________________
(print name)
______________________________
(print title)
State of New Jersey )
)ss:
)
On this ____________________day of ___________________, _____,
before me appeared ____________________________, to me personally known, who
acknowledged the execution of the foregoing and who, having been duly sworn
states that he/she is a/the ______________________________of GE Capital Mortgage
Services, Inc., that any representations therein contained are true, that this
Lost Note Affidavit was signed and sealed on behalf of GE Capital Mortgage
Services, Inc. and that this Lost Note Affidavit is the free act and deed of GE
Capital Mortgage Services, Inc.
____________________________________
(Notary Public)
[Notarial Seal]
69328
EXHIBIT M
SCHEDULE OF DESIGNATED LOANS
NONE
69328
EXHIBIT N
SCHEDULE OF PLEDGED ASSET MORTGAGE LOANS
GECMSI LOAN NO. MLCC LOAN NO. SCHEDULED PRINCIPAL BALANCE
--------------- ------------- ---------------------------
0000007784184 2386688 $203,297.88
0000031092182 3005360 $368,808.98
0000031124647 3037496 $345,959.85
0000080495013 3921376 $264,367.48
0000080495047 4281911 $372,489.51
0000080495112 4416061 $171,541.25
0000080515521 4284758 $92,286.00
-------------
$1,818,750.95
EXHIBIT O
SENIOR PRINCIPAL PRIORITIES
Amounts allocated to the senior certificates (other than the Class PO
Certificates) will be distributed sequentially as follows:
(a) to the Class R Certificate, until the Class Certificate
Principal Balance thereof has been reduced to zero; and
(b) to the Class A Certificates, until the Class Certificate
Principal Balance thereof has been reduced to zero.
The Class PO Certificates will receive the Class PO Principal Distribution
Amount for such Distribution Date.
EXHIBIT P
SCHEDULE OF CASHSAVER MORTGAGE LOANS
NONE
