EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES INC., as Master Servicer,
and
U.S. BANK NATIONAL ASSOCIATION, as Trustee
---------------------------
TRUST AGREEMENT
Dated as of January 1, 2000
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.........................................................................................6
Section 1.02. Calculations Respecting Mortgage Loans.............................................................41
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans and Underlying
Security.......................................................................................41
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation for Trust Fund........................45
Section 2.03. Representations and Warranties of the Depositor....................................................46
Section 2.04. Discovery of Breach................................................................................48
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.............................................48
Section 2.06. Grant Clause.......................................................................................49
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates...................................................................................50
Section 3.02. Registration.......................................................................................51
Section 3.03. Transfer and Exchange of Certificates..............................................................51
Section 3.04. Cancellation of Certificates.......................................................................54
Section 3.05. Replacement of Certificates........................................................................54
Section 3.06. Persons Deemed Owners..............................................................................54
Section 3.07. Temporary Certificates.............................................................................54
Section 3.08. Appointment of Paying Agent........................................................................55
Section 3.09. Book-Entry Certificates............................................................................55
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account.................................................................................56
Section 4.02. Application of Funds in the Collection Account.....................................................58
Section 4.03. Reports to Certificateholders......................................................................60
Section 4.04. Certificate Account................................................................................63
Section 4.05. Determination of LIBOR.............................................................................64
Section 4.06. The Class 2-A3 Reserve Fund........................................................................65
Section 4.07. The Securities Account.............................................................................66
Section 4.08. Liability of the Securities Intermediary...........................................................68
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally............................................................................68
Section 5.02. Distributions from the Certificate Account.........................................................69
Section 5.03. Allocation of Realized Losses......................................................................76
Section 5.04. Advances by Master Servicer and Trustee............................................................79
Section 5.05. Compensating Interest Payments.....................................................................80
Section 5.06. Distributions of Principal on Redemption Certificates..............................................80
Section 5.07. The Class 2-A3 Certificate Insurance Policy........................................................84
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee..................................................................................87
Section 6.02. Certain Matters Affecting the Trustee..............................................................89
Section 6.03. Trustee Not Liable for Certificates................................................................90
Section 6.04. Trustee May Own Certificates.......................................................................91
Section 6.05. Eligibility Requirements for Trustee...............................................................91
Section 6.06. Resignation and Removal of Trustee.................................................................91
Section 6.07. Successor Trustee..................................................................................92
Section 6.08. Merger or Consolidation of Trustee.................................................................93
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian...........................................93
Section 6.10. Authenticating Agents..............................................................................94
Section 6.11. Indemnification of Trustee.........................................................................95
Section 6.12. Fees and Expenses of Trustee.......................................................................96
Section 6.13. Collection of Monies...............................................................................96
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor........................................96
Section 6.15. Additional Remedies of Trustee Upon Event of Default...............................................99
Section 6.16. Waiver of Defaults................................................................................100
Section 6.17. Notification to Holders...........................................................................100
Section 6.18. Directions by Certificateholders and Duties of Trustee During Event of Default....................100
Section 6.19. Action Upon Certain Failures of the Master Servicer and Upon Event of Default.....................101
Section 6.20. Preparation of Tax Returns and Other Reports......................................................101
ARTICLE VII
PURCHASE AND TERMINATION OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation of All Mortgage Loans and the
Underlying Security...........................................................................102
Section 7.02. Procedure Upon Termination of Trust Fund..........................................................102
Section 7.03. Additional Trust Fund Termination Requirements....................................................103
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders...................................................................104
Section 8.02. Access to List of Holders.........................................................................105
Section 8.03. Acts of Holders of Certificates...................................................................105
Section 8.04. Rights of Certificateholders as Holders of the Underlying Security................................106
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer.....................................................................106
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance Policy...........106
Section 9.03. Master Servicer's Financial Statements and Related Information....................................107
Section 9.04. Power to Act; Procedures..........................................................................107
Section 9.05. Servicing Agreements Between the Master Servicer and Servicers; Enforcement of Servicers'
Obligations...................................................................................109
Section 9.06. Collection of Taxes, Assessments and Similar Items................................................109
Section 9.07. Termination of Servicing Agreements; Successor Servicers..........................................110
Section 9.08. Master Servicer Liable for Enforcement............................................................110
Section 9.09. No Contractual Relationship Between Servicers and Trustee or Depositor............................111
Section 9.10. Assumption of Servicing Agreement by Trustee......................................................111
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements......................................................111
Section 9.12. Release of Mortgage Files.........................................................................111
Section 9.13. Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee..............112
Section 9.14. Representations and Warranties of the Master Servicer.............................................114
Section 9.15. Closing Certificate and Opinion...................................................................116
Section 9.16. Standard Hazard and Flood Insurance Policies......................................................116
Section 9.17. Presentment of Claims and Collection of Proceeds..................................................116
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies............................................116
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies and Documents..........................117
Section 9.20. Realization Upon Defaulted Mortgage Loans.........................................................117
Section 9.21. Compensation to the Master Servicer...............................................................117
Section 9.22. REO Property......................................................................................118
Section 9.23. [Omitted].........................................................................................119
Section 9.24. Reports to the Trustee............................................................................119
Section 9.25. Annual Officer's Certificate as to Compliance.....................................................119
Section 9.26. Annual Independent Accountants' Servicing Report..................................................120
Section 9.27. Merger or Consolidation...........................................................................120
Section 9.28. Resignation of Master Servicer....................................................................120
Section 9.29. Assignment or Delegation of Duties by the Master Servicer.........................................121
Section 9.30. Limitation on Liability of the Master Servicer and Others.........................................121
Section 9.31. Indemnification; Third-Party Claims...............................................................122
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration.............................................................................122
Section 10.02. Prohibited Transactions and Activities...........................................................124
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of REMIC Status...........................124
Section 10.04. REO Property.....................................................................................124
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment..........................................................125
Section 11.02. Entire Agreement.................................................................................125
Section 11.03. Amendment........................................................................................125
Section 11.04. Voting Rights....................................................................................127
Section 11.05. Provision of Information.........................................................................127
Section 11.06. Governing Law....................................................................................127
Section 11.07. Notices..........................................................................................127
Section 11.08. Severability of Provisions.......................................................................128
Section 11.09. Indulgences; No Waivers..........................................................................128
Section 11.10. Headings Not To Affect Interpretation............................................................128
Section 11.11. Benefits of Agreement............................................................................128
Section 11.12. Special Notices to the Rating Agencies...........................................................128
Section 11.13. Counterparts.....................................................................................129
Section 11.14. Transfer of Servicing............................................................................129
Section 11.15. Matters Relating to the Class 2-A3 Certificate Insurance Policy..................................130
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Initial Certification
Exhibit B-2 Form of Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreements
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreement
Exhibit L Insurance Agreement
Exhibit M Class 2-A3 Certificate Insurance Policy
Schedule A Mortgage Loan Schedule
Schedule B Principal Amount Schedules
Schedule C Underlying Security Schedule
Schedule D Pool 1 AX Loans
Schedule E Pool 2 AX Loans
This TRUST AGREEMENT, dated as of January 1, 2000 (the "Agreement"), is
by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation,
as depositor (the "Depositor"), AURORA LOAN SERVICES INC., as master servicer
(the "Master Servicer"), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from Xxxxxx Capital, A
Division of Xxxxxx Brothers Holdings Inc. (the "Seller") and the Underlying
Security from Xxxxxx Brothers Inc., and at the Closing Date is the owner of
the Mortgage Loans, the Underlying Security and the other property being
conveyed by it to the Trustee for inclusion in the Trust Fund. On the Closing
Date, the Depositor will acquire the Certificates from the Trust Fund, as
consideration for its transfer to the Trust Fund of the Mortgage Loans, the
Underlying Security and the other property constituting the Trust Fund. The
Depositor has duly authorized the execution and delivery of this Agreement to
provide for the conveyance to the Trustee of the Mortgage Loans, the
Underlying Security and the other property constituting the Trust Fund. All
covenants and agreements made by the Depositor, the Master Servicer and the
Trustee herein with respect to the Mortgage Loans, the Underlying Security and
the other property constituting the Trust Fund are for the benefit of the
Holders from time to time of the Certificates and the Class 2-A3 Certificate
Insurer. The Depositor and the Master Servicer are entering into this
Agreement, and the Trustee is accepting the Trust Fund created hereby, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be
treated for federal income tax purposes as comprising two real estate mortgage
investment conduits (each a "REMIC" or, in the alternative, the Lower Tier
REMIC and the Upper Tier REMIC, respectively). Each Certificate, other than
the Class R Certificate, represents ownership of a regular interest in the
Upper Tier REMIC for purposes of the REMIC Provisions. The Class R Certificate
represents ownership of the sole class of residual interest in each of the
Lower Tier REMIC and the Upper Tier REMIC for purposes of the REMIC
Provisions. The Upper Tier REMIC shall hold as assets the several classes of
uncertificated Lower Tier Interests, other than the Class LTR Interest, set
out below. Each such Lower Tier Interest, other than the Class LTR Interest,
is hereby designated as a regular interest in the Lower Tier REMIC.
Corresponding
Lower Tier Class Certificate Initial Class Class of
Designation Interest Rate Principal Amount Certificate(s)
----------- ------------- ---------------- --------------
Class LT1-A1 9.00% $50,650,000.00 Class 1-A1
Class LT1-A2 9.00% 75,600,000.00 Class 1-A2
(1) Class 1-A3
Class LT1-A4 9.00% 5,524,000.00 Class 1-A4
(2) Class 1-A5
(3) Class 1-A6
Class LT1-A7 9.00% 30,000,000.00 Class 1-A7
Class LT1-AP 0.00% 7,339,244.00 Class 1-AP
Class LT2-A1 7.50% 90,408,000.00 Class 2-A1
Class LT2-A2 7.50% 81,000,000.00 Class 2-A2
Class LT2-A3 7.50% 41,500,000.00 Class 2-A3
(4) Class 2-A4
Class LT2-A5 0.00% 4,467,590.00 Class 2-A5
Class LT2-AP 0.00% 248,737.00 Class 2-AP
Class LT3-A 7.25% 40,210,858.00 Class 3-A
Class LT3-AP 0.00% 1,116,141.00 Class 3-AP
Class LTAX1 (5) (6) Class AX
Class LTAX2 (5) (6) Class AX
Class LTB1 (7) 12,626,000.00 Class B1
(8) Class B1X
Class LTB2 (7) 5,594,000.00 Class B2
(9) Class B2X
Class LTB3 (7) 3,036,000.00 Class B3
Class LTB4 (7) Class B4
Class LTB5 (7) Class B5
Class LTB6 (7) Class B6
Class LTR (10) (10) Class R
Class LT1-Q 9.00% 100 Class R
---------------------
(1) The Class 1-A3 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class LT1-A2
Interest.
(2) The Class 1-A5 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class LT1-A1 and
Class LT1-A4 Interests.
(3) The Class 1-A6 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class LT1-A7
Interest.
(4) The Class 2-A3 Certificates are entitled to receive on each Distribution
Date a specified portion of the principal payable on the Class LT2-A3
Interest.
(5) The Class LTAX1 Interest have a notional principal balance that will at
all times equal the Scheduled Principal Balance of the Pool 1 AX Loans.
The Class LTAX2 Interest have a notional principal balance that will at
all times equal the Scheduled Principal Balance of the Pool 2 AX Loans.
(6) For any Accrual Period, the interest rate on the Class LTAX1 Interest
will equal the excess of (a) the weighted average (by Scheduled Principal
Balance) of the Net Mortgage Rates on the Pool 1 AX Loans over (b) 9.00%.
For any Accrual Period, the interest rate on the Class LTAX2 Interest
will equal the excess of (a) the weighted average (by Scheduled Principal
Balance) of the Net Mortgage Rates on the Pool 2 AX Loans over (b) 7.50%.
(7) Each of the Class LTB1, Class LTB2, Class LTB3, Class LTB4, Class LTB5
and Class LTB6 Interests are entitled to receive interest at the Average
Rate.
(8) The Class B1X Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class LTB1
Interest.
(9) The Class B2X Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class LTB2
Interest.
(10) The Class LTR Interest is the sole class of residual interest in the
Lower Tier REMIC. It does not have a stated principal amount or a stated
interest rate. Ownership of the Class LTR Interest is evidenced by the
Class R Certificate.
The Lower Tier REMIC shall hold as assets all assets included in the
Trust Fund other than the uncertificated Lower Tier Interests, the Class 2-A3
Reserve Fund, the Class 2-A3 Certificate Insurance Policy, the Class 2-A3
Policy Payments Account, and the Class 2-A3 Rounding Account.
Distributions of interest and principal on each class of Lower Tier
Interest for any Distribution Date shall correspond to the interest and
principal distributions required to be made on the Corresponding Class of
Certificates on such Distribution Date. Realized Losses and Net Prepayment
Interest Shortfalls as of any Distribution Date shall be allocated among the
classes of Lower Tier Interests in the same manner that such items are
allocated among the Corresponding Classes of Certificates.
The following table sets forth the Class designation, Certificate
Interest Rate, initial Class Principal Amount and minimum denomination for
each Class of Certificates comprising the interests in the Trust Fund created
hereunder.
Certificate Initial Class Principal
Class Designation Interest Rate Amount Minimum Denomination
----------------- ------------- ----------------------- --------------------
Class 1-A1 7.60% $50,650,000.00 $ 25,000
Class 1-A2 (1) 75,600,000.00 $ 25,000
Class 1-A3 (2) (3) $ 2,000,000
Class 1-A4 8.00% 5,524,000.00 $ 25,000
Class 1-A5 9.00% (4) 25%
Class 1-A6 9.00% (5) 20%
Class 1-A7 7.85% 30,000,000.00 $ 25,000
Class 1-AP 0.00% 7,339,244.00 $ 25,000
Class 2-A1 7.50% 90,408,000.00 $ 25,000
Class 2-A2 7.50% 81,000,000.00 $ 25,000
Class 2-A3 7.75% 40,000,000.00 $ 1,000
Class 2-A4 0.00% 1,500,000.00 $ 25,000
Class 2-A5 0.00% 4,467,590.00 $ 25,000
Class 2-AP 0.00% 248,737.00 $ 25,000
Class 3-A 7.25% 40,210,858.00 $ 25,000
Class 3-AP 0.00% 1,116,141.00 $ 25,000
Class AX 8.00% (6) 30%
Class B1 (7) 12,626,000.00 $ 100,000
Class B1X (7) (8) 100%
Class B2 (7) 5,594,000.00 $ 100,000
Class B2X (7) (9) 100%
Class B3 (10) 3,036,000.00 $ 100,000
Class B4 (10) 1,918,000.00 $ 250,000
Class B5 (10) 800,000.00 $ 250,000
Class B6 (10) 1,600,699.12 $ 250,000
Class R 9.00% 100.00 $ 100
---------------------------
(1) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 1-A2 Certificates is the per
annum rate equal to (a) 6.55%, with respect to the first Distribution
Date, and (b) thereafter, the lesser of (i) LIBOR plus 0.75% and (ii)
9.00%, subject to a minimum rate of 0.75%.
(2) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 1-A3 Certificates is the per
annum rate equal to (a) 2.45%, with respect to the first Distribution
Date, and (b) thereafter, 8.25% minus LIBOR subject to a minimum rate of
0.00%.
(3) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class 1-A3 Certificates will equal the
Class Principal Amount of the Class 1-A2 Certificates immediately
preceding such Distribution Date.
(4) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class 1-A5 Certificates will equal the
product of (i) the fraction, the numerator of which is 9.00% minus the
weighted average (by Class Principal Amount immediately prior to such
Distribution Date) of the Certificate Interest Rates of the Class 1-A1
and Class 1-A4 Certificates, and the denominator of which is 9.00% and
(ii) the sum of the Class Principal Amounts of the Class 1-A1 and Class
1-A4 Certificates immediately preceding such Distribution Date.
(5) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class 1-A6 Certificates will equal the
product of (i) 12.7777777778% and (ii) the Class Principal Amount of the
Class 1-A7 Certificates immediately preceding such Distribution Date.
(6) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class AX Certificates will equal the sum
of the Component Notional Amounts of the AX(1) Component and AX(2)
Component. The initial Class Notional Amount of the Class AX Certificates
will be approximately $3,234,787.
(7) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class B1, Class B1X, Class B2 and
Class B2X Certificates is the per annum rate equal to (a) 8.25%, with
respect to the first Distribution Date, and (b) thereafter, the lesser of
(i) the Average Rate for such Distribution Date and (ii) 8.25%.
(8) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class B1X Certificates will equal the
product of (i) the fraction, the numerator of which is the Average Rate
for such Distribution Date minus the Certificate Interest Rate for the
Class B1 Certificates for such date, and the denominator of which is the
Certificate Interest Rate for the Class B1 Certificates for such date and
(ii) the Class Principal Amount of the Class B1 Certificates immediately
preceding such Distribution Date.
(9) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class B2X Certificates will equal the
product of (i) the fraction, the numerator of which is the Average Rate
for such Distribution Date minus the Certificate Interest Rate for the
Class B2 Certificates for such date, and the denominator of which is the
Certificate Interest Rate for the Class B2 Certificates for such date and
(ii) the Class Principal Amount of the Class B2 Certificates immediately
preceding such Distribution Date.
(10) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class B3, Class B4, Class B5 and
Class B6 Certificates will equal the Average Rate for such Distribution
Date.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $319,661,640.54 and as of the Closing Date the Underlying
Security had a Security Principal Balance of $134,027,728.58.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee hereby agree as follows:
Article I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or master service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, to the extent applicable to the
Trustee or the Master Servicer or (y) as provided in the applicable Servicing
Agreement, to the extent applicable to the Servicer.
Account Property: All amounts and investments held from time to time in
the Securities Account (whether in the form of deposit accounts, physical
property, book-entry securities, uncertificated securities, securities
entitlements, investment property or otherwise), and all proceeds of the
foregoing.
Accountant: A person engaged in the practice of accounting who (except
when this Agreement provides that an Accountant must be Independent) may be
employed by or affiliated with the Depositor or an Affiliate of the Depositor.
Accretion Directed Certificate: None.
Accretion Termination Date: The first Distribution Date following the
Credit Support Depletion Date.
Accrual Amount: As to any Class of Accrual Certificates and each
Distribution Date through the Credit Support Depletion Date, the sum of (x)
any amount of Accrued Certificate Interest allocable to such Class pursuant to
Section 5.02(a)(iii) on such Distribution Date and (y) any Interest Shortfall
allocable to such Class pursuant to Section 5.02(a)(iv) on such Distribution
Date. As to any Class of Accrual Certificates and each Distribution Date after
the Credit Support Depletion Date, zero.
Accrual Certificate: None.
Accrual Component: None.
Accrual Period: With respect to any Distribution Date and any Class of
Certificates (other than any Class of Principal Only Certificates and any
LIBOR Certificates), the one-month period beginning immediately following the
end of the preceding Accrual Period (or from the Cut-off Date, in the case of
the first Accrual Period) and ending on the last day of the month preceding
the month in which such Distribution Date occurs. With respect to any
Distribution Date and any Class of LIBOR Certificates, the period beginning on
the Distribution Date in the calendar month preceding the month in which the
related Distribution Date occurs (or from the Closing Date, in the case of the
first Accrual Period) and ending on the day immediately preceding the related
Distribution Date.
Accrued Certificate Interest: As to any Class of Certificates (other than
the Class AX Certificates and any Principal Only Certificates) and any
Component, and any Distribution Date, the product of the Certificate Interest
Rate for such Class of Certificates (or the Component Interest Rate for such
Component) and the Class Principal Amount (or Class Notional Amount) of such
Class of Certificates (or the Component Notional Amount of such Component)
immediately preceding such Distribution Date, as reduced by such Class's or
Component's share of the interest portion of any Relief Act Reduction, in each
case allocable among the Class A Certificates and, if applicable, the related
Component, of the related Certificate Group pro rata based on the Accrued
Certificate Interest otherwise distributable thereto, and allocable to the
Subordinate Certificates pro rata based on interest accrued on their
respective Apportioned Principal Balances. As to the Class AX Certificates and
any Distribution Date, Accrued Certificate Interest shall be the sum of
Accrued Certificate Interest on each Component thereof. Interest shall be
calculated for such Certificates and Components on the basis of a 360-day year
consisting of twelve 30-day months.
Act: As defined in Section 3.03(c).
Additional Collateral: None.
Adjustable Rate Mortgage Loan: None.
Advance: An advance of the aggregate of payments of principal and
interest (net of the Master Servicing Fee and the Servicing Fee) on one or
more Mortgage Loans that were due on the Due Date in the related Due Period
and not received as of the close of business on the related Determination
Date, required to be made by or on behalf of the Master Servicer and any
Servicer (or by the Trustee) pursuant to Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Class 2-A3 Certificate Insurance Premium: As to any
Distribution Date, the sum of (a) the Class 2-A3 Certificate Insurance Premium
for such Distribution Date and (b) the amount of any Class 2-A3 Certificate
Insurance Premium that was not distributed to the Class 2-A3 Certificate
Insurer on any prior Distribution Date.
Aggregate Master Servicing Compensation: As to any Distribution Date, the
sum of (x) the aggregate of the Master Servicing Fees payable to the Master
Servicer in respect of such Distribution Date and (y) all income and gain
realized from the investment of funds in the Collection Account during the
period from and including the Deposit Date in the calendar month immediately
preceding the month in which such Distribution Date occurs, to but excluding
the Deposit Date relating to such Distribution Date.
Aggregate Principal Balance: The aggregate of the Scheduled Principal
Balances for all Mortgage Loans at any date of determination.
Aggregate Subordinate Percentage: With respect to any Distribution Date,
the sum of the Class Principal Amounts of the Subordinate Certificates
immediately prior to such date divided by the sum of the Non-AP Pool Balances
for all Mortgage Pools for the immediately preceding Distribution Date.
Aggregate Voting Interests: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
AP Percentage: As to any Discount Mortgage Loan, the percentage
equivalent of a fraction, the numerator of which is the applicable Designated
Rate minus the Net Mortgage Rate of such Discount Mortgage Loan and the
denominator of which is the applicable Designated Rate. As to any Non-Discount
Mortgage Loan in any Mortgage Pool, 0.00%.
AP Principal Distribution Amount: For any Distribution Date and for each
Certificate Group, the sum of the following amounts:
(i) the applicable AP Percentage of the principal portion of each
Scheduled Payment on each Mortgage Loan in the related Mortgage Pool due
during the related Due Period;
(ii) the applicable AP Percentage of each of the following amounts:
(1) each Principal Prepayment collected on a Mortgage Loan in the related
Mortgage Pool during the applicable Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net Liquidation
Proceeds (other than with respect to any Mortgage Loan in the related
Mortgage Pool that was finally liquidated during the applicable
Prepayment Period), representing or allocable to recoveries of principal
of such Mortgage Loan in the related Mortgage Pool received during the
applicable Prepayment Period and (3) the principal portion of all
proceeds of the purchase of any Mortgage Loan in the related Mortgage
Pool (or, in the case of a permitted substitution, amounts representing a
principal adjustment) actually received by the Trustee with respect to
the applicable Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period, the applicable AP
Percentage of the related net Liquidation Proceeds allocable to
principal; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Apportioned Principal Balance: As to any Class of Subordinate
Certificates and any Distribution Date, the Class Principal Amount of such
Class immediately prior to such Distribution Date multiplied by a fraction,
the numerator of which is the applicable Group Subordinate Amount for such
date and the denominator of which is the sum of the Group Subordinate Amounts
for all Mortgage Pools for such date.
Appraised Value: With respect to any Mortgage Loan, the amount set forth
in an appraisal made in connection with the origination of such Mortgage Loan
as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the
same jurisdiction, if permitted by law; provided, however, that the Trustee
shall not be responsible for determining whether any such assignment is in
recordable form.
Aurora: Aurora Loan Services Inc. or its successor in interest, in its
capacity as a Servicer.
Authenticating Agent: Any authenticating agent appointed by the Trustee
pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's Certificate
on behalf of the Depositor.
Available Distribution Amount: As to each Mortgage Pool and on any
Distribution Date, the sum of the following amounts:
(i) the total amount of all cash received by the Master Servicer
through the Remittance Date applicable to each Servicer and deposited by
the Master Servicer by the Deposit Date for such Distribution Date on the
Mortgage Loans of such Mortgage Pool (including proceeds of any Insurance
Policy and any other credit support relating to such Mortgage Loans),
plus all Advances made by the Master Servicer or any Servicer (or the
Trustee) for such Distribution Date, any Compensating Interest Payment
for such date and Mortgage Pool and any amounts paid by any Servicer in
respect of Prepayment Interest Shortfalls in respect of the related
Mortgage Loans for such date, but not including:
(A) all amounts distributed pursuant to Section 5.02 on prior
Distribution Dates;
(B) all Scheduled Payments of principal and interest collected
but due on a date subsequent to the related Due Period;
(C) all Principal Prepayments received or identified by the
applicable Servicer after the applicable Prepayment Period (together
with any interest payments received with such prepayments to the
extent that they represent the payment of interest accrued on the
related Mortgage Loans for the period subsequent to the applicable
Prepayment Period);
(D) any other unscheduled collection, including Net Liquidation
Proceeds and Insurance Proceeds, received by the Master Servicer
after the applicable Prepayment Period;
(E) all fees and amounts due or reimbursable to the Master
Servicer or any Servicer pursuant to the terms of this Agreement or
the applicable Servicing Agreement;
(F) any Prepayment Penalty Amounts;
(G) any Prepayment Interest Excess; and
(H) such portion of each payment in respect of interest
representing Retained Interest.
(ii) with respect to Pool 2, any Security Payments received on the
Underlying Security by the Trustee for the related Underlying
Distribution Date; and
(iii) any other payment made by the Master Servicer, any Servicer,
the Seller, the Depositor, or any other Person with respect to such
Distribution Date (including the Purchase Price with respect to any
Mortgage Loan repurchased by the Seller, the Depositor or any other
Person).
Average Rate: With respect to any Distribution Date, the weighted average
of the Designated Rates for all Mortgage Pools, weighted on the basis of the
Group Subordinate Amount for each Mortgage Pool.
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the benefit
of creditors, the filing of a voluntary petition in bankruptcy, adjudication
as a bankrupt or insolvent, the entry of an order for relief in a bankruptcy
or insolvency proceeding, the seeking of reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief, or
seeking, consenting to or acquiescing in the appointment of a trustee,
receiver or liquidator, dissolution, or termination, as the case may be, of
such Person pursuant to the provisions of either the United States Bankruptcy
Code of 1986, as amended, or any other similar state laws.
Bankruptcy Coverage Termination Date: Not applicable.
Bankruptcy Loss Limit: Not applicable.
Bankruptcy Losses: Not applicable.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the Trustee
to the effect that any proposed transfer will not (i) cause the assets of the
Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor or the Trustee.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: Beneficial interests in Certificates designated
as "Book-Entry Certificates" in this Agreement, ownership and transfers of
which shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the occurrence of a condition
whereupon book-entry registration and transfer are no longer permitted and
Definitive Certificates are to be issued to Certificate Owners, such
Book-Entry Certificates shall no longer be "Book-Entry Certificates." As of
the Closing Date, the following Classes of Certificates constitute Book-Entry
Certificates: the Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4, Class 1-A5,
Class 1-A6, Class 1-A7, Class 1-AP, Class 2-A1, Class 2-A2, Class 2-A3, Class
2-A4, Class 2-A5, Class 2-AP, Class 3-A, Class 3-AP, Class AX, Class B1, Class
B1X, Class B2, Class B2X and Class B3.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a day
on which banking institutions in New York, New York or, if other than New
York, the city in which the Class 2-A3 Certificate Insurer is located or the
city in which the Corporate Trust Office of the Trustee is located, the State
of Minnesota, or the State of Colorado, or (iii) with respect to any
Remittance Date or any Servicer reporting date, the States specified in the
definition of "Business Day" in the applicable Servicing Agreement, are
authorized or obligated by law or executive order to be closed.
Certificate: Any one of the certificates signed and countersigned by the
Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in accordance
with the provisions of Section 4.04.
Certificate Group: The Group 1 Certificates, Group 2 Certificates or the
Group 3 Certificates, as applicable.
Certificate Interest Rate: With respect to each Class of Certificates,
the applicable per annum rate specified or determined as provided in the
Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate other than
a Notional Certificate, at the time of determination, the maximum specified
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the initial principal amount set forth
on the face of such Certificate (plus, in the case of any Negative
Amortization Certificate, any Deferred Interest allocated thereto on previous
Distribution Dates, and plus, in the case of any Accrual Certificate, its
Percentage Interest of any related Accrual Amount for each previous
Distribution Date), less the amount of all principal distributions previously
made with respect to such Certificate, all Realized Losses allocated to such
Certificate, and, in the case of a Subordinate Certificate, any Subordinate
Certificate Writedown Amount allocated to such Certificate. For purposes of
Article V hereof, unless specifically provided to the contrary, Certificate
Principal Amounts shall be determined as of the close of business of the
immediately preceding Distribution Date, after giving effect to all
distributions made on such date. Notional Certificates are issued without
Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of "Holder."
Class: All Certificates bearing the same class designation.
Class 1-A7 Percentage: As to any Distribution Date, the lesser of (i)
100% and (ii) the percentage equivalent of the fraction, the numerator of
which is equal to the sum of (a) the Class Principal Amount of the Class 1-A7
Certificates immediately prior to such date and (b) $16,500,000, and the
denominator of which is equal to the Group 1 Non-AP Pool Balance for the
immediately preceding Distribution Date.
Class 1-A7 Prepayment Shift Percentage: As to any Distribution Date
occurring during the five years beginning on the first Distribution Date, 0%.
As to any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date, the following percentage for each applicable
Distribution Date: for any Distribution Date in the first year after such
fifth anniversary, 30%; for any Distribution Date in the second year
thereafter, 40%; for any Distribution Date in the third year thereafter, 60%;
for any Distribution Date in the fourth year thereafter, 80%; and for any
subsequent Distribution Date, 100%.
Class 1-A7 Priority Amount: As to any Distribution Date, an amount equal
to the lesser of (i) the sum of (x) the product of the Class 1-A7 Percentage
for such date, the Class 1-A7 Scheduled Principal Percentage for such date and
the Group 1 Scheduled Principal Amount for such date and (y) the product of
the Class 1-A7 Percentage for such date, the Class 1-A7 Prepayment Shift
Percentage for such date and the Group 1 Unscheduled Principal Amount for such
date, and (ii) the Class Principal Amount of the Class 1-A7 Certificates
immediately prior to such date.
Class 1-A7 Scheduled Principal Percentage: As to any Distribution Date
occurring during the five years beginning on the first Distribution Date, 0%.
As to any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date, 100%.
Class 2-A3 Certificate Insurance Policy: The Certificate Guaranty
Insurance Policy No. 31312 dated the Closing Date issued by the Class 2-A3
Certificate Insurer to the Trustee for the benefit of the Holders of the Class
2-A3 Certificates, a copy of which is attached as Exhibit M hereto.
Class 2-A3 Certificate Insurance Premium: With respect to any
Distribution Date and with respect to the Class 2-A3 Certificate Insurance
Policy, an amount equal to 1/12th of the product of (a) the Class Principal
Amount of the Class 2-A3 Certificates as of such Distribution Date (prior to
giving effect to any distribution thereon on such Distribution Date) and (b)
the Class 2-A3 Premium Percentage.
Class 2-A3 Certificate Insurer: MBIA Insurance Corporation, or any
successor thereto, as issuer of the Class 2-A3 Certificate Insurance Policy.
Class 2-A3 Certificate Insurer Default: The occurrence and continuance of
any of the following events:
(a) the Class 2-A3 Certificate Insurer shall have failed to make a
payment required to be made under the Class 2-A3 Certificate Insurance Policy
in accordance with its terms;
(b) the Class 2-A3 Certificate Insurer shall have (i) filed a petition or
commenced a case or proceeding under any provision or chapter of the United
States Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (ii)
made a general assignment for the benefit of its creditors, or (iii) had an
order for relief entered against it under the United States Bankruptcy Code or
any other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization that is final and nonappealable;
or
(c) a court of competent jurisdiction, the Office of the Commissioner of
Insurance of the State of New York or other competent regulatory authority
shall have entered a final and nonappealable order, judgment or decree (i)
appointing a custodian, trustee, agent or receiver for the Class 2-A3
Certificate Insurer or for all or any material portion of its property or (ii)
authorizing the taking of possession by a custodian, trustee, agent or
receiver of the Class 2-A3 Certificate Insurer (or the taking of possession of
all or any material portion of the property of the Class 2-A3 Certificate
Insurer).
Class 2-A3 Guaranteed Distributions: (a) With respect to any Distribution
Date, (i) the Accrued Certificate Interest for the Class 2-A3 Certificates for
such Distribution Date, including the amount of any Net Prepayment Interest
Shortfalls relating to prepayments and any Relief Act Reductions allocable to
the Class 2-A3 Certificates on such Distribution Date that are not covered by
the Class 2-A3 Reserve Fund and (ii) the amount of any Realized Loss allocated
to the Class 2-A3 Certificates on such Distribution Date and (b) for the Final
Scheduled Distribution Date, the Class Principal Amount of the Class 2-A3
Certificates to the extent unpaid on the Final Scheduled Distribution Date.
Class 2-A3 Policy Payments Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 5.07(c) in the name of the
Trustee for the benefit of the Class 2-A3 Certificateholders and designated
"U.S. Bank National Association, Class 2-A3 Policy Payments Account in trust
for registered holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2000-1, Class 2-A3." Funds in the Class 2-A3
Policy Payments Account shall be held in trust for the benefit of the Class
2-A3 Certificateholders for the uses and purposes set forth in this Agreement.
Class 2-A3 Premium Percentage: The meaning assigned to such term in the
Insurance Agreement.
Class 2-A3 Reserve Fund: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 with a depository
institution in the name of the Trustee for the benefit of the Class 2-A3
Certificateholders and designated "U.S. Bank National Association, Class 2-A3
Reserve Fund in trust for registered holders of Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 2000-1, Class 2-A3."
The Class 2-A3 Reserve Fund shall not be a part of any REMIC and, for all
federal and state income tax purposes, shall be beneficially owned by Xxxxxx
Brothers Inc.
Class 2-A3 Rounding Account: The separate Eligible Account established
and maintained by the Trustee pursuant to Section 5.06(e) in the name of the
Trustee for the benefit of the Class 2-A3 Certificateholders and designated
"U.S. Bank National Association, Class 2-A3 Rounding Account in trust for
registered holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2000-1, Class 2-A3." Funds in the Rounding
Account shall be held in trust for the benefit of the Class 2-A3
Certificateholders for the uses and purposes set forth in this Agreement. The
Class 2-A3 Rounding Account shall not be a part of any REMIC and, for all
federal and state income tax purposes, shall be beneficially owned by Xxxxxx
Brothers Inc.
Class A Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4,
Class 1-A5, Class 1-A6, Class 1-A7, Class 1-AP, Class 2-A1, Class 2-A2, Class
2-A3, Class 2-A4, Class 2-A5, Class 2-AP, Class 3-A or Class 3-AP Certificate.
Class AP Deferred Amount: As to any Distribution Date on or prior to the
Credit Support Depletion Date, (i) with respect to each Class of the Class
1-AP, Class 2-AP and Class 3-AP Certificates, the aggregate of the applicable
AP Percentage of the principal portion of each Realized Loss on a Discount
Mortgage Loan in the related Mortgage Pool, and (ii) with respect to the Class
2-A5 Certificates, 3.3333333333% of the principal portion of each Realized
Loss in respect of the Underlying Security, to be allocated to such Class of
Certificates on such Distribution Date or previously allocated to such Class
of Certificates and not yet paid to the Holders of such Class of Certificates
pursuant to Section 5.02(a)(vi).
Class AP Certificate: Any Class 1-AP, Class 2-AP or Class 3-AP
Certificate.
Class B Certificate: Any Class B1, Class B1X, Class B2, Class B2X, Class
B3, Class B4, Class B5 or Class B6 Certificate.
Class LTR Interest: The sole residual interest in the Lower Tier REMIC.
Class Notional Amount: With respect to each Class of Notional
Certificates, the applicable class notional amount calculated as provided in
the Preliminary Statement hereto.
Class Principal Amount: With respect to each Class of Certificates other
than any Class of Notional Certificates, the aggregate of the Certificate
Principal Amounts of all Certificates of such Class at the date of
determination. With respect to each Class of Notional Certificates, zero.
Class Percentage: With respect to each Class of Subordinate Certificates,
for each Distribution Date, the percentage obtained by dividing the Class
Principal Amount of such Class immediately prior to such Distribution Date by
the aggregate Certificate Principal Amount of all Certificates immediately
prior to such date.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: January 28, 2000.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: A separate account established and maintained by the
Master Servicer pursuant to Section 4.01.
Compensating Interest Payment: With respect to each Mortgage Pool and any
Distribution Date, an amount equal to the excess of (x) the aggregate of any
Prepayment Interest Shortfalls with respect to such Mortgage Pool and such
Distribution Date over (y) the aggregate of any amounts required to be paid by
any Servicer in respect of such shortfalls but not paid; provided that such
amount, to the extent payable by the Master Servicer, shall not exceed the
Aggregate Master Servicing Compensation that would be payable to the Master
Servicer in respect of such Mortgage Pool and such Distribution Date without
giving effect to any Compensating Interest Payment.
Component: Each of the components having the designations and initial
Component Notional Amounts as follows:
Initial Component
Designation Notional Amount
----------- ---------------
AX(1) Component $1,992,730
AX(2) Component $1,242,057
Component Certificate: Any Class AX Certificate.
Component Interest Rate: None.
Component Notional Amount: With respect to any Distribution Date and the
AX(1) Component, the product of (i) the fraction, the numerator of which is
the amount by which the weighted average (by Scheduled Principal Balance) of
the Net Mortgage Rates of the Pool 1 AX Loans exceeds 9.00%, and the
denominator of which 8.00%, and (ii) the aggregate Scheduled Principal Balance
of the Pool 1 AX Loans as of the first day of the related Accrual Period; with
respect to any Distribution Date and the AX(1) Component, the product of (i)
the fraction, the numerator of which is the amount by which the weighted
average (by Scheduled Principal Balance) of the Net Mortgage Rates of the Pool
2 AX Loans exceeds 7.50%, and the denominator of which 8.00%, and (ii) the
aggregate Scheduled Principal Balance of the Pool 2 AX Loans as of the first
day of the related Accrual Period.
Component Principal Amount: Not applicable.
Control: The meaning specified in Section 8-106 of the UCC.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Veterans Administration.
Converted Mortgage Loan: None.
Convertible Mortgage Loan: None.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
Cooperative Loan Documents: As to any Cooperative Loan, (i) the
Cooperative Shares, together with a stock power in blank; (ii) the original
executed Security Agreement and the assignment of the Security Agreement
endorsed in blank; (iii) the original executed Proprietary Lease and the
assignment of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and the assignment of the Recognition Agreement
(or a blanket assignment of all Recognition Agreements) endorsed in blank; (v)
the executed UCC-1 financing statement with evidence of recording thereon,
which has been filed in all places required to perfect the security interest
in the Cooperative Shares and the Proprietary Lease; and (vi) executed UCC-3
financing statements (or copies thereof) or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the Cooperative Shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at 000 Xxxx Xxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance.
Corresponding Class: With respect to any class of Lower Tier Interests,
the Class of Certificates or Component so designated in the Preliminary
Statement hereto. With respect to any Class of Certificates or Component, the
class or classes of Lower Tier Interests so designated in the Preliminary
Statement hereto.
Corresponding Component: None.
Credit Score: With respect to any Mortgage Loan, a numerical assessment
of default risk with respect to the Mortgagor under such Mortgage Loan,
determined on the basis of a methodology developed by Fair, Xxxxx & Co., Inc.
Credit Support Depletion Date: The Distribution Date on which, giving
effect to all distributions on such date, the aggregate Certificate Principal
Amount of the Subordinate Certificates is reduced to zero.
Credit Support Percentage: As to any Class of Subordinate Certificates
and any Distribution Date, the sum of the Class Percentages of all Classes of
Certificates that rank lower in priority than such Class.
Custodial Agreement: Each custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto.
Cut-off Date: January 1, 2000.
Cut-off Date Aggregate Principal Balance: With respect to the Mortgage
Loans in the Trust Fund on the Closing Date, the Aggregate Principal Balance
for all such Mortgage Loans as of the Cut-off Date.
DCR: Duff & Xxxxxx Credit Rating Co., or any successor in interest.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction of
the Scheduled Payment that the related Mortgagor is obligated to pay on any
Due Date as a result of any proceeding under Bankruptcy law or any similar
proceeding.
Deceased Holder: With respect to a Holder of a Redemption Certificate, as
defined in Section 5.06(b).
Deferred Interest: With respect to any Class of Negative Amortization
Certificates and any Distribution Date, the lesser of (x) the applicable
Interest Distribution Amount for such date (without giving effect to any
Deferred Interest) and (y) the aggregate Mortgage Loan Negative Amortization,
if any, for the related Due Period.
Deficiency Amount: The meaning assigned to such term in the Class 2-A3
Certificate Insurance Policy.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under such Mortgage Loan, which
valuation results from a proceeding under Bankruptcy law or any similar
proceeding.
Definitive Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the Trust
Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Deposit Date: With respect to each Distribution Date, the Business Day
immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Designated Rate: With respect to Pool 1, 9.00% per annum; with respect to
Pool 2, 7.50% per annum; and with respect to Pool 3, 7.25% per annum.
Determination Date: With respect to each Distribution Date, the day of
the latest Remittance Date immediately preceding such Distribution Date.
Discount Mortgage Loan: With respect to Pool 1, any Mortgage Loan with a
Net Mortgage Rate less than 9.00% per annum; with respect to Pool 2, any
Mortgage Loan with a Net Mortgage Rate less than 7.50% per annum; and with
respect to Pool 3, any Mortgage Loan with a Net Mortgage Rate less than 7.25%
per annum.
Disqualified Organization: Either (i) the United States, (ii) any state
or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative
described in section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax imposed
by section 511 of the Code, (vii) any organization described in section
1381(a)(2)(C) of the Code, (viii) any "electing large partnership" described
in section 775 of the Code, or (ix) any other entity designated as a
Disqualified Organization by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month, or, if such 25th day is
not a Business Day, the next succeeding Business Day commencing in February
2000.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period commencing
on the second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the first day of the month in which
such Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable
to the Rating Agencies or (ii) an account or accounts the deposits in which
are insured by the FDIC to the limits established by such corporation,
provided that any such deposits not so insured shall be maintained in an
account at a depository institution or trust company whose commercial paper or
other short term debt obligations (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company, the
commercial paper or other short term debt or deposit obligations of such
holding company or depository institution, as the case may be) have been rated
by each Rating Agency in its highest short-term rating category, or (iii) a
segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity, in
a manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts
may bear interest.
Eligible Investments: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America
or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository
institution or trust company (including U.S. subsidiaries of foreign
depositories and the Trustee or any agent of the Trustee, acting in its
respective commercial capacity) incorporated or organized under the laws
of the United States of America or any state thereof and subject to
supervision and examination by federal or state banking authorities, so
long as at the time of investment or the contractual commitment providing
for such investment the commercial paper or other short-term debt
obligations of such depository institution or trust company (or, in the
case of a depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other short-term
debt or deposit obligations of such holding company or deposit
institution, as the case may be) have been rated by each Rating Agency in
its highest short-term rating category or one of its two highest
long-term rating categories;
(iii) repurchase agreements collateralized by Direct Obligations or
securities guaranteed by GNMA, FNMA or FHLMC with any registered
broker/dealer subject to Securities Investors' Protection Corporation
jurisdiction or any commercial bank insured by the FDIC, if such
broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest short-term rating
category;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America
or any state thereof which have a credit rating from each Rating Agency,
at the time of investment or the contractual commitment providing for
such investment, at least equal to one of the two highest short-term
credit ratings of each Rating Agency; provided, however, that securities
issued by any particular corporation will not be Eligible Investments to
the extent that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held as
part of the Trust Fund to exceed 20% of the sum of the Aggregate
Principal Balance and the aggregate principal amount of all Eligible
Investments in the Certificate Account; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating Agency;
(v) commercial paper (including both non interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 180 days after the date of issuance thereof)
rated by each Rating Agency in its highest short-term ratings;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of the
United States of America or its agencies or instrumentalities (which
obligations are backed by the full faith and credit of the United States
of America) held by a custodian in safekeeping on behalf of the holders
of such receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating by
either Rating Agency of any of the Certificates (in the case of the Class
2-A3 Certificates, determined without regard to the Class 2-A3
Certificate Insurance Policy). Such investments in this subsection (viii)
may include money market mutual funds, including, without limitation, the
VISTA U.S. Government Money Market Fund or any other fund for which U.S.
Bank National Association (the "Bank"), the Trustee or an affiliate
thereof serves as an investment advisor, administrator, shareholder
servicing agent, and/or custodian or subcustodian, notwithstanding that
(i) the Bank or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (ii) the Bank or an
affiliate thereof charges and collects fees and expenses for services
rendered pursuant to this Agreement, and (iii) services performed for
such funds and pursuant to this Agreement may converge at any time. The
Trustee specifically authorizes the Bank or an affiliate thereof to
charge and collect from the Trustee such fees as are collected from all
investors in such funds for services rendered to such funds (but not to
exceed investment earnings thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
Entitlement Holder: The meaning specified in Section 8-102(a)(7) of the
UCC.
Entitlement Order: The meaning specified in Section 8-102(a)(8) of the
UCC (i.e., generally, an order directing the transfer or redemption of any
Financial Asset).
ERISA-Restricted Certificate: Any Subordinate Certificate.
Escrow Account: Any account established and maintained by the applicable
Servicer pursuant to the applicable Servicing Agreement.
Event of Default: Any one of the conditions or circumstances enumerated
in Section 6.14(a).
Excess Loss: Not applicable.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: In the case of each Class of
Certificates other than the Class 3-A and Class 3-AP Certificates, February
25, 2030, and in the case of the Class 3-A and Class 3-AP Certificates,
February 25, 2015.
Financial Asset: The meaning specified in Section 8-102(a)(9) of the UCC.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch IBCA, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Fraud Loss: Not applicable.
Fraud Loss Limit: Not applicable.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4,
Class 1-A5, Class 1-A6, Class 1-A7, Class 1-AP, Class R Certificate or the
AX(1) Component.
Group 1 Scheduled Principal Amount: With respect to any Distribution Date
and each Pool 1 Mortgage Loan, the amount described in clause (i)(a) (without
application of the related Senior Percentage) of the definition of Senior
Principal Distribution Amount for Group 1.
Group 1 Unscheduled Principal Amount: With respect to any Distribution
Date and each Pool 1 Mortgage Loan, the sum of the amounts described in
clauses (ii) and (iii) (without application of the related Senior Prepayment
Percentage) of the definition of Senior Principal Distribution Amount
hereunder for Group 1.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4,
Class 2-A5, Class 2-AP Certificate or the AX(2) Component.
Group 3: All of the Group 3 Certificates.
Group 3 Certificate: Any Class 3-A or Class 3-AP Certificate.
Group Subordinate Amount: As to any Mortgage Pool and any Distribution
Date, the excess of (i) the Non-AP Pool Balance of such Mortgage Pool for the
immediately preceding Distribution Date over (ii) the sum of the aggregate of
the Certificate Principal Amounts of the Non-AP Senior Certificates of the
related Certificate Group immediately prior to the related Distribution Date
less, with respect to Group 2, 96.0000000000% of the Security Principal
Balance of the Underlying Security immediately prior to the related Underlying
Distribution Date.
Holder or Certificateholder: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar except that, solely for the
purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the
Trustee, the Master Servicer, any Servicer or any Affiliate thereof shall be
deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Trustee shall be protected in relying upon any such
consent, only Certificates which a Responsible Officer of the Trustee knows to
be so owned shall be disregarded. The Trustee may request and conclusively
rely on certifications by the Depositor, the Master Servicer and any Servicer
in determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer or such Servicer.
Impac: Impac Funding Corporation or its successor in interest, in its
capacity as a Servicer.
Individual Redemption Certificate: A Redemption Certificate with a $1,000
Certificate Principal Amount.
HUD: The United States Department of Housing and Urban Development, or
any successor thereto.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Insurance Agreement: The Insurance Agreement dated as of January 1, 2000,
among the Depositor, the Seller, the Trustee and the Class 2-A3 Certificate
Insurer, a copy of which is attached as Exhibit L hereto.
Insurance Policy: Any Primary Mortgage Insurance Policy and any standard
hazard insurance policy, earthquake insurance policy or title insurance policy
relating to the Mortgage Loans or the Mortgaged Properties, to be in effect as
of the Closing Date or thereafter during the term of this Agreement.
Initial LIBOR Rate: 5.80%.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property or (iii) required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note.
Insured Payment: The meaning assigned to such term in the Class 2-A3
Certificate Insurance Policy.
Interest Distribution Amount: Not applicable.
Interest Shortfall: With respect to any Class of Certificates (other than
a Principal Only Certificate) and any Distribution Date, any Accrued
Certificate Interest not distributed (or added to principal) with respect to
any previous Distribution Date, other than any Net Prepayment Interest
Shortfalls.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: February 25, 2033.
Xxxxxx Capital: Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings
Inc., or any successor in interest.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR Rate.
With respect to each subsequent Accrual Period, the per annum rate determined
pursuant to Section 4.05 on the basis of London interbank offered rate
quotations for one-month Eurodollar deposits, as such quotations may appear on
the display designated as page "LIUS01M" on the Bloomberg Financial Markets
Commodities News (or such other page as may replace such page on that service
for the purpose of displaying London interbank offered quotations of major
banks).
LIBOR Certificate: Any Class 1-A1 or Class 1-A3 Certificate.
LIBOR Component: None.
LIBOR Determination Date: The second London Business Day immediately
preceding the commencement of each Accrual Period with respect to any LIBOR
Certificates other than the first such Accrual Period.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Master Servicer or the applicable Servicer has determined that all amounts
that it expects to recover on behalf of the Trust Fund from or on account of
such Mortgage Loan have been recovered.
Liquidation Expenses: Expenses that are incurred by the Master Servicer
or a Servicer in connection with the liquidation of any defaulted Mortgage
Loan and are not recoverable under the applicable Primary Mortgage Insurance
Policy, including, without limitation, foreclosure and rehabilitation
expenses, legal expenses and unreimbursed amounts expended pursuant to
Sections 9.06, 9.16 or 9.22.
Liquidation Proceeds: Cash received in connection with the liquidation of
a defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the sale of
the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any amounts remaining in the
related Escrow Account.
Living Holder: Any Holder of a Redemption Certificate other than a
Deceased Holder.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of the
principal balance of such Mortgage Loan at origination, or such other date as
is specified, to the Original Value thereof.
London Business Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England and New York City.
Lower Tier Interest: Any one of the classes of lower tier interests
described in the Preliminary Statement hereto.
Lower Tier Interest Rate: As to each Lower Tier Interest, the applicable
interest rate, if any, as described in the Preliminary Statement hereto.
Lower Tier REMIC: One of the two separate REMICs as described in the
Preliminary Statement hereto.
Maintenance: With respect to any Cooperative Unit, the rent or fee paid
by the Mortgagor to the Cooperative Corporation pursuant to the Proprietary
Lease.
Master Servicer: Aurora Loan Services Inc., or any successor in interest,
or if any successor master servicer shall be appointed as herein provided,
then such successor master servicer.
Master Servicing Fee: As to any Distribution Date and each Mortgage Loan,
an amount equal to the product of the Master Servicing Fee Rate and the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Due Period. The Master Servicing Fee for any Mortgage Loan shall be
payable in respect of any Distribution Date solely from the interest portion
of the Scheduled Payment or other payment or recovery with respect to such
Mortgage Loan.
Master Servicing Fee Rate: 0.02% per annum.
Material Defect: As defined in Section 2.02(c) hereof.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
Corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related Mortgage,
or an Assignment of Mortgage, has been or will be recorded in the name of
MERS, as agent for the holder from time to time of the Mortgage Note.
Moody's: Xxxxx'x Investors Service, Inc., or any successor in interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a fee
simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Trustee or a Custodian pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 or Section
2.05, including without limitation, each Mortgage Loan listed on the Mortgage
Loan Schedule, as amended from time to time.
Mortgage Loan Sale Agreement: The agreement, dated as of January 1, 2000,
for the sale of the Mortgage Loans by Xxxxxx Capital to the Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan, as such schedule may be amended from time
to time pursuant to Section 2.02.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Any of Pool 1, Pool 2 or Pool 3.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: Either of (x) the fee simple interest in real
property, together with improvements thereto including any exterior
improvements to be completed within 120 days of disbursement of the related
Mortgage Loan proceeds, or (y) in the case of a Cooperative Loan, the related
Cooperative Shares and Proprietary Lease, securing the indebtedness of the
Mortgagor under the related Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization Certificate: None.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan,
the related Liquidation Proceeds net of unreimbursed expenses incurred in
connection with liquidation or foreclosure and unreimbursed Advances,
Servicing Advances, Servicing Fees and Retained Interest, if any, received and
retained in connection with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage Rate
thereof reduced by the sum of the applicable Servicing Fee Rate, the Master
Servicing Fee Rate, the Trustee Fee Rate, the Retained Interest Rate, if any,
and, if applicable, any premium rate on the related Pool PMI Policy.
Net Prepayment Interest Shortfall: With respect to each Mortgage Pool and
any Distribution Date, the excess, if any, of any Prepayment Interest
Shortfalls with respect to the Mortgage Loans in such Mortgage Pool for such
date over the sum of any amounts paid by the Servicers with respect to such
shortfalls and any amount that is required to be paid by the Master Servicer
in respect of such shortfalls pursuant to this Agreement.
Non-AP Percentage: As to any Discount Mortgage Loan, the percentage
equivalent of the fraction, the numerator of which is the Net Mortgage Rate of
such Discount Mortgage Loan and the denominator of which is the applicable
Designated Rate. As to any Non-Discount Mortgage Loan in any Mortgage Pool,
100%.
Non-AP Pool Balance: As to each Mortgage Pool and any Distribution Date,
the sum of the applicable Non-AP Percentage of the Scheduled Principal Balance
of each Mortgage Loan included in such Mortgage Pool.
Non-AP Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class
1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 2-A1, Class 2-A2, Class 2-A3,
Class 2-A4, Class 3-A, Class AX or Class R Certificate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: With respect to Pool 1, any Mortgage Loan
with a Net Mortgage Rate equal to or greater than 9.00% per annum; with
respect to Pool 2, any Mortgage Loan with a Net Mortgage Rate equal to or
greater than 7.50% per annum; and with respect to Pool 3, any Mortgage Loan
with a Net Mortgage Rate equal to or greater than 7.25% per annum.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any 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.
Notice of Nonpayment: The notice to be delivered by the Trustee to the
Class 2-A3 Certificate Insurer with respect to any Distribution Date pursuant
to Section 5.07(a), which shall be in the form attached to the Class 2-A3
Certificate Insurance Policy.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class 1-A3, Class 1-A5, Class 1-A6, Class AX,
Class B1X or Class B2X Certificate.
Notional Component: None.
Offering Document: The Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the Board,
any Vice Chairman, the President, any Vice President or any Assistant Vice
President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Trustee, and who may be in-house or outside
counsel to the Depositor, the Master Servicer or a Servicer but which must be
Independent outside counsel with respect to any such opinion of counsel
concerning the transfer of any Residual Certificate or concerning certain
matters with respect to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or the taxation, or the federal income tax status, of
each REMIC.
Original Credit Support Percentage: With respect to each Class of
Subordinate Certificates, the Credit Support Percentage for such Class of
Certificates on the Closing Date.
Original Group Subordinate Amount: As to any Mortgage Pool, the Group
Subordinate Amount for such Mortgage Pool on the Closing Date.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate and the related
Class, such Certificate's percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any Certificate other than a
Notional Certificate, the Percentage Interest evidenced thereby shall equal
the initial Certificate Principal Amount thereof divided by the initial Class
Principal Amount of all Certificates of the same Class. With respect to any
Notional Certificate, the Percentage Interest evidenced thereby shall be as
specified on the face thereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: Xxxxxx Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set forth in
29 C.F.R. 2510.3-101.
Pool 1: The aggregate of the Mortgage Loans identified on the Mortgage
Loan Schedule as being included in Pool 1.
Pool 1 AX Loans: The Pool 1 Mortgage Loans identified on Schedule D
hereto.
Pool 1 Mortgage Loan: Any Mortgage Loan in Pool 1.
Pool 2: The aggregate of the Mortgage Loans identified on the Mortgage
Loan Schedule as being included in Pool 2 and the Underlying Security.
Pool 2 AX Loans: The Pool 2 Mortgage Loans identified on Schedule E
hereto.
Pool 2 Mortgage Loan: Any Mortgage Loan in Pool 2.
Pool 3: The aggregate of the Mortgage Loans identified on the Mortgage
Loan Schedule as being included in Pool 3.
Pool 3 Mortgage Loan: Any Mortgage Loan in Pool 3.
Pool PMI Policy: An insurance policy issued by a pool insurer on a pool
of Mortgage Loans, including certain of the Mortgage Loans.
Preference Amount: The meaning assigned to such term in the Class 2-A3
Certificate Insurance Policy.
Prepayment Interest Excess: With respect to any Principal Prepayment in
full received on Mortgage Loans serviced by Aurora from the first day through
the sixteenth day of any month, all amounts paid in respect of interest at the
applicable Net Mortgage Rate on such Principal Prepayment.
Prepayment Interest Shortfall: With respect to any Distribution Date and
(x) any Principal Prepayment in part and, with respect to Mortgage Loans
serviced by Impac, any Principal Prepayment in full (in each case, other than
any such prepayment received on the first of the month) and (y) any Principal
Prepayment in full with respect to Mortgage Loans serviced by Aurora received
on or after the seventeenth day of the month immediately preceding the month
of such Distribution Date, but on or before the last day of the month
immediately preceding the month of such Distribution Date, the difference
between (i) one full month's interest at the applicable Mortgage Rate (giving
effect to any applicable Relief Act Reduction), as reduced by the Master
Servicing Fee Rate, the applicable Servicing Fee Rate and the Retained
Interest Rate, on the outstanding principal balance of such Mortgage Loan
immediately prior to such prepayment and (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment Penalty Amounts: With respect to any Distribution Date, all
premiums or charges paid by the obligors under the Mortgage Notes due to
Principal Prepayments collected by the Servicers during the immediately
preceding Prepayment Period.
Prepayment Period: With respect to any Distribution Date and any
Principal Prepayment in part and, with respect to Mortgage Loans serviced by
Impac, any Principal Prepayment in full (including any liquidation), the
period from the second day of the month immediately preceding the month of
such Distribution Date to the first day of the month of such Distribution
Date. With respect to any Distribution Date and a Principal Prepayment in full
(including any liquidation) with respect to Mortgage Loans serviced by Aurora,
the period from the seventeenth day of the month immediately preceding the
month of such Distribution Date to the sixteenth day of the month of such
Distribution Date.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if any,
on an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Amount Schedules: Not applicable.
Principal Only Certificate: Any Class 1-AP, Class 2-A4, Class 2-A5, Class
2-AP or Class 3-AP Certificate.
Principal Prepayment: Any Mortgagor payment of principal (other than a
Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the applicable Servicing
Agreement.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated January 21, 2000, together
with the accompanying prospectus dated January 15, 1999, relating to the Class
1-A1, Class 1-A2, Class 1-A3, Class 1-A4, Class 1-A5, Class 1-A6, Class 1-A7,
Class 1-AP, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class
2-AP, Class 3-A, Class 3-AP, Class AX, Class B1, Class B1X, Class B2, Class
B2X, Class B3 and Class R Certificates.
Purchase Price: With respect to the repurchase of a Mortgage Loan
pursuant to this Agreement, an amount equal to the sum of (a) 100% of the
unpaid principal balance of such Mortgage Loan, (b) accrued interest thereon
at the Mortgage Rate, from the date as to which interest was last paid to (but
not including) the Due Date immediately preceding the related Distribution
Date and (c) any unreimbursed Servicing Advances with respect to such Mortgage
Loan. The Class 2-A3 Certificate Insurer shall be reimbursed from the Purchase
Price for any unpaid Reimbursement Amount due to the Class 2-A3 Certificate
Insurer with respect to such repurchased Mortgage Loan. The Master Servicer or
the applicable Servicer (or the Trustee, if applicable) shall be reimbursed
from the Purchase Price for any Mortgage Loan or related REO Property for any
Advances made with respect to such Mortgage Loan that are reimbursable to the
Master Servicer or such Servicer under this Agreement or the related Servicing
Agreement, as well as any unreimbursed Servicing Advances and accrued and
unpaid Master Servicing Fees or Servicing Fees, as applicable.
QIB: As defined in Section 3.03(c).
Qualified GIC: A guaranteed investment contract or surety bond providing
for the investment of funds in the Collection Account or the Certificate
Account and insuring a minimum, fixed or floating rate of return on
investments of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two highest
rating categories or, if such insurance company has no long-term debt, whose
claims paying ability is rated by each Rating Agency in one of its two highest
rating categories, and whose short-term debt is rated by each Rating Agency in
its highest rating category;
(b) provide that the Trustee may exercise all of the rights under
such contract or surety bond without the necessity of taking any action by any
other Person;
(c) provide that if at any time the then current credit standing of
the obligor under such guaranteed investment contract is such that continued
investment pursuant to such contract of funds would result in a downgrading of
any rating of the Certificates (which in the case of the Class 2-A3
Certificates is determined without regard to the Class 2-A3 Certificate
Insurance Policy), the Trustee shall terminate such contract without penalty
and be entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided under
such contract to the date of delivery of such funds to the Trustee;
(d) provide that the Trustee's interest therein shall be
transferable to any successor trustee hereunder; and
(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Collection Account or the Certificate
Account, as the case may be, not later than the Business Day prior to any
Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under the
laws of the states in which the related Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided and whose claims paying ability
is rated by each Rating Agency in its highest rating category or whose
selection as an insurer will not adversely affect the rating of the
Certificates (which in the case of the Class 2-A3 Certificates is determined
without regard to the Class 2-A3 Certificate Insurance Policy).
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan, provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together
with interest thereon at the applicable Mortgage Rate net of the Master
Servicing Fee and the applicable Servicing Fee from the date as to which
interest was last paid through the end of the Due Period in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Trustee for deposit into the Certificate Account, and shall be treated as
a Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not lower than
the Net Mortgage Rate of the related Deleted Mortgage Loan; (iii) has a
remaining stated term to maturity not longer than, and not more than one year
shorter than, the remaining term to stated maturity of the related Deleted
Mortgage Loan; (iv) (A) has a Loan-to-Value Ratio as of the date of such
substitution of not greater than 80%, provided, however, that if the related
Deleted Mortgage Loan has a Loan-to-Value Ratio of greater than 80%, then the
Loan-to-Value Ratio of such substitute Mortgage Loan may be greater than 80%
but shall not be greater than the Loan-to-Value Ratio of the related Deleted
Mortgage Loan and (B) the addition of such substitute Mortgage Loan does not
increase the weighted average Loan-to-Value Ratio of the related Mortgage Pool
by more than 5%; (v) will comply with all of the representations and
warranties relating to Mortgage Loans set forth herein, as of the date as of
which such substitution occurs; (vi) is not a Cooperative Loan unless the
related Deleted Mortgage Loan was a Cooperative Loan; (vii) if applicable, has
the same index as and a margin not less than that of the related Deleted
Mortgage Loan; (viii) has not been delinquent for a period of more than 30
days more than once in the twelve months immediately preceding such date of
substitution; (ix) is covered by a Primary Mortgage Insurance Policy if the
related Deleted Mortgage Loan is so covered, and the Loan-to-Value Ratio of
such Mortgage Loan is greater than 80%; and (x) has a Credit Score not greater
than 20 points lower than the Credit Score of the related Deleted Mortgage
Loan, provided, however, that if the Deleted Mortgage Loan does not have a
Credit Score, then such substitute Mortgage Loan shall have a Credit Score
equal to or greater than 700. In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one mortgage
loan is substituted for one or more Deleted Mortgage Loans, then (a) the
Scheduled Principal Balance referred to in clause (i) above shall be
determined such that the aggregate Scheduled Principal Balance of all such
substitute Mortgage Loans shall not exceed the aggregate Scheduled Principal
Balance of all Deleted Mortgage Loans and (b) each of (1) the rate referred to
in clause (ii) above, (2) the remaining term to stated maturity referred to in
clause (iii) above, (3) the Loan-to-Value Ratio referred to in clause (iv)
above and (4) the Credit Score referred to in clause (x) above shall be
determined on a weighted average basis, provided that the final scheduled
maturity date of any Qualifying Substitute Mortgage Loan shall not exceed the
Final Scheduled Distribution Date of any Class of Certificates. Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall
certify such qualification in writing to the Trustee.
Rating Agency: Each of DCR and Xxxxx'x.
Realized Loss: (a) with respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, plus (ii) interest at the applicable Net Mortgage
Rate from the date as to which interest was last paid up to the last day of
the month of such liquidation, minus (iii) Liquidation Proceeds received, net
of amounts that are reimbursable to the Master Servicer or any Servicer with
respect to such Mortgage Loan (other than Advances of principal and interest)
including expenses of liquidation, (b) with respect to each Mortgage Loan that
has become the subject of a Deficient Valuation, the difference between the
unpaid principal balance of such Mortgage Loan immediately prior to such
Deficient Valuation and the unpaid principal balance of such Mortgage Loan as
reduced by the Deficient Valuation, and (c) with respect to the Underlying
Security, any "Realized Loss" (as such term is defined in the Underlying
Agreement) of interest or principal allocated thereto. In determining whether
a Realized Loss on a Liquidated Mortgage Loan is a Realized Loss of interest
or principal, Liquidation Proceeds shall be allocated, first, to payment of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage Loan.
Recognition Agreement: With respect to any Cooperative Loan, an agreement
between the related Cooperative Corporation and the originator of such
Mortgage Loan to establish the rights of such originator in the related
Cooperative Property.
Record Date: With respect to any Distribution Date and each Class of
Certificates other than any LIBOR Certificates, the close of business on the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs; with respect to any Distribution Date and any LIBOR
Certificates, the day immediately preceding the related Distribution Date.
Redemption Certificate: Any Class 2-A3 Certificate.
Reference Banks: As defined in Section 4.05.
Reimbursement Amount: As defined in Section 5.02(a)(vii).
Relevant UCC: The Uniform Commercial Code as in effect in the applicable
jurisdiction.
Relief Act Reduction: With respect to any Mortgage Loan as to which there
has been a reduction in the amount of interest collectible thereon as a result
of application of the Solders' and Sailors' Civil Relief Act of 1940, as
amended, any amount by which interest collectible on such Mortgage Loan for
the Due Date in the related Due Period is less than interest accrued thereon
for the applicable one-month period at the Mortgage Rate without giving effect
to such reduction.
REMIC: Each of the Lower Tier REMIC and the Upper Tier REMIC, as
described in the Preliminary Statement hereto.
REMIC Provisions: The provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 86OG of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the foregoing may be
in effect from time to time.
Remittance Date: The day in each month on which each Servicer is required
to remit payments to the account maintained by the Master Servicer, as
specified in the related Servicing Agreement, which in the case of Aurora is
the 18th day of each month (or if such 18th day is not a Business Day, the
next succeeding Business Day) and, in the case of Impac is the 19th day of
each month (or if such 19th day is not a Business Day, the immediately
preceding Business Day).
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Reserve Interest Rate: As defined in Section 4.05.
Residual Certificate: Any Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department and having direct responsibility for the administration of this
Agreement.
Restricted Certificate: Any Class B4, Class B5 or Class B6 Certificate.
Retained Interest: Interest in respect of each Pool 1 Mortgage Loan other
than the Pool 1AX Loans, each Pool 2 Mortgage Loan other than the Pool 2AX
Loans and each Pool 3 Mortgage Loan retained by the Retained Interest Holder
at the Retained Interest Rate.
Retained Interest Holder: The Depositor or any successor in interest by
assignment or otherwise.
Retained Interest Rate: With respect to each Pool 1 Mortgage Loan other
than the Pool 1AX Loans, each Pool 2 Mortgage Loan other than the Pool 2AX
Loan and each Pool 3 Mortgage Loan, the excess of the Mortgage Rate of such
Mortgage Loan over the applicable Trust Rate.
Rounding Account: The Class 2-A3 Rounding Account.
S&P: Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx
Companies, Inc., or any successor in interest.
Scheduled Amount: Not applicable.
Scheduled Certificate: None.
Scheduled Component: None.
Scheduled Payment: Each scheduled payment of principal and interest (or
of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan, as reduced (except where otherwise specified herein) by the amount of
any related Debt Service Reduction (excluding all amounts of principal and
interest that were due on or before the Cut-off Date whenever received) and,
in the case of an REO Property, an amount equivalent to the Scheduled Payment
that would have been due on the related Mortgage Loan if such Mortgage Loan
had remained in existence. In the case of any bi-weekly payment Mortgage Loan,
all payments due on such Mortgage Loan during any Due Period shall be deemed
collectively to constitute the Scheduled Payment due on such Mortgage Loan in
such Due Period.
Scheduled Principal Amount: As to any Distribution Date, an amount equal
to the amount described in clause (i)(b) of the definition of Senior Principal
Distribution Amount.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as of
any Distribution Date, the principal balance of such Mortgage Loan at the
close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or before
the Due Date in the related Due Period, whether or not received from the
Mortgagor or advanced by any Servicer or the Master Servicer, and all amounts
allocable to unscheduled principal payments (including Principal Prepayments,
Net Liquidation Proceeds, Insurance Proceeds and condemnation proceeds, in
each case to the extent identified and applied prior to or during the
applicable Prepayment Period) and (ii) any REO Property as of any Distribution
Date, the Scheduled Principal Balance of the related Mortgage Loan on the Due
Date immediately preceding the date of acquisition of such REO Property by or
on behalf of the Trustee (reduced by any amount applied as a reduction of
principal on the Mortgage Loan). With respect to any Mortgage Loan and the
Cut-off Date, as specified in the Mortgage Loan Schedule.
Securities Account: A separate account established pursuant to Section
4.07.
Securities Intermediary: The Person acting as Securities Intermediary
under this Agreement (which is U.S. Bank National Association), its successor
in interest, and any successor Securities Intermediary appointed pursuant to
Section 4.07.
Security Agreement: With respect to any Cooperative Loan, the agreement
between the owner of the related Cooperative Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Cooperative Shares and the related Proprietary Lease.
Security Entitlement: The meaning specified in Section 8-102(a)(17) of the
UCC.
Security Payment: Any interest or principal payments made on the
Underlying Security on any Underlying Distribution Date after the January 2000
Underlying Distribution Date.
Security Principal Balance: With respect to any date of determination, the
outstanding principal balance of the Underlying Security immediately following
the January 2000 Underlying Distribution date, reduced by all payments or
losses allocated to principal on the Underlying Security on or before such
date of determination.
Seller: Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc., or
any successor in interest.
Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4,
Class 1-A5, Class 1-A6, Class 1-A7, Class 1-AP, Class 2-A1, Class 2-A2, Class
2-A3, Class 2-A4, Class 2-A5, Class 2-AP, Class 3-A, Class 3-AP, Class AX or
Class R Certificate.
Senior Percentage: With respect to each Mortgage Pool and any Distribution
Date, the percentage equivalent of the fraction, the numerator of which is the
aggregate of the Certificate Principal Amounts of the Class 1-A1, Class 1-A2,
Class 1-A4, Class 1-A7 and Class R Certificates, in the case of Pool 1, the
Class 2-A1, Class 2-A2, Class 2-A3 and Class 2-A4 Certificates less
96.666666667% of the Security Principal Balance of the Underlying Security
(immediately prior to the related Underlying Distribution Date), in the case
of Pool 2, and the Class 3-A and Class 3-AP Certificates, in the case of Pool
3, immediately prior to such Distribution Date and the denominator of which is
the related Non-AP Pool Balance for the immediately preceding Distribution
Date.
Senior Prepayment Percentage: With respect to each Mortgage Pool and any
Distribution Date occurring during the five years beginning on the first
Distribution Date, 100%. With respect to each Mortgage Pool and for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date, the related Senior Percentage plus the following percentage
of the related Subordinate Percentage for such Distribution Date: for any
Distribution Date in the first year thereafter, 70%; for any Distribution Date
in the second year thereafter, 60%; for any Distribution Date in the third
year thereafter, 40%; for any Distribution Date in the fourth year thereafter,
20%; and for any subsequent Distribution Date, 0%; provided, however, that if
on any of the foregoing Distribution Dates the Senior Percentage for any
Mortgage Pool exceeds the initial Senior Percentage for such Mortgage Pool,
the Senior Prepayment Percentage for each Mortgage Pool on such Distribution
Date will once again equal 100% for such Distribution Date.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage for any Mortgage Pool below the level in effect for the most recent
prior period set forth in the paragraph above shall be effective on any
Distribution Date if, as of the first Distribution Date as to which any such
decrease applies, (i) the average outstanding principal balance on such
Distribution Date and for the preceding five Distribution Dates of all
Mortgage Loans that were delinquent 60 days or more (including for this
purpose any Mortgage Loans in foreclosure and the Scheduled Payments that
would have been due on Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust Fund if the related Mortgage
Loan had remained in existence) is greater than or equal to 50% of the
applicable Group Subordinate Amount immediately prior to such Distribution
Date or (ii) cumulative Realized Losses with respect to the Mortgage Loans in
any Mortgage Pool exceed (a) with respect to the Distribution Date on the
fifth anniversary of the first Distribution Date, 30% of the related Original
Group Subordinate Amount, (b) with respect to the Distribution Date on the
sixth anniversary of the first Distribution Date, 35% of the related Original
Group Subordinate Amount, (c) with respect to the Distribution Date on the
seventh anniversary of the first Distribution Date, 40% of the related
Original Group Subordinate Amount, (d) with respect to the Distribution Date
on the eighth anniversary of the first Distribution Date, 45% of the related
Original Group Subordinate Amount, and (e) with respect to the Distribution
Date on the ninth anniversary of the first Distribution Date or thereafter,
50% of the related Original Group Subordinate Amount.
Senior Principal Distribution Amount: For each Certificate Group and any
Distribution Date, the sum of the following amounts:
(i) the sum of (a) the product of (1) the related Senior Percentage
for such date and (2) the principal portion (multiplied by the applicable
Non-AP Percentage) of each Scheduled Payment, on each Mortgage Loan in the
related Mortgage Pool due during the related Due Period and (b) with
respect to Pool 2, 96.0000000000% of the principal portion of Security
Payments received for the related Underlying Distribution Dates;
(ii) the product of (a) the related Senior Prepayment Percentage for
such date and (b) each of the following amounts (multiplied by the
applicable Non-AP Percentage): (1) each Principal Prepayment on the
Mortgage Loans in the related Mortgage Pool collected during the related
Prepayment Period, (2) each other unscheduled collection, including
Insurance Proceeds and Net Liquidation Proceeds (other than with respect
to any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period) representing or allocable
to recoveries of principal received during the related Prepayment Period,
and (3) the principal portion of all proceeds of the purchase of any
Mortgage Loan in the related Mortgage Pool (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually
received by the Trustee during the related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period, the lesser of (a) the
related net Liquidation Proceeds allocable to principal (multiplied by the
applicable Non-AP Percentage) and (b) the product of the related Senior
Prepayment Percentage for such date and the Scheduled Principal Balance
(multiplied by the applicable Non-AP Percentage) of such related Mortgage
Loan at the time of liquidation; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Servicer: Any Servicer that has entered into any of the Servicing
Agreements attached as Exhibit E hereto, or any successors in interest.
Initially, the Servicers are Aurora Loan Services Inc. and Impac Funding
Corporation.
Servicing Advances: Expenditures incurred by the Servicer in connection
with the liquidation or foreclosure of a Mortgage Loan which are eligible for
reimbursement under the Servicing Agreement.
Servicing Agreement: The Servicing Agreement between Aurora and the
Seller, dated as of January 1, 2000, attached hereto in Exhibit E, the
Reconstituted Servicing Agreement between Impac and the Seller dated as of
January 1, 2000, attached hereto in Exhibit E, and any other servicing
agreement entered into between a successor servicer and the Seller or the
Trustee pursuant to the terms hereof.
Servicing Fee: The Servicing Fee specified in the applicable Servicing
Agreement (which shall include any Prepayment Interest Excess).
Servicing Fee Rate: With respect to any Servicer, as specified in the
applicable Servicing Agreement.
Servicing Officer: Any officer of the Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished by
the Master Servicer to the Trustee, as such list may from time to time be
amended.
Special Hazard Loss: Not applicable.
Special Hazard Loss Limit: Not applicable.
Specified Rating: A rating of Aaa by Xxxxx'x or AAA by DCR.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Subordinate Certificate: Any Class B Certificate.
Subordinate Certificate Writedown Amount: As to any Distribution Date, the
amount by which (i) the sum of the Class Principal Amounts of all the
Certificates (after giving effect to the distribution of principal and the
application of Realized Losses in reduction of the Certificate Principal
Amounts of the Certificates on such Distribution Date) exceeds (ii) the sum of
the Security Principal Balance of the Underlying Security after giving effect
to distributions on the related Underlying Distribution Date and the aggregate
Scheduled Principal Balance of the Mortgage Loans for such Distribution Date.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, the percentage obtained by dividing the
Class Principal Amount of such Class immediately prior to such Distribution
Date by the aggregate Certificate Principal Amount of all Subordinate
Certificates immediately prior to such Distribution Date.
Subordinate Percentage: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior
Percentage for such Distribution Date.
Subordinate Prepayment Percentage: With respect to each Mortgage Pool and
any Distribution Date, the difference between 100% and the related Senior
Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: For each Certificate Group and
any Distribution Date, the sum of the following:
(i) the sum of (a) the product of (1) the related Subordinate
Percentage for such date and (2) the principal portion (multiplied by the
applicable Non-AP Percentage) of each Scheduled Payment on each Mortgage
Loan in the related Mortgage Pool due during the related Due Period and
(b) if the Class Principal Amounts of (a) all Group 2 Certificates other
than the Class 2-A5 Certificates have been reduced to zero, 96.0000000000%
of the principal portion of the Security Payments received for the related
Underlying Distribution Date or (b) all Group 2 Certificates have been
reduced to zero, 100% of the principal portion of the Security Payments
received for the related Underlying Distribution Date;
(ii) the product of (a) the related Subordinate Prepayment Percentage
for such date and (b) each of the following amounts (multiplied by the
applicable Non-AP Percentage): (1) each Principal Prepayment on the
Mortgage Loans in the related Mortgage Pool collected during the related
Prepayment Period, (2) each other unscheduled collection, including
Insurance Proceeds and Net Liquidation Proceeds (other than with respect
to any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period) representing or allocable
to recoveries of principal received during the related Prepayment Period,
and (3) the principal portion of all proceeds of the purchase of any
Mortgage Loan in the related Mortgage Pool (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually
received by the Trustee during the related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to principal
of any Mortgage Loan in the related Mortgage Pool that was finally
liquidated during the related Prepayment Period, the related net
Liquidation Proceeds allocable to principal (multiplied by the applicable
Non-AP Percentage) less any related amount paid pursuant to subsection
(iii) of the definition of Senior Principal Distribution Amount for the
related Certificate Group; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid;
TAC Amount: Not applicable.
TAC Certificate: None.
TAC Component: None.
Tax Matters Person: The "tax matters person" as specified in the REMIC
Provisions.
Termination Price: As defined in Section 7.01 hereof.
Title Insurance Policy: A title insurance policy maintained with respect
to a Mortgage Loan.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: Each seller of Mortgage Loans to Xxxxxx Capital pursuant to a
Transfer Agreement.
Trust Fund: The corpus of the trust created pursuant to this Agreement,
consisting of the Mortgage Loans (other than any Retained Interest), the
assignment of the Depositor's rights under the Mortgage Loan Sale Agreement
(other than any Retained Interest), the Underlying Security, such amounts as
shall from time to time be held in the Collection Account, the Certificate
Account, any Escrow Account, the Securities Account, any Account Property, the
Insurance Policies, any REO Property, the Class 2-A3 Certificate Insurance
Policy, the Class 2-A3 Reserve Fund, the Class 2-A3 Rounding Account, the
Class 2-A3 Policy Payments Account and the other items referred to in, and
conveyed to the Trustee under, Section 2.01(a).
Trust Rate: With respect to Pool 1 and each Pool 1 Mortgage Loan, the sum
of (i) 9.00%, (ii) the applicable Servicing Fee Rate, (iii) the Master
Servicing Fee Rate, (iv) the Trustee Fee Rate and (v) the premium rate on the
related Pool PMI Policy, if applicable; with respect to Pool 2 and each Pool 2
Mortgage Loan, the sum of (i) 7.50%, (ii) the applicable Servicing Fee Rate,
(iii) the Master Servicing Fee Rate and (iv) the Trustee Fee Rate; and with
respect to Pool 3 and each Pool 3 Mortgage Loan, the sum of (i) 7.25%, (ii)
the applicable Servicing Fee Rate, (iii) the Master Servicing Fee Rate and
(iv) the Trustee Fee Rate.
Trustee: U.S. Bank National Association, not in its individual capacity
but solely as Trustee, or any successor in interest, or if any successor
trustee or any co-trustee shall be appointed as herein provided, then such
successor trustee and such co-trustee, as the case may be.
Trustee Fee: As to any Distribution Date, an amount equal to the product
of the Trustee Fee Rate and the aggregate Scheduled Principal Balance of the
related Mortgage Loans as of the first day of the related Due Period. The
Trustee Fee shall be calculated separately, by Mortgage Pool.
Trustee Fee Rate: 0.0065% per annum.
UCC: The Uniform Commercial Code as adopted in the State of New York.
Undercollateralization Distribution: As defined in Section 5.02(f)(ii).
Undercollateralized Group: With respect to any Distribution Date, the
Non-AP Senior Certificates of any Certificate Group as to which the aggregate
Certificate Principal Amount thereof, less, with respect to Group 2, the
Security Principal Balance of the Underlying Security (after giving effect to
distributions on the related Underlying Distribution Date), after giving
effect to distributions pursuant to Sections 5.02(a) and (b) on such date is
greater than the Non-AP Pool Balance of the related Mortgage Pool for such
Distribution Date.
Underlying Agreement: The Trust Agreement among the Depositor, the Master
Servicer and the Trustee, dated as of August 1, 1999, as amended from time to
time, relating to the Underlying Trust Fund.
Underlying Distribution Date: The date on which Security Payments are
required to be made on the Underlying Security pursuant to the Underlying
Agreement, which will be the 25th day of each month, or if that day is not a
business day, the next business day after the 25th day of the month.
Underlying Distribution Date Statement: The report made available to
Certificateholders of the Underlying Trust Fund on the related Underlying
Distribution Date.
Underlying Mortgage Loans: The mortgage loans in the Underlying Trust Fund
relating to the Underlying Security.
Underlying Security: The Class 2-NC Certificate issued by the Underlying
Trust Fund.
Underlying Trust Fund: The Trust Fund formed by the Underlying Agreement.
Underlying Trustee: The trustee of the Underlying Trust Fund.
Unscheduled Principal Amount: As to any Distribution Date, the sum of the
amounts described in clauses (ii)(b) and (iii) (without regard to the
reference in clause (iii) to the "Senior Prepayment Percentage") of the
definition of Senior Principal Distribution Amount.
Upper Tier REMIC: One of the two separate REMICs as described in the
Preliminary Statement hereto.
Voting Interests: The portion of the voting rights of all the Certificates
that is allocated to any Certificate for purposes of the voting provisions of
this Agreement. At all times during the term of this Agreement, 99% of all
Voting Interests shall be allocated to the Certificates other than the
Notional Certificates and 1% of all Voting Interests shall be allocated to the
Notional Certificates. Voting Interests allocated to the Notional Certificates
shall be allocated among the Classes of such Certificates (and among the
Certificates of each such Class) in proportion to their Class Notional Amounts
(or Notional Amounts). Voting Interests shall be allocated among the other
Classes of Certificates (and among the Certificates of each such Class) in
proportion to their Class Principal Amounts (or Certificate Principal
Amounts); provided, however, that on and after the date, if any, on which the
Class 2-A3 Certificate Insurer has paid a claim under the Class 2-A3
Certificate Insurance Policy in respect of the Class 2-A3 Certificates, the
Class 2-A3 Certificate Insurer shall be entitled to exercise all consent,
voting and related rights of such class.
Section 1.02. Calculations Respecting Mortgage Loans. Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan in the Trust Fund shall be made based upon current information as to the
terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans and payments to be made to the Trustee as
supplied to the Trustee by the Master Servicer. The Trustee shall not be
required to recompute, verify or recalculate the information supplied to it by
the Master Servicer.
Article II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans and Underlying Security. (a) Concurrently with the execution
and delivery of this Agreement, the Depositor does hereby transfer, assign,
set over, deposit with and otherwise convey to the Trustee, without recourse,
subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust, all the right, title
and interest of the Depositor in and to the Mortgage Loans and the Underlying
Security. Such conveyance includes, without limitation, the right to all
distributions of principal and interest received on or with respect to the
Underlying Security payable in and after February 2000 and the right to all
distributions of principal and interest received on or with respect to the
Mortgage Loans on and after the Cut-off Date other than, with respect to the
Mortgage Loans, (i) any amounts representing Retained Interest and (ii)
payments of principal and interest due on or before such date, and all such
payments due after such date but received prior to such date and intended by
the related Mortgagors to be applied after such date, together with all of the
Depositor's right, title and interest in and to the Collection Account and all
amounts from time to time credited to and the proceeds of the Collection
Account, the Certificate Account and all amounts from time to time credited to
and the proceeds of the Certificate Account, any Escrow Account established
pursuant to Section 9.06 hereof and all amounts from time to time credited to
and the proceeds of any such Escrow Account, all of the Depositor's right,
title and interest in the Securities Account and all amounts from time to time
credited thereto and the proceeds of the Securities Account, any Account
Property and proceeds thereof, any REO Property and the proceeds thereof, the
Depositor's rights under any Insurance Policies related to the Mortgage Loans,
and the Depositor's security interest in any collateral pledged to secure the
Mortgage Loans, including the Mortgaged Properties and any Additional
Collateral, and any proceeds of the foregoing, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust, for
the benefit and use of the Holders of the Certificates and for the purposes
and subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund, Certificates in the authorized denominations evidencing the entire
ownership of the Trust Fund. In addition, the Depositor has caused the Class
2-A3 Certificate Insurer to deliver the Class 2-A3 Certificate Insurance
Policy for the benefit of the Class 2-A3 Certificateholders and has made an
initial deposit to the Class 2-A3 Reserve Fund of $37,500.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale Agreement (other than any right to receive
Retained Interest), including all rights of the Seller under the Servicing
Agreements with Aurora and Impac to the extent assigned under the Mortgage
Loan Sale Agreement, and delegates its obligations thereunder. The Trustee
hereby accepts such assignment and delegation, and shall be entitled to
exercise all rights of the Depositor under the Mortgage Loan Sale Agreement as
if, for such purpose, it were the Depositor. The foregoing sale, transfer,
assignment, set-over, deposit and conveyance does not and is not intended to
result in creation or assumption by the Trustee of any obligation of the
Depositor, the Seller, or any other Person in connection with the Mortgage
Loans or any other agreement or instrument relating thereto except as
specifically set forth herein.
(b) In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, or cause to be delivered to and deposited
with, the Trustee, and/or any custodian acting on the Trustee's behalf, if
applicable, the following documents or instruments with respect to each
Mortgage Loan (each a "Mortgage File") so transferred and assigned:
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee, or
in blank (in each case, with all necessary intervening endorsements as
applicable);
(ii) the original of any guarantee executed in connection with the
Mortgage Note, assigned to the Trustee;
(iii) with respect to each Mortgage Loan other than a Cooperative
Loan, the original recorded Mortgage with evidence of recording indicated
thereon. If, in connection with any Mortgage Loan, the Depositor cannot
deliver the Mortgage with evidence of recording thereon on or prior to the
Closing Date because of a delay caused by the public recording office
where such Mortgage has been delivered for recordation or because such
Mortgage has been lost, the Depositor shall deliver or cause to be
delivered to the Trustee (or its custodian), in the case of a delay due to
recording, a true copy of such Mortgage, pending delivery of the original
thereof, together with an Officer's Certificate of the Depositor
certifying that the copy of such Mortgage delivered to the Trustee (or its
custodian) is a true copy and that the original of such Mortgage has been
forwarded to the public recording office, or, in the case of a Mortgage
that has been lost, a copy thereof (certified as provided for under the
laws of the appropriate jurisdiction) and a written Opinion of Counsel
acceptable to the Trustee and the Depositor that an original recorded
Mortgage is not required to enforce the Trustee's interest in the Mortgage
Loan;
(iv) The original of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused by the
public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy of
such assumption, modification or substitution agreement, pending delivery
of the original thereof, together with an Officer's Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or its custodian) is a
true copy and that the original of such agreement has been forwarded to
the public recording office;
(v) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each Mortgage
Loan;
(vi) If applicable, such original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete chain of
assignment from the originator, or, in the case of an Intervening
Assignment that has been lost, a written Opinion of Counsel acceptable to
the Trustee that such original Intervening Assignment is not required to
enforce the Trustee's interest in the Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or certificate,
if private mortgage guaranty insurance is required;
(viii) with respect to each Mortgage Loan other than a Cooperative
Loan, the original mortgagee title insurance policy or attorney's opinion
of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage or as to any security
agreement, chattel mortgage or their equivalent that cannot be delivered
on or prior to the Closing Date because of a delay caused by the public
recording office where such document has been delivered for recordation, a
photocopy of such document, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying that
the copy of such security agreement, chattel mortgage or their equivalent
delivered to the Trustee (or its custodian) is a true copy and that the
original of such document has been forwarded to the public recording
office;
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents; and
(xi) in connection with any pledge of Additional Collateral, the
original additional collateral pledge and security agreement executed in
connection therewith, assigned to the Trustee.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) (i) Assignments of Mortgage with respect to each Non-MERS Mortgage
Loan other than a Cooperative Loan shall be recorded; provided, however, that
such Assignments need not be recorded if, in the Opinion of Counsel (which
must be Independent counsel) acceptable to the Trustee and the Rating
Agencies, recording in such states is not required to protect the Trustee's
interest in the related Non-MERS Mortgage Loans. Subject to the preceding
sentence, as soon as practicable after the Closing Date (but in no event more
than 3 months thereafter except to the extent delays are caused by the
applicable recording office), the Trustee, at the expense of the Depositor and
with the cooperation of the Servicer, shall cause to be properly recorded by
the Servicer in each public recording office where the related Mortgages are
recorded each Assignment of Mortgage referred to in subsection (b)(v) above
with respect to a Non-MERS Mortgage Loan. With respect to each Cooperative
Loan, the Trustee, at the expense of the Depositor and with the cooperation of
the Servicer, shall cause to be taken such actions as are necessary under
applicable law in order to perfect the interest of the Trustee in the related
Mortgaged Property.
(ii) With respect to each MERS Mortgage Loan, the Trustee, at the
expense of the Depositor and at the direction and with the cooperation of
the Servicer, shall cause to be taken such actions as are necessary to
cause the Trustee to be clearly identified as the owner of each such
Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee, or to the applicable Custodian on behalf of the
Trustee, under clause (b)(viii) above and is not so delivered, the Depositor
will provide a copy of such Title Insurance Policy to the Trustee, or to the
applicable Custodian on behalf of the Trustee, as promptly as practicable
after the execution and delivery hereof, but in any case within 180 days of
the Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer's Certificate which
shall include a statement to the effect that all amounts received in
connection with such prepayment that are required to be deposited in the
applicable Collection Account pursuant to Section 4.01 have been so deposited.
All original documents that are not delivered to the Trustee shall be held by
the Master Servicer or the applicable Servicer in trust for the benefit of the
Trustee and the Certificateholders.
(f) In connection with the assignment of the Underlying Security, the
Depositor shall have caused the Underlying Security to be registered in the
name of, or endorsed to the order of, U.S. Bank National Association, as
trustee, or in the name of a nominee of the Trustee, and to be delivered or
transferred to the Trustee. The Depositor shall cooperate with the Trustee in
providing any required transfer documentation with respect to such conveyance.
Any payment received by the Depositor which shall be due to the Trust Fund
hereunder shall be paid immediately to the Trustee on or prior to the Closing
Date.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation
for Trust Fund. (a) The Trustee, by execution and delivery hereof,
acknowledges receipt of the Underlying Security, the Mortgage Files pertaining
to the Mortgage Loans listed on the Mortgage Loan Schedule, subject to review
thereof by the Trustee, or by the applicable Custodian on behalf of the
Trustee, under this Section 2.02. The Trustee, or the applicable Custodian on
behalf of the Trustee, will execute and deliver to the Depositor and the
Master Servicer on the Closing Date an Initial Certification in the form
annexed hereto as Exhibit B-1 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-1, as applicable).
(b) Within 45 days after the Closing Date, the applicable Custodian will,
on behalf of the Trustee and for the benefit of Holders of the Certificates,
review each Mortgage File to ascertain that all required documents set forth
in Section 2.01 have been received and appear on their face to contain the
requisite signatures by or on behalf of the respective parties thereto, and
shall deliver to the Depositor and the Master Servicer an Interim
Certification in the form annexed hereto as Exhibit B-2 (or in the form
annexed to the applicable Custodial Agreement as Exhibit B-2, as applicable)
to the effect that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan prepaid in full or any Mortgage Loan
specifically identified in such certification as not covered by such
certification), (i) all of the applicable documents specified in Section
2.01(b) are in its possession and (ii) such documents have been reviewed by it
and appear to relate to such Mortgage Loan. The Trustee, or the applicable
Custodian on behalf of the Trustee, shall make sure that the documents are
executed and endorsed, but shall be under no duty or obligation to inspect,
review or examine any such documents, instruments, certificates or other
papers to determine that the same are valid, binding, legally effective,
properly endorsed, genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded or are in recordable form or
that they are other than what they purport to be on their face. Neither the
Trustee nor any Custodian shall have any responsibility for verifying the
genuineness or the legal effectiveness of or authority for any signatures of
or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (b) above the
Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear
regular on its face (i.e., is mutilated, damaged, defaced, torn or otherwise
physically altered) or appears to be unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule (each, a "Material Defect"), the
Trustee, or the applicable Custodian on behalf of the Trustee, shall promptly
identify the Mortgage Loan to which such Material Defect relates in the
Interim Certificate delivered to the Depositor or the Master Servicer (and to
the Trustee). Within 90 days of its receipt of such notice, the Depositor
shall be required to cure such Material Defect (and, in such event, the
Depositor shall provide the Trustee with an Officer's Certificate confirming
that such cure has been effected). If the Depositor does not so cure such
Material Defect, it shall, if a loss has been incurred with respect to such
Mortgage Loan that would, if such Mortgage Loan were not purchased from the
Trust Fund, constitute a Realized Loss, and such loss is attributable to the
failure of the Depositor to cure such Material Defect, repurchase the related
Mortgage Loan from the Trust Fund at the Purchase Price. A loss shall be
deemed to be attributable to the failure of the Depositor to cure a Material
Defect if, as determined by the Depositor, upon mutual agreement acting in
good faith, absent such Material Defect, such loss would not have been
incurred. Within the two year period following the Closing Date, the Depositor
may, in lieu of repurchasing a Mortgage Loan pursuant to this Section 2.02,
substitute for such Mortgage Loan a Qualifying Substitute Mortgage Loan
subject to the provisions of Section 2.05. The failure of the Trustee or the
applicable Custodian to give the notice contemplated herein within 45 days
after the Closing Date shall not affect or relieve the Depositor of its
obligation to repurchase any Mortgage Loan pursuant to this Section 2.02 or
any other Section of this Agreement requiring the repurchase of Mortgage Loans
from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Depositor and the Master Servicer a
Final Certification substantially in the form annexed hereto as Exhibit B-3
(or in the form annexed to the applicable Custodial Agreement as Exhibit B-3,
as applicable) evidencing the completeness of the Mortgage Files in its
possession or control, with any exceptions noted thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, the Certificateholders or the Class
2-A3 Certificate Insurer of any unsatisfied duty, claim or other liability on
any Mortgage Loan or to any Mortgagor.
(f) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and respective
certifications thereof as provided in this Section 2.02.
Section 2.03. Representations and Warranties of the Depositor. (a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, to the Class 2-A3 Certificate Insurer, and to the Master
Servicer, as of the Closing Date or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry
on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties or the certificate of incorporation or bylaws
of the Depositor;
(iii) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee and the Master Servicer, constitutes a valid and binding
obligation of the Depositor enforceable against it in accordance with its
terms except as such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally and (B) general
principles of equity regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement;
(vi) immediately prior to the transfer and assignment of the Mortgage
Loans to the Trustee, the Depositor was the sole owner of record and
holder of each Mortgage Loan, and the Depositor had good and marketable
title thereto, and had full right to transfer and sell each Mortgage Loan
to the Trustee free and clear, subject only to (1) liens of current real
property taxes and assessments not yet due and payable and, if the related
Mortgaged Property is a condominium unit, any lien for common charges
permitted by statute, (2) covenants, conditions and restrictions, rights
of way, easements and other matters of public record as of the date of
recording of such Mortgage acceptable to mortgage lending institutions in
the area in which the related Mortgaged Property is located and
specifically referred to in the lender's Title Insurance Policy or
attorney's opinion of title and abstract of title delivered to the
originator of such Mortgage Loan, and (3) such other matters to which like
properties are commonly subject which do not, individually or in the
aggregate, materially interfere with the benefits of the security intended
to be provided by the Mortgage, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and had full
right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan
pursuant to this Agreement;
(vii) immediately prior to the sale thereof to the Trustee, the
Depositor owned the Underlying Security, had good and marketable title
thereto, free and clear of any pledge, lien, security interest, charge,
claim, equity, or encumbrance of any kind, and upon the delivery or
transfer of the Underlying Security to the Trustee as contemplated herein,
the Trustee will receive good and marketable title to the Underlying
Security, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
(b) The representations and warranties of each Transferor with respect to
the related Mortgage Loans in the applicable Transfer Agreement, which have
been assigned to the Trustee hereunder, were made as of the date specified in
the applicable Transfer Agreement (or underlying agreement, if such Transfer
Agreement is in the form of an assignment of a prior agreement). To the extent
that any fact, condition or event with respect to a Mortgage Loan constitutes
a breach of both (i) a representation or warranty of the applicable Transferor
under the applicable Transfer Agreement and (ii) a representation or warranty
of Xxxxxx Capital under the Mortgage Loan Sale Agreement, the only right or
remedy of the Trustee or of any Certificateholder shall be the Trustee's right
to enforce the obligations of the applicable Transferor under any applicable
representation or warranty made by it. The Trustee acknowledges that the
representations and warranties of Xxxxxx Capital in Section 1.04(b) of the
Mortgage Loan Sale Agreement are applicable only to facts or conditions that
arise or events that occur subsequent to the date as of which the
representations and warranties with respect to the related Mortgage Loans in
the Transfer Agreements were made, and which do not constitute a breach of any
representation or warranty made by the applicable Transferor in the applicable
Transfer Agreement. The Trustee acknowledges that Xxxxxx Capital shall have no
obligation or liability with respect to any breach of a representation or
warranty made by it with respect to the Mortgage Loans if the fact, condition
or event constituting such breach also constitutes a breach of a
representation or warranty made by the applicable Transferor in the applicable
Transfer Agreement, without regard to whether such Transferor fulfills its
contractual obligations in respect of such representation or warranty. The
Trustee further acknowledges that the Depositor shall have no obligation or
liability with respect to any breach of any representation or warranty with
respect to the Mortgage Loans (except as set forth in Section 2.03(a)(vi))
under any circumstances.
Section 2.04. Discovery of Breach. It is understood and agreed that the
representations and warranties (i) set forth in Section 2.03, (ii) of Xxxxxx
Capital set forth in the Mortgage Loan Sale Agreement and assigned to the
Trustee by the Depositor hereunder and (iii) of each Transferor, assigned by
Xxxxxx Capital to the Depositor pursuant to the Mortgage Loan Sale Agreement
and assigned to the Trustee by the Depositor hereunder shall each survive
delivery of the Underlying Security, the Mortgage Files and the Assignment of
Mortgage of each Mortgage Loan to the Trustee and shall continue throughout
the term of this Agreement. Upon discovery by either the Depositor, the Master
Servicer, the Trustee or the Class 2-A3 Certificate Insurer of a breach of any
of such representations and warranties that adversely and materially affects
the value of the related Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties. Within 90 days of the
discovery of a breach of any representation or warranty given to the Trustee
and the Class 2-A3 Certificate Insurer by the Depositor or given by Xxxxxx
Capital and assigned to the Trustee, the Depositor or Xxxxxx Capital, as
applicable, shall either (a) cure such breach in all material respects, (b)
repurchase such Mortgage Loan or any property acquired in respect thereof from
the Trustee at the Purchase Price or (c) within the two year period following
the Closing Date, substitute a Qualifying Substitute Mortgage Loan for the
affected Mortgage Loan. In the event of discovery of a breach of any
representation and warranty of any Transferor assigned to the Trustee, the
Trustee may enforce its rights under the applicable Transfer Agreement for the
benefit of Certificateholders.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans. (a)
With respect to any Mortgage Loan repurchased by the Depositor pursuant to
this Agreement, by Xxxxxx Capital pursuant to the Mortgage Loan Sale Agreement
or by any Transferor pursuant to the applicable Transfer Agreement, the
principal portion of the funds received by the Trustee in respect of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
shall be deposited in the Collection Account. The Trustee, upon receipt of the
full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt
of the Mortgage File for a Qualifying Substitute Mortgage Loan substituted for
a Deleted Mortgage Loan (and any applicable Substitution Amount), shall
release or cause to be released and reassign to the Depositor, Xxxxxx Capital
or the applicable Transferor, as applicable, the related Mortgage File for the
Deleted Mortgage Loan and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation or
warranty, as shall be necessary to vest in such party or its designee or
assignee title to any Deleted Mortgage Loan released pursuant hereto, free and
clear of all security interests, liens and other encumbrances created by this
Agreement, which instruments shall be prepared by the Trustee (or its
custodian), and the Trustee shall have no further responsibility with respect
to the Mortgage File relating to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor or Xxxxxx Capital, as applicable, must deliver to the
Trustee (or its custodian) the Mortgage File for the Qualifying Substitute
Mortgage Loan containing the documents set forth in Section 2.01(b) along with
a written certification certifying as to the delivery of such Mortgage File
and containing the granting language set forth in Section 2.01(a); and (ii)
the Depositor will be deemed to have made, with respect to such Qualified
Substitute Mortgage Loan, each of the representations and warranties made by
it with respect to the related Deleted Mortgage Loan. As soon as practicable
after the delivery of any Qualifying Substitute Mortgage Loan hereunder, the
Trustee, at the expense of the Depositor and at the direction and with the
cooperation of the Servicer, shall (i) with respect to a Qualifying Substitute
Mortgage Loan that is a Non-MERS Mortgage Loan, cause the Assignment of
Mortgage to be recorded by the Servicer if required pursuant to Section
2.01(c)(i), or (ii) with respect to a Qualifying Substitute Mortgage Loan that
is a MERS Mortgage Loan, cause to be taken such actions as are necessary to
cause the Trustee to be clearly identified as the owner of each such Mortgage
Loan on the records of MERS if required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to make
the substitution) that, under current law, such substitution will not (A)
affect adversely the status of any REMIC established hereunder as a REMIC, or
of the related "regular interests" as "regular interests" in any such REMIC,
or (B) cause any such REMIC to engage in a "prohibited transaction" or
prohibited contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause. It is intended that the conveyance of the
Depositor's right, title and interest in and to property constituting the
Trust Fund pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Depositor hereby
grants to the Trustee for the benefit of the Holders of the Certificates and
the Class 2-A3 Certificate Insurer a first priority security interest in all
of the Depositor's right, title and interest in, to and under, whether now
owned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting the Trust Fund to secure payment of the Certificates;
and (3) this Agreement shall constitute a security agreement under applicable
law. If such conveyance is deemed to be in respect of a loan and the Trust
created by this Agreement terminates prior to the satisfaction of the claims
of any Person holding any Certificate, the security interest created hereby
shall continue in full force and effect and the Trustee shall be deemed to be
the collateral agent for the benefit of such Person, and all proceeds shall be
distributed as herein provided.
Article III
THE CERTIFICATES
Section 3.01. The Certificates. (a) The Certificates shall be issuable in
registered form only and shall be securities governed by Article 8 of the New
York Uniform Commercial Code. The Book-Entry Certificates will be evidenced by
one or more certificates, beneficial ownership of which will be held in the
dollar denominations in Certificate Principal Amount or Notional Principal
Amount, as applicable, or in the Percentage Interests, specified herein. Each
Class of Book-Entry Certificates shall be issued in the minimum denominations
in Certificate Principal Amount (or Notional Amount) or Percentage Interest
specified in the Preliminary Statement hereto and in integral multiples of $1
or 5% (in the case of Certificates issued in Percentage Interests) in excess
thereof. Each Class of Non-Book Entry Certificates other than the Residual
Certificate shall be issued in definitive, fully registered form in the
minimum denominations in Certificate Principal Amount (or Notional Amount)
specified in the Preliminary Statement hereto and in integral multiples of $1
in excess thereof. The Residual Certificate shall be issued as a single
Certificate and maintained in definitive, fully registered form in a minimum
denomination equal to 100% of the Percentage Interest of such Class. The
Certificates may be issued in the form of typewritten certificates. One
Certificate of each Class of Certificates other than any Class of Residual
Certificates may be issued in any denomination in excess of the minimum
denomination.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Each Certificate shall, on
original issue, be authenticated by the Trustee upon the order of the
Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02. Registration. The Trustee is hereby appointed, and hereby
accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may appoint
a bank or trust company to act as Certificate Registrar. A registration book
shall be maintained for the Certificates collectively. The Certificate
Registrar may resign or be discharged or removed and a new successor may be
appointed in accordance with the procedures and requirements set forth in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A Certificate
(other than Book-Entry Certificates which shall be subject to Section 3.09
hereof) may be transferred by the Holder thereof only upon presentation and
surrender of such Certificate at the office of the Certificate Registrar duly
endorsed or accompanied by an assignment duly executed by such Holder or his
duly authorized attorney in such form as shall be satisfactory to the
Certificate Registrar. Upon the transfer of any Certificate in accordance with
the preceding sentence, the Trustee shall execute, and the Trustee or any
Authenticating Agent shall authenticate and deliver to the transferee, one or
more new Certificates of the same Class and evidencing, in the aggregate, the
same aggregate Certificate Principal Amount as the Certificate being
transferred. No service charge shall be made to a Certificateholder for any
registration of transfer of Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any registration of transfer of
Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number of
new Certificates of the same Class, in authorized denominations, representing
in the aggregate the same Certificate Principal Amount as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the office
of the Certificate Registrar duly endorsed or accompanied by a written
instrument of transfer duly executed by such Holder or his duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor
or the Placement Agent, an affiliate (as defined in Rule 144(a)(1) under
the 0000 Xxx) of the Depositor or the Placement Agent or (y) being made to
a "qualified institutional buyer" (a "QIB") as defined in Rule 144A under
the Securities Act of 1933, as amended (the "Act") by a transferor who has
provided the Trustee with a certificate in the form of Exhibit F hereto;
and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the Act
by a transferor who furnishes to the Trustee a letter of the transferee
substantially in the form of Exhibit G hereto.
(d) (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 H hereto from
such transferee or (B) an Opinion of Counsel satisfactory to the Trustee and
the Depositor 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 Depositor 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 Depositor. Notwithstanding the foregoing, no
opinion or certificate shall be required for the initial issuance of the
ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no Residual
Certificate may be owned, pledged or transferred, directly or indirectly, by
or to (i) a Disqualified Organization or (ii) an individual, corporation or
partnership or other person unless such person is (A) not a Non-U.S. Person or
(B) is a Non-U.S. Person that holds a Residual Certificate in connection with
the conduct of a trade or business within the United States and has furnished
the transferor and the Trustee with an effective Internal Revenue Service Form
4224 or successor form at the time and in the manner required by the Code (any
such person who is not covered by clause (A) or (B) above is referred to
herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto
as Exhibit D-1 representing and warranting, among other things, that such
transferee is (i) neither a Disqualified Organization, an agent or nominee
acting on behalf of a Disqualified Organization, nor a Non-permitted Foreign
Holder (any such transferee, a "Permitted Transferee") and (ii) a QIB or
either the Depositor or an affiliate (as defined in Rule 405 under the Act)
thereof and the proposed transferor shall deliver to the Trustee an affidavit
in substantially the form attached hereto as Exhibit D-2. In addition, the
Trustee may (but shall have no obligation to) require, prior to and as a
condition of any such transfer, the delivery by the proposed transferee of an
Opinion of Counsel, addressed to the Depositor and the Trustee satisfactory in
form and substance to the Depositor, that such proposed transferee or, if the
proposed transferee is an agent or nominee, the proposed beneficial owner, is
not a Disqualified Organization, agent or nominee thereof, or Non-permitted
Foreign Holder. Notwithstanding the registration in the Certificate Register
of any transfer, sale, or other disposition of a Residual Certificate to a
Disqualified Organization, an agent or nominee thereof, or Non-permitted
Foreign Holder, such registration shall be deemed to be of no legal force or
effect whatsoever and such Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to,
the receipt of distributions on such Residual Certificate. The Trustee shall
not be under any liability to any person for any registration or transfer of a
Residual Certificate to a Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder or for the maturity of any payments due on
such Residual Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of the Agreement, so long as
the transfer was effected in accordance with this Section 3.03(f), unless the
Trustee shall have actual knowledge at the time of such transfer or the time
of such payment or other action that the transferee is a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder. The
Trustee shall be entitled to recover from any Holder of a Residual Certificate
that was a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder at the time it became a Holder or any subsequent
time it became a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder, all payments made on such Residual Certificate
at and after either such times (and all costs and expenses, including but not
limited to attorneys' fees, incurred in connection therewith). Any payment
(not including any such costs and expenses) so recovered by the Trustee shall
be paid and delivered to the last preceding Holder of such Residual
Certificate.
If any purported transferee shall become a registered Holder of a Residual
Certificate in violation of the provisions of this Section 3.03(f), then upon
receipt of written notice to the Trustee that the registration of transfer of
such Residual Certificate was not in fact permitted by this Section 3.03(f),
the last preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of such registration of transfer of
such Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of transfer of a Residual Certificate that is in
fact not permitted by this Section 3.03(f), for making any payment due on such
Certificate to the registered Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement so long as
the transfer was registered upon receipt of the affidavit described in the
preceding paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's acceptance
thereof, shall be deemed for all purposes to have consented to the provisions
of this section.
Section 3.04. Cancellation of Certificates. Any Certificate surrendered
for registration of transfer or exchange shall be cancelled and retained in
accordance with normal retention policies with respect to cancelled
certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Depositor and any Authenticating Agent that such
destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or the Authenticating Agent)
connected therewith. Any replacement Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of Section
3.09 with respect to Book-Entry Certificates, the Depositor, the Master
Servicer, the Trustee, the Certificate Registrar and any agent of any of them
may treat the Person in whose name any Certificate is registered upon the
books of the Certificate Registrar as the owner of such Certificate for the
purpose of receiving distributions pursuant to Sections 5.01 and 5.02 and for
all other purposes whatsoever, and neither the Depositor, the Master Servicer,
the Trustee, the Certificate Registrar nor any agent of any of them shall be
affected by notice to the contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to the Certificateholders. All funds remitted by the
Trustee to any such Paying Agent for the purpose of making distributions shall
be paid to Certificateholders on each Distribution Date and any amounts not so
paid shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the Paying
Agent on or before the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates. (a) Each Class of Book-Entry
Certificates, upon original issuance, shall be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Depositor. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full force and
effect;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate Owners
and the Clearing Agency shall be responsible for crediting the amount of
such distributions to the accounts of such Persons entitled thereto, in
accordance with the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09 conflict
with any other provisions of this Agreement, the provisions of this
Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only through
the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Certificates are issued pursuant
to Section 3.09(c), the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
distributions of principal of and interest on the Book-Entry Certificates
to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer's Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Transferor nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the 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.
Article IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. (a) On the Closing Date, the Master
Servicer shall open and shall thereafter maintain an account held in trust
(the "Collection Account"), entitled "Aurora Loan Services Inc., as Master
Servicer, in trust for the benefit of the Holders of Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2000-1." The
Collection Account shall relate solely to the Certificates issued by the Trust
Fund hereunder, and funds in such Collection Account shall not be commingled
with any other monies.
(b) The Collection Account shall be an Eligible Account. If an existing
Collection Account ceases to be an Eligible Account, the Master Servicer shall
establish a new Collection Account that is an Eligible Account within 30 days
and transfer all funds on deposit in such existing Collection Account into
such new Collection Account.
(c) The Master Servicer shall give to the Trustee prior written notice of
the name and address of the depository institution at which the Collection
Account is maintained and the account number of such Collection Account. On
each Deposit Date, the entire amount on deposit in the Collection Account
(subject to permitted withdrawals set forth in Section 4.02), excluding such
amounts not included in the Available Distribution Amount for such
Distribution Date pursuant to clauses (a) through (g) of paragraph (1) of the
definition thereof, shall be remitted to the Trustee for deposit into the
Certificate Account by wire transfer in immediately available funds. The
Master Servicer, at its option, may choose to make daily remittances from the
Collection Account to the Trustee for deposit into the Certificate Account.
(d) The Master Servicer shall deposit or cause to be deposited into the
Collection Account, no later than the Business Day following the Closing Date,
any amounts representing Scheduled Payments on the Mortgage Loans due after
the Cut-off Date and received by the Master Servicer on or before the Closing
Date. Thereafter, the Master Servicer shall deposit or cause to be deposited
in the Collection Account on the applicable Remittance Date the following
amounts received or payments made by it (other than in respect of principal of
and interest on the Mortgage Loans due on or before the Cut-Off Date):
(i) all payments on account of principal, including Principal
Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans (other
than payments due prior to the Cut-off Date), net of the premium rate on
any related Pool PMI Policy, if any, the Servicing Fee and Master
Servicing Fee with respect to each such Mortgage Loan, but only to the
extent of the amount permitted to be withdrawn or withheld from the
Collection Account in accordance with Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with respect to a
Mortgage Loan not otherwise specified in this paragraph (d), including all
Net Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation of any
REO Property, net of any unpaid Servicing Fees and Master Servicing Fees
with respect to such Mortgage Loans, but only to the extent of the amount
permitted to be withdrawn or withheld from the Collection Account in
accordance with Sections 5.04 and 9.21; provided that if a Servicer is
also the Retained Interest Holder with respect to any Mortgage Loan,
payments on account of interest on the Mortgage Loans as to which such
Servicer is the Retained Interest Holder may also be made net of the
Retained Interest with respect to each such Mortgage Loan.
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or any Servicer pursuant
to Section 5.04 or the applicable Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan purchased by any Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments (selected by and at the written direction of the Master Servicer)
which shall mature not later than the earlier of (a) the Deposit Date (except
that if such Eligible Investment is an obligation of the Trustee or the Paying
Agent, if other than the Trustee, and such Collection Account is maintained
with the Trustee or the Paying Agent, if other than the Trustee, then such
Eligible Investment shall mature not later than such applicable Distribution
Date) or (b) the day on which the funds in such Collection Account are
required to be remitted to the Trustee for deposit into the Certificate
Account, and any such Eligible Investment shall not be sold or disposed of
prior to its maturity. All such Eligible Investments shall be made in the name
of the Trustee (in its capacity as such) or its nominee. All income and gain
realized from any such investment shall be for the benefit of the Master
Servicer and shall be subject to its withdrawal or order from time to time,
subject to Section 5.05, and shall not be part of the Trust Fund. The amount
of any losses incurred in respect of any such investments shall be deposited
in such Collection Account by the Master Servicer out of its own funds,
without any right of reimbursement therefor, immediately as realized. The
foregoing requirements for deposit in the Collection Account are exclusive, it
being understood and agreed that, without limiting the generality of the
foregoing, payments of interest on funds in the Collection Account and
payments in the nature of late payment charges or assumption fees need not be
deposited by the Master Servicer in the Collection Account and may be retained
by the Master Servicer or the applicable Servicer as additional servicing
compensation. If the Master Servicer deposits in the Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Collection Account. In the event the Master Servicer does not
provide written direction to the Trustee pursuant to this Section, all funds
on deposit in the Collection Account shall remain uninvested.
Section 4.02. Application of Funds in the Collection Account. The Master
Servicer may, from time to time, make, or cause to be made, withdrawals from
the Collection Account for the following purposes:
(i) to reimburse itself or any Servicer for Advances made by it or by
such Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; the Master Servicer's right to reimburse itself pursuant to
this subclause (i) is limited to amounts received on or in respect of
particular Mortgage Loans (including, for this purpose, Liquidation
Proceeds and amounts representing Insurance Proceeds with respect to the
property subject to the related Mortgage) which represent late recoveries
(net of the applicable Servicing Fee and the Master Servicing Fee) of
payments of principal or interest respecting which any such Advance was
made, it being understood, in the case of any such reimbursement, that the
Master Servicer's or Servicer's right thereto shall be prior to the rights
of the Certificateholders;
(ii) to reimburse itself or any Servicer for any Servicing Advances
made by it or by such Servicer that it determines in good faith will not
be recoverable from amounts representing late recoveries of payments of
principal or interest respecting the particular Mortgage Loan as to which
such Servicing Advance was made or from Liquidation Proceeds or Insurance
Proceeds with respect to such Mortgage Loan, it being understood, in the
case of any such reimbursement, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse itself or any Servicer from Liquidation Proceeds
for Liquidation Expenses and for amounts expended by it pursuant to
Sections 9.20 and 9.22(a) or the applicable Servicing Agreement in good
faith in connection with the restoration of damaged property and, to the
extent that Liquidation Proceeds after such reimbursement exceed the
unpaid principal balance of the related Mortgage Loan, together with
accrued and unpaid interest thereon at the applicable Mortgage Rate less
the applicable Servicing Fee and the Master Servicing Fee for such
Mortgage Loan to the Due Date next succeeding the date of its receipt of
such Liquidation Proceeds, to pay to itself out of such excess the amount
of any unpaid assumption fees, late payment charges or other Mortgagor
charges on the related Mortgage Loan and to retain any excess remaining
thereafter as additional servicing compensation, it being understood, in
the case of any such reimbursement or payment, that such Master Servicer's
or Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(iv) in the event it has elected not to pay itself the Master
Servicing Fee out of any Mortgagor payment on account of interest or other
recovery with respect to a particular Mortgage Loan prior to the deposit
of such Mortgagor payment or recovery in the Collection Account, to pay to
itself the Master Servicing Fee for each Distribution Date and any unpaid
Master Servicing Fees for prior Distribution Dates, as reduced pursuant to
Section 5.05, from any Mortgagor payment as to interest or such other
recovery with respect to that Mortgage Loan, as is permitted by this
Agreement;
(v) to reimburse itself or any Servicer for expenses incurred by and
recoverable by or reimbursable to it or such Servicer pursuant to Section
9.04, 9.06, 9.16 or 9.22(a) or pursuant to the applicable Servicing
Agreement, and to reimburse itself for any expenses reimbursable to it
pursuant to Section 10.01(c);
(vi) to pay to the applicable Person, with respect to each Mortgage
Loan or REO Property acquired in respect thereof that has been repurchased
by such Person pursuant to this Agreement, all amounts received thereon
and not distributed on the date on which the related repurchase was
effected;
(vii) subject to Section 5.04, to pay to itself income earned on the
investment of funds deposited in the Collection Account;
(viii) to make payments to the Trustee for deposit into the
Certificate Account in the amounts and in the manner provided for in
Section 4.04;
(ix) to make distributions of the Retained Interest to the Retained
Interest Holder on each Distribution Date (other than any Retained
Interest not deposited into the Collection Account in accordance with
Section 4.01(d)(iii));
(x) to make payment to itself and others pursuant to any provision of
this Agreement;
(xi) to withdraw funds deposited in error in the Collection Account;
(xii) to clear and terminate any Collection Account pursuant to
Section 7.02;
(xiii) to reimburse a successor Master Servicer (solely in its
capacity as successor Master Servicer), for any fee or advance occasioned
by a termination of the Master Servicer, and the assumption of such duties
by the Trustee or a successor Master Servicer appointed by the Trustee
pursuant to Section 6.14, in each case to the extent not reimbursed by the
terminated Master Servicer, it being understood, in the case of any such
reimbursement or payment, that the right of the Master Servicer or the
Trustee thereto shall be prior to the rights of the Certificateholders;
and
(xiv) to reimburse any Servicer for such amounts as are due thereto
under the applicable Servicing Agreement and have not been retained by or
paid to such Servicer to the extent provided in such Servicing Agreement.
Each Servicer shall be entitled to retain as additional servicing
compensation any Prepayment Penalty Amounts or Prepayment Interest Excess.
In connection with withdrawals pursuant to subclauses (i), (iii), (iv) and
(vi) above, the Master Servicer's or Servicer's entitlement thereto is limited
to collections or other recoveries on the related Mortgage Loan. The Master
Servicer shall therefore keep and maintain a separate accounting for each
Mortgage Loan it master services for the purpose of justifying any withdrawal
from the Collection Account it maintains pursuant to such subclause (i),
(iii), (iv) and (vi).
Section 4.03. Reports to Certificateholders. (a) On each Distribution
Date, the Trustee shall deliver or cause to be delivered by first class mail
to each Certificateholder and the Class 2-A3 Certificate Insurer a written
report setting forth the following information, by Mortgage Pool and
Certificate Group (on the basis of Mortgage Loan level information obtained
from the Servicers):
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates, other than
any Class of Notional Certificates, and in respect of each Component, to
the extent applicable, allocable to principal on the Underlying Security
and the Mortgage Loans, including Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled
principal payments and unscheduled payments in the nature of principal in
each Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates, other than
any Class of Principal Only Certificates, allocable to interest on the
Underlying Security and the Mortgage Loans, including any Accrual Amount
added to the Class Principal Amount of any Class of Accrual Certificates;
(iii) the amount, if any, of any distribution to the Holders of a
Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be made by
or on behalf of the Master Servicer or any Servicer (or the Trustee) with
respect to such Distribution Date, (B) the aggregate amount of such
Advances actually made, and (C) the amount, if any, by which (A) above
exceeds (B) above;
(v) the Aggregate Principal Balance of the Mortgage Loans and the
Non-AP Pool Balance of each Mortgage Pool for such Distribution Date and
the Security Principal Balance of the Underlying Security after giving
effect to distributions on the related Underlying Distribution Date, after
giving effect to payments allocated to principal reported under clause (i)
above;
(vi) the Class Principal Amount (or Class Notional Amount) of each
Class of Certificates, to the extent applicable and the Notional Component
Amount of each Component, as of such Distribution Date after giving effect
to payments allocated to principal reported under clause (i) above (and to
the addition of any Accrual Amount in the case of any Class of Accrual
Certificates), separately identifying any reduction of any of the
foregoing Certificate Principal Amounts due to Realized Losses:
(vii) any Realized Losses realized with respect to each of the
Underlying Security and the Mortgage Loans (x) in the applicable
Prepayment Period and (y) in the aggregate since the Cut-off Date, stating
the aggregate amount of such Realized Losses;
(viii) the amount of the Master Servicing Fees, Servicing Fees and
Trustee Fee paid during the Due Period to which such distribution relates;
(ix) the number and aggregate Scheduled Principal Balance of Mortgage
Loans, as reported to the Trustee by the Master Servicer, (a) remaining
outstanding (b) delinquent one month, (c) delinquent two months, (d)
delinquent three or more months, and (e) as to which foreclosure
proceedings have been commenced as of the close of business on the last
Business Day of the calendar month immediately preceding the month in
which such Distribution Date occurs;
(x) the deemed principal balance of each REO Property as of the close
of business on the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the principal balance of such
Mortgage Loan and the number of such Mortgage Loans as of the close of
business on the Distribution Date in such preceding month;
(xii) with respect to substitution of Mortgage Loans in the preceding
calendar month, the Scheduled Principal Balance of each Deleted Mortgage
Loan, and of each Qualifying Substitute Mortgage Loan;
(xiii) the aggregate outstanding Interest Shortfalls and Net
Prepayment Interest Shortfalls, if any, for each Class of Certificates,
after giving effect to the distribution made on such Distribution Date;
(xiv) the Certificate Interest Rate applicable to such Distribution
Date with respect to each Class of Certificates;
(xv) if applicable, the amount of any shortfall (i.e., the difference
between the aggregate amounts of principal and interest which
Certificateholders would have received if there were sufficient available
amounts in the Certificate Account and the amounts actually distributed);
(xvi) any other "loan-level" information for any Mortgage Loans that
are delinquent three or more months and any REO Property held by the Trust
that is reported by the Master Servicer to the Trustee;
(xvii) the Underlying Distribution Date Statement for the related
Underlying Distribution Date;
(xviii) any Insured Payments made in respect of Class 2-A3 Guaranteed
Distributions paid under the Class 2-A3 Certificate Insurance Policy; and
(xix) any amounts withdrawn from the Class 2-A3 Reserve Fund pursuant
to Section 4.06 for that Distribution Date.
In the case of information furnished pursuant to subclauses (i), (ii) and
(viii) above, the amounts shall be expressed as a dollar amount per $1,000 of
original principal amount of Certificates.
The foregoing information and reports shall be prepared and determined by
the Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master Servicer no later than four Business Days prior to the Distribution
Date. In preparing or furnishing the Mortgage Loan data to the Trustee, the
Master Servicer shall be entitled to rely conclusively on the accuracy of the
information or data regarding the Mortgage Loans and the related REO Property
that has been provided to the Master Servicer by each Servicer, and the Master
Servicer shall not be obligated to verify, recompute, reconcile or recalculate
any such information or data.
On each Distribution Date, the Trustee shall also deliver or cause to be
delivered by first class mail to the Depositor a copy of the above-described
written report, to the following address: Mortgage Finance Group, Xxxxxx
Brothers Inc., Three World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Xxxxxx X. Xxxxx, or to such other address as the
Depositor may designate.
(b) Upon the reasonable advance written request of any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee, will be promptly forwarded to the Master Servicer,
the Master Servicer shall provide, or cause to be provided, (or, to the extent
that such information or documentation is not required to be provided by a
Servicer under the applicable Servicing Agreement, shall use reasonable
efforts to obtain such information and documentation from such Servicer, and
provide) to such Certificateholder such reports and access to information and
documentation regarding the Mortgage Loans as such Certificateholder may
reasonably deem necessary to comply with applicable regulations of the Office
of Thrift Supervision or its successor or other regulatory authorities with
respect to investment in the Certificates; provided, however, that the Master
Servicer shall be entitled to be reimbursed by such Certificateholder for such
Master Servicer's actual expenses incurred in providing such reports and
access.
(c) Within 90 days, or such shorter period as may be required by statute
or regulation, after the end of each calendar year, the Trustee shall send to
each Person who at any time during the calendar year was a Certificateholder
of record, and make available to Certificate Owners (identified as such by the
Clearing Agency) in accordance with applicable regulations, a report
summarizing the items provided to Certificateholders pursuant to Section
4.03(a) on an annual basis as may be required to enable such Holders to
prepare their federal income tax returns. Such information shall include the
amount of original issue discount accrued on each Class of Certificates and
information regarding the expenses of the Trust Fund. The Master Servicer
shall provide the Trustee with such information as is necessary for the
Trustee to prepare such reports.
Section 4.04. Certificate Account. (a) The Trustee shall establish and
maintain in its name, as trustee, a trust account (the "Certificate Account"),
to be held in trust for the benefit of the Certificateholders and the Class
2-A3 Certificate Insurer until disbursed pursuant to the terms of this
Agreement. The Certificate Account shall be an Eligible Account. If the
existing Certificate Account ceases to be an Eligible Account, the Trustee
shall establish a new Certificate Account that is an Eligible Account within
20 Business Days and transfer all funds on deposit in such existing
Certificate Account into such new Certificate Account. The Certificate Account
shall relate solely to the Certificates issued hereunder and funds in the
Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies
of the Trustee held under this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate Account
on the day on which, or, if such day is not a Business Day, the Business Day
immediately following the day on which, any monies are remitted by the Master
Servicer to the Trustee or distributions are received by the Trustee with
respect to the Underlying Security, all such amounts. The Trustee shall make
withdrawals from the Certificate Account only for the following purposes:
(i) to withdraw amounts deposited in the Certificate Account in
error;
(ii) to pay itself any investment income earned with respect to funds
in the Certificate Account invested in Eligible Investments as set forth
in subsection (c) below, and to make payments to itself and others
pursuant to any provision of this Agreement;
(iii) to make payments of the Master Servicing Fee (to the extent not
already withheld or withdrawn from the Collection Account by the Master
Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders and the Class
2-A3 Certificate Insurer pursuant to Article V; and
(v) to clear and terminate the Certificate Account pursuant to
Section 7.02.
(c) If the Trustee shall not have received a distribution with respect to
the Underlying Security by the Business Day after the Underlying Distribution
Date of the Underlying Security, the Trustee shall request the Underlying
Trustee to make such payment as promptly as possible and legally permitted and
may, and at the direction of the Certificateholders shall, subject to the
penultimate sentence of this paragraph, take any available legal action,
including the prosecution of any claims in connection therewith. The
reasonable legal fees and expenses incurred by the Trustee in connection with
the prosecution of any such legal action shall be reimbursable to the Trustee
out of the proceeds of any such action and shall be retained by the Trustee
prior to the deposit of any remaining proceeds in the Certificate Account
pending distribution thereof to Certificateholders in accordance with Section
5.02 hereof. The amount distributable to Certificateholders on the
Distribution Date immediately succeeding the receipt of such proceeds shall be
reduced by the amount so reimbursed. In the event that the Trustee has reason
to believe that the proceeds of any such legal action may be insufficient to
reimburse it for its projected legal fees and expenses, the Trustee shall
notify the Certificateholders that it is not obligated to pursue any such
available remedies unless adequate indemnity for its legal fees and expenses
is provided by Certificateholders. In the event that any such indemnity is
provided to the Trustee, the Trustee shall take such action as shall be
appropriate under the circumstances.
(d) The Trustee may invest, or cause to be invested, funds held in the
Certificate Account, which funds, if invested, shall be invested in Eligible
Investments (which may be obligations of the Trustee). All such investments
must mature no later than the next Distribution Date, and shall not be sold or
disposed of prior to their maturity. All such Eligible Investments will be
made in the name of the Trustee (in its capacity as such) or its nominee. All
income and gain realized from any such investment shall be compensation for
the Trustee and shall be subject to its withdrawal on order from time to time.
The amount of any losses incurred in respect of any such investments shall be
paid by the Trustee for deposit in the Certificate Account out of its own
funds, without any right of reimbursement therefor, immediately as realized.
Funds held in the Certificate Account that are not invested shall be held in
cash.
Section 4.05. Determination of LIBOR. (a) If the outstanding Certificates
include any LIBOR Certificates or consist of any LIBOR Components, then on
each LIBOR Determination Date the Trustee shall determine LIBOR on the basis
of the offered LIBOR quotations of the Reference Banks as of 11:00 a.m. London
time on such LIBOR Determination Date as follows:
(i) If on any LIBOR Determination Date two or more of the Reference
Banks provide such offered quotations, LIBOR for the next Accrual Period
will be the arithmetic mean of such offered quotations (rounding such
arithmetic mean if necessary to the nearest five decimal places;
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Accrual Period will be whichever is the higher of (x) LIBOR as determined
on the previous LIBOR Determination Date or (y) the Reserve Interest Rate.
The "Reserve Interest Rate" will be either (A) the rate per annum which
the Master Servicer determines to be the arithmetic mean (rounding such
arithmetic mean if necessary to the nearest five decimal places) of the
one-month Eurodollar lending rates that New York City banks selected by
the Depositor are quoting, on the relevant LIBOR Determination Date, to
the principal London offices of at least two leading banks in the London
interbank market or (B) in the event that the Trustee can determine no
such arithmetic mean, the lowest one-month Eurodollar lending rate that
the New York City banks selected by the Depositor are quoting on such
LIBOR Determination Date to leading European banks; and
(iii) If on any LIBOR Determination Date the Trustee is required but
is unable to determine the Reserve Interest Rate in the manner provided in
paragraph (ii) above, LIBOR for the next 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 Rate or Component Interest Rate (or
Rates) applicable to the LIBOR Certificates and LIBOR Components for the
relevant Accrual Period, in the absence of manifest error, will be final and
binding. In all cases, the Trustee may conclusively rely on quotations of
LIBOR for the Reference Banks as such quotations appear on the display
designated "LIUS01M" on the Bloomberg Financial Markets Commodities News.
(c) As used herein, "Reference Banks" shall mean 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 "Bloomberg Screen LIUS01M Index
Page" (as described in the definition of LIBOR) on the applicable LIBOR
Determination Date and (iii) which have been designated as such by the
Depositor and are able and willing to provide such quotations to the Depositor
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 Bloomberg Screen LIUS01M Index Page or in any other way fail to meet
the qualifications of a Reference Bank, the Depositor shall use its best
efforts to designate alternate Reference Banks.
(d) If (i) with respect to any LIBOR Determination Date LIBOR is
determined pursuant to clause (a)(iii) of this Section and (ii) on the next
succeeding LIBOR Determination Date LIBOR would, without giving effect to this
paragraph (d), be determined pursuant to such clause (a)(iii), then the
Depositor shall select an alternative interest rate index over which the
Depositor has no control that is used for determining Eurodollar lending rates
and is calculated and published (or otherwise made available) by an
independent third party, and such alternative interest rate index shall
constitute LIBOR for all purposes hereof.
Section 4.06. The Class 2-A3 Reserve Fund. (a) The Trustee shall establish
and maintain the Class 2-A3 Reserve Fund, which shall be an Eligible Account
into which there shall have been deposited the amount of $37,500 on the
Closing Date. No additional funds will be deposited in the Class 2-A3 Reserve
Fund after the Closing Date. All funds deposited in the Class 2-A3 Reserve
Fund, other than investment earnings thereon which shall be released by the
Trustee to Xxxxxx Brothers Inc., shall be held in trust for the benefit of the
Holders of the Class 2-A3 Certificates until withdrawn in accordance with
Section 5.02(d). The Class 2-A3 Reserve Fund shall be an "outside reserve
fund" under the REMIC Provisions. Xxxxxx Brothers Inc. shall be the beneficial
owner of the Class 2-A3 Reserve Fund for federal and state income tax
purposes. The Trustee, upon the instructions of the Depositor, may invest, or
cause to be invested, funds in the Class 2-A3 Reserve Fund in Eligible
Investments (which may be the obligation of the Trustee).
(b) The Trustee shall from time to time make withdrawals from the Class
2-A3 Reserve Fund on behalf of the Trust Fund for the following purposes:
(i) prior to each Distribution Date, to withdraw from the Class 2-A3
Reserve Fund an amount equal to the lesser of (a) any Net Prepayment
Interest Shortfalls and any Relief Act Reductions for Pool 2 allocable to
the Class 2-A3 Certificates for the related Distribution Date, and (b) the
amount on deposit in the Class 2-A3 Reserve Fund, and remit such amount to
the Certificate Account for distribution to the Class 2-A3
Certificateholders on such Distribution Date; and
(ii) on the earlier of (a) the Distribution Date on which the Class
Principal Amount of the Class 2-A3 Certificates is reduced to zero and (b)
the termination of this Agreement pursuant to Section 7.01, to clear and
terminate the Class 2-A3 Reserve Fund and to pay all amounts on deposit
therein to Xxxxxx Brothers Inc. at the address supplied by it to the
Trustee for such purpose.
Section 4.07. The Securities Account. The Depositor shall establish a
"Securities Account" in the name of the Securities Intermediary which shall be
pledged to the Trustee, as collateral agent, for the benefit of the
Certificateholders. The Securities Account shall be a segregated,
non-interest-bearing trust account maintained with the Trustee and established
for the purpose of holding the Underlying Security. The Depositor and the
Trustee hereby appoint U.S. Bank National Association as Securities
Intermediary with respect to the Securities Account, and the Depositor hereby
grants to the Trustee, as collateral agent for the benefit of the
Certificateholders, a security interest to secure all amounts due
Certificateholders hereunder in and to the Securities Account and the Security
Entitlements to all Financial Assets credited to the Securities Account,
including without limitation all amounts, securities, investments, Financial
Assets, investment property and other property from time to time deposited in
or credited to the Securities Account and all proceeds thereof. Amounts held
from time to time in the Securities Account will continue to be held by the
Securities Intermediary for the benefit of the Trustee, as collateral agent,
for the benefit of the Certificateholders. Upon the termination of the Trust
Fund, the Trustee shall inform the Securities Intermediary of such
termination. By acceptance of their Certificates or interests therein, the
Certificateholders shall be deemed to have appointed U.S. Bank National
Association as Securities Intermediary. U.S. Bank National Association hereby
accepts such appointment as Securities Intermediary.
(i) With respect to the Account Property credited to the Securities
Account, the Securities Intermediary agrees that:
(A) any Account Property that is held in deposit accounts shall
be held solely in a bank with a Specified Rating or a bank otherwise
approved in writing by the Rating Agencies; and each such deposit
account shall be subject to the exclusive custody and control of the
Securities Intermediary, and the Securities Intermediary shall have
sole signature authority with respect thereto;
(B) the sole assets permitted in the Securities Account shall be
those as the Securities Intermediary agrees to treat as Financial
Assets; and
(C) any such Account Property that is, or is treated as, a
Financial Asset shall be physically delivered (accompanied by any
required endorsements) to, or credited to an account in the name of,
the Securities Intermediary or other eligible institution maintaining
the Securities Account in accordance with the Securities
Intermediary's customary procedures such that the Securities
Intermediary or such other institution establishes a Security
Entitlement in favor of the Trustee with respect thereto over which
the Securities Intermediary or such other institution has Control.
(ii) The Securities Intermediary hereby confirms that (A) the
Securities Account is an account to which Financial Assets are or may be
credited, and the Securities Intermediary shall, subject to the terms of
this Agreement, treat the Trustee, as collateral agent, as entitled to
exercise the rights that comprise any Financial Asset credited to the
Securities Account, (B) all Account Property in respect of the Securities
Account will be promptly credited by the Securities Intermediary to the
Securities Account, and (C) all securities or other property underlying
any Financial Assets credited to the Securities Account shall be
registered in the name of the Securities Intermediary, endorsed to the
Securities Intermediary or in blank or credited to another securities
account maintained in the name of the Securities Intermediary and in no
case will any Financial Asset credited to the Securities Account be
registered in the name of the Depositor, payable to the order of the
Depositor or specially endorsed to the Depositor except to the extent the
foregoing have been specially endorsed to the Securities Intermediary or
in blank.
(iii) The Securities Intermediary hereby agrees that each item of
property (whether investment property, Financial Asset, security,
instrument or cash) credited to the Securities Account shall be treated as
a Financial Asset.
(iv) If at any time the Securities Intermediary shall receive any
order from the Trustee directing transfer or redemption of any financial
asset relating to the Securities Account, the Securities Intermediary
shall comply with such entitlement order without further consent by the
Depositor or any other Person. If at any time the Trustee notifies the
Securities Intermediary in writing that the Trust Fund has been terminated
in accordance herewith and the security interest granted above has been
released, then thereafter if the Securities Intermediary shall receive any
order from the Depositor directing transfer or redemption of any Financial
Asset relating to the Securities Account, the Securities Intermediary
shall comply with such entitlement order without further consent by the
Trustee or any other Person.
(v) In the event that the Securities Intermediary has or subsequently
obtains by agreement, operation of law or otherwise a security interest in
the Securities Account or any Financial Asset credited thereto, the
Securities Intermediary hereby agrees that such security interest shall be
subordinate to the security interest of the Trustee. The Financial Assets
credited to the Securities Account will not be subject to deduction,
set-off, banker's lien, or any other right in favor of any Person other
than the Trustee (except that the Securities Intermediary may set off the
face amount of any checks which have been credited to the Securities
Account but are subsequently returned unpaid because of uncollected or
insufficient funds).
(vi) There are no other agreements entered into between the
Securities Intermediary in such capacity and the Depositor with respect to
the Securities Account. In the event of any conflict between this
Agreement (or any provision of this Agreement) and any other agreement now
existing or hereafter entered into, the terms of this Agreement shall
prevail.
(vii) The rights and powers granted herein to the Trustee have been
granted in order to perfect its security interest in the Securities
Account and the Security Entitlements to the Financial Assets credited
thereto and are powers coupled with an interest and will neither be
affected by the bankruptcy of the Depositor nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in
effect until the security interest of the Trustee in the Securities
Account and such Security Entitlements has been terminated pursuant to the
terms of this Agreement and the Trustee has notified the Securities
Intermediary of such termination in writing.
(viii) Notwithstanding anything else contained herein, the Depositor
agrees that the Securities Account will be established only with the
Securities Intermediary or another institution meeting the requirements of
this Section 4.07, which agrees substantially as follows: (1) it will
comply with Entitlement Orders related to such account issued by the
Trustee, as collateral agent, without further consent by the Depositor;
(2) until termination of the Agreement, it will not enter into any other
agreement related to such account pursuant to which it agrees to comply
with Entitlement Orders of any Person other than the Trustee, as
collateral agent; and (3) all assets delivered or credited to it in
connection with such account and all investments thereof will be promptly
credited to such account.
(ix) The Depositor agrees to take or cause to be taken such further
actions, to execute, deliver and file or cause to be executed, delivered
and filed such further documents and instruments (including, without
limitation, any financing statements under the Relevant UCC or this
Agreement) as may be determined to be necessary, in order to perfect the
interests created by this Section and otherwise effectuate the purposes,
terms and conditions.
Section 4.08. Liability of the Securities Intermediary. The Securities
Intermediary shall be liable in accordance herewith only to the same extent as
the Trustee shall be liable hereunder.
Article V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. (a) Subject to Section 7.01
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least three Business Days prior to the related
Distribution Date to any Certificateholder owning an aggregate initial
Certificate Principal Amount of at least $2,500,000, or, in the case of the
Notional Certificates and Principal Only Certificates, a Percentage Interest
of 100%, by wire transfer in immediately available funds to an account
specified in the request and at the expense of such Certificateholder;
provided, however, that the final distribution in respect of any Certificate
shall be made only upon presentation and surrender of such Certificate at the
Corporate Trust Office. Wire transfers will be made at the expense of the
Holder requesting such wire transfer by deducting a wire transfer fee from the
related distribution. Notwithstanding such final payment of principal of any
of the Certificates, each Residual Certificate will remain outstanding until
the termination of each REMIC and the payment in full of all other amounts due
with respect to the Residual Certificate and at such time such final payment
in retirement of any Residual Certificate will be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office of the Trustee
or at the office of the New York Presenting Agent. If any payment required to
be made on the Certificates is to be made on a day that is not a Business Day,
then such payment will be made on the next succeeding Business Day. Payments
to the Class 2-A3 Certificate Insurer shall in all cases be made by wire
transfer of immediately available funds.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Certificate Principal Amounts (or
initial Notional Amounts).
Section 5.02. Distributions from the Certificate Account. (a) On each
Distribution Date, the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Available Distribution Amount
with respect to each Mortgage Pool, and shall distribute such amount to the
Class 2-A3 Certificate Insurer, to itself and to the Holders of record of each
Class of Certificates, in the following order of priority:
(i) from the Available Distribution Amount for Pool 2, to the Class
2-A3 Certificate Insurer, the Aggregate Class 2-A3 Certificate Insurance
Premium;
(ii) from the Available Distribution Amount for each Mortgage Pool,
to the Trustee, the Trustee Fee allocable to such Mortgage Pool for such
Distribution Date;
(iii) from the Available Distribution Amount for each Mortgage Pool,
to each Class of Senior Certificates or Component in the related
Certificate Group (other than any Class of Principal Only Certificates),
the Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Class's or such Component's allocable share of any Net
Prepayment Interest Shortfalls for the related Mortgage Pool for such
Distribution Date; provided, however, that any shortfall in available
amounts for each Mortgage Pool shall be allocated among the Classes and
any Component of the related Certificate Group in proportion to the amount
of Accrued Certificate Interest (as so reduced) that would otherwise be
distributable thereon;
(iv) from the Available Distribution Amount for each Mortgage Pool,
to each Class of Senior Certificates or Component in the related
Certificate Group (other than any Class of Principal Only Certificates),
any related Interest Shortfall for such Distribution Date; provided,
however, that any shortfall in available amounts for each Mortgage Pool
shall be allocated among the Classes and any Component of the related
Certificate Group in proportion to the Interest Shortfall for each such
Class or such Component on such Distribution Date;
(v) from the remaining Available Distribution Amount for each
Mortgage Pool, to the Senior Certificates of the related Certificate Group
(other than any Class of Notional Certificates), as follows:
(A) to the Class 1-A1, Class 1-A2, Class 1-A4, Class 1-A7, Class
1-AP and Class R Certificates, from the Available Distribution Amount
for Pool 1 for such Distribution Date, in reduction of their
respective Class Principal Amounts, concurrently, as follows:
(1) to the Class 1-A1, Class 1-A2, Class 1-A4, Class 1-A7
and Class R Certificates, in reduction of their respective Class
Principal Amounts, the Senior Principal Distribution Amount for
Pool 1 for such Distribution Date, in the following order of
priority:
(a) to the Class 1-A7 Certificates, the lesser of (i)
the Class 1-A7 Priority Amount for such Distribution Date
and (ii) 98.6% of the Senior Principal Distribution Amount
for Pool 1 for such Distribution Date, until the Class
Principal Amount thereof has been reduced to zero; and
(b) to the Class 1-A1, Class 1-A2, Class 1-A4 and
Class R Certificates, in reduction of their respective
Class Principal Amounts, the remaining Senior Principal
Distribution Amount for Pool 1 for such Distribution Date,
in the following order of priority:
(I) to the Class R Certificate, until the Class
Principal Amount thereof has been reduced to zero;
(II) to the Class 1-A1 and Class 1-A2
Certificates, until a total of $730,000 has been
distributed under this clause (v)(A)(1)(b)(II),
concurrently, as follows:
(x) to the Class 1-A1 Certificates, 98.00%
of the amount distributable under clause
(v)(A)(1)(b)(II) for such Distribution Date; and
(y) to the Class 1-A2 Certificates, 2.00% of
the amount distributable under clause
(v)(A)(1)(b)(II) for such Distribution Date; and
(III) sequentially, to the Class 1-A2, Class 1-A1
and Class 1-A4 Certificates, in that order, until the
Class Principal Amount of each such Class has been
reduced to zero; and
(2) to the Class 1-AP Certificates, the AP Principal
Distribution Amount for Pool 1, until the Class Principal
Amount thereof has been reduced to zero;
(B) to the Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4,
Class 2-A5 and Class 2-AP Certificates, from the Available
Distribution Amount for Pool 2 for such Distribution Date, in
reduction of their respective Class Principal Amounts,
concurrently, as follows:
(1) to the Class 2-A1, Class 2-A2, Class 2-A3 and
Class 2-A4 Certificates, in reduction of their respective
Class Principal Amounts, the Senior Principal Distribution
Amount for Pool 2 for such Distribution Date, in the
following order of priority:
(a) if the Distribution Date occurs on or after
the Distribution Date in February 2003, to the Class
2-A3 and Class 2-A4 Certificates, pro rata in
proportion to their respective Class Principal
Amounts, an amount on each Distribution Date up to
$41,500, until the Class Principal Amount of each such
Class has been reduced to zero;
(b) to the Class 2-A1 and Class 2-A2
Certificates, until a total of $975,000 has been
distributed under this clause (v)(B)(1)(b),
concurrently, as follows:
(x) to the Class 2-A1 Certificates, 99.00%
of the amount distributable under clause
(v)(B)(1)(b); and
(y) to the Class 2-A2 Certificates, 1.00% of
the amount distributable under clause
(v)(B)(1)(b);
(c) sequentially, to the Class 2-A2 and Class
2-A1 Certificates, in that order, until the Class
Principal Amount of such Class has been reduced to
zero; and
(d) concurrently, to the Class 2-A3 and Class
2-A4 Certificates, pro rata in proportion to their
respective Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced
to zero;
(2) to the Class 2-A5 Certificates, 3.3333333333% of
the principal portion of the Security Payment for the
related Underlying Distribution Date, until the Class
Principal Amount of such Class has been reduced to zero;
and
(3) to the Class 2-AP Certificates, the AP Principal
Distribution Amount for Pool 2 for such Distribution Date,
until the Class Principal Amount thereof has been reduced
to zero;
(C) to the Class 3-A and Class 3-AP Certificates, from the
Available Distribution Amount for Pool 3 for such Distribution
Date, in reduction of their respective Class Principal Amounts,
concurrently, as follows:
(1) to the Class 3-A Certificates, the Senior
Principal Distribution Amount for Pool 3 for such
Distribution Date, until the Class Principal Amount thereof
has been reduced to zero; and
(2) to the Class 3-AP Certificates, the AP
Distribution Amount for Pool 3 for such Distribution Date,
until the Class Principal Amount thereof has been reduced
to zero;
(vi) to the Class 1-AP, Class 2-A5, Class 2-AP and Class 3-AP
Certificates, to the extent of the remaining Available Distribution Amount
for each Mortgage Pool, the Class AP Deferred Amount for such Class and
Distribution Date, until the Class Principal Amount thereof has been
reduced to zero; provided, however, that (A) distributions pursuant to
this priority shall not exceed the aggregate Subordinate Principal
Distribution Amount for all Mortgage Pools for such date; (B) such amounts
will not reduce the Class Principal Amounts of such Classes; and (C) in
the event the aggregate Subordinate Principal Distribution Amount for all
Mortgage Pools is insufficient to fully pay the Class AP Deferred Amount
for the Class 1-AP, Class 2-A5, Class 2-AP and Class 3-AP Certificates,
such amount shall be distributed pro rata to such Classes on the basis of
their respective Class AP Deferred Amounts;
(vii) to the Class 2-A3 Certificate Insurer, any unreimbursed Insured
Payments, plus all amounts due to the Class 2-A3 Certificate Insurer under
the Insurance Agreement, together with interest thereon at the rate
specified in the Insurance Agreement (collectively, the "Reimbursement
Amounts"); and
(viii) from the remaining Available Distribution Amount for all
Mortgage Pools, subject to the prior distribution of amounts pursuant to
Section 5.02(f) in the case of clauses (C), (F), (I), (L), (O) and (R)
below, to the Subordinated Certificates, as follows:
(A) to the Class B1 and Class B1X Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by each such Class's allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
provided, however, that any shortfall in available amounts shall
be allocated between such Classes in proportion to the amount of
Accrued Certificate Interest (as so reduced) that would
otherwise be distributable thereon;
(B) to the Class B1 and Class B1X Certificates, any
Interest Shortfall for such Class on such Distribution Date;
provided, however, that any shortfall in available amounts shall
be allocated between such Classes in proportion to the Interest
Shortfall for each such Class on such Distribution Date;
(C) to the Class B1 Certificates, in reduction of the Class
Principal Amount thereof, such Class's Subordinate Class
Percentage of each Subordinate Principal Distribution Amount for
such Distribution Date, except as provided in Section 5.02(c),
until the Certificate Principal Balance thereof has been reduced
to zero;
(D) to the Class B2 and Class B2X Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by each such Class's allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
provided, however, that any shortfall in available amounts shall
be allocated between such Classes in proportion to the amount of
Accrued Certificate Interest (as so reduced) that would
otherwise be distributable thereon;
(E) to the Class B2 and Class B2X Certificates, any
Interest Shortfall for such Class on such Distribution Date;
provided, however, that any shortfall in available amounts shall
be allocated between such Classes in proportion to the Interest
Shortfall for each such Class on such Distribution Date;
(F) to the Class B2 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been
reduced to zero;
(G) to the Class B3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(H) to the Class B3 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(I) to the Class B3 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Amount thereof has been
reduced to zero;
(J) to the Class B4 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(K) to the Class B4 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(L) to the Class B4 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero;
(M) to the Class B5 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(N) to the Class B5 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(O) to the Class B5 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Class Principal Balance thereof has been
reduced to zero;
(P) to the Class B6 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(Q) to the Class B6 Certificates, any Interest Shortfall
for such Class on such Distribution Date; and
(R) to the Class B6 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero.
(b) Net Prepayment Interest Shortfalls for each Mortgage Pool shall be
allocated among the Certificates and Components of the related Certificate
Group (other than any related Principal Only Certificates) pro rata based on
(i) in the case of the related Non-AP Senior Certificates and any related
Components, the Accrued Certificate Interest otherwise distributable thereon,
and (ii) in the case of the Subordinate Certificates, interest accrued on the
related Apportioned Principal Balances.
(c) (i) If on any Distribution Date the Credit Support Percentage for the
Class B1 Certificates is less than the Original Credit Support Percentage for
such Class, then, notwithstanding anything to the contrary in Section 5.02(a),
no distribution of amounts described in clauses (ii) and (iii) of the
definition of Subordinate Principal Distribution Amount will be made in
respect of the Class B2, Class B3, Class B4, Class B5 or Class B6 Certificates
on such Distribution Date. (ii) If on any Distribution Date the Credit Support
Percentage for the Class B2 Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Class B3, Class B4, Class B5 or Class B6
Certificates on such Distribution Date. (iii) If on any Distribution Date the
Credit Support Percentage for the Class B3 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B4, Class B5 or Class
B6 Certificates on such Distribution Date. (iv) If on any Distribution Date
the Credit Support Percentage for the Class B4 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B5 or Class B6
Certificates on such Distribution Date. (v) If on any Distribution Date the
Credit Support Percentage for the Class B5 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B6 Certificates on
such Distribution Date.
Any amount not distributed in respect of any Class on any Distribution
Date pursuant to the immediately preceding paragraph will be allocated among
the remaining Subordinate Classes in proportion to their respective
Certificate Principal Amounts.
(d) On each Distribution Date, the Trustee shall distribute the amount
withdrawn from the Class 2-A3 Reserve Fund with respect to such Distribution
Date pursuant to Section 4.06, to the extent of funds on deposit in the Class
2-A3 Reserve Fund, and shall apply such funds to distributions on the Class
2-A3 Certificates, as interest thereon, in the amount of (i) any Net
Prepayment Interest Shortfalls for Pool 2 allocable to the Class 2-A3
Certificates on such Distribution Date and (ii) any Relief Act Reductions
allocable to the Class 2-A3 Certificates on such Distribution Date.
(e) On each Distribution Date, the Trustee shall distribute to the Holder
of the Class R Certificate any amounts remaining in the Upper Tier REMIC for
such Distribution Date after application of all amounts described in paragraph
(a) of this Section 5.02. Any distributions pursuant to this paragraph (e)
shall not reduce the Class Principal Amount of the Class R Certificate.
(f) (i) On each Distribution Date prior to the Credit Support Depletion
Date but on or after the date on which the aggregate Certificate Principal
Amount of the Non-AP Senior Certificates of any Certificate Group has been
reduced to zero, amounts otherwise distributable as principal on each Class of
Subordinate Certificates pursuant to Section 5.02(a)(viii), in reverse order
of priority, in respect of such Class's Subordinate Class Percentage of the
Subordinate Principal Distribution Amount for the Mortgage Pool relating to
such retired Certificates, shall be distributed as principal to the Non-AP
Senior Certificates (other than any Notional Certificates) remaining
outstanding, until the Class Principal Amounts thereof have been reduced to
zero, provided that on such Distribution Date (a) the Aggregate Subordinate
Percentage for such Distribution Date is less than 200% of the Aggregate
Subordinate Percentage as of the Closing Date or (b) the average outstanding
principal balance of the Mortgage Loans in any Mortgage Pool that are
delinquent 60 days or more over the last six months as a percentage of the
related Group Subordinate Amount is greater than or equal to 50%.
(A) On each Distribution Date on which the aggregate
Certificate Principal Amount of the Non-AP Senior Certificates
of any two Certificate Groups has been reduced to zero, any
amounts distributable pursuant to this Section 5.02(f)(i) will
be distributed, as to each applicable Class of Subordinate
Certificates, in proportion to such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for
the Mortgage Pool relating to each such retired Certificate
Group.
(B) On each Distribution Date on which any of the Non-AP
Senior Certificates of each of two Certificate Groups remain
outstanding, any amounts distributable pursuant to this Section
5.02(f)(i) will be distributed in proportion to the aggregate
Certificate Principal Amounts of such Certificates of each such
Certificate Group.
(ii) (A) On any Distribution Date on which any Certificate Group
constitutes an Undercollateralized Group, all amounts otherwise
distributable as principal on the Subordinate Certificates, in reverse
order of priority (other than amounts necessary to pay Class AP Deferred
Amounts or unpaid Interest Shortfalls) (or, following the Credit Support
Depletion Date, such other amounts described in the immediately following
sentence), will be distributed as principal to the Non-AP Senior
Certificates (other than any Notional Certificates) of such
Undercollateralized Group, until the aggregate Certificate Principal
Amount of such Non-AP Senior Certificates, less, with respect to Group 2,
the Security Principal Balance of the Underlying Security, equals the
Non-AP Pool Balance of the related Mortgage Pool (such distribution, an
"Undercollateralization Distribution"). In the event that any Certificate
Group constitutes an Undercollateralized Group on any Distribution Date
following the Credit Support Depletion Date, Undercollateralization
Distributions will be made from any Available Distribution Amount for each
Mortgage Pool not related to an Undercollateralized Group remaining after
all required amounts have been distributed to the Non-AP Senior
Certificates of each such other Certificate Group. In addition, the amount
of any unpaid Interest Shortfalls with respect to an Undercollateralized
Group on any Distribution Date (including any Interest Shortfalls for such
Distribution Date) will be distributed to the Non-AP Senior Certificates
of such Undercollateralized Group prior to the payment of any
Undercollateralization Distributions from amounts otherwise distributable
as principal on the Subordinate Certificates, in reverse order of priority
(or, following the Credit Support Depletion Date, as provided in the
preceding sentence).
(B) If on any Distribution Date two Certificate Groups are
Undercollateralized Groups and one Certificate Group is not an
Undercollateralized Group, the distributions described in
paragraph (ii)(A) above will be made in proportion to the amount
by which the aggregate Certificate Principal Amount of the
Non-AP Senior Certificates, after giving effect to distributions
pursuant to Sections 5.02(a) and (b) on such Distribution Date,
of each Undercollateralized Group, less, with respect to Group
2, the Security Principal Balance of the Underlying Security,
exceeds the Non-AP Pool Balance of the related Mortgage Pool for
such Distribution Date.
Section 5.03. Allocation of Realized Losses. (a) On any Distribution Date,
(x) the applicable AP Percentage of the principal portion of each Realized
Loss in respect of a Mortgage Loan in each Mortgage Pool will be allocated to
the related Class of Principal Only Certificates (other than the Class 2-A5
Certificates) until the Class Principal Amount thereof has been reduced to
zero; and (y) the applicable Non-AP Percentage of the principal portion of
each Realized Loss in respect of a Mortgage Loan in each Mortgage Pool will be
allocated in the following order of priority:
first, to the Class B6 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
fifth, to the Class B2 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B1 Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
seventh, to the Classes of Senior Certificates (other than the
Class 2-A5 Certificates) of the related Certificate Group, pro rata,
in accordance with their Class Principal Amounts; provided, that any
such loss allocated to any Class of Accrual Certificates shall be
allocated (subject to Section 5.03(c)) on the basis of the lesser of
(x) the Class Principal Amount thereof immediately prior to the
applicable Distribution Date and (y) the Class Principal Amount
thereof on the Closing Date (as reduced by any Realized Losses
previously allocated thereto).
(b) On any Distribution Date, (x) 0.0000000000% of the principal portion
of each Realized Loss in respect of the Underlying Security will be allocated
to the Class 2-A5 Certificates until the Class Principal Amount thereof has
been reduced to zero; and (y) 96.0000000000% of the principal portion of each
Realized Loss in respect of the Underlying Security will be allocated in the
following order of priority:
first, to the Class B6 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
fifth, to the Class B2 Certificates, until the Class Principal
Amount thereof has been reduced to zero;
sixth, to the Class B1 Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
seventh, to the Group 2 Certificates (other than the Class 2-A5
Certificates), pro rata, in accordance with their Class Principal
Amounts; provided, that any such loss allocated to any Class of
Accrual Certificates shall be allocated (subject to Section 5.03(c))
on the basis of the lesser of (x) the Class Principal Amount thereof
immediately prior to the applicable Distribution Date and (y) the
Class Principal Amount thereof on the Closing Date (as reduced by any
Realized Losses previously allocated thereto).
(c) Any Realized Losses allocated to a Class of Certificates pursuant to
Section 5.03(a) or (b) shall be allocated among the Certificates of such Class
in proportion to their respective Certificate Principal Amounts. Any
allocation of Realized Losses pursuant to this paragraph (c) shall be
accomplished by reducing the Certificate Principal Amount of the related
Certificates on the related Distribution Date in accordance with Section
5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03 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
Principal Only Certificates on such Distribution Date will be taken into
account in determining distributions in respect of any related Class AP
Deferred Amount for such date.
(e) On each Distribution Date, the Subordinate Certificate Writedown
Amount for such date shall effect a corresponding reduction in the Certificate
Principal Amount of the lowest ranking Class of outstanding Subordinate
Certificates, which reduction shall occur on such Distribution Date after
giving effect to distributions made on such Distribution Date.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, each outstanding Class
to which any portion of such Realized Loss had previously been allocated shall
be entitled to receive, on the Distribution Date in the month following the
month in which such recovery is received, its pro rata share (based on the
Class Principal Amount thereof) of such recovery, up to the amount of the
portion of such Realized Loss previously allocated to such Class. In the event
that the total amount of such recovery exceeds the amount of Realized Loss
allocated to the outstanding Classes in accordance with the preceding
provisions, each outstanding Class of Certificates shall be entitled to
receive its pro rata share of the amount of such excess, up to the amount of
any unrecovered Realized Loss previously allocated to such Class. Any such
recovery allocated to a Class of Certificates shall not further reduce the
Certificate Principal Amount of such Certificate. Any such amounts not
otherwise allocated to any Class of Certificates, pursuant to this subsection
shall be treated as Principal Prepayments for purposes of this Agreement.
(g) In the event that there is a recovery of an amount in respect of
principal of the Underlying Security, which amount had previously been
allocated as a Realized Loss to one or more Classes of Certificates, each
outstanding Class to which any portion of such Realized Loss had previously
been allocated shall be entitled to receive, on the Distribution Date in the
month following the month in which such recovery is received, its pro rata
share (based on the Class Principal Amount thereof) of such recovery, up to
the amount of the portion of such Realized Loss previously allocated to such
Class. In the event that the total amount of such recovery exceeds the amount
of Realized Loss allocated to the outstanding Classes in accordance with the
preceding provisions, each outstanding Class of Certificates shall be entitled
to receive its pro rata share of the amount of such excess, up to the amount
of any unrecovered Realized Loss previously allocated to such Class. Any such
recovery allocated to a Class of Certificates shall not further reduce the
Certificate Principal Amount of such Certificate. Any such amounts not
otherwise allocated to any Class of Certificates, pursuant to this subsection
shall be treated as Principal Prepayments for purposes of this Agreement.
Section 5.04. Advances by Master Servicer and Trustee. (a) Advances shall
be made in respect of each Deposit Date as provided herein. If, on any
Determination Date, the Master Servicer determines that any Scheduled Payments
due during the related Due Period (other than Balloon Payments) have not been
received, the Master Servicer shall, or cause the applicable Servicer to,
advance such amount, less an amount, if any, to be set forth in an Officer's
Certificate to be delivered to the Trustee on such Determination Date, which
if advanced the Master Servicer or the applicable Servicer has determined
would not be recoverable from amounts received with respect to such Mortgage
Loan, including late payments, Liquidation Proceeds, Insurance Proceeds or
otherwise. If the Master Servicer determines that an Advance is required, it
shall on the Deposit Date immediately following such Determination Date either
(i) remit to the Trustee from its own funds (or funds advanced by the
applicable Servicer) for deposit in the Certificate Account immediately
available funds in an amount equal to such Advance, (ii) cause to be made an
appropriate entry in the records of the Collection Account that funds in such
account being held for future distribution or withdrawal have been, as
permitted by this Section 5.04, used by the Master Servicer to make such
Advance, and remit such immediately available funds to the Trustee for deposit
in the Certificate Account or (iii) make Advances in the form of any
combination of clauses (i) and (ii) aggregating the amount of such Advance.
Any funds being held in the Collection Account for future distribution to
Certificateholders and so used shall be replaced by the Master Servicer from
its own funds by remittance to the Trustee for deposit in the Certificate
Account on or before any future Deposit Date to the extent that funds in the
Certificate Account on such Deposit Date shall be less than payments to
Certificateholders required to be made on the related Distribution Date. The
Master Servicer and each Servicer shall be entitled to be reimbursed from the
Collection Account for all Advances made by it as provided in Section 4.02.
(b) In the event that the Master Servicer fails for any reason to make an
Advance required to be made pursuant to Section 5.04 on or before the Deposit
Date, the Trustee, as successor Master Servicer pursuant to Section 6.14,
shall, on or before the related Distribution Date, deposit in the Certificate
Account an amount equal to the excess of (a) Advances required to be made by
the Master Servicer or any Servicer that would have been deposited in such
Certificate Account over (b) the amount of any Advance made by the Master
Servicer or any Servicer with respect to such Distribution Date; provided,
however, that the Trustee shall be required to make such Advance only if it is
not prohibited by law from doing so and it has determined that such Advance
would be recoverable from amounts to be received with respect to such Mortgage
Loan, including late payments, Liquidation Proceeds, Insurance Proceeds, or
otherwise. The Trustee shall be entitled to be reimbursed from the Certificate
Account for Advances made by it pursuant to this Section 5.04 as if it were
the Master Servicer.
Section 5.05. Compensating Interest Payments. The amount of the Aggregate
Master Servicing Compensation payable to the Master Servicer in respect of any
Distribution Date shall be reduced by the amount of any Compensating Interest
Payment for such Distribution Date, but only to the extent such Compensating
Interest Payment is not actually made by a Servicer on the applicable
Remittance Date. Such amount shall not be treated as an Advance and shall not
be reimbursable to the Master Servicer.
Section 5.06. Distributions of Principal on Redemption Certificates. (a)
Except as provided in subclauses (d) and (f) below, on each Distribution Date
on which distributions in reduction of the Class Principal Amount of a Class
of Redemption Certificates are made, such distributions will be made in the
following order of priority:
(i) any request by the personal representative of a Deceased Holder
or by a surviving tenant by the entirety, by a surviving joint tenant or
by a surviving tenant in common or 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) any request by a Living Holder, in an amount up to but not
exceeding $10,000 per request.
Thereafter, distributions will be made as provided in clauses (i) and (ii)
above up to a second $100,000 and $10,000 per request, respectively. This
sequence of priorities will be repeated for each request for principal
distributions made by the Certificate Owners of a Class of Redemption
Certificates until all such requests have been honored.
Requests for distributions in reduction of the Certificate Principal
Amounts of Redemption Certificates 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 Clearing Agency. Requests for distributions in
reduction of the Certificate Principal Amounts of Redemption Certificates
presented in accordance with the provisions of clause (ii) above will be
accepted in the order of priority established by the random lot procedures of
the Clearing Agency after all requests with respect to such Class presented in
accordance with clause (i) have been honored. All requests for distributions
in reduction of the Class Principal Amount of a Class of Redemption
Certificates with respect to any Distribution Date shall be made in accordance
with Section 5.06(c) below and must be received by the Clearing Agency and
forwarded to, and received by, the Trustee no later than the close of business
on the related Record Date. Requests for distributions that are received by
the Clearing Agency and forwarded to the Trustee 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 requests
for distributions in reduction of the Class Principal Amount of the applicable
Class of Redemption Certificates on the next succeeding Distribution Date, and
each succeeding Distribution Date thereafter, until each such request is
accepted or is withdrawn as provided in Section 5.06(c). Such requests as are
not so withdrawn shall retain their order of priority without the need for any
further action on the part of the appropriate Certificate Owner of the related
Redemption Certificate, all in accordance with the procedures of the Clearing
Agency and the Trustee. Upon the transfer of beneficial ownership of any
Redemption Certificate, any distribution request previously submitted with
respect to such Certificate will be deemed to have been withdrawn only upon
the receipt by the Trustee of notification of such withdrawal using a form
required by the Clearing Agency.
Distributions in reduction of the Certificate Principal Amounts of
Redemption Certificates will be applied, in the aggregate, to such
Certificates in an amount equal to the portion of the Available Distribution
Amount distributable to the Redemption Certificates pursuant to Section
5.02(a)(v), plus any amounts available for distribution from the applicable
Rounding Account pursuant to Section 5.06(e), provided that the aggregate
distribution in reduction of the Class Principal Amount of any Class of
Redemption Certificates on any Distribution Date is made in an integral
multiple of $1,000.
(b) A "Deceased Holder" is a Certificate Owner of a Redemption 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 Certificate Owner upon his or her death, causes to be furnished
to the Trustee a certified copy of the death certificate of such Certificate
Owner and any additional evidence of death required by and satisfactory to the
Trustee and any tax waivers requested by the Trustee. Redemption 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 Certificate Owner, and any Redemption
Certificates so beneficially owned will be eligible for priority with respect
to distributions in reduction of the Class Principal Amount of such Class of
Redemption Certificates, subject to the limitations stated above. Redemption
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 Certificate Owners of a number of
Individual Redemption Certificates greater than the number of Individual
Redemption 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 Certificate
Owner of the Redemption 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, during
his or her lifetime, was entitled to substantially all of the beneficial
ownership interests in Redemption Certificates will be deemed to be the death
of the Certificate Owner of such Redemption Certificates regardless of the
registration of ownership of such Redemption Certificates, if such beneficial
interest can be established to the satisfaction of the Trustee. Such
beneficial interest will be deemed to exist in typical cases of street name or
nominee ownership, ownership by a trustee, ownership under the Uniform Gifts
to Minors Act and community property or other joint ownership arrangements
between a husband and wife. Beneficial interests shall include the power to
sell, transfer or otherwise dispose of a Redemption Certificate and the right
to receive the proceeds therefrom, as well as interest and distributions in
reduction of the Certificate Principal Amounts of the Redemption Certificates
payable with respect thereto. The Trustee shall not be under any duty to
determine independently (a) the occurrence of the death of any deceased
Certificate Owner or (b) whether an individual is the personal representative
of a Deceased Holder, or the surviving tenant by the entirety, or the
surviving joint tenant, or the surviving tenant in common, or is otherwise the
Person empowered to act on behalf of such Deceased Holder (a
"Representative"). The Trustee shall be entitled to rely on a certificate
executed by the Representative indicating the nature of such Representative's
authority on behalf of the Deceased Holder. The Trustee may rely entirely upon
documentation delivered to it pursuant to this Section 5.06 in establishing
the eligibility of any Certificate Owner to receive the priority accorded
Deceased Holders in this Section 5.06(b), and shall have no liability if it
makes such determination in accordance with such documentation.
(c) Requests for distributions in reduction of the Certificate Principal
Amount of a Redemption Certificate must be made by delivering a written
request therefor to the Clearing Agency Participant or Financial Intermediary
that maintains the account evidencing the Certificate Owner's interest in such
Redemption Certificate. Such Clearing Agency Participant or Financial
Intermediary should in turn make the request of the Clearing Agency (or, in
the case of an Financial Intermediary, such Financial Intermediary should
notify the related Clearing Agency Participant of such request, which Clearing
Agency Participant should make the request of the Clearing Agency) on a form
required by the Clearing Agency and provided to the Clearing Agency
Participant. Upon receipt of such request, the Clearing Agency will date and
time stamp such request and forward such request to the Trustee. The Clearing
Agency 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. The Trustee shall not be liable for any delay in delivery
of requests for distributions or withdrawals of such requests by the Clearing
Agency, a Clearing Agency Participant or any Financial Intermediary.
In the event that any requests for distributions in reduction of the
Certificate Principal Amount of Redemption Certificates are rejected by the
Trustee for failure to comply with the requirements of this Section 5.06, the
Trustee shall return such requests to the appropriate Clearing Agency
Participant with a copy to the Clearing Agency with an explanation as to the
reason for such rejection.
The Trustee shall maintain a list of those Clearing Agency
Participants representing the Certificate Owners of Redemption Certificates
that have submitted requests for distributions in reduction of the Certificate
Principal Amount of such Redemption Certificates, together with the order of
receipt and the amounts of such requests. The Trustee shall notify the
Clearing Agency and the appropriate Clearing Agency Participants as to which
requests should be honored on each Distribution Date. Requests shall be
honored by the Clearing Agency in accordance with the procedures, and subject
to the priorities and limitations, described in this Section 5.06. The exact
procedures to be followed by the Trustee and the Clearing Agency for purposes
of determining such priorities and limitations shall be those established from
time to time by the Trustee or the Clearing Agency, as the case may be. The
decisions of the Trustee and the Clearing Agency concerning such matters shall
be final and binding on all affected Persons.
Payments in reduction of the Certificate Principal Amounts of
Redemption Certificates shall be made on the applicable Distribution Date and
the Certificate Principal Amounts as to which such payments are made shall
cease to bear interest after the last day of the month preceding the month in
which such Distribution Date occurs.
Any Certificate Owner of a Redemption Certificate that has requested
a distribution may withdraw its request by so notifying in writing the
Clearing Agency Participant or Financial Intermediary that maintains such
Certificate Owner's account. In the event that such account is maintained by a
Financial Intermediary, such Financial Intermediary should notify the related
Clearing Agency Participant which in turn should forward the withdrawal of
such request, on a form required by the Clearing Agency, to the Trustee. If
such notice of withdrawal of a request for distribution has not been received
by the Clearing Agency and forwarded to the Trustee on or before the Record
Date for the next Distribution Date, the previously made request for
distribution will be irrevocable with respect to the making of distributions
in reduction of the Certificate Principal Amount of such Redemption
Certificate on such Distribution Date.
(d) To the extent, if any, that amounts available for distribution in
reduction of the Class Principal Amount of any Class of Redemption
Certificates on a Distribution Date exceed the dollar amount of requests for
distributions with respect to such Class that have been received by the
related Record Date, as provided in Section 5.06(c) above, distributions in
reduction of the Class Principal Amount of such Class of Redemption
Certificates will be made by mandatory distributions in reduction thereof. The
Trustee shall notify the Clearing Agency of the aggregate amount of the
mandatory distribution in reduction of the Class Principal Amount of such
Class of Redemption Certificates to be made on the next Distribution Date. The
Clearing Agency shall then allocate such aggregate amount among its Clearing
Agency Participants on a random lot basis. Each Clearing Agency Participant
and, in turn, each Financial Intermediary, will then select, in accordance
with its own procedures, Individual Redemption Certificates from among those
held in its accounts to receive mandatory distributions in reduction of the
Class Principal Amount of such Class of Redemption Certificates, such that the
total amount so selected is equal to the aggregate amount of such mandatory
distributions allocated to such Clearing Agency Participant by the Clearing
Agency and to such Financial Intermediary by its related Clearing Agency
Participant, as the case may be. Clearing Agency Participants and Financial
Intermediaries that hold Redemption Certificates selected for mandatory
distributions in reduction of the Class Principal Amount thereof should
provide notice of such mandatory distributions to the affected Certificate
Owners.
(e) On the Closing Date, a Rounding Account shall be established with the
Trustee for each Class of Redemption Certificates, and Xxxxxx Brothers Inc.
shall cause to be initially deposited the sum of $999.99 in each Rounding
Account. On each Distribution Date on which a distribution is made in
reduction of the Class Principal Amount of a Class of Redemption Certificates,
funds on deposit in the applicable 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
Principal Amount to be made on such Redemption Certificates. Rounding of such
distribution on such Redemption Certificates shall be accomplished, on the
first such Distribution Date, by withdrawing from the applicable Rounding
Account the amount of funds, if any, needed to round the amount otherwise
available for such distribution in reduction of the Class Principal Amount of
such Class of Redemption Certificates upward to the next integral multiple of
$1,000. On each succeeding Distribution Date on which distributions in
reduction of the Class Principal Amount of such Class of Redemption
Certificates are to be made, the aggregate amount of such distributions
allocable to such Class of Redemption Certificates shall be applied first to
repay any funds withdrawn from the applicable Rounding Account and not
previously repaid, and then the remainder of such allocable amount, if any,
shall be similarly rounded upward and applied as distributions in reduction of
the Class Principal Amount of such Class of Redemption Certificates; this
process shall continue on succeeding Distribution Dates until the Class
Principal Amount of such Class of Redemption Certificates has been reduced to
zero. Each Rounding Account shall be an "outside reserve fund" under the REMIC
Provisions that is beneficially owned for all federal income tax purposes by
Xxxxxx Brothers Inc. Xxxxxx Brothers Inc. will report all income, gain,
deduction or loss with respect thereto. The Trustee, upon the instructions of
the Depositor, may invest, or cause to be invested funds in and Rounding
Account in Eligible Investments (which may be obligations of the Trustee). The
Trustee shall distribute interest earnings, if any, on amounts held in any
Rounding Account as such interest is earned pursuant to written instructions
from Xxxxxx Brothers Inc. to the Trustee. In no event shall the Trustee be
liable for investment losses resulting from investment of funds in the
Rounding Accounts made in accordance with the instructions of the Depositor.
Notwithstanding anything herein to the contrary, on the Distribution Date
on which distributions in reduction of the Class Principal Amount of any Class
of Redemption Certificates will reduce the Class Principal Amount thereof to
zero or in the event that distributions in reduction of the Class Principal
Amount of such Class of Redemption Certificates are made in accordance with
the provisions set forth in Section 5.06(f), an amount equal to the difference
between $999.99 and the sum then held in the applicable Rounding Account shall
be paid from the Available Distribution Amount for such Distribution Date to
such Rounding Account. Any funds then on deposit in such Rounding Account
shall be distributed to Xxxxxx Brothers Inc.
(f) Notwithstanding any provisions herein to the contrary, on each
Distribution Date following the first Distribution Date on or after the Credit
Support Depletion Date, all distributions in reduction of the Class Principal
Amount of any Class of Redemption Certificates will be made among the Holders
of such Class of Certificates, pro rata, based on their Certificate Principal
Amounts, 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
Redemption Certificates are issued pursuant to Section 3.09(c), 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 5.06(a) through (c) using its own procedures, which
procedures shall, to the extent practicable, be consistent with the procedures
described in Section 5.06(a) through (c).
Section 5.07. The Class 2-A3 Certificate Insurance Policy. (a) If, on the
second Business Day before any Distribution Date, the Trustee determines that
an Insured Payment is required to be made by the Class 2-A3 Certificate
Insurer on such Distribution Date, the Trustee shall determine the amount of
any such Insured Payment and shall give notice to the Class 2-A3 Certificate
Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the
Class 2-A3 Certificate Insurance Policy and submitting such Notice of
Nonpayment by 12:00 noon, New York City time on such second Business Day as a
claim for an Insured Payment. The Trustee's responsibility for delivering a
Notice of Nonpayment to the Class 2-A3 Certificate Insurer, as provided in the
preceding sentence, is limited to the availability, timeliness and accuracy of
the information provided by the Master Servicer.
(b) In the event the Trustee receives a certified copy of an order of the
appropriate court that any scheduled payment of principal or interest on a
Class 2-A3 Certificate has been voided in whole or in part as a preference
payment under applicable bankruptcy law, the Trustee shall (i) promptly notify
the Class 2-A3 Certificate Insurer, as appropriate, and the Fiscal Agent, if
any, and (ii) comply with the provisions of the Class 2-A3 Certificate
Insurance Policy to obtain payment by the Class 2-A3 Certificate Insurer of
such voided scheduled payment. In addition, the Trustee shall mail notice to
all Holders of the Class 2-A3 Certificates so affected that, in the event that
any such Holder's scheduled payment is so recovered, such Holder will be
entitled to payment pursuant to the terms of the Class 2-A3 Certificate
Insurance Policy, a copy of which shall be made available to such Holders by
the Trustee. The Trustee shall furnish to the Class 2-A3 Certificate Insurer
and the appropriate Fiscal Agent, if any, its records listing the payments on
the affected Class 2-A3 Certificates, if any, that have been made by the
Trustee and subsequently recovered from the affected Holders, and the dates on
which such payments were made by the Trustee.
(c) At the time of the execution hereof, and for the purposes hereof, the
Trustee shall establish a separate special purpose trust account in the name
of the Trustee for the benefit of Holders of the Class 2-A3 Certificates (the
"Class 2-A3 Policy Payments Account") over which the Trustee shall have
exclusive control and sole right of withdrawal. The Class 2-A3 Policy Payments
Account shall be an Eligible Account. The Trustee shall deposit any amount
paid under the Class 2-A3 Certificate Insurance Policy into the Class 2-A3
Policy Payments Account and distribute such amount only for the purposes of
making payments to Holders of the Class 2-A3 Certificates in respect of the
Class 2-A3 Guaranteed Distributions (or other amounts payable pursuant to
paragraph (b) above on the Class 2-A3 Certificates by the Class 2-A3
Certificate Insurer pursuant to the Class 2-A3 Certificate Insurance Policy)
for which the related claim was made under the Class 2-A3 Policy. Such amounts
shall be allocated by the Trustee to Holders of Class 2-A3 Certificates
affected by such shortfalls in the same manner as principal and interest
distributions are to be allocated with respect to such Certificates pursuant
to Section 5.02. It shall not be necessary for such payments to be made by
checks or wire transfers separate from the checks or wire transfers used to
make regular payments hereunder with funds withdrawn from the Certificate
Account. However, any payments made on the Class 2-A3 Certificates from funds
in the Class 2-A3 Policy Payments Account shall be noted as provided in
subsection (e) below. Funds held in the Class 2-A3 Policy Payments Account
shall not be invested by the Trustee.
(d) Any funds received from the Class 2-A3 Certificate Insurer for deposit
into the Class 2-A3 Policy Payments Account pursuant to the Class 2-A3
Certificate Insurance Policy in respect of a Distribution Date or otherwise as
a result of any claim under such Class 2-A3 Certificate Insurance Policy shall
be applied by the Trustee directly to the payment in full (i) of the Insured
Payments due on such Distribution Date on the Class 2-A3 Certificates, or (ii)
of other amounts to which payments under the Class 2-A3 Certificate Insurance
Policy are to be applied. Funds received by the Trustee as a result of any
claim under the Class 2-A3 Certificate Insurance Policy shall be used solely
for payment to the Holders of the Class 2-A3 Certificates and may not be
applied for any other purpose, including, without limitation, satisfaction of
any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds
remaining in the Class 2-A3 Policy Payments Account on the first Business Day
after each Distribution Date shall be remitted promptly to the Class 2-A3
Certificate Insurer pursuant to the written instruction of the Class 2-A3
Certificate Insurer.
(e) The Trustee shall keep complete and accurate records in respect of (i)
all funds remitted to it by the Class 2-A3 Certificate Insurer and deposited
into the Class 2-A3 Policy Payments Account and (ii) the allocation of such
funds to (A) payments of interest on and principal in respect of any Class
2-A3 Certificates, (B) Realized Losses allocated to the Class 2-A3
Certificates, (C) Net Prepayment Interest Shortfalls and Relief Act Reductions
allocated to the Class 2-A3 Certificates, and (D) payments in respect of
Preference Amounts. The Class 2-A3 Certificate Insurer shall have the right to
inspect such records at reasonable times during normal business hours upon
three Business Days' prior notice to the Trustee. Any Insured Payments
disbursed by the Trustee from proceeds of the Class 2-A3 Certificate Insurance
Policy shall be considered payment by the Class 2-A3 Certificate Insurer and
not by the Trust Fund with respect to the Class 2-A3 Certificates and the
Class 2-A3 Certificates Insurer will be entitled to receive the related
Reimbursement Amount pursuant to Section 5.02(a)(vii).
(f) The Trustee acknowledges, and each Holder of a Class 2-A3 Certificate
by its acceptance of such Class 2-A3 Certificate agrees, that, without the
need for any further action on the part of the Class 2-A3 Certificate Insurer
or the Trustee, to the extent the Class 2-A3 Certificate Insurer makes Insured
Payments, directly or indirectly, on account of principal of or interest on
any Class 2-A3 Certificates, the Class 2-A3 Certificate Insurer will be fully
subrogated to the rights of the Holders of such Class 2-A3 Certificates to
receive the related Reimbursement Amount pursuant to Section 5.02(a)(vii). The
Class 2-A3 Certificateholders, by acceptance of the Class 2-A3 Certificates,
assign their rights as Holders of the Class 2-A3 Certificates to the extent of
the Class 2-A3 Certificate Insurer's interest with respect to amounts paid
under the Class 2-A3 Certificate Insurance Policy. Each of the Depositor and
Trustee agrees to such subrogation and, further agrees to execute such
instruments and to take such actions as, in the sole judgment of the Class
2-A3 Certificate Insurer are necessary to evidence such subrogation and,
subject to the priority of payment provisions of this Agreement, to perfect
the rights of the Class 2-A3 Certificate Insurer to receive any moneys paid or
payable in respect of the Class 2-A3 Certificates under this Agreement or
otherwise. Anything herein to the contrary notwithstanding, solely for
purposes of determining the Class 2-A3 Certificate Insurer's rights as
subrogee for payments distributable pursuant to Section 5.02, any payment with
respect to distributions to the Class 2-A3 Certificates that is made with
funds received pursuant to the terms of the Class 2-A3 Certificate Insurance
Policy shall not be considered payment of the Class 2-A3 Certificates from the
Trust Fund and shall not result in the distribution or the provision for the
distribution in reduction of the Class Principal Amount of the Class 2-A3
Certificates or Accrued Certificate Interest thereon, within the meaning of
Article V.
(g) Upon its becoming aware of the occurrence of an Event of Default, the
Trustee shall promptly notify the Class 2-A3 Certificate Insurer of such Event
of Default.
(h) The Trustee shall promptly notify the Class 2-A3 Certificate Insurer
of either of the following as to which it has actual knowledge: (A) the
commencement of any proceeding by or against the Depositor commenced under the
United States bankruptcy code or any other applicable bankruptcy, insolvency,
receivership, rehabilitation or similar law (an "Insolvency Proceeding") and
(B) the making of any claim in connection with any Insolvency Proceeding
seeking the avoidance as a preferential transfer (a "Preference Claim") of any
distribution made with respect to the Class 2-A3 Certificates. Each Holder of
a Class 2-A3 Certificate, by its purchase of Class 2-A3 Certificates, and the
Trustee hereby agree that the Class 2-A3 Certificate Insurer (so long as no
the Class 2-A3 Certificate Insurer Default exists) may at any time during the
continuation of any proceeding relating to a Preference Claim direct all
matters relating to such Preference Claim, including, without limitation, (i)
the direction of any appeal of any order relating to any Preference Claim and
(ii) the posting of any surety, supersedeas or performance bond pending any
such appeal. In addition and without limitation of the foregoing, the Class
2-A3 Certificate Insurer shall be subrogated to the rights of the Trustee and
each Holder of a Class 2-A3 Certificate in the conduct of any Preference
Claim, including, without limitation, all rights of any party to an adversary
proceeding action with respect to any court order issued in connection with
any such Preference Claim.
(i) The Trustee shall surrender the Class 2-A3 Certificate Insurance
Policy to the Class 2-A3 Certificate Insurer for cancellation upon the
termination of the Trust Fund pursuant to Section 7.01 hereof.
Article VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee. (a) The Trustee, except during the
continuance of an Event of Default (of which a Responsible Officer of the
Trustee shall have actual knowledge), undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement. Any
permissive right of the Trustee provided for in this Agreement shall not be
construed as a duty of the Trustee. If an Event of Default (of which a
Responsible Officer of the Trustee shall have actual knowledge) has occurred
and has not otherwise been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and use the same degree
of care and skill in their exercise as a prudent Person would exercise or use
under the circumstances in the conduct of such Person's own affairs unless the
Trustee is acting as Master Servicer, in which case it shall use the same
degree of care and skill as the Master Servicer hereunder.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer, to the Trustee pursuant to
this Agreement, and shall not be required to recalculate or verify any
numerical information furnished to the Trustee pursuant to this Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) 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 consent or direction of Holders of Certificates as
provided in Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default (other than resulting from a
failure by the Master Servicer (i) to remit funds (or to make Advances) or
(ii) to furnish information to the Trustee when required to do so) unless
a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice
references the Holders of the Certificates and this Agreement;
(iii) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer 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 Master Servicer in
accordance with the terms of this Agreement; and
(iv) The Trustee shall not be responsible for any act or omission of
the Master Servicer. In particular, the Trustee shall not be liable for
any servicing errors or interruptions resulting from any failure of the
Master Servicer or the Servicer to maintain computer and other information
systems that are year 2000 compliant.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer upon receipt any such complaint, claim, demand, notice or other
document (i) which is delivered to the Corporate Trust Office of the Trustee,
(ii) of which a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee to make a determination
that the real property to which such document relates is a Mortgaged Property.
(e) 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 Certificateholders of any Class holding Certificates which
evidence, as to such Class, Percentage Interests aggregating not less than 25%
as to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement.
(f) Subject to Section 4.04, the Trustee shall not be held liable by
reason of any insufficiency in any account (including without limitation the
Collection Amount) held by or on behalf of the Trustee resulting from any
investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
(g) Except as otherwise provided herein, the Trustee shall have no duty
(A) to see to any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any re-recording, re-filing or
re-depositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Collection Account or the Certificate Account, or (D) to confirm or verify the
contents of any reports or certificates of the Master Servicer delivered to
the Trustee pursuant to this Agreement believed by the Trustee to be genuine
and to have been signed or presented by the proper party or parties.
(h) The Trustee shall not be liable in its individual capacity for an
error of judgment made in good faith by a Responsible Officer or other
officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(i) Notwithstanding anything in this Agreement to the contrary, the
Trustee shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
Section 6.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors, opinion of counsel or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and any advice of its
counsel or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document (provided the same appears regular on its
face), unless requested in writing to do so by Holders of at least a
majority in Class Principal Amount (or Class Notional Amount) of each
Class of Certificates; 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 expense or liability or payment
of such estimated expenses as a condition to proceeding. The reasonable
expense thereof shall be paid by the Holders requesting such
investigation;
(v) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
custodians, or attorneys, which agents, custodians or attorneys shall have
any and all of the rights, powers, duties and obligations of the Trustee
conferred on them by such appointment provided that the Trustee shall
continue to be responsible for its duties and obligations hereunder to the
extent provided herein, and provided further that the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by the Trustee;
(vi) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto, in each case at
the request, order or direction of any of the Certificateholders pursuant
to the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
(vii) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act; and
(viii) The Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Fund created hereby or the powers
granted hereunder.
Section 6.03. Trustee Not Liable for Certificates. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the
Certificates) or the Underlying Security or of any Mortgage Loan, or related
document save that the Trustee represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law. The Trustee
shall not be accountable for the use or application by the Depositor of funds
paid to the Depositor in consideration of the assignment of the Mortgage Loans
or the Underlying Security to the Trust Fund by the Depositor or for the use
or application of any funds deposited into the Collection Account, the
Certificate Account, any Escrow Account or any other fund or account
maintained with respect to the Certificates. The Trustee shall not be
responsible for the legality or validity of this Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates
issued or intended to be issued hereunder. Except as otherwise provided
herein, the Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to record this Agreement.
Section 6.04. Trustee May Own Certificates. The Trustee and any Affiliate
or agent of the Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact banking and trust with the
other parties hereto with the same rights it would have if it were not Trustee
or such agent.
Section 6.05. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be (i) an institution insured by the FDIC and (ii) a
corporation or national banking association, organized and doing business
under the laws of any State or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or national banking
association publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of
such corporation or national banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section
6.06.
Section 6.06. Resignation and Removal of Trustee. (a) The Trustee may at
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Depositor and the Master Servicer. Upon
receiving such notice of resignation, the Depositor will promptly appoint a
successor trustee by written instrument, one copy of which instrument shall be
delivered to the resigning Trustee, one copy to the successor trustee, one
copy to the Master Servicer and one copy to the Class 2-A3 Certificate
Insurer. If no successor trustee shall have been so appointed and shall have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, 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, (iii)
a tax is imposed or threatened with respect to the Trust Fund by any state in
which the Trustee or the Trust Fund held by the Trustee is located, or (iv)
the continued use of the Trustee would result in a downgrading of the rating
by the Rating Agencies of any Class of Certificates with a rating (in the case
of the Class 2-A3 Certificates, determined without regard to the Class 2-A3
Certificate Insurance Policy), then the Depositor shall remove the Trustee and
appoint a successor trustee by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee, one copy to the Class 2-A3 Certificate Insurer and one copy
to the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or Class
Notional Amount) of each Class of Certificates may at any time upon 30 days'
written notice to the Trustee, the Depositor and the Class 2-A3 Certificate
Insurer remove the Trustee by such written instrument, signed by such Holders
or their attorney-in-fact duly authorized, one copy of which instrument shall
be delivered to the Depositor, one copy to the Trustee so removed, one copy to
the Class 2-A3 Certificate Insurer and one copy to the Master Servicer; the
Depositor shall thereupon use its best efforts to appoint a mutually
acceptable successor trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.07.
Section 6.07. Successor Trustee. (a) Any successor trustee appointed as
provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and
documents and statements related to each Mortgage Files held by it hereunder,
and shall duly assign, transfer, deliver and pay over to the successor trustee
the entire Trust Fund, together with all necessary instruments of transfer and
assignment or other documents properly executed necessary to effect such
transfer and such of the record or copies thereof maintained by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Master Servicer and
the predecessor trustee shall execute and deliver such other instruments and
do such other things as may reasonably be required to more fully and certainly
vest and confirm in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Master Servicer shall mail notice of the succession of such
trustee hereunder to the Class 2-A3 Certificate Insurer and to all Holders of
Certificates at their addresses as shown in the Certificate Register and to
the Rating Agencies. The expenses of such mailing shall be borne by the Master
Servicer.
Section 6.08. Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Persons succeeding to the business of the Trustee,
shall be the successor to the Trustee hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, provided that such
Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee, the
Depositor or the Certificateholders evidencing more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates
shall each have the power from time to time to appoint one or more Persons to
act either as co-trustees jointly with the Trustee, or as separate trustees,
or as custodians, for the purpose of holding title to, foreclosing or
otherwise taking action with respect to any Mortgage Loan outside the state
where the Trustee has its principal place of business where such separate
trustee or co-trustee is necessary or advisable (or the Trustee has been
advised by the Master Servicer that such separate trustee or co-trustee is
necessary or advisable) under the laws of any state in which a property
securing a Mortgage Loan is located or for the purpose of otherwise conforming
to any legal requirement, restriction or condition in any state in which a
property securing a Mortgage Loan is located or in any state in which any
portion of the Trust Fund is located. The separate Trustees, co-trustees, or
custodians so appointed shall be trustees or custodians for the benefit of all
the Certificateholders and shall have such powers, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The obligation of the Trustee to make Advances pursuant
to Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations, including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee or the Certificateholders evidencing more than 50%
of the Aggregate Voting Interests of the Certificates may at any time
accept the resignation of or remove any separate trustee, co-trustee or
custodian, so appointed by it or them, if such resignation or removal does
not violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. The Trustee shall
not be responsible for any action or inaction of any separate trustee,
co-trustee or custodian. If any separate trustee, co-trustee or custodian
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the co-trustees
to the extent, and in accordance with the standards, specified in Section 6.12
hereof (which compensation shall not reduce any compensation payable to the
Trustee under such Section).
Section 6.10. Authenticating Agents. (a) The Trustee may appoint one or
more Authenticating Agents which shall be authorized to act on behalf of the
Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.10, the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment
to the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No Authenticating Agent shall have responsibility or liability for any action
taken by it as such at the direction of the Trustee. Any Authenticating Agent
shall be entitled to reasonable compensation for its services and, if paid by
the Trustee, it shall be a reimbursable expense pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee. The Trustee and its directors,
officers, employees and agents shall be entitled to indemnification from the
Trust Fund for any loss, liability or expense incurred in connection with any
legal proceeding and incurred without negligence or willful misconduct on
their part, arising out of, or in connection with, the acceptance or
administration of the trusts created hereunder, including the costs and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder, provided
that:
(i) with respect to any such claim, the Trustee shall have given the
Depositor, the Master Servicer and the Holders written notice thereof
promptly after the Trustee shall have knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee
shall cooperate and consult fully with the Depositor in preparing such
defense; and
(iii) notwithstanding anything to the contrary in this Section 6.11,
the Trust Fund shall not be liable for settlement of any such claim by the
Trustee entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee and shall be construed
to include, but not be limited to any loss, liability or expense under any
environmental law.
Section 6.12. Fees and Expenses of Trustee. The Trustee shall be entitled
to the Trustee Fee (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), to the extent
provided herein, and in addition, the Trustee shall be entitled to receive,
and is authorized to pay to itself the amount of income or gain earned from
the investment of funds in the Certificate Account.
Section 6.13. Collection of Monies. Except as otherwise expressly provided
in this Agreement, the Trustee may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee pursuant to this Agreement. The Trustee shall hold all such money
and property received by it as part of the Trust Fund and shall distribute it
as provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor.
(a) The occurrence of any one or more of the following events shall constitute
an "Event of Default":
(i) Any failure by the Master Servicer to furnish the Trustee the
Mortgage Loan data sufficient to prepare the reports described in Section
4.03(a) which continues unremedied for a period of one Business Day after
the date upon which written notice of such failure shall have been given
to such Master Servicer by the Trustee or to such Master Servicer and the
Trustee by the Holders of not less than 25% of the Class Principal Amount
(or Class Notional Amount) of each Class of Certificates affected thereby;
or
(ii) Any failure on the part of the Master Servicer duly to observe
or perform in any material respect any other of the covenants or
agreements on the part of such Master Servicer contained in this Agreement
which continues unremedied for a period of 30 days (or 15 days, in the
case of a failure to maintain any Insurance Policy required to be
maintained pursuant to this Agreement) after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to such Master Servicer by the Trustee, or to such Master Servicer
and the Trustee by the Holders of not less than 25% of the Class Principal
Amount (or Class Notional Amount) of each Class of Certificates affected
thereby; or
(iii) A decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days or any Rating Agency
reduces or withdraws or threatens to reduce or withdraw the rating of the
Certificates because of the financial condition or loan servicing
capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, voluntary liquidation or
similar proceedings of or relating to such Master Servicer or of or
relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into
another entity or shall permit another entity to consolidate or merge into
it, such that the resulting entity does not meet the criteria for a
successor servicer as specified in Section 9.27 hereof; or
(vii) If a representation or warranty set forth in Section 9.14
hereof shall prove to be incorrect as of the time made in any respect that
materially and adversely affects the interests of the Certificateholders,
and the circumstance or condition in respect of which such representation
or warranty was incorrect shall not have been eliminated or cured within
60 days after the date on which written notice of such incorrect
representation or warranty shall have been given to the Master Servicer by
the Trustee, or to the Master Servicer and the Trustee by the Holders of
not less than 25% of the Aggregate Certificate Principal Amount of each
Class of Certificates; or
(viii) A sale or pledge of the any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master Servicer
hereunder shall have occurred in any manner not otherwise permitted
hereunder and without the prior written consent of the Trustee and
Certificateholders holding more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates;
(ix) Any Servicer at any time is not either an FNMA- or FHLMC-
approved Seller/Servicer, and the Master Servicer has not terminated the
rights and obligations of such Servicer under the applicable Servicing
Agreement and replaced such Servicer with an FNMA- or FHLMC-approved
servicer within 30 days of the absence of such approval; or
(x) Any failure of the Master Servicer to remit to the Trustee any
payment required to be made to the Trustee for the benefit of
Certificateholders under the terms of this Agreement, including any
Advance, on any Deposit Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates, terminate all of the
rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof. If an Event of Default described in
clause (x) of this Section 6.14 shall occur, then, in each and every case,
subject to applicable law, the Trustee, by notice in writing to the Master
Servicer, shall promptly terminate all of the rights and obligations of the
Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer, and only in its
capacity as Master Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under the terms of this Agreement; and the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the defaulting
Master Servicer as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage Loans
and related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting
Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying Mortgagors of the assignment of the
master servicing function and providing the Trustee or its designee all
documents and records in electronic or other form reasonably requested by it
to enable the Trustee or its designee to assume the defaulting Master
Servicer's functions hereunder and the transfer to the Trustee for
administration by it of all amounts which shall at the time be or should have
been deposited by the defaulting Master Servicer in the Collection Account
maintained by such defaulting Master Servicer and any other account or fund
maintained with respect to the Certificates or thereafter received with
respect to the Mortgage Loans. The Master Servicer being terminated shall bear
all costs of a master servicing transfer, including but not limited to those
of the Trustee reasonably allocable to specific employees and overhead, legal
fees and expenses, accounting and financial consulting fees and expenses, and
costs of amending the Agreement, if necessary.
Notwithstanding the termination of its activities as Master Servicer, each
terminated Master Servicer shall continue to be entitled to reimbursement to
the extent provided in Section 4.02(i), (ii), (iii), (iv), (v), (vi), (vii),
(ix) and (xi) to the extent such reimbursement relates to the period prior to
such Master Servicer's termination.
If any Event of Default shall occur, the Trustee shall promptly notify the
Class 2-A3 Certificate Insurer and the Rating Agencies of the nature and
extent of such Event of Default. The Trustee shall immediately give written
notice to the Master Servicer upon such Master Servicer's failure to remit
funds on the Deposit Date.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.29, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no responsibility for any act or omission of the Master Servicer
prior to the issuance of any notice of termination and shall have no liability
relating to the representations and warranties of the Master Servicer set
forth in Section 9.14. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability herein granted to the
Master Servicer. As compensation therefor, the Trustee shall be entitled to
receive all compensation payable to the Master Servicer under this Agreement,
including the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be unwilling
to continue to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established housing
and home finance institution servicer, master servicer, servicing or mortgage
servicing institution having a net worth of not less than $15,000,000 and
meeting such other standards for a successor master servicer as are set forth
in this Agreement, as the successor to such Master Servicer in the assumption
of all of the responsibilities, duties or liabilities of a master servicer,
like the Master Servicer. Any entity designated by the Trustee as a successor
master servicer may be an Affiliate of the Trustee; provided, however, that,
unless such Affiliate meets the net worth requirements and other standards set
forth herein for a successor master servicer, the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate's actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted to the
Master Servicer hereunder. The Trustee and such successor shall take such
actions, consistent with this Agreement, as shall be necessary to effectuate
any such succession and may make other arrangements with respect to the
servicing to be conducted hereunder which are not inconsistent herewith. The
Master Servicer shall cooperate with the Trustee and any successor master
servicer in effecting the termination of the Master Servicer's
responsibilities and rights hereunder including, without limitation, notifying
Mortgagors of the assignment of the master servicing functions and providing
the Trustee and successor master servicer, as applicable, all documents and
records in electronic or other form reasonably requested by it to enable it to
assume the Master Servicer's functions hereunder and the transfer to the
Trustee or such successor master servicer, as applicable, all amounts which
shall at the time be or should have been deposited by the Master Servicer in
the Collection Account and any other account or fund maintained with respect
to the Certificates or thereafter be received with respect to the Mortgage
Loans. Neither the Trustee nor any other successor master servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by
(i) the failure of the Master Servicer to deliver, or any delay in delivering,
cash, documents or records to it, (ii) the failure of the Master Servicer to
cooperate as required by this Agreement, (iii) the failure of the Master
Servicer to deliver the Mortgage Loan data to the Trustee as required by this
Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default. During
the continuance of any Event of Default, so long as such Event of Default
shall not have been remedied, the Trustee, in addition to the rights specified
in Section 6.14, shall have the right, in its own name and as trustee of an
express trust, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies and to protect the interests,
and enforce the rights and remedies, of the Certificateholders and the Class
2-A3 Certificate Insurer (including the institution and prosecution of all
judicial, administrative and other proceedings and the filings of proofs of
claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative
and in addition to any other remedy, and no delay or omission to exercise any
right or remedy shall impair any such right or remedy or shall be deemed to be
a waiver of any Event of Default.
Section 6.16. Waiver of Defaults. 35% or more of the Aggregate Voting
Interests of Certificateholders may waive any default or Event of Default by
the Master Servicer in the performance of its obligations hereunder, except
that a default in the making of any required deposit to the Certificate
Account that would result in a failure of the Trustee to make any required
payment of principal of or interest on the Certificates may only be waived
with the consent of 100% of the affected Certificateholders. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.17. Notification to Holders. Upon termination of the Master
Servicer or appointment of a successor to the Master Servicer, in each case as
provided herein, the Trustee shall promptly mail notice thereof by first class
mail to the Class 2-A3 Certificate Insurer and the Certificateholders at their
respective addresses appearing on the Certificate Register. The Trustee shall
also, within 45 days after the occurrence of any Event of Default known to the
Trustee, give written notice thereof to Certificateholders, unless such Event
of Default shall have been cured or waived prior to the issuance of such
notice and within such 45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default. Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; provided, however, that the Trustee shall be under no obligation to
pursue any such remedy, or to exercise any of the trusts or powers vested in
it by this Agreement (including, without limitation, (i) the conducting or
defending of any administrative action or litigation hereunder or in relation
hereto and (ii) the terminating of the Master Servicer or any successor master
servicer from its rights and duties as master servicer hereunder) at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the cost, expenses and liabilities which may be incurred
therein or thereby; and, provided further, that, subject to the provisions of
Section 8.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee, in accordance with an Opinion of Counsel, determines
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith determines that the action or proceeding so directed
would involve it in personal liability or be unjustly prejudicial to the
non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer and Upon
Event of Default. In the event that the Trustee shall have actual knowledge of
any action or inaction of the Master Servicer that would become an Event of
Default upon the Master Servicer's failure to remedy the same after notice,
the Trustee shall give notice thereof to the Master Servicer. For all purposes
of this Agreement, in the absence of actual knowledge by a Responsible Officer
of the Trustee, the Trustee shall not be deemed to have knowledge of any
failure of the Master Servicer or any other Event of Default unless notified
in writing by the Depositor, the Master Servicer or a Certificateholder.
Section 6.20. Preparation of Tax Returns and Other Reports. (a) The
Trustee shall prepare or cause to be prepared on behalf of the Trust Fund,
based upon information calculated in accordance with this Agreement pursuant
to instructions given by the Depositor, and the Trustee shall file, federal
tax returns and appropriate state income tax returns and such other returns as
may be required by applicable law relating to the Trust Fund, and the Trustee
shall forward copies to the Depositor of all such returns and Form 1099
information and such other information within the control of the Trustee as
the Depositor may reasonably request in writing, and shall forward to each
Certificateholder such forms and furnish such information within the control
of the Trustee as are required by the Code and the REMIC Provisions to be
furnished to them, and will prepare and file annual reports required by
applicable state authorities, will file copies of this Agreement with the
appropriate state authorities as may be required by applicable law, and will
prepare and disseminate to Certificateholders Form 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Master Servicer will indemnify the Trustee for any
liability of or assessment against the Trustee resulting from any error in any
of such tax or information returns directly resulting from errors in the
information provided by such Master Servicer (other than information that is
derived solely from information provided by a Servicer).
(b) The Trustee shall prepare and file with the Internal Revenue Service
("IRS"), on behalf of the Trust Fund, an application on IRS Form SS-4. The
Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned, shall promptly forward a copy of such notice to the Master
Servicer and the Depositor.
(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K and thereafter the Trustee will prepare or cause to
be prepared Form 10-Ks and Form 10-Qs (if necessary), or monthly current
reports on Form 8-K, on behalf of the Trust Fund, as may be required by
applicable law, for filing with the Securities and Exchange Commission (the
"SEC"), and the Trustee will sign each such report on behalf of the Trust. The
Trustee will forward a copy of each such report to the Depositor promptly
after such report has been filed with the SEC. The Trustee agrees to use its
best efforts to seek to terminate such filing obligation after the period
during which such filings are required under the Securities Exchange Act of
1934. Promptly after filing a Form 15 or other applicable form with the SEC in
connection with such termination, the Trustee shall deliver to the Depositor a
copy of such form together with copies of confirmations of receipt by the SEC
of each report filed therewith on behalf of the Trust Fund.
Article VII
PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation of
All Mortgage Loans and the Underlying Security. (a) The respective obligations
and responsibilities of the Trustee and the Master Servicer created hereby
(other than the obligation of the Trustee to make payments to
Certificateholders as set forth in Section 7.02, the obligation of the Master
Servicer to make a final remittance to the Trustee for deposit into the
Certificate Account pursuant to Section 4.01 and the obligations of the Master
Servicer to the Trustee pursuant to Sections 9.10 and 9.14), shall terminate
on the earlier of (i) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust Fund, the disposition of all REO Property
and the final payment under the Underlying Security and (ii) the sale of the
property held by the Trust Fund in accordance with Section 7.01(b); provided,
however, that in no event shall the Trust Fund created hereby continue beyond
the earlier of (i) 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 to the Court of St. James's, living on the date hereof, and (ii)
the Latest Possible Maturity Date. Any termination of the Trust Fund shall be
carried out in such a manner so that the termination of each REMIC included
therein shall qualify as a "qualified liquidation" under the REMIC Provisions.
(b) On any Distribution Date occurring after the date on which the sum of
(i) the aggregate Scheduled Principal Balance of the Mortgage Loans and (ii)
the Security Principal Balance of the Underlying Security is less than 10% of
the sum of (i) the Cut-off Date Aggregate Principal Balance and (ii) the
Security Principal Balance of the Underlying Security as of the Closing Date,
the Depositor may, upon written direction to the Trustee, cause (i) the
Trustee to sell (or arrange for the sale of) the assets of the Trust Fund and
(ii) the Trust Fund to adopt a plan of complete liquidation pursuant to
Section 7.03(a)(i) hereof to sell all of its property. The property of the
Trust Fund shall be sold at a price (the "Termination Price") equal to: (i)
100% of the unpaid principal balance of each Mortgage Loan on the day of such
purchase plus interest accrued thereon at the applicable Mortgage Rate with
respect to any Mortgage Loan to the Due Date in the Due Period immediately
preceding the related Distribution Date to the date of such repurchase, (ii)
100% of the total outstanding Security Principal Balance of the Underlying
Security on the date of such purchase, plus interest accrued thereon at the
interest rate paid on the Underlying Security from the last Underlying
Distribution Date to the date of repurchase, (iii) the fair market value of
any REO Property and any other property held by any REMIC, such fair market
value to be determined by an appraiser or appraisers appointed by the Master
Servicer with the consent of the Trustee, (iv) any unreimbursed Servicing
Advances with respect to each Mortgage Loan, and (v) any Reimbursement Amounts
due to the Class 2-A3 Certificate Insurer.
Section 7.02. Procedure Upon Termination of Trust Fund. (a) Notice of any
termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
(x) no later than five Business Days after the Trustee has received notice
from the Depositor of its intent to exercise its right to cause the
termination of the Trust Fund pursuant to Section 7.01(b) or (y) upon the
final payment or other liquidation of the last Mortgage Loan or REO Property
in the Trust Fund. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates of all amounts required to be
distributed to Certificateholders pursuant to Section 5.02 will be made upon
presentation and surrender of the Certificates at the Corporate Trust Office,
and (B) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distribution being made only upon presentation and surrender
of the Certificates at the office or agency of the Trustee therein specified.
The Trustee shall give such notice to the Master Servicer and the Certificate
Registrar at the time such notice is given to Holders of the Certificates.
Upon any such termination, the duties of the Certificate Registrar with
respect to the Certificates shall terminate and the Trustee shall terminate,
or request the Master Servicer to terminate, the Collection Account it
maintains, the Certificate Account and any other account or fund maintained
with respect to the Certificates, subject to the Trustee's obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to
a Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with this Section.
(c) Any reasonable expenses incurred by the Trustee in connection with any
termination or liquidation of the Trust Fund shall be paid from proceeds
received from the liquidation of the Trust Fund.
Section 7.03. Additional Trust Fund Termination Requirements. (a) The
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee seeks (at the request of the Master
Servicer), and subsequently receives, an Opinion of Counsel (at the expense of
the Master Servicer), addressed to the Trustee to the effect that the failure
of the Trust Fund to comply with the requirements of this Section 7.03 will
not (i) result in the imposition of taxes on any REMIC under the REMIC
Provisions or (ii) cause any REMIC established hereunder to fail to qualify as
a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the final
payment on the Certificates, the Trustee (upon (x) the sale of the
property of the Trust Fund by the Trustee pursuant to Section 7.01(b) or
(y) notification by the Depositor that it intends to exercise its option
to cause the termination of the Trust Fund) shall adopt a plan of complete
liquidation of the Trust Fund on behalf of each REMIC, meeting the
requirements of a qualified liquidation under the REMIC Provisions;
(ii) The sale of the assets of the Trust Fund pursuant to Section
7.02 shall be a sale for cash and shall occur at or after the time of
adoption of such a plan of complete liquidation and prior to the time of
making of the final payment on the Certificates;
(iii) On the date specified for final payment of the Certificates,
the Trustee shall make final distributions of principal and interest on
the Certificates in accordance with Section 5.02 and distribute or credit,
or cause to be distributed or credited, to the Holder of the Residual
Certificate all cash on hand after such final payment (other than cash
retained to meet claims), and the Trust Fund (and each REMIC) shall
terminate at that time; and
(iv) In no event may the final payment on the Certificates or the
final distribution or credit to the Holder of the Residual Certificate be
made after the 89th day from the date on which the plan of complete
liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take such action as may be necessary to
adopt a plan of complete liquidation of the related REMIC and (ii) agrees to
take such other action as may be necessary to adopt a plan of complete
liquidation of the related REMIC, which authorization shall be binding upon
all successor Residual Certificateholders.
Article VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. (a) The death or incapacity
of any Certificateholder shall not operate to terminate this Agreement or this
Trust Fund, nor entitle such Certificateholder's legal representatives or
heirs to claim an accounting or take any action or proceeding in any court for
a partition or winding up of this Trust Fund, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them. Except as
otherwise expressly provided herein, no Certificateholder, solely by virtue of
its status as a Certificateholder, shall have any right to vote or in any
manner otherwise control the Master Servicer or the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be
under any liability to any third person by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 25% of the
Class Principal Amount (or Class Notional Amount) of Certificates of each
Class shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
cost, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for sixty days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding and no direction inconsistent with such written request has been
given such Trustee during such sixty-day period by such Certificateholders; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing of any provision of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement, except in
the manner herein provided and for the benefit of all Certificateholders. For
the protection and enforcement of the provisions of this Section, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not acting
as Certificate Registrar, the Certificate Registrar will furnish or cause to
be furnished to the Trustee, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter referred
to as "Applicants") apply in writing to the Trustee, and such application
states that the Applicants desire to communicate with other Holders with
respect to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt
of such application, afford such Applicants reasonable access during the
normal business hours of the Trustee to the most recent list of
Certificateholders held by the Trustee or shall, as an alternative, send, at
the Applicants' expense, the written communication proffered by the Applicants
to all Certificateholders at their addresses as they appear in the Certificate
Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing Agency,
by receiving and holding a Certificate, agrees with the Depositor, the Master
Servicer, the Certificate Registrar and the Trustee that neither the
Depositor, the Master Servicer, the Certificate Registrar nor the Trustee
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 8.03. Acts of Holders of Certificates. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Holders or Certificate Owner, if the
Holder is a Clearing Agency, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where expressly required herein,
to the Master Servicer. Such instrument or instruments (as the action embodies
therein and evidenced thereby) are herein sometimes referred to as an "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee and
Master Servicer, if made in the manner provided in this Section. Each of the
Trustee and Master Servicer shall promptly notify the other of receipt of any
such instrument by it, and shall promptly forward a copy of such instrument to
the other.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Master Servicer, nor the
Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Trustee or the Master Servicer in reliance thereon, whether or not notation of
such action is made upon such Certificate.
Section 8.04. Rights of Certificateholders as Holders of the Underlying
Security. The Depositor hereby expressly agrees that each Certificateholder,
to the extent of its ownership interest in the Underlying Security, shall have
the same rights against the Depositor, acting in its capacity as Depositor
with respect to the Underlying Trust Fund, as if such Certificateholder held
the Underlying Security directly.
Article IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer. The Certificateholders, by
their purchase and acceptance of the Certificates, appoint Aurora Loan
Services Inc., as Master Servicer. For and on behalf of the Depositor, the
Trustee and the Certificateholders, the Master Servicer shall master service
the Mortgage Loans in accordance with the provisions of this Agreement and the
provisions of the applicable Servicing Agreement.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and
Omissions Insurance Policy. (a) The Master Servicer, at its expense, shall
maintain in effect a Fidelity Bond and an Errors and Omissions Insurance
Policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations
hereunder. The Errors and Omissions Insurance Policy and the Fidelity Bond
shall be in such form and amount that would meet the requirements of FNMA or
FHLMC if it were the purchaser of the Mortgage Loans. The Master Servicer
shall (i) require each Servicer to maintain an Errors and Omissions Insurance
Policy and a Fidelity Bond in accordance with the provisions of the applicable
Servicing Agreement, (ii) cause each Servicer to provide to the Master
Servicer certificates evidencing that such policy and bond is in effect and to
furnish to the Master Servicer any notice of cancellation, non-renewal or
modification of the policy or bond received by it, as and to the extent
provided in the applicable Servicing Agreement, and (iii) furnish copies of
the certificates and notices referred to in clause (ii) to the Trustee upon
its request. The Fidelity Bond and Errors and Omissions Insurance Policy may
be obtained and maintained in blanket form.
(b) The Master Servicer shall promptly report to the Trustee any material
changes that may occur in the Master Servicer Fidelity Bond or the Master
Servicer Errors and Omissions Insurance Policy and shall furnish to the
Trustee, on request, certificates evidencing that such bond and insurance
policy are in full force and effect. The Master Servicer shall promptly report
to the Trustee all cases of embezzlement or fraud, if such events involve
funds relating to the Mortgage Loans. The total losses, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed in
such reports together with the amount of such losses covered by insurance. If
a bond or insurance claim report is filed with any of such bonding companies
or insurers, the Master Servicer shall promptly furnish a copy of such report
to the Trustee. Any amounts relating to the Mortgage Loans collected by the
Master Servicer under any such bond or policy shall be promptly remitted by
the Master Servicer to the Trustee for deposit into the Certificate Account.
Any amounts relating to the Mortgage Loans collected by any Servicer under any
such bond or policy shall be remitted to the Master Servicer to the extent
provided in the applicable Servicing Agreement.
Section 9.03. Master Servicer's Financial Statements and Related
Information. For each year this Agreement is in effect, the Master Servicer
shall submit to the Trustee, each Rating Agency and the Depositor a copy of
its annual unaudited financial statements on or prior to May 31 of each year.
Such financial statements shall include a balance sheet, income statement,
statement of retained earnings, statement of additional paid-in capital,
statement of changes in financial position and all related notes and schedules
and shall be in comparative form, certified by a nationally recognized firm of
Independent Accountants to the effect that such statements were examined and
prepared in accordance with generally accepted accounting principles applied
on a basis consistent with that of the preceding year.
Section 9.04. Power to Act; Procedures. (a) The Master Servicer shall
master service the Mortgage Loans and shall have full power and authority,
subject to the REMIC Provisions and the provisions of Article X hereof, and
each Servicer shall have full power and authority (to the extent provided in
the applicable Servicing Agreement) to do any and all things that it may deem
necessary or desirable in connection with the servicing and administration of
the Mortgage Loans, including but not limited to the power and authority (i)
to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable; provided that the Master Servicer shall
not take, or knowingly permit any Servicer to take, any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee and the Certificateholders under this Agreement. The
Master Servicer shall represent and protect the interests of the Trust Fund in
the same manner as it protects its own interests in mortgage loans in its own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan and
shall not make or permit any Servicer to make any modification, waiver or
amendment of any term of any Mortgage Loan that would cause the Trust Fund to
fail to qualify as a REMIC or result in the imposition of any tax under
Section 860F(a) or Section 860G(d) of the Code. Without limiting the
generality of the foregoing, the Master Servicer in its own name or in the
name of a Servicer, and each Servicer, to the extent such authority is
delegated to such Servicer by the Master Servicer under the applicable
Servicing Agreement, is hereby authorized and empowered by the Trustee when
the Master Servicer or a Servicer, as the case may be, believes it appropriate
in its best judgment and in accordance with Accepted Servicing Practices and
the applicable Servicing Agreement, to execute and deliver, on behalf of
itself and the Certificateholders, the Trustee or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall furnish
the Master Servicer, upon request, with any powers of attorney empowering the
Master Servicer or any Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
to foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with the applicable Servicing Agreement and
this Agreement, and the Trustee shall execute and deliver such other
documents, as the Master Servicer may request, necessary or appropriate to
enable the Master Servicer to master service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Accepted
Servicing Practices (and the Trustee shall have no liability for misuse of any
such powers of attorney by the Master Servicer or any Servicer). If the Master
Servicer or the Trustee has been advised that it is likely that the laws of
the state in which action is to be taken prohibit such action if taken in the
name of the Trustee or that the Trustee would be adversely affected under the
"doing business" or tax laws of such state if such action is taken in its
name, then upon request of the Trustee, the Master Servicer shall join with
the Trustee in the appointment of a co-trustee pursuant to Section 6.09
hereof. In the performance of its duties hereunder, the Master Servicer shall
be an independent contractor and shall not, except in those instances where it
is taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
(b) In master servicing and administering the Mortgage Loans, the Master
Servicer shall employ procedures, and shall cause each Servicer to employ
procedures (including, but not limited to, collection procedures), consistent
with the applicable Servicing Agreement. Consistent with the foregoing, the
Master Servicer may, and may permit any Servicer to, in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Mortgage Note for a period not greater than 120
days; provided, however, that the maturity of any Mortgage Loan shall not be
extended past the date on which the final payment is due on the latest
maturing Mortgage Loan as of the Cut-off Date. In the event of any extension
described in clause (ii) above, the Master Servicer shall make or cause to be
made Advances on the related Mortgage Loan in accordance with the provisions
of Section 5.04 on the basis of the amortization schedule of such Mortgage
Loan without modification thereof by reason of such extension. Notwithstanding
anything to the contrary in this Agreement, the Master Servicer shall not,
unless default by the related Mortgagor is, in the reasonable judgment of the
Master Servicer, imminent, permit any modification, waiver or amendment of any
material term of any Mortgage Loan (including but not limited to the interest
rate, the principal balance, the amortization schedule, or any other term
affecting the amount or timing of payments on the Mortgage Loan or the
collateral therefor) unless the Master Servicer shall have provided or caused
to be provided to the Trustee an Opinion of Counsel in writing to the effect
that such modification, waiver or amendment would not be treated as giving
rise to a new debt instrument for federal income tax purposes and would not
adversely affect the status of the REMIC.
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations. (a) Each Servicing Agreement
requires the applicable Servicer to service the Mortgage Loans in accordance
with the provisions thereof. References in this Agreement to actions taken or
to be taken by the Master Servicer include actions taken or to be taken by a
Servicer on behalf of the Master Servicer. Any fees and other amounts payable
to such Servicers shall be deducted from amounts remitted to the Master
Servicer by the applicable Servicer and shall not be an obligation of the
Trust.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
terminate the rights and obligations of such Servicer thereunder and either
act as servicer of the related Mortgage Loans or enter into a Servicing
Agreement with a successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor initially
only (i) from a general recovery resulting from such enforcement only to the
extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loans or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed,
and then, to the extent that such amounts are insufficient to reimburse the
Master Servicer for the costs of such enforcement, (iii) from the Collection
Account.
Section 9.06. Collection of Taxes, Assessments and Similar Items. (a) To
the extent provided in the applicable Servicing Agreement, the Master Servicer
shall cause each Servicer to establish and maintain one or more custodial
accounts at a depository institution (which may be a depository institution
with which the Master Servicer or any Servicer establishes accounts in the
ordinary course of its servicing activities), the accounts of which are
insured to the maximum extent permitted by the FDIC (each, an "Escrow
Account") and shall deposit therein any collections of amounts received with
respect to amounts due for taxes, assessments, water rates, Standard Hazard
Insurance Policy premiums or any comparable items for the account of the
Mortgagors. Withdrawals from any Escrow Account may be made (to the extent
amounts have been escrowed for such purpose) only in accordance with the
applicable Servicing Agreement. Each Servicer shall be entitled to all
investment income not required to be paid to Mortgagors on any Escrow Account
maintained by such Servicer. The Master Servicer shall make (or cause to be
made) to the extent provided in the applicable Servicing Agreement advances to
the extent necessary in order to effect timely payment of taxes, water rates,
assessments, Standard Hazard Insurance Policy premiums or comparable items in
connection with the related Mortgage Loan (to the extent that the Mortgagor is
required, but fails, to pay such items), provided that it has determined that
the funds so advanced are recoverable from escrow payments, reimbursement
pursuant to Section 4.02(v) or otherwise.
(b) Costs incurred by the Master Servicer or by Servicers in effecting the
timely payment of taxes and assessments on the properties subject to the
Mortgage Loans may be added to the amount owing under the related Mortgage
Note where the terms of the Mortgage Note so permit; provided, however, that
the addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders. Such costs, to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or routine costs shall be recoverable by the Master Servicer pursuant to
Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor Servicers.
(a) The Master Servicer shall be entitled to terminate the rights and
obligations of any Servicer under the applicable Servicing Agreement in
accordance with the terms and conditions of such Servicing Agreement and
without any limitation by virtue of this Agreement; provided, however, that in
the event of termination of any Servicing Agreement by the Master Servicer or
the related Servicer, the Master Servicer shall either act as Servicer of the
related Mortgage Loans, or enter into a Servicing Agreement with a successor
Servicer.
(b) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of the Servicer, if any, that it
replaces. The Master Servicer shall use reasonable efforts to have the
successor Servicer assume liability for the representations and warranties
made by the terminated Servicer in respect of the related Mortgage Loans, and
in the event of any such assumption by the successor Servicer, the Trustee or
the Master Servicer, as applicable, may, in the exercise of its business
judgment, release the terminated Servicer from liability for such
representations and warranties.
Section 9.08. Master Servicer Liable for Enforcement. Notwithstanding any
Servicing Agreement, the Master Servicer shall remain obligated and liable to
the Trustee and the Certificateholders in accordance with the provisions of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of such Servicing Agreements or
arrangements. The Master Servicer shall use commercially reasonable efforts to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of this Agreement and shall use commercially reasonable efforts to enforce the
provisions of each Servicing Agreement for the benefit of the
Certificateholders. The Master Servicer shall be entitled to enter into any
agreement with the Servicers for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall have no liability for the acts or omissions of any Servicer in the
performance by such Servicer of its obligations under the related Servicing
Agreement.
Section 9.09. No Contractual Relationship Between Servicers and Trustee or
Depositor. Any Servicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Servicer
in its capacity as such and not as an originator shall be deemed to be between
such Servicer, the Seller and the Master Servicer, and the Trustee and the
Depositor shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to such Servicer
except as set forth in Section 9.10 hereof.
Section 9.10. Assumption of Servicing Agreement by Trustee. (a) In the
event the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default under this Agreement),
the Trustee shall thereupon assume all of the rights and obligations of such
Master Servicer hereunder and under each Servicing Agreement entered into with
respect to the Mortgage Loans. The Trustee, its designee or any successor
master servicer appointed by the Trustee shall be deemed to have assumed all
of the Master Servicer's interest herein and therein to the same extent as if
such Servicing Agreement had been assigned to the assuming party, except that
the Master Servicer shall not thereby be relieved of any liability or
obligations of the Master Servicer under such Servicing Agreement accruing
prior to its replacement as Master Servicer, and shall be liable to the
Trustee, and hereby agrees to indemnify and hold harmless the Trustee from and
against all costs, damages, expenses and liabilities (including reasonable
attorneys' fees) incurred by the Trustee as a result of such liability or
obligations of the Master Servicer and in connection with the Trustee's
assumption (but not its performance, except to the extent that costs or
liability of the Trustee are created or increased as a result of negligent or
wrongful acts or omissions of the Master Servicer prior to its replacement as
Master Servicer) of the Master Servicer's obligations, duties or
responsibilities thereunder; provided that the Master Servicer shall not
indemnify or hold harmless the Trustee against negligent or wrongful acts or
omissions of the Trustee.
(b) The Master Servicer that has been terminated shall, upon request of
the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to each Servicing Agreement
and the related Mortgage Loans and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of each Servicing Agreement to the assuming party.
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
Section 9.12. Release of Mortgage Files. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer of
a notification that payment in full has been escrowed in a manner customary
for such purposes for payment to Certificateholders on the next Distribution
Date, the Master Servicer will, or will cause the applicable Servicer to,
promptly notify the Trustee (or the applicable Custodian) by a certification
(which certification shall include a statement to the effect that all amounts
received in connection with such payment that are required to be deposited in
the Collection Account maintained by the Master Servicer pursuant to Section
4.01 have been or will be so deposited) of a Servicing Officer and shall
request the Trustee or the applicable Custodian, to deliver to the applicable
Servicer the related Mortgage File. Upon receipt of such certification and
request, the Trustee or the applicable Custodian (with the consent, and at the
direction of the Trustee), shall promptly release the related Mortgage File to
the applicable Servicer and the Trustee shall have no further responsibility
with regard to such Mortgage File. Upon any such payment in full, the Master
Servicer is authorized, and each Servicer, to the extent such authority is
delegated to such Servicer by the Master Servicer under the applicable
Servicing Agreement, is authorized, to give, as agent for the Trustee, as the
mortgagee under the Mortgage that secured the Mortgage Loan, an instrument of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction
or assignment, as the case may be, shall be delivered to the Person or Persons
entitled thereto against receipt therefor of such payment, it being understood
and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
Collection Account.
(b) From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan and in accordance with Accepted Servicing Practices and
the applicable Servicing Agreement, the Trustee shall execute such documents
as shall be prepared and furnished to the Trustee by the Master Servicer, or
by a Servicer (in form reasonably acceptable to the Trustee) and as are
necessary to the prosecution of any such proceedings. The Trustee or the
Custodian, shall, upon request of the Master Servicer, or of a Servicer, and
delivery to the Trustee or the applicable Custodian, of a trust receipt signed
by a Servicing Officer substantially in the form of Exhibit C, release the
related Mortgage File held in its possession or control to the Master Servicer
(or the applicable Servicer). Such trust receipt shall obligate the Master
Servicer or applicable Servicer to return the Mortgage File to the Trustee or
Custodian, as applicable, when the need therefor by the Master Servicer or
applicable Servicer no longer exists unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that herein above specified, the trust receipt shall be
released by the Trustee or the Custodian, as applicable, to the Master
Servicer (or the applicable Servicer).
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee. (a) The Master Servicer shall transmit, or
cause the applicable Servicer to transmit, to the Trustee such documents and
instruments coming into the possession of the Master Servicer or such Servicer
from time to time as are required by the terms hereof to be delivered to the
Trustee. Any funds received by the Master Servicer or by a Servicer in respect
of any Mortgage Loan or which otherwise are collected by the Master Servicer
or by a Servicer as Liquidation Proceeds or Insurance Proceeds in respect of
any Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer's right to retain or
withdraw from the Collection Account the Master Servicing Fee and other
amounts provided in this Agreement, and to the right of each Servicer to
retain its Servicing Fee as provided in the applicable Servicing Agreement.
The Master Servicer shall, and shall (to the extent provided in the applicable
Servicing Agreement) cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or
other regulatory authority, such access to be afforded without charge but only
upon reasonable request in writing and during normal business hours at the
offices of the Master Servicer designated by it. In fulfilling such a request
the Master Servicer shall not be responsible for determining the sufficiency
of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, or any Servicer, in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by any Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee; provided, however, that the Master Servicer and each Servicer
shall be entitled to setoff against, and deduct from, any such funds any
amounts that are properly due and payable to the Master Servicer or such
Servicer under this Agreement or the applicable Servicing Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with the
execution of this Agreement, the Trustee shall own or, to the extent that a
court of competent jurisdiction shall deem the conveyance of the Mortgage
Loans from the Seller to the Depositor not to constitute a sale, the Trustee
shall have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by, or
under the control of, a Servicer or the Master Servicer that are collected by
any Servicer or the Master Servicer in connection with the Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a
Servicer is entitled under its Servicing Agreement, or the Master Servicer or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so long as the Mortgage Loans are assigned to and held by the Trustee, all
documents or instruments constituting part of the Mortgage Files, and such
funds relating to the Mortgage Loans which come into the possession or custody
of, or which are subject to the control of, the Master Servicer or any
Servicer shall be held by the Master Servicer or such Servicer for and on
behalf of the Trustee as the Trustee's agent and bailee for purposes of
perfecting the Trustee's security interest therein as provided by the
applicable Uniform Commercial Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not authorize
any Servicer to, create, incur or subject any Mortgage Loans, or any funds
that are deposited in any custodial account, Escrow Account or the Collection
Account, or any funds that otherwise are or may become due or payable to the
Trustee, to any claim, lien, security interest, judgment, levy, writ of
attachment or other encumbrance, nor assert by legal action or otherwise any
claim or right of setoff against any Mortgage Loan or any funds collected on,
or in connection with, a Mortgage Loan.
Section 9.14. Representations and Warranties of the Master Servicer. (a)
The Master Servicer hereby represents and warrants to the Depositor and the
Trustee, for the benefit of the Certificateholders and the Class 2-A3
Certificate Insurer, as of the Closing Date that:
(i) it is validly existing and in good standing under the
jurisdiction of its formation, and as Master Servicer has full power and
authority to transact any and all business contemplated by this Agreement
and to execute, deliver and comply with its obligations under the terms of
this Agreement, the execution, delivery and performance of which have been
duly authorized by all necessary corporate action on the part of the
Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential mortgage
loans, is an FNMA- and FHLMC approved seller/servicer;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained;
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer;
and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section 9.02, each
of which is in full force and effect, and each of which provides at least
such coverage as is required hereunder.
(b) It is understood and agreed that the representations and warranties
set forth in this Section 9.14 shall survive the execution and delivery of
this Agreement. The Master Servicer shall indemnify the Depositor and the
Trustee and hold them harmless against any loss, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Master Servicer's
representations and warranties contained in Section 9.14(a). Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not be
liable for special, indirect or consequential losses or damages of any kind
whatsoever (including, but not limited to, lost profits). It is understood and
agreed that the enforcement of the obligation of the Master Servicer set forth
in this Section to indemnify the Depositor and the Trustee as provided in this
Section constitutes the sole remedy (other than as set forth in Section 6.14)
of the Depositor and the Trustee, respecting a breach of the foregoing
representations and warranties. Such indemnification shall survive any
termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any cause of action against the Master Servicer relating to or arising out
of the breach of any representations and warranties made in this Section shall
accrue upon discovery of such breach by either the Depositor, the Master
Servicer, the Trustee or the Class 2-A3 Certificate Insurer or notice thereof
by any one of such parties to the other parties.
(c) It is understood and agreed that the representations and warranties of
the Depositor set forth in Sections 2.03(a) through (f) shall survive the
execution and delivery of this Agreement. The Depositor shall indemnify the
Master Servicer and hold it harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs
and expenses resulting from any claim, demand, defense or assertion based on
or grounded upon, or resulting from, a breach of the Depositor's
representations and warranties contained in Sections 2.03(a) through (f)
hereof. It is understood and agreed that the enforcement of the obligation of
the Depositor set forth in this Section to indemnify the Master Servicer as
provided in this Section constitutes the sole remedy of the Master Servicer
respecting a breach by the Depositor of the representations and warranties in
Sections 2.03(a) through (f) hereof.
Any cause of action against the Depositor relating to or arising out of
the breach of the representations and warranties made in Sections 2.03(a)
through (f) hereof shall accrue upon discovery of such breach by either the
Depositor or the Master Servicer or notice thereof by any one of such parties
to the other parties.
Section 9.15. Closing Certificate and Opinion. On or before the Closing
Date, the Master Servicer shall cause to be delivered to the Depositor and
Xxxxxx Brothers Inc. an Opinion of Counsel, dated the Closing Date, in form
and substance reasonably satisfactory to the Depositor and Xxxxxx Brothers
Inc., as to the due authorization, execution and delivery of this Agreement by
the Master Servicer and the enforceability thereof.
Section 9.16. Standard Hazard and Flood Insurance Policies. For each
Mortgage Loan, the Master Servicer shall maintain, or cause to be maintained
by each Servicer, standard fire and casualty insurance and, where applicable,
flood insurance, all in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable. It is understood and agreed
that such insurance shall be with insurers meeting the eligibility
requirements set forth in the applicable Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor or
to be maintained on property acquired in respect of a defaulted 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.
Pursuant to Section 4.01, any amounts collected by the Master Servicer, or
by any Servicer, under any insurance policies maintained pursuant to this
Section 9.16 (other than amounts to be applied to the restoration or repair of
the property subject to the related Mortgage or released to the Mortgagor in
accordance with the applicable Servicing Agreement) shall be deposited into
the Collection Account, subject to withdrawal pursuant to Section 4.02. Any
cost incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to the amount owing under the Mortgage Loan where the terms of the Mortgage
Loan so permit; provided, however, that the addition of any such cost shall
not be taken into account for purposes of calculating the distributions to be
made to Certificateholders and shall be recoverable by the Master Servicer or
such Servicer pursuant to Section 4.02(v).
Section 9.17. Presentment of Claims and Collection of Proceeds. The Master
Servicer shall, or shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies
with respect to the Mortgage Loans, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to a Servicer and remitted to
the Master Servicer) in respect of such policies or bonds shall be promptly
deposited in the Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition requisite to the presentation of claims on
the related Mortgage Loan to the insurer under any applicable Insurance Policy
need not be so deposited (or remitted).
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies. (a)
The Master Servicer shall not take, or permit any Servicer (consistent with
the applicable Servicing Agreement) to take, any action that would result in
non-coverage under any applicable Primary Mortgage Insurance Policy of any
loss which, but for the actions of such Master Servicer or Servicer, would
have been covered thereunder. The Master Servicer shall use its best
reasonable efforts to keep in force and effect, or to cause each Servicer to
keep in force and effect (to the extent that the Mortgage Loan requires the
Mortgagor to maintain such insurance), primary mortgage insurance applicable
to each Mortgage Loan in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable. The Master Servicer shall not,
and shall not permit any Servicer to, cancel or refuse to renew any such
Primary Mortgage Insurance Policy that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder
except in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer to
present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies
and Documents. The Trustee (or its custodian, if any, as directed by the
Trustee), shall retain possession and custody of the originals of the Primary
Mortgage Insurance Policies or certificate of insurance if applicable and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect
of the Certificates have been distributed in full and the Master Servicer
otherwise has fulfilled its obligations under this Agreement, the Trustee (or
its custodian, if any, as directed by the Trustee) shall also retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions of this Agreement. The Master Servicer shall promptly
deliver or cause to be delivered to the Trustee (or its custodian, if any, as
directed by the Trustee), upon the execution or receipt thereof the originals
of the Primary Mortgage Insurance Policies and any certificates of renewal
thereof, and such other documents or instruments that constitute portions of
the Mortgage File that come into the possession of the Master Servicer from
time to time.
Section 9.20. Realization Upon Defaulted Mortgage Loans. The Master
Servicer shall use its reasonable best efforts to, or to cause each Servicer
to, foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged 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, all in accordance with the applicable
Servicing Agreement.
Section 9.21. Compensation to the Master Servicer. The Master Servicer
shall (i) be entitled, at its election, either (a) to pay itself the Master
Servicing Fee, as reduced pursuant to Section 5.05, in respect of the Mortgage
Loans out of any Mortgagor payment on account of interest prior to the deposit
of such payment in the Collection Account it maintains or (b) to withdraw from
the Collection Account, subject to Section 5.05, the Master Servicing Fee to
the extent permitted by Section 4.02(iv). The Master Servicer shall also be
entitled, at its election, either (a) to pay itself the Master Servicing Fee
in respect of each delinquent Mortgage Loan master serviced by it out of
Liquidation Proceeds in respect of such Mortgage Loan or other recoveries with
respect thereto to the extent permitted in Section 4.02 or (b) to withdraw
from the Collection Account it maintains the Master Servicing Fee in respect
of each Liquidated Mortgage Loan to the extent of such Liquidation Proceeds or
other recoveries, to the extent permitted by Section 4.02. Servicing
compensation in the form of assumption fees, if any, late payment charges, as
collected, if any, or otherwise (including any Prepayment Penalty Amount)
shall be retained by the Master Servicer (or the applicable Servicer) and
shall not be deposited in the Collection Account. If the Master Servicer does
not retain or withdraw the Master Servicing Fee from the Collection Account as
provided herein, the Master Servicer shall be entitled to direct the Trustee
to pay the Master Servicing Fee to such Master Servicer by withdrawal from the
Certificate Account to the extent that payments have been received with
respect to the applicable Mortgage Loan. The Master Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder
and shall not be entitled to reimbursement therefor except as provided in this
Agreement. Pursuant to Section 4.01(e), all income and gain realized from any
investment of funds in the Collection Account shall be for the benefit of the
Master Servicer as additional compensation. The provisions of this Section
9.21 are subject to the provisions of Section 6.14(b).
Section 9.22. REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any Mortgage Loan, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Certificateholders. The Master Servicer shall use its reasonable
best efforts to sell, or, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all
events within the time period, and subject to the conditions set forth in
Article X hereof. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall protect and conserve, or cause the applicable Servicer
to protect and conserve, such REO Property in the manner and to such extent
required by the applicable Servicing Agreement, subject to Article X hereof.
(b) The Master Servicer shall deposit or cause to be deposited all funds
collected and received by it, or recovered from any Servicer, in connection
with the operation of any REO Property in the Collection Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Master Servicing Fees or Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of any
net rental income or other net amounts derived from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable
Servicer as provided above, shall be deposited in the Collection Account on or
prior to the Determination Date in the month following receipt thereof (and
the Master Servicer shall provide prompt written notice to the Trustee upon
such deposit) and be remitted by wire transfer in immediately available funds
to the Trustee for deposit into the Certificate Account on the next succeeding
Deposit Date.
Section 9.23. [Omitted]
Section 9.24. Reports to the Trustee. (a) Not later than 30 days after
each Distribution Date, the Master Servicer shall forward to the Trustee a
statement, deemed to have been certified by a Servicing Officer, setting forth
the status of the Collection Account maintained by the Master Servicer as of
the close of business on the related Distribution Date, indicating that all
distributions required by this Agreement to be made by the Master Servicer
have been made (or if any required distribution has not been made by the
Master Servicer, specifying the nature and status thereof) and showing, for
the period covered by such statement, the aggregate of deposits into and
withdrawals from the Collection Account maintained by the Master Servicer.
Copies of such statement shall be provided by the Master Servicer to the
Depositor, Attention: Contract Finance, and, upon request, any
Certificateholders (or by the Trustee at the Master Servicer's expense if the
Master Servicer shall fail to provide such copies (unless (i) the Master
Servicer shall have failed to provide the Trustee with such statement or (ii)
the Trustee shall be unaware of the Master Servicer's failure to provide such
statement)).
(b) Not later than two Business Days following each Distribution Date, the
Master Servicer shall deliver to the Person designated by the Depositor, in a
format consistent with other electronic loan level reporting supplied by the
Master Servicer in connection with similar transactions, "loan level"
information with respect to the Mortgage Loans as of the related Determination
Date, to the extent that such information has been provided to the Master
Servicer by the Servicers or by the Depositor.
Section 9.25. Annual Officer's Certificate as to Compliance. (a) The
Master Servicer shall deliver to the Trustee, the Rating Agencies and the
Class 2-A3 Certificate Insurer on or before May 31 of each year, commencing on
May 31, 2001, an Officer's Certificate, certifying that with respect to the
period ending on the immediately preceding December 31; (i) such Servicing
Officer has reviewed the activities of such Master Servicer during the
preceding calendar year or portion thereof and its performance under this
Agreement; (ii) to the best of such Servicing Officer's knowledge, based on
such review, such Master Servicer has performed and fulfilled its duties,
responsibilities and obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of
any such duties, responsibilities or obligations, specifying each such default
known to such Servicing Officer and the nature and status thereof, (iii)
nothing has come to the attention of such Servicing Officer to lead such
Servicing Officer to believe that any Servicer has failed to perform any of
its duties, responsibilities and obligations under its Servicing Agreement in
all material respects throughout such year, or, if there has been a material
default in the performance or fulfillment of any such duties, responsibilities
or obligations, specifying each such default known to such Servicing Officer
and the nature and status thereof, and (iv) the Master Servicer has received
from each Servicer such Servicer's annual certificate of compliance and a copy
of such Servicer's annual audit report, in each case to the extent required
under the applicable Servicing Agreement, or, if any such certificate or
report has not been received by the Master Servicer, the Master Servicer is
using its best reasonable efforts to obtain such certificate or report.
(b) Copies of such statements shall be provided to any Certificateholder
upon request, by the Master Servicer or by the Trustee at the Master
Servicer's expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement).
Section 9.26. Annual Independent Accountants' Servicing Report. If the
Master Servicer has, during the course of any fiscal year, directly serviced
any of the Mortgage Loans, then the Master Servicer at its expense shall cause
a nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Class 2-A3 Certificate Insurer, the
Rating Agencies and the Depositor on or before May 31 of each year, commencing
on May 31, 2001, to the effect that, with respect to the most recently ended
fiscal year, such firm has examined certain records and documents relating to
the Master Servicer's performance of its servicing obligations under this
Agreement and pooling and servicing and trust agreements in material respects
similar to this Agreement and to each other and that, on the basis of such
examination conducted substantially in compliance with the audit program for
mortgages serviced for FHLMC or the Uniform Single Attestation Program for
Mortgage Bankers, such firm is of the opinion that the Master Servicer's
activities have been conducted in compliance with this Agreement, or that such
examination has disclosed no material items of noncompliance except for (i)
such exceptions as such firm believes to be immaterial, (ii) such other
exceptions as are set forth in such statement and (iii) such exceptions that
the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages Serviced by FHLMC requires it to report. Copies of such
statements shall be provided to any Certificateholder upon request by the
Master Servicer, or by the Trustee at the expense of the Master Servicer if
the Master Servicer shall fail to provide such copies. If such report
discloses exceptions that are material, the Master Servicer shall advise the
Trustee whether such exceptions have been or are susceptible of cure, and will
take prompt action to do so.
Section 9.27. Merger or Consolidation. Any Person into which the Master
Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master
Servicer shall be a Person that shall be qualified and approved to service
mortgage loans for FNMA or FHLMC and shall have a net worth of not less than
$15,000,000.
Section 9.28. Resignation of Master Servicer. Except as otherwise provided
in Sections 9.27 and 9.29 hereof, the Master Servicer shall not resign from
the obligations and duties hereby imposed on it unless it or the Trustee
determines that the Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee. No such resignation shall become effective until the
Trustee shall have assumed, or a successor master servicer shall have been
appointed by the Trustee and until such successor shall have assumed, the
Master Servicer's responsibilities and obligations under this Agreement.
Notice of such resignation shall be given promptly by the Master Servicer to
the Depositor.
Section 9.29. Assignment or Delegation of Duties by the Master Servicer.
Except as expressly provided herein, the Master Servicer shall not assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed
by the Master Servicer hereunder; provided, however, that the Master Servicer
shall have the right without the prior written consent of the Trustee, the
Depositor or the Rating Agencies to delegate or assign to or subcontract with
or authorize or appoint an Affiliate of the Master Servicer to perform and
carry out any duties, covenants or obligations to be performed and carried out
by the Master Servicer hereunder. In no case, however, shall any such
delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such permitted assignment shall be given promptly by the Master Servicer to
the Depositor and the Trustee. If, pursuant to any provision hereof, the
duties of the Master Servicer are transferred to a successor master servicer,
the entire amount of the Master Servicing Fees and other compensation payable
to the Master Servicer pursuant hereto, including amounts payable to or
permitted to be retained or withdrawn by the Master Servicer pursuant to
Section 9.21 hereof, shall thereafter be payable to such successor master
servicer.
Section 9.30. Limitation on Liability of the Master Servicer and Others.
Neither the Master Servicer nor any of the directors, officers, employees or
agents of the Master Servicer shall be under any liability to the Trustee or
the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Master
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Master Servicer
shall be under no obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to master service the Mortgage
Loans in accordance with this Agreement and that in its opinion may involve it
in any expenses or liability; provided, however, that the Master Servicer may
in its sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund and the
Master Servicer shall be entitled to be reimbursed therefor out of the
Collection Account it maintains as provided by Section 4.02.
The Master Servicer shall not be liable for any acts or omissions of any
Servicer. In particular, the Master Servicer shall not be liable for any
servicing errors or interruptions resulting from any failure of any Servicer
to maintain computer and other information systems that are year-2000
compliant.
Section 9.31. Indemnification; Third-Party Claims. The Master Servicer
agrees to indemnify the Depositor and the Trustee, and hold them harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liability, fees and
expenses that the Depositor and the Trustee may sustain as a result of the
failure of the Master Servicer to perform its duties and master service the
Mortgage Loans in compliance with the terms of this Agreement. The Depositor
and the Trustee shall immediately notify the Master Servicer if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling the Depositor or the Trustee to indemnification hereunder, whereupon
the Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or them in respect of such claim.
Article X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a) As set forth in the Preliminary
Statement hereto, the Trustee shall elect REMIC status in accordance with the
REMIC Provisions with respect to each of the Lower Tier REMIC and the Upper
Tier REMIC. The Trustee shall make such elections on Forms 1066 or other
appropriate federal tax or information return for the taxable year ending on
the last day of the calendar year in which the Certificates are issued. For
the purposes of such elections, each Lower Tier Interests, other than the
Class LTR Interest, is hereby designated as a regular interest in the Lower
Tier REMIC, and each Certificate, other than the Class R Certificate, is
hereby designated as a regular interest in the Upper Tier REMIC. The Class LTR
Interest is hereby designated as the sole residual interest in the Lower Tier
REMIC. The Class R Certificate evidences ownership of the Class LTR Interest
and is also hereby designated as the sole residual interest in the Upper Tier
REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 86OG(a)(9) of the Code.
(c) The Trustee shall pay any and all tax related expenses (not including
taxes) of each REMIC, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to such REMIC that involve the Internal Revenue Service or state tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Trustee in fulfilling its duties hereunder (including its
duties as tax return preparer). The Trustee shall be entitled to reimbursement
of expenses to the extent provided in clause (i) above from the Certificate
Account.
(d) The Trustee shall prepare, sign and file, all of each REMIC's federal
and state tax and information returns as such REMIC's direct representative.
The expenses of preparing and filing such returns shall be borne by the
Trustee.
(e) The Trustee or its designee shall perform on behalf of each REMIC all
reporting and other tax compliance duties that are the responsibility of such
REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or
other such guidance, the Trustee shall provide (i) to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions.
(f) The Trustee, the Master Servicer and the Holders of Certificates shall
take any action or cause the REMIC to take any action necessary to create or
maintain the status of such REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status.
Neither the Trustee, the Master Servicer nor the Holder of any Residual
Certificate shall take any action, cause the REMIC to take any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of such REMIC as a REMIC or (ii) result in the imposition of a tax upon
such REMIC (including but not limited to the tax on prohibited transactions as
defined in Code Section 860F(a)(2) and the tax on prohibited contributions set
forth on Section 860G(d) of the Code) (either such event, an "Adverse REMIC
Event") unless the Trustee and the Master Servicer have received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such status or result in
the imposition of such a tax. In addition, prior to taking any action with
respect to the REMIC or the assets therein, or causing such REMIC to take any
action, which is not expressly permitted under the terms of this Agreement,
any Holder of a Residual Certificate will consult with the Trustee and the
Master Servicer, or their respective designees, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect
to such REMIC, and no such Person shall take any such action or cause such
REMIC to take any such action as to which the Trustee or the Master Servicer
has advised it in writing that an Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in such REMIC or, if no such amounts are available, out
of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in such REMIC, as the case
may be.
(h) The Trustee shall, for federal income tax purposes, maintain books and
records with respect to each REMIC on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) Upon the request of any Rating Agency, the Trustee shall deliver to
such Rating Agency an Officer's Certificate stating the Trustee's compliance
with the provisions of this Section 10.01.
Section 10.02. Prohibited Transactions and Activities. Neither the
Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to the REMIC
after the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the party causing such sale, disposition, or substitution) that
such disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of such REMIC as a REMIC or of the Certificates other
than the Residual Certificates as the regular interests therein, (b) affect
the distribution of interest or principal on the Certificates, (c) result in
the encumbrance of the assets transferred or assigned to the Trust Fund
(except pursuant to the provisions of this Agreement) or (d) cause such REMIC
to be subject to a tax on prohibited transactions or prohibited contributions
pursuant to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of
REMIC Status. (a) In the event that a REMIC fails to qualify as a REMIC, loses
its status as a REMIC, or incurs federal, state or local taxes as a result of
a prohibited transaction or prohibited contribution under the REMIC Provisions
due to the negligent performance by the Trustee of its duties and obligations
set forth herein, the Trustee shall indemnify the Holder of the Residual
Certificate against any and all losses, claims, damages, liabilities or
expenses ("Losses") resulting from such negligence; provided, however, that
the Trustee shall not be liable for any such Losses attributable to the action
or inaction of the Master Servicer, the Depositor, or the Holder of such
Residual Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the Trustee has relied. The foregoing shall not be deemed to limit or restrict
the rights and remedies of the Holder of such Residual Certificate now or
hereafter existing at law or in equity. Notwithstanding the foregoing,
however, in no event shall the Trustee have any liability (1) for any action
or omission that is taken in accordance with and in compliance with the
express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent
performance by the Trustee of its duties and obligations set forth herein, and
(3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates).
Section 10.04. REO Property. (a) Notwithstanding any other provision of
this Agreement, the Master Servicer, acting on behalf of the Trustee
hereunder, shall not, and shall, to the extent provided in the applicable
Servicing Agreement, not permit any Servicer to, rent, lease, or otherwise
earn income on behalf of any REMIC with respect to any REO Property which
might cause such REO Property to fail to qualify as "foreclosure" property
within the meaning of section 860G(a)(8) of the Code or result in the receipt
by any REMIC of any "income from non-permitted assets" within the meaning of
section 860F(a)(2) of the Code or any "net income from foreclosure property"
which is subject to tax under the REMIC Provisions unless the Master Servicer
has advised, or has caused the applicable Servicer to advise, the Trustee in
writing to the effect that, under the REMIC Provisions, such action would not
adversely affect the status of the REMIC as a REMIC and any income generated
for such REMIC by the REO Property would not result in the imposition of a tax
upon such REMIC.
(b) The Master Servicer shall make, or shall cause the applicable
Servicer to make, reasonable efforts to sell any REO Property for its fair
market value. In any event, however, the Master Servicer shall, or shall cause
the applicable Servicer to, dispose of any REO Property within three years
from the end of the calendar year of its acquisition by the Trust Fund unless
the Trustee has received a grant of extension from the Internal Revenue
Service to the effect that, under the REMIC Provisions and any relevant
proposed legislation and under applicable state law, the REMIC may hold REO
Property for a longer period without adversely affecting the REMIC status of
such REMIC or causing the imposition of a Federal or state tax upon such
REMIC. If the Trustee has received such an extension, then the Trustee, or the
Master Servicer, acting on its behalf hereunder, shall, or shall cause the
applicable Servicer to, continue to attempt to sell the REO Property for its
fair market value for such period longer than three years as such extension
permits (the "Extended Period"). If the Trustee has not received such an
extension and the Trustee, or the Master Servicer acting on behalf of the
Trustee hereunder, or the applicable Servicer is unable to sell the REO
Property within 33 months after its acquisition by the Trust Fund or if the
Trustee has received such an extension, and the Trustee, or the Master
Servicer acting on behalf of the Trustee hereunder, is unable to sell the REO
Property within the period ending three months before the close of the
Extended Period, the Master Servicer shall, or shall cause the applicable
Servicer to, before the end of the three year period or the Extended Period,
as applicable, (i) purchase such REO Property at a price equal to the REO
Property's fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Master Servicer) in an auction reasonably designed to
produce a fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be.
Article XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 11.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. Amendment. (a) This Agreement may be amended from time to
time by the Depositor, the Master Servicer and the Trustee, without notice to
or the consent of any of the Holders, (i) to cure any ambiguity, (ii) to cause
the provisions herein to conform to or be consistent with or in furtherance of
the statements made with respect to the Certificates, the Trust Fund or this
Agreement in any Offering Document; or to correct or supplement any provision
herein which may be inconsistent with any other provisions herein, (iii) to
make any other provisions with respect to matters or questions arising under
this Agreement or (iv) to add, delete, or amend any provisions to the extent
necessary or desirable to comply with any requirements imposed by the Code and
the REMIC Provisions. No such amendment effected pursuant to the preceding
sentence shall, as evidenced by an Opinion of Counsel, adversely affect the
status of any REMIC created pursuant to this Agreement, nor shall such
amendment effected pursuant to clause (iii) of such sentence adversely affect
in any material respect the interests of any Holder (without regard to the
Class 2-A3 Certificate Insurance Policy). Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee may
require an Opinion of Counsel (at the expense of the party requesting such
amendment) to the effect that such amendment is permitted under this
paragraph. Any such amendment shall be deemed not to adversely affect in any
material respect any Holder, if the Trustee receives written confirmation from
each Rating Agency that such amendment will not cause such Rating Agency to
reduce, qualify or withdraw the then current rating assigned to the
Certificates (in the case of the Class 2-A3 Certificates, determined without
regard to the Class 2-A3 Certificate Insurance Policy).
(b) This Agreement may also be amended from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of not
less than 66-2/3% of the Class Principal Amount (or Percentage Interest) of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment shall be made unless the Trustee
receives an Opinion of Counsel, at the expense of the party requesting the
change, that such change will not adversely affect the status of the REMIC as
a REMIC or cause a tax to be imposed on such REMIC; and provided further, that
no such amendment may (i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate or (ii) reduce the aforesaid percentages of Class Principal Amount
(or Percentage Interest) of Certificates of each Class, the Holders of which
are required to consent to any such amendment without the consent of the
Holders of 100% of the Class Principal Amount (or Class Notional Amount) of
each Class of Certificates affected thereby. For purposes of this paragraph,
references to "Holder" or "Holders" shall be deemed to include, in the case of
any Class of Book-Entry Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee shall
furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in any Servicing Agreement,
the Trustee shall not consent to any amendment of any Servicing Agreement
except pursuant to the standards provided in this Section with respect to
amendment of this Agreement.
Section 11.04. Voting Rights. Except to the extent that the consent of all
affected Certificateholders is required pursuant to this Agreement, with
respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate outstanding
Certificate Principal Amount (or Notional Amount), Certificates owned by the
Depositor, the Master Servicer, the Trustee or any Servicer or Affiliates
thereof are not to be counted so long as such Certificates are owned by the
Depositor, the Master Servicer, the Trustee or any Servicer or Affiliates
thereof.
Section 11.05. Provision of Information. (a) For so long as any of the
Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor and the Trustee
agree to cooperate with each other to provide to any Certificateholders and to
any prospective purchaser of Certificates designated by such
Certificateholder, upon the request of such Certificateholder or prospective
purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
in providing such information shall be reimbursed by the Depositor.
(b) The Trustee will provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or
documents requested, (i) a copy (excluding exhibits) of any report on Form 8-K
or Form 10-K filed with the Securities and Exchange Commission pursuant to
Section 6.20(c) and (ii) a copy of any other document incorporated by
reference in the Prospectus. Any reasonable out-of-pocket expenses incurred by
the Trustee in providing copies of such documents shall be reimbursed by the
Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause to be
delivered by first class mail to the Depositor, Attention: Contract Finance, a
copy of the report delivered to Certificateholders pursuant to Section 4.03.
Section 11.06. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when received
by (a) in the case of the Depositor, Structured Asset Securities Corporation,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxx,
(b) in the case of the Trustee, U.S. Bank National Association, 000 Xxxx Xxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000 Attention: Structured Finance (SASCO
2000-1), (c) in the case of the Master Servicer, Aurora Loan Services Inc.,
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000; Attention: Master
Servicing, and (d) in the case of the Class 2-A3 Certificate Insurer, MBIA
Insurance Corporation, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention:
Insured Portfolio Management - Structured Finance (IMP-SF), Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2000-1,
Class 2-A3 Certificates, or as to each party such other address as may
hereafter be furnished by such party to the other parties in writing. Any
notice required or permitted to be mailed to a Holder 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 Holder receives such notice.
Section 11.08. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other
or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 11.10. Headings Not To Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement, except to the extent specified in Sections
11.14 and 11.15.
Section 11.12. Special Notices to the Rating Agencies. (a) The Depositor
shall give prompt notice to the Rating Agencies and to the Class 2-A3
Certificate Insurer of the occurrence of any of the following events of which
it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any Assignment by the Master Servicer of its rights hereunder or
delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in Section
6.14;
(iv) any notice of termination given to the Master Servicer pursuant
to Section 6.14 and any resignation of the Master Servicer hereunder;
(v) the appointment of any successor to any Master Servicer pursuant
to Section 6.14; and
(vi) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section shall be
in writing and sent by first class mail, telecopy or overnight courier, as
follows:
If to DCR, to:
Duff & Xxxxxx Credit Rating Co.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: RMBS Monitoring
MBS/SASCO 2000-1
If to Moody's, to:
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Monitoring Department
(c) The Trustee shall deliver to the Rating Agencies reports prepared
pursuant to Section 4.03.
Section 11.13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. The Seller agrees that it shall
provide written notice to the Trustee and the Master Servicer thirty days
prior to any transfer or assignment by the Seller of its rights under any
Servicing Agreement or of the servicing thereunder or delegation of its rights
or duties thereunder or any portion thereof to any Person other than the
initial Servicer under such Servicing Agreement. In addition, the ability of
the Seller to transfer or assign its rights and delegate its duties under any
Servicing Agreement or to transfer the servicing thereunder to a successor
servicer shall be subject to the following conditions:
(i) Such successor servicer must be qualified to service loans for
FNMA or FHLMC;
(ii) Such successor servicer must satisfy the seller/servicer
eligibility standards in the applicable Servicing Agreement, exclusive of
any experience in mortgage loan origination, and must be reasonably
acceptable to the Master Servicer, whose approval shall not be
unreasonably withheld;
(iii) Such successor servicer must execute and deliver to the Trustee
and the Master Servicer an agreement, in form and substance reasonably
satisfactory to the Trustee and the Master Servicer, that contains an
assumption by such successor servicer of the due and punctual performance
and observance of each covenant and condition to be performed and observed
by the Servicer under the applicable Servicing Agreement;
(iv) There must be delivered to the Trustee a letter from each Rating
Agency to the effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current rating of any
of the Certificates (determined without regard to the Class 2-A3
Certificate Insurance Policy, in the case of the Class 2-A3 Certificates);
(v) The Seller shall, at its cost and expense, take such steps, or
cause the terminated Servicer to take such steps, as may be necessary or
appropriate to effectuate and evidence the transfer of the servicing of
the Mortgage Loans to such successor servicer, including, but not limited
to, the following: (A) to the extent required by the terms of the Mortgage
Loans and by applicable federal and state laws and regulations, the Seller
shall cause the prior Servicer to timely mail to each obligor under a
Mortgage Loan any required notices or disclosures describing the transfer
of servicing of the Mortgage Loans to the successor servicer; (B) prior to
the effective date of such transfer of servicing, the Seller shall cause
the prior Servicer to transmit to any related insurer notification of such
transfer of servicing; (C) on or prior to the effective date of such
transfer of servicing, the Seller shall cause the prior Servicer to
deliver to the successor servicer all Mortgage Loan Documents and any
related records or materials; (D) on or prior to the effective date of
such transfer of servicing, the Seller shall cause the prior Servicer to
transfer to the successor servicer, or, if such transfer occurs after a
Remittance Date but before the next succeeding Deposit Date, to the Master
Servicer, all funds held by the Servicer in respect of the Mortgage Loans;
(E) on or prior to the effective date of such transfer of servicing, the
Seller shall cause the prior Servicer to, after the effective date of the
transfer of servicing to the successor servicer, continue to forward to
such successor servicer, within one Business Day of receipt, the amount of
any payments or other recoveries received by the prior Servicer, and to
notify the successor servicer of the source and proper application of each
such payment or recovery; and (F) the Seller shall cause the prior
Servicer to, after the effective date of transfer of servicing to the
successor servicer, continue to cooperate with the successor servicer to
facilitate such transfer in such manner and to such extent as the
successor servicer may reasonably request.
Section 11.15. Matters Relating to the Class 2-A3 Certificate Insurance
Policy. (a) All notices, statements, reports, certificates or opinions
required by this Agreement to be sent to any other party hereto or to the
Class 2-A3 Certificateholders shall also be sent, and any report or statement
sent by the Master Servicer to the Trustee shall be sent by the Trustee, to
the Class 2-A3 Certificate Insurer at the following address:
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management - Structured Finance
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2000-1, Class 2-A3 Certificates
or such other address as the Class 2-A3 Certificate Insurer may hereafter
furnish to the Depositor and the Trustee.
(b) Notwithstanding any provision to the contrary, the parties to this
Agreement agree that it is appropriate, in furtherance of the interest of such
parties as set forth herein, the Class 2-A3 Certificate Insurer receive the
benefit of Sections 4.03, 5.02, 5.07 and 11.15 as an intended third party
beneficiary of this Agreement to the extent of such provisions.
(c) No purchase of the property of the Trust Fund pursuant to Section
7.01(b) shall occur if such purchase would result in a draw on the Class 2-A3
Certificate Insurance Policy, unless the Class 2-A3 Certificate Insurer has
consented to such purchase.
(d) All references herein to the rating of the Certificates shall be
without regard to the Class 2-A3 Certificate Insurance Policy.
IN WITNESS WHEREOF, the Depositor, the Trustee and the
Master Servicer have caused their names to be signed hereto by
their respective officers hereunto duly authorized as of the day
and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxx Xxxxxx
------------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
AURORA LOAN SERVICES INC., as Master Servicer
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: President
Solely for purposes of Section 11.14,
accepted and agreed to by:
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION
Date
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of January 1, 2000
among Structured Asset Securities Corporation, as Depositor, U.S.
Bank National Association, as Trustee, and Aurora Loan Services Inc.,
as Master Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Trust Agreement, subject to
review of the contents thereof, the undersigned, as Custodian on behalf of the
Trustee, hereby certifies that it (or its custodian) has received the
documents listed in Section 2.01(b) of the Trust Agreement for each Mortgage
File pertaining to each Mortgage Loan listed on Schedule A, to the Trust
Agreement, subject to any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined herein
shall have the respective meanings assigned to them in the Trust Agreement.
This Certificate is subject in all respects to the terms of Section 2.02 of
the Trust Agreement and the Trust Agreement sections cross-referenced therein.
[Custodian], on behalf of
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Name:
Title:
EXHIBIT B-2
FORM OF INTERIM CERTIFICATION
Date
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of January 1, 2000
among Structured Asset Securities Corporation, as Depositor, U.S.
Bank National Association, as Trustee, and Aurora Loan Services Inc.,
as Master Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan identified
on the Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule
I hereto, it has reviewed the documents identified above and has determined
that each such document appears regular on its face and appears to relate to
the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement including, but
not limited to, Section 2.02(b).
[Custodian], on behalf of
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:________________________________
Name:
Title:
EXHIBIT B-3
FORM OF FINAL CERTIFICATION
Date
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trust Agreement (the "Trust Agreement"), dated as of January 1, 2000
among Structured Asset Securities Corporation, as Depositor, U.S.
Bank National Association, as Trustee, and Aurora Loan Services Inc.,
as Master Servicer, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan identified
on the Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule
I hereto, it has reviewed the documents listed above and has determined that
each such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement.
[Custodian], on behalf of
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:________________________________
Name:
Title:
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of U.S. Bank National Association, as trustee (the
"Trustee") under the Trust Agreement dated as of January 1, 2000, among
Structured Asset Securities Corporation, as Depositor, the Trustee and the
Master Servicer relating to Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2000-1, without recourse.
--------------------------------------
[current signatory on note]
By:__________________________________
Name:
Title:
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of January 1, 2000 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer, and you, as Trustee (the "Trust Agreement"), the
undersigned Master Servicer hereby requests a release of the Mortgage File
held by you as Trustee with respect to the following described Mortgage Loan
for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Master Servicer hereby certifies that
all amounts received in connection with the loan have been or will be credited
to the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Master Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage Loan repurchased. (The Master Servicer hereby certifies that
the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust
Agreement.)
5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held by
the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has been paid in full, or repurchased or
substituted for a Qualifying Substitute Mortgage Loan (in which case the
Mortgage File will be retained by us permanently) and except if the Mortgage
Loan is being foreclosed (in which case the Mortgage File will be returned
when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them in
the Trust Agreement.
-------------------------------------
[Name of Master Servicer]
By:__________________________________
Name:
Title: Servicing Officer
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being
first duly sworn, deposes and says:
1. That he [she] is [title of officer] ________________________ of [name
of Purchaser] _________________________________________ (the "Purchaser"), a
_______________________ [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on
behalf of which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is ______________.
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code") and will not be a "disqualified organization" as of
__________________ [date of transfer], and that the Purchaser is not acquiring
a Residual Certificate (as defined in the Agreement) for the account of, or as
agent (including a broker, nominee, or other middleman) for, any person or
entity from which it has not received an affidavit substantially in the form
of this affidavit. For these purposes, a "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of
any of the foregoing (other than an instrumentality if all of its activities
are subject to tax and a majority of its board of directors is not selected by
such governmental entity), any cooperative organization furnishing electric
energy or providing telephone service to persons in rural areas as described
in Code Section 1381(a)(2)(C), any "electing large partnership" within the
meaning of Section 775 of the Code, or any organization (other than a farmers'
cooperative described in Code Section 521) that is exempt from federal income
tax unless such organization is subject to the tax on unrelated business
income imposed by Code Section 511.
4. That the Purchaser is not, and on __________________ [date of transfer]
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
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, U.S. Bank National Association, as Trustee and Aurora Loan
Services Inc., as Master Servicer, dated as of January 1, 2000, no transfer of
a Residual Certificate 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 a Residual Certificate.
6. That the Purchaser does not hold REMIC residual securities as nominee
to facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations (such
entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to such Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof are
not satisfied or that the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without obtaining from
the prospective Purchaser an affidavit substantially in this form and
providing to the Trustee a written statement substantially in the form of
Exhibit G to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash
flows generated by the interest and that it intends to pay taxes associated
with holding such Residual Certificate as they become due.
10. That the Purchaser (i) is a 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. "Non-U.S. Person" Any
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.
11. That the Purchaser agrees to such amendments of the Trust Agreement as
may be required to further effectuate the restrictions on transfer of any
Residual Certificate to such a "disqualified organization," an agent thereof,
a Book-Entry Nominee, or a person that does not satisfy the requirements of
paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Trustee as its
agent to act as "tax matters person" of the Trust Fund pursuant to the Trust
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 __________, 20__.
--------------------------------------
[name of Purchaser]
By:___________________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
---------------------------------
COUNTY OF_____________________
STATE OF_______________________
My commission expires the _____ day of __________, 20__.
EXHIBIT D-2
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
-------------------
Date
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
EXHIBIT E
SERVICING AGREEMENTS
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2000-1
Reference is hereby made to the Trust Agreement dated as of January
1, 2000 (the "Trust Agreement") among Structured Asset Securities Corporation,
as Depositor, Aurora Loan Services Inc., as Master Servicer and U.S. Bank
National Association, as Trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Trust Agreement.
This letter relates to $_________ initial Certificate Principal
Amount of Class Certificates which are held in the form of Definitive
Certificates registered in the name of (the "Transferor"). The Transferor has
requested a transfer of such Definitive Certificates for Definitive
Certificates of such Class registered in the name of [insert name of
transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Trust
Agreement and the Certificates and (ii) Rule 144A under the Securities Act to
a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer", which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Placement Agent and the Depositor.
----------------------------------------
[Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: __________________, ________
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
------------------
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 2000-1 (the "Privately
Offered Certificates") of Structured Asset Securities Corporation (the
"Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates
have not been, and will not be, registered under the
Securities Act of 1933, as amended (the "Securities
Act"), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Privately
Offered Certificates within three years of the later of
the date of original issuance of the Privately Offered
Certificates or the last day on which such Privately
Offered Certificates are owned by the Depositor or any
affiliate of the Depositor (which includes the Placement
Agent) we will do so only (A) to the Depositor, (B) to
"qualified institutional buyers" (within the meaning of
Rule 144A under the Securities Act) in accordance with
Rule 144A under the Securities Act ("QIBs"), (C)
pursuant to the exemption from registration provided by
Rule 144 under the Securities Act, or (D) to an
institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act that is not a QIB (an "Institutional
Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated
as of January 1, 2000 among the Depositor, Aurora Loan
Services Inc., as Master Servicer and U.S. Bank National
Association, as Trustee (the "Trustee"), a signed letter
in the form of this letter; and we further agree, in the
capacities stated above, to provide to any person
purchasing any of the Privately Offered Certificates
from us a notice advising such purchaser that resales of
the Privately Offered Certificates are restricted as
stated herein.
(2) We understand that, in connection with any proposed
resale of any Privately Offered Certificates to an
Institutional Accredited Investor, we will be required
to furnish to the Trustee and the Depositor a
certification from such transferee in the form hereof to
confirm that the proposed sale is being made pursuant to
an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act. We
further understand that the Privately Offered
Certificates purchased by us will bear a legend to the
foregoing effect.
(3) We are acquiring the Privately Offered Certificates for
investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in
violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to
be capable of evaluating the merits and risks of our
investment in the Privately Offered Certificates, and we
and any account for which we are acting are each able to
bear the economic risk of such investment.
(4) We are an Institutional Accredited Investor and we are
acquiring the Privately Offered Certificates purchased
by us for our own account or for one or more accounts
(each of which is an Institutional Accredited Investor)
as to each of which we exercise sole investment
discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we
understand that in accordance with ERISA, the Code and
the Exemption, no Plan as to which the Purchaser, the
Depositor, any Servicer or Master Servicer or the
Trustee is a party in interest or disqualified person,
and no person acting on behalf of such a Plan may
acquire such Certificate unless the acquisition would
constitute an exempt transaction under a statutory
exemption or any of the administrative exemptions issued
by the U.S. Department of Labor.
Terms used in this letter which are not otherwise
defined herein have the respective meanings assigned thereto in
the Trust Agreement.
You and the Depositor are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By________________________________
Name:
Title:
EXHIBIT H
[FORM OF ERISA TRANSFER AFFIDAVIT]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the "Investor"),
a [corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The Investor either (x) is not an employee benefit plan subject to
Section 406 or Section 407 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), the Trustee of any such plan or a person acting
on behalf of any such plan nor a person using the assets of any such plan or
(2) if the Investor is an insurance company, such Investor is purchasing such
Certificates with funds contained in an "Insurance Company General Account"
(as such term is defined in Section v(e) of the Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60; or (y) shall deliver to the Trustee
and the Depositor an opinion of counsel (a "Benefit Plan Opinion")
satisfactory to the Trustee and the Depositor, and upon which the Trustee and
the Depositor shall be entitled to rely, to the effect that the purchase or
holding of such Certificate by the Investor will not result in the assets of
the Trust Fund being deemed to be plan assets and subject to the prohibited
transaction provisions of ERISA or the Code and will not subject the Trustee
or the Depositor to any obligation in addition to those undertaken by such
entities in the Trust Agreement, which opinion of counsel shall not be an
expense of the Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services Inc., as Master Servicer, and U.S. Bank
National Association, as Trustee, dated as of January 1, 2000, no transfer of
the ERISA-Restricted Certificates shall be permitted to be made to any person
unless the Depositor and Trustee have received a certificate from such
transferee in the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 20__.
----------------------------------------
[Investor]
By:_____________________________________
Name:
Title:
ATTEST:
---------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named _________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _________________ of the Investor, and acknowledged
that he executed the same as his free act and deed and the free act and deed
of the Investor.
Subscribed and sworn before me this _____ day of ___________ 20___.
----------------------------------
NOTARY PUBLIC
My commission expires the ____ day of
__________, 20__.
EXHIBIT I
MONTHLY REMITTANCE ADVICE
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
EXHIBIT K
CUSTODIAL AGREEMENT
EXHIBIT L
INSURANCE AGREEMENT
EXHIBIT M
CLASS 2-A3 CERTIFICATE INSURANCE POLICY
SCHEDULE A
MORTGAGE LOAN SCHEDULE
SCHEDULE B
PRINCIPAL AMOUNT SCHEDULES
[Not Applicable]
SCHEDULE C
UNDERLYING SECURITY SCHEDULE
SCHEDULE D
POOL 1 AX LOANS
SCHEDULE E
POOL 2 AX LOANS
