Exhibit 4.1
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GREENWICH CAPITAL ACCEPTANCE, INC.,
Depositor
FIRST REPUBLIC BANK,
Seller and Servicer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
__________________________________
First Republic Mortgage Loan Trust 2001-FRB1
Mortgage Loan Pass-Through Certificates, Series 2001-FRB1
Table of Contents
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms...........................................3
Section 1.02. Accounting.............................................42
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans...........................42
Section 2.02. Acceptance by Trustee..................................45
Section 2.03. Repurchase or Substitution of Mortgage Loans by
the Seller...........................................46
Section 2.04. Representations and Warranties of the Seller with
Respect to the Mortgage Loans........................49
Section 2.05. Representations, Warranties and Covenants of
the Servicer.........................................50
Section 2.06. Representations and Warranties of the Depositor........51
Section 2.06A. No Solicitations by the Depositor......................53
Section 2.07. Issuance of Certificates...............................53
Section 2.08. Representations and Warranties of the Seller...........53
Section 2.09. Covenants of the Seller................................55
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 3.01. Servicer to Act as Servicer............................56
Section 3.02. Sub-Servicing Agreements Between Servicer
and Sub-Servicers....................................57
Section 3.03. Successor Sub-Servicers................................58
Section 3.04. Liability of the Servicer..............................59
Section 3.05. No Contractual Relationship Between Sub-Servicers
and the Trustee or Certificateholders................59
Section 3.06. Assumption or Termination of Sub-Servicing
Agreements by Trustee................................59
Section 3.07. Collection of Certain Mortgage Loan Payments...........60
Section 3.08. Sub-Servicing Accounts.................................60
Section 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts...................................61
Section 3.10. Collection Account and Distribution Account............62
Section 3.11. Withdrawals from the Collection Account and
Distribution Account.................................64
Section 3.12. Investment of Funds in the Collection Account..........65
Section 3.13. [Reserved].............................................66
Section 3.14. Maintenance of Hazard Insurance Polices and
Errors and Omissions and Fidelity Coverage...........66
Section 3.15. Enforcement of Due-on-Sale Clauses;
Assumption Agreements................................68
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Section 3.16. Realization upon Defaulted Mortgage Loans..............69
Section 3.17. Trustee to Cooperate; Release of Mortgage Files........71
Section 3.18. Servicing Compensation.................................72
Section 3.19. Reports to the Trustee; Collection Account
Statements...........................................73
Section 3.20. Statement as to Compliance.............................73
Section 3.21. Independent Public Accountants' Servicing Report.......73
Section 3.22. Access to Certain Documentation; Filing of Reports
by Trustee...........................................74
Section 3.23. Title, Management and Disposition of REO Property......74
Section 3.24. Obligations of the Servicer in Respect of Prepayment
Interest Shortfalls..................................77
Section 3.25. [Reserved].............................................78
Section 3.26. Obligations of the Servicer in Respect of
Adjustments..........................................78
Section 3.27. Solicitations..........................................78
ARTICLE IV
FLOW OF FUNDS
Section 4.01. Distributions..........................................78
Section 4.02. [Intentionally Deleted.]...............................82
Section 4.03. Allocation of Realized Losses..........................82
Section 4.04. Statements.............................................84
Section 4.05. Remittance Reports; Advances...........................86
Section 4.06 Carryover Reserve Fund.................................86
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.......................................88
Section 5.02. Registration of Transfer and Exchange of
Certificates.........................................89
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates......94
Section 5.04. Persons Deemed Owners..................................94
Section 5.05. Appointment of Paying Agent............................95
ARTICLE VI
THE SELLER, THE SERVICER AND THE DEPOSITOR
Section 6.01. Liability of the Seller, the Servicer and the
Depositor............................................95
Section 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Seller, the Servicer or the
Depositor............................................95
Section 6.03. Limitation on Liability of the Servicer and Others.....96
Section 6.04. Servicer Not to Resign.................................96
Section 6.05. Delegation of Duties...................................97
ARTICLE VII
DEFAULT
Section 7.01. Servicer Events of Termination.........................97
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Section 7.02. Trustee to Act; Appointment of Successor...............99
Section 7.03. Waiver of Servicer Events of Termination...............99
Section 7.04. Notification to Certificateholders....................100
Section 7.05. Survivability of Servicer Liabilities.................100
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee.....................................100
Section 8.02. Certain Matters Affecting the Trustee.................101
Section 8.02A. No Solicitations......................................103
Section 8.03. Trustee Not Liable for Certificates or Mortgage
Loans...............................................103
Section 8.04. Trustee May Own Certificates..........................104
Section 8.05. Trustee's Fees and Expenses...........................104
Section 8.06. Eligibility Requirements for Trustee..................104
Section 8.07. Resignation or Removal of Trustee.....................105
Section 8.08. Successor Trustee.....................................106
Section 8.09. Merger or Consolidation of Trustee....................106
Section 8.10. Appointment of Co-Trustee or Separate Trustee.........106
Section 8.11. Limitation of Liability...............................108
Section 8.12. Trustee May Enforce Claims Without Possession of
Certificates........................................108
Section 8.13. Suits for Enforcement.................................108
Section 8.14. Waiver of Bond Requirement............................109
Section 8.15. Waiver of Inventory, Accounting and Appraisal
Requirement.........................................109
Section 8.16. Appointment of Custodians.............................109
ARTICLE IX
REMIC ADMINISTRATION
Section 9.01. REMIC Administration..................................109
Section 9.02. Prohibited Transactions and Activities................112
Section 9.03. Indemnification with Respect to Certain Taxes and
Loss of REMIC Status................................112
Section 9.04. REO Property..........................................112
ARTICLE X
TERMINATION
Section 10.01. Termination...........................................113
Section 10.02. Additional Termination Requirements...................115
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ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Amendment.............................................115
Section 12.02. Recordation of Agreement; Counterparts................117
Section 12.03. Limitation on Rights of Certificateholders............117
Section 12.04. Governing Law; Jurisdiction...........................118
Section 12.05. Notices...............................................118
Section 12.06. Severability of Provisions............................119
Section 12.07. Article and Section References........................119
Section 12.08. Notice to the Rating Agencies.........................119
Section 12.09. Further Assurances....................................120
Section 12.10. Benefits of Agreement.................................120
Section 12.11. Acts of Certificateholders............................120
EXHIBITS AND SCHEDULES:
Exhibit A Form of Senior Certificates (other than the Class X
Certificates and the Class A-R Certificate).................A-1
Exhibit B Form of Class X Certificates................................B-1
Exhibit C Form of Class A-R Certificate...............................C-1
Exhibit D Form of Subordinate Certificates............................D-1
Exhibit E Form of Reverse of Certificates.............................E-1
Exhibit F Request for Release.........................................F-1
Exhibit G-1 Form of Trustee's Initial Certification...................G-1-1
Exhibit G-2 Form of Trustee's Final Certification.....................G-2-1
Exhibit G-3 Form of Receipt of Mortgage Note..........................G-3-1
Exhibit H Form of Lost Note Affidavit.................................H-1
Exhibit I Form of ERISA Representation................................I-1
Exhibit J Form of Investment Letter...................................J-1
Exhibit K Form of Transferor Certificate..............................K-1
Exhibit L Form of Class A-R Certificate Transfer Affidavit............L-1
Exhibit M Form of Liquidation Report..................................M-1
Exhibit N Form of Corporate Matters Opinion of Counsel................N-1
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of the Seller/Servicer
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This Pooling and Servicing Agreement is dated as of November 1, 2001 (the
"Agreement"), among GREENWICH CAPITAL ACCEPTANCE, INC., as depositor (the
"Depositor"), FIRST REPUBLIC BANK, as seller (in such capacity, the "Seller")
and servicer (in such capacity, the "Servicer"), and XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates (collectively, the
"Certificates"), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of nine classes of
certificates, designated as (i) the Class A Certificates, (ii) the Class X
Certificates, (iii) the Class A-R Certificate, (iv) the Class B-1 Certificates,
(v) the Class B-2 Certificates, (vi) the Class B-3 Certificates, (vii) the Class
B-4 Certificates, (viii) the Class B-5 Certificates and (ix) the Class B-6
Certificates.
For federal income tax purposes, the Trust Fund (exclusive of the Carryover
Reserve Fund) will consist of two REMICs. REMIC 1 will consist of all of the
assets constituting the Trust Fund (exclusive of the Carryover Reserve Fund) and
will be evidenced by the REMIC 1 Regular Interests (which will be uncertificated
and will represent the "regular interests" in REMIC 1) and the R-1 Interest as
the single "residual interest" in REMIC 1. REMIC 2 will consist of the REMIC 1
Regular Interests and will be evidenced by the Regular Certificates (which will
represent the "regular interests" in REMIC 2) and the R-2 Interest as the single
"residual interest" in REMIC 2. The Class A-R Certificate will represent
beneficial ownership of the R-1 Interest and the R-2 Interest. All REMIC regular
and residual interests created hereby will be retired on or before the Latest
Possible Maturity Date.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate, Original Class Certificate Principal Balance or Original
Class Certificate Notional Balance and Assumed Final Maturity Date for each
Class of Certificates comprising the interests in the Trust Fund created
hereunder, each of which Classes (except for the Class A-R Certificate) is
hereby designated as a regular interest in REMIC 2:
1
============================== ============================ ======================= ====================================
Original Class
Certificate Principal Pass-Through Assumed Final
Class Balance Rate Maturity Date
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class A................... $396,541,000.00 (1) November 15, 2031
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class X................... (2) (3) November 15, 2031
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class A-R................. $ 100.00 (4) November 15, 2031
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class B-1................. $ 4,088,000.00 (5) November 15, 2031
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class B-2................. $ 1,635,000.00 (5) November 15, 2031
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class B-3................. $ 2,452,000.00 (5) November 15, 2031
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class B-4................. $ 1,635,000.00 (5) November 15, 2031
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class B-5................. $ 1,226,000.00 (5) November 15, 2031
------------------------------ ---------------------------- ----------------------- ------------------------------------
Class B-6................. $ 1,228,821.51 (5) November 15, 2031
============================== ============================ ======================= ====================================
(1) Calculated pursuant to the definition of "Class A Certificate
Pass-Through Rate."
(2) Solely for federal income tax purposes, the Class X Certificates will
have a notional principal balance equal to the aggregate principal
balance of the Class XX-X-0, XX-X-0, XX-X-0, XX-X-0, XX-X-0, XX-X-0,
and LT-B-6 Interests, will bear interest at a pass-through rate equal
on any Distribution Date to the excess of the Net WACs of the Mortgage
Loans for such Distribution Date, over the weighted average of the
pass-through rates of the REMIC 1 Regular Interests, weighted on the
basis of the principal balances of the REMIC 1 Regular Interests, with
each such pass-through rate subject to a cap equal to the Pass-Through
Rate of its Corresponding Class. The Class X Certificates will also
represent an obligation to make payments of Carryover Reserve Fund
Deposit that will be accounted for as a contractual obligation
separate and apart from the REMIC regular interest represented by the
Class X Certificates.
(3) Calculated pursuant to the definition of "Class X Certificate
Pass-Through Rate."
(4) Calculated pursuant to the definition of "Class A-R Certificate
Pass-Through Rate."
(5) Calculated pursuant to the definition of "Subordinate Certificate
Pass-Through Rate."
The following table sets forth the REMIC 1 Interest designations, Initial
Principal Balances, Interest Rates, Allocations of Principal and Realized Losses
and Allocations of Interest on the REMIC 1 Interests, each of which (except for
the Class R-1 Interest) is hereby designated a regular interest in REMIC 1, and
their corresponding Classes of Certificates:
REMIC 1
-------
Allocation
of Principal
REMIC 1 Initial Principal and Realized Allocation Corresponding
Interest Balance (1) Interest Rate Losses of Interest Class
-------- ----------------- ------------- ------------ ----------- -----
LT-A-1 $396,541,000.00 (2) Class A Class A, X A
LT-A-1A $ 100.00 (2) n/a n/a n/a
LT-B-1 $ 4,088,000.00 (2) Class X-0 Xxxxx X-0, X X-0
XX-X-0 $ 1,635,000.00 (2) Class B-2 Class B-2, X X-0
0
XX-X-0 $ 2,452,000.00 (2) Class X-0 Xxxxx X-0, X X-0
XX-X-0 $ 1,635,000.00 (2) Class X-0 Xxxxx X-0, X X-0
XX-X-0 $ 1,226,000.00 (2) Class X-0 Xxxxx X-0, X X-0
XX-X-0 $ 1,228,821.51 (2) Class B-6 Class B-6 X-0
X-0 0 0% x/x x/x x/x
_______________
(1) On each Distribution Date following the allocation of principal and
Realized Losses, each class of LT Regular Interests will have a
principal balance equal to the principal balance of the Class of
Certificates referenced in the foregoing chart under "Allocation of
Principal."
(2) Calculated pursuant to the definition of "Net WAC."
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement or in the Preliminary Statement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article. Calculations of interest shall be made
on the basis of an assumed 360-day year consisting of twelve 30-day months,
except as provided in the definition of "Accrual Period."
"1933 Act": The Securities Act of 1933, as amended.
"Account": Either the Collection Account or the Distribution Account.
"Accrual Period": With respect to each Distribution Date and the LIBOR
Certificates, the period commencing on the 15th day of the month prior to the
month of the Distribution Date (or, with respect to the first Distribution Date,
on the Closing Date) and ending on the 14th day of the month of the applicable
Distribution Date. With respect to each Distribution Date and any Class of
Certificates other than the LIBOR Certificates, the calendar month prior to the
month of that Distribution Date. Interest on the Certificates will accrue on the
basis of a 360-day year consisting of twelve 30-day months; provided, however,
that in the case of the LIBOR Certificates for the initial Accrual Period only,
interest will accrue on the basis of a 360-day year, a 30-day month and the
actual number of days in such Accrual Period.
"Adjusted Mortgage Rate": As to any Mortgage Loan and any date, the per
annum rate equal to the related Mortgage Rate less the Servicing Fee Rate.
"Adjustment Date": With respect to each Mortgage Loan, each adjustment date
on which the related Mortgage Rate changes pursuant to the related Mortgage
Note. The first Adjustment Date following the Cut-off Date as to each Mortgage
Loan is set forth in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan or REO Property, any advance made by the
Servicer in respect of any Distribution Date pursuant to Section 4.05 hereof.
"Adverse REMIC Event": As defined in Section 9.01(f) hereof.
"Affiliate": With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through
3
ownership of voting securities, by contract or otherwise and "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Aggregate Senior Percentage": As to any Distribution Date, the percentage
equivalent of a fraction the numerator of which is the aggregate of the Class
Certificate Principal Balances of the Classes of Senior Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate of
the Stated Principal Balances of all the Mortgage Loans for such Distribution
Date.
"Aggregate Subordinate Percentage": As to any Distribution Date, the
difference between 100% and the Aggregate Senior Percentage for such
Distribution Date, but in no event less than zero.
"Applicable Credit Support Percentage": As defined in Section 4.01(f).
"Applicable Regulations": As to any Mortgage Loan, all federal, state and
local laws, statutes, rules and regulations applicable thereto.
"Applicable State or Local Tax Laws": For purposes of Article IX, the
Applicable State and Local Income Tax Laws shall be (a) the law of the State of
New York, (b) the law of the Commonwealth of Massachusetts and (c) such other
law whose applicability shall have been brought to the attention of the Trustee
by either (i) an Opinion of Counsel delivered to it or (ii) written notice from
the appropriate taxing authority as to the applicability of such state or local
income tax law.
"Assignment": An assignment of Mortgage, notice of transfer or equivalent
instrument, in recordable form, which is sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect or
record the sale of the Mortgage.
"Assumed Final Maturity Date": As to each Class of Certificates, the date
set forth as such in the Preliminary Statement.
"Available Funds": With respect to any Distribution Date, an amount equal
to (i) the sum of (a) the aggregate of the Monthly Payments received on or prior
to the related Determination Date (excluding Monthly Payments due in future Due
Periods but received by the related Determination Date), (b) Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans during the
Prepayment Period, (c) the aggregate of any amounts received in respect of a REO
Property withdrawn from any REO Account and deposited in the Collection Account
for such Distribution Date, (d) the aggregate of any amounts deposited in the
Collection Account by the Servicer in respect of Prepayment Interest Shortfalls
for that Distribution Date, (e) the aggregate of the Purchase Prices and
Substitution Adjustments deposited in the Collection Account during the
Prepayment Period, (f) the aggregate of any Advances made by the Servicer for
that Distribution Date, (g) the aggregate of any advances made by the Trustee
for that Distribution Date pursuant to Section 7.02 hereof and (h) the
Termination Price on the Distribution Date on which the Trust
4
is terminated; minus (ii) the sum of (x) amounts reimbursable or payable to the
Servicer pursuant to Section 3.11(a) hereof, (y) the amount payable to the
Trustee pursuant to Sections 3.11(b), 7.02 and 8.05 and (z) amounts deposited in
the Collection Account or the Distribution Account, as the case may be, in
error.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Bankruptcy Coverage Termination Date": The date on which the Bankruptcy
Loss Coverage Amount is reduced to zero.
"Bankruptcy Loss": With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss hereunder so long as the Servicer has notified the
Trustee in writing that the Servicer is diligently pursuing any remedies that
may exist in connection with the related Mortgage Loan and either (A) the
related Mortgage Loan is not in default with regard to payments due thereunder
or (B) delinquent payments of principal and interest under the related Mortgage
Loan and any related escrow payments in respect of the Mortgage Loan are being
advanced on a current basis by the Servicer, in either case without giving
effect to any Debt Service Reduction or Deficient Valuation.
"Bankruptcy Loss Coverage Amount": As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by the aggregate amount of Bankruptcy Losses allocated to the
Certificates since the Cut-off Date; provided, however, that the Bankruptcy Loss
Coverage Amount may also be reduced pursuant to a letter from each Rating Agency
to the Trustee to the effect that any such reduction will not result in a
downgrading of the then current ratings assigned by such Rating Agency to the
Classes of Senior Certificates.
"Blanket Mortgage": The mortgage or mortgages encumbering the Cooperative
Property.
"Book-Entry Certificates": Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a "Depository Participant", or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.02 hereof). On the Closing Date, all
Classes of the Certificates other than the Physical Certificates shall be
Book-Entry Certificates.
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking or savings institutions in the State of California, the State of
Maryland, the State of New York or in the city in which the Corporate Trust
Office of the Trustee is located are authorized or obligated by law or executive
order to be closed.
"California Cooperative Loan": A Cooperative Loan secured by a Mortgaged
Property related to a Cooperative Property located in the State of California.
"Carryover Reserve Fund": The account created and initially maintained by
the Trustee pursuant to Section 4.06 hereof, which shall be entitled: "Xxxxx
Fargo Bank Minnesota, National
5
Association, as Trustee, in trust for registered Holder of First Republic
Mortgage Loan Trust 2001-FRB1, Mortgage Loan Pass-Through Certificates, Series
2001-FRB1, Class X", and which must be an Eligible Account.
"Carryover Reserve Fund Deposit": As to any Distribution Date, the lesser
of (a) the greater of (i) the Net WAC Carryover Amount for such date and (ii)
the amount, if any, necessary to be deposited in the Carryover Reserve Fund so
that the amount on deposit therein is at least $5,000 (after taking into account
any other amount already on deposit in the Carryover Reserve Fund on such date),
and (b) the amount otherwise distributable as interest on the Class X
Certificates on such Distribution Date.
"Certificate": Any Regular Certificate or Class A-R Certificate.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, except that a Disqualified Organization
or non-U.S. Person shall not be a Holder of the Class A-R Certificate for any
purpose hereof.
"Certificate Balance": With respect to each Certificate of a given Class
other than the Class X Certificates and any Distribution Date, the product of
(i) the Class Certificate Principal Balance of such Class multiplied by (ii) the
applicable Percentage Interest represented by such Certificate.
"Certificate Notional Balance": With respect to each Class X Certificate
and any Distribution Date, the product of (i) the Class Certificate Notional
Balance multiplied by (ii) the Percentage Interest represented by such Class X
Certificate.
"Certificate Owner": With respect to each Book-Entry Certificate, any
beneficial owner thereof.
"Certificate Register" and "Certificate Registrar": The register maintained
and registrar appointed pursuant to Section 5.02 hereof.
"Class": Collectively, Certificates which have the same priority of payment
and bear the same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced thereby.
"Class A Certificates": Any one of the Class A Certificates as designated
on the face thereof executed, authenticated and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A.
"Class A Certificate Pass-Through Rate": With respect to the Class A
Certificates and any Distribution Date up to and including the Optional
Termination Date, the rate per annum equal to One-Month LIBOR for the related
LIBOR Determination Date plus 0.35% subject to the lesser of (i) the Net WAC of
the Mortgage Loans and (ii) 11.25%; and with respect to the Class A Certificates
and any Distribution Date after the Optional Termination Date, the rate per
annum equal to One-Month LIBOR for the related LIBOR Determination Date plus
0.70%, subject to the lesser of (i) the Net WAC and (ii) 11.25%; provided,
however, that for the first Distribution Date, the Class A Certificate
Pass-Through Rate shall be 2.46875% per annum.
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"Class A-R Certificate": The Class A-R Certificate as designated on the
face thereof executed by the Trustee, and authenticated and delivered by the
Certificate Registrar, substantially in the form annexed hereto as Exhibit C,
and evidencing the beneficial ownership of the R-1 Interest and the R-2
Interest.
"Class A-R Certificate Pass-Through Rate": With respect to the Class A-R
Certificate and any Distribution Date, the Net WAC for such Distribution Date;
provided, however, that for the first Distribution Date, the Class A-R
Certificate Pass-Through Rate shall be 4.08223% per annum.
"Class B-1 Certificates," "Class B-2 Certificates," "Class B-3
Certificates," "Class B-4 Certificates," "Class B-5 Certificates," and "Class
B-6 Certificates": Any one of the Certificates of the related Class as
designated on the face thereof executed, authenticated and delivered by the
Trustee, substantially in the form annexed hereto as Exhibit D.
"Class Certificate Notional Balance": As of any Distribution Date and with
respect to the Class X Certificates, an amount equal to the aggregate of the
Class Certificate Principal Balances of the Class A Certificates and Class B-1
Certificates.
"Class Certificate Principal Balance": With respect to any Class of
Certificates other than the Class X Certificates and any Distribution Date, the
Class Certificate Principal Balance thereof on the Closing Date as set forth in
the table appearing on page 2 hereof (the "Original Class Certificate Principal
Balance") as reduced by the sum of (x) all amounts actually distributed in
respect of principal of that Class on all prior Distribution Dates and (y) all
Realized Losses, Bankruptcy Losses, Special Hazard Losses, Fraud Losses and
Excess Losses, if any, actually allocated to that Class on all prior
Distribution Dates.
"Class Subordination Percentage": With respect to each Class of Subordinate
Certificates and any Distribution Date, the percentage equivalent of a fraction
the numerator of which is the Class Certificate Principal Balance of such Class
immediately before such Distribution Date and the denominator of which is the
aggregate of the Class Certificate Principal Balances of all Classes of
Certificates immediately before such Distribution Date.
"Class X Certificate": Any one of the Class X Certificates as designated on
the face thereof executed, authenticated and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit B.
"Class X Certificate Pass-Through Rate": With respect to the Class X
Certificates and any Distribution Date, the excess of the Net WAC for such
Distribution Date, over the weighted average of the Pass-Through Rates of the
Class A and Class B-1 Certificates for such Distribution Date (with the
Pass-Through Rate of the Class A Certificates being multiplied by 11/30ths in
the case of the first Accrual Period only), weighted on the basis of their
respective Class Certificate Principal Balances for such Distribution Date;
provided, however, that the Class X Certificate Pass-Through Rate for the first
Distribution Date shall be 3.14669%.
"Close of Business": As used herein, with respect to any Business Day and
location, 5:00 p.m. at such location.
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"Closing Date": December 4, 2001.
"Code": The Internal Revenue Code of 1986 as it may be amended from time to
time.
"Collection Account": The account or accounts created and maintained by the
Servicer pursuant to Section 3.10(a), which shall be entitled "First Republic
Bank, as Servicer for Xxxxx Fargo Bank Minnesota, National Association, as
Trustee, in trust for registered Holders of First Republic Mortgage Loan Trust
2001-FRB1, Mortgage Loan Pass-Through Certificates, Series 2001-FRB1", and which
must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
"Compensating Interest": As defined in Section 3.24 hereof.
"Coop Shares": Shares issued by a Cooperative Corporation.
"Cooperative Corporation": The entity that holds title 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 Coop Shares and a
Proprietary Lease.
"Cooperative Property": The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the 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 in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at Xxxxx Fargo Center, Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention:
Corporate Trust Services-Mortgage Loan Pass-Through Certificates, Series
2001-FRB1, or at such other address as the Trustee may designate from time to
time by notice to the Certificateholders, the Depositor, the Servicer and the
Seller.
"Cut-off Date": With respect to any Mortgage Loan other than a Qualified
Substitute Mortgage Loan, the Close of Business on November 1, 2001. With
respect to any Qualified Substitute Mortgage Loan, the date designated as such
on the Mortgage Loan Schedule (as amended).
"Cut-off Date Aggregate Principal Balance": The aggregate of the Cut-off
Date Principal Balances of the Mortgage Loans.
8
"Cut-off Date Principal Balance": With respect to any Mortgage Loan, the
unpaid principal balance thereof as of the Cut-off Date (or as of the applicable
date of substitution with respect to a Qualified Substitute Mortgage Loan).
"Debt Service Reduction": With respect to any Mortgage Loan, a reduction in
the scheduled Monthly Payment for that Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, unless the reduction
results from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(c) hereof.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced by one
or more Qualified Substitute Mortgage Loans.
"Delinquent": Any Mortgage Loan with respect to which the Monthly Payment
due on a Due Date is not made.
"Depositor": Greenwich Capital Acceptance, Inc., a Delaware corporation, or
any successor in interest.
"Depository": The initial Depository shall be The Depository Trust Company,
whose nominee is Cede & Co., or any other organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository shall initially be the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
"Depository Participant": A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the 10th day
of the month in which that Distribution Date occurs or, if the 10th day is not a
Business Day, the immediately following Business Day.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by a REMIC other than through an
Independent Contractor; provided, however, that the Trustee (or the Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Servicer, on behalf of the Trustee, establishes
rental terms, chooses tenants, enters
9
into or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
"Disqualified Organization": A "disqualified organization" under Section
860E of the Code, which as of the Closing Date is any of:
(i) the United States, any state or political subdivision thereof, any
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing,
(ii) any organization (other than a cooperative described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the
Code unless such organization is subject to the tax imposed by Section 511
of the Code,
(iii) any organization described in Section 1381(a)(2)(C) of the Code,
(iv) an "electing large partnership" within the meaning of Section 775
of the Code or
(v) any other Person so designated by the Trustee based upon an
Opinion of Counsel provided to the Trustee by nationally recognized counsel
acceptable to the Trustee that the holding of an ownership interest in the
Class A-R Certificate by such Person may cause the Trust Fund or any Person
having an ownership interest in any Class of Certificates (other than such
Person) to incur liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an ownership
interest in the Class A-R Certificate to such Person.
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, a majority of its board of directors is not
selected by a governmental unit. The term "United States", "state" and
"international organizations" shall have the meanings set forth in Section 7701
of the Code.
"Distribution Account": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.10(b) hereof which shall be
entitled "Distribution Account, Xxxxx Fargo Bank Minnesota, National
Association, as Trustee, in trust for the registered Certificateholders of First
Republic Mortgage Loan Trust 2001-FRB1, Mortgage Loan Pass-Through Certificates,
Series 2001-FRB1" and which must be an Eligible Account.
"Distribution Date": The 15th day of any calendar month, or if such 15th
day is not a Business Day, the Business Day immediately following such 15th day,
commencing in December 2001.
"Distribution Date Statement": As defined in Section 4.04(a) hereof.
"Due Date": With respect to each Mortgage Loan and any Distribution Date,
the first day of the calendar month in which that Distribution Date occurs on
which the Monthly Payment for such Mortgage Loan was due, exclusive of any days
of grace.
10
"Due Period": With respect to any Distribution Date, the period commencing
on the second day of the month preceding the month in which that Distribution
Date occurs and ending on the first day of the month in which that Distribution
Date occurs.
"Eligible Account": Any of
(i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or
trust company that is the principal subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated
A-1 or its equivalent by S&P and P-1 by Moody's at the time any amounts are
held on deposit therein;
(ii) an account or accounts the deposits in which are fully insured by
the FDIC (to the limits established by it), the uninsured deposits in which
account are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to the Rating Agencies, the
Certificateholders will have a claim with respect to the funds in the
account or a perfected first priority security interest against the
collateral (which shall be limited to Permitted Investments) securing those
funds that is superior to claims of any other depositors or creditors of
the depository institution with which such account is maintained;
(iii) a trust account or accounts maintained with the trust department
of a federal or state chartered depository institution, national banking
association or trust company acting in its fiduciary capacity; or
(iv) an account otherwise acceptable to the Rating Agencies without
reduction or withdrawal of its then current ratings of the Certificates as
evidenced by a letter from each Rating Agency to the Trustee.
Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"ERISA-Restricted Certificates": The Class A-R Certificate and the Private
Certificates.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, fire and hazard insurance premiums and other payments
required to be escrowed by the Mortgagor with the mortgagee pursuant to any
Mortgage Loan.
"Estate in Real Property": A fee simple estate in a parcel of real
property.
"Excess Loss": With respect to the Mortgage Loans, the amount of any (i)
Fraud Loss realized after the Fraud Loss Coverage Termination Date, (ii) Special
Hazard Loss realized after the Special Hazard Coverage Termination Date or (iii)
Bankruptcy Loss realized after the Bankruptcy Coverage Termination Date.
11
"Excess Servicing Fee": As to any Distribution Date, any Servicing Fee for
such Distribution Date remaining after application to the Prepayment Interest
Shortfall for such related Prepayment Period.
"Expense Fee Rate": The per annum rate at which the Expense Fees accrue,
calculated on the Principal Balance of each Mortgage Loan.
"Expense Fees" :The sum of (x) the Servicing Fee and (y) the Trustee Fee
for each Mortgage Loan.
"FDIC": The Federal Deposit Insurance Corporation or any successor thereto.
"Xxxxxx Mae": The Federal National Mortgage Association or any successor
thereto.
"Final Recovery Determination": With respect to any defaulted Mortgage Loan
or any REO Property (other than a Mortgage Loan or REO Property purchased by the
Seller or by the Servicer pursuant to or as contemplated by Section 2.03 or
10.01 hereof), a determination made by the Servicer (and with respect to which
written confirmation by a Servicing Officer shall have been received by the
Trustee) that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Servicer, in its reasonable good faith judgment, expects to
be finally recoverable in respect thereof have been so recovered. The Servicer
shall maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
"Foreclosure Price": The amount reasonably expected to be received from the
sale of a Mortgaged Property net of any expenses associated with foreclosure
proceedings.
"Fraud Loan": A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
"Fraud Losses": Realized Losses on any Mortgage Loans sustained by reason
of a default arising from fraud, dishonesty or misrepresentation in connection
with that Mortgage Loan.
"Fraud Loss Coverage Amount": As of the Closing Date, $8,176,118 subject to
reduction from time to time by the amount of Fraud Losses allocated to the
Certificates. In addition, on each anniversary of the Cut-off Date, the Fraud
Loss Coverage Amount will be reduced as follows: (a) on the first, second, third
and fourth anniversaries of the Cut-off Date, to an amount equal to the lesser
of (i) 1.00% of the then current Mortgage Pool Balance and (ii) the excess of
the Fraud Loss Coverage Amount as of the preceding anniversary of the Cut-off
Date (or, in the case of the first anniversary, as of the Cut-off Date) over the
cumulative amount of Fraud Losses allocated to the Subordinate Certificates
since such preceding anniversary or the Cut-off Date, as the case may be; and
(b) on the fifth anniversary of the Cut-off Date, to zero; provided, however,
that the Fraud Loss Coverage Amount may also be reduced pursuant to a letter
from each Rating Agency to the Trustee to the effect that any such reduction
will not result in the downgrading of the then current ratings assigned by such
Rating Agency to the Classes of Senior Certificates.
"Fraud Loss Coverage Termination Date": The date on which the Fraud Loss
Coverage Amount is reduced to zero.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any successor
thereto.
12
"Gross Margin": With respect to each Mortgage Loan, the fixed percentage
set forth in the related Mortgage Note that is added to the applicable Index on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
"Independent": When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Servicer and their
respective Affiliates, (b) does not have any direct financial interest in or any
material indirect financial interest in the Depositor or the Servicer or any
Affiliate thereof, and (c) is not connected with the Depositor or the Servicer
or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Depositor or the
Servicer or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor or the
Servicer or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person (other than the Servicer)
that would be an "independent contractor" with respect to the REMIC within the
meaning of Section 856(d)(3) of the Code if the REMIC were a real estate
investment trust (except that the ownership tests set forth in that section
shall be considered to be met by any Person that owns, directly or indirectly,
35% or more of any Class of Certificates), so long as the REMIC does not receive
or derive any income from such Person and provided that the relationship between
such Person and the REMIC is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or (ii) any other Person (including the
Servicer) if the Trustee has received an Opinion of Counsel to the effect that
the taking of any action in respect of any REO Property by such Person, subject
to any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code), or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Index": With respect to each Mortgage Loan and each Adjustment Date, the
index specified in the related Mortgage Note.
"Initial Bankruptcy Coverage Amount": $100,000.
"Initial Certificate Balance": With respect to any Certificate other than a
Class X Certificate, the amount designated "Initial Certificate Balance" on the
face thereof.
"Initial Certificate Notional Balance": With respect to any Class X
Certificate, the amount designated "Initial Certificate Notional Balance" on the
face thereof.
"Insurance Proceeds": Proceeds of any title policy, hazard policy or other
insurance policy covering a Mortgage Loan, to the extent such proceeds are not
to be applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the procedures that the Servicer
would follow in servicing mortgage loans held for its own account, subject to
the terms and conditions of the related Mortgage Note and Mortgage.
13
"Interest Distributable Amount": With respect to any Distribution Date and
each Class of Certificates, the sum of (i) the Monthly Interest Distributable
Amount for that Class and (ii) the Unpaid Interest Shortfall Amount for that
Class.
"Late Collections": With respect to any Mortgage Loan, all amounts received
subsequent to the Determination Date immediately following any related Due
Period, whether as late payments of Monthly Payments or as Insurance Proceeds,
Liquidation Proceeds or otherwise, which represent late payments or collections
of principal and/or interest due (without regard to any acceleration of payments
under the related Mortgage and Mortgage Note) but delinquent on a contractual
basis for such Due Period and not previously recovered.
"Latest Possible Maturity Date": As determined as of the Cut-off Date, the
Distribution Date following the fourth anniversary of the scheduled maturity
date of the Mortgage Loan having the latest scheduled maturity date as of the
Cut-off Date.
"LIBOR Business Day": Any day on which banks in London, England and New
York, New York are open and conducting transactions in foreign currency and
exchange.
"LIBOR Certificates": The Class A Certificates.
"LIBOR Determination Date": With respect to the LIBOR Certificates and each
Accrual Period after the initial Accrual Period, the second LIBOR Business Day
preceding the commencement of such Accrual Period.
"Liquidated Mortgage Loan": As to any Distribution Date, any Mortgage Loan
in respect of which the Servicer has determined, in accordance with the
servicing procedures specified herein, as of the end of the related Prepayment
Period, that all Liquidation Proceeds which it expects to recover with respect
to the liquidation of the Mortgage Loan or disposition of the related REO
Property have been recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from the Trust Fund by reason of its being purchased, sold or replaced
pursuant to or as contemplated by Section 2.03 or Section 10.01. With respect to
any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from the Trust Fund by reason of its being sold or purchased pursuant to
Section 3.23 or Section 10.01 hereof.
14
"Liquidation Proceeds": The amount (other than amounts received in respect
of the rental of any REO Property prior to REO Disposition) received by the
Servicer in connection with (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation, (ii) the
liquidation of a defaulted Mortgage Loan by means of a trustee's sale,
foreclosure sale or otherwise or (iii) the repurchase, substitution or sale of a
Mortgage Loan or an REO Property pursuant to or as contemplated by Section 2.03,
Section 3.23 or Section 10.01 hereof.
"Liquidation Report": A report to be provided by the Servicer upon request
by the Trustee substantially in the form attached hereto in Exhibit M.
"Loan-to-Value Ratio": With respect to each Mortgage Loan and any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the Principal Balance of the Mortgage Loan at such date of determination and the
denominator of which is the Value of the related Mortgaged Property.
"Losses": As defined in Section 9.03 hereof.
"Lost Note Affidavit": With respect to any Mortgage Loan as to which the
original Mortgage Note has been permanently lost or destroyed and has not been
replaced, an affidavit from the Seller certifying that the original Mortgage
Note has been lost, misplaced or destroyed (together with a copy of the related
Mortgage Note and indemnifying the Trust against any loss, cost or liability
resulting from the failure to deliver the original Mortgage Note) in the form of
Exhibit H hereto.
"LT Regular Interests": The Class XX-X-0, XX-X-0X, XX-X-0, XX-X-0, XX-X-0,
XX-X-0, XX-X-0 and LT-B-6 Interests.
"Maintenance": With respect to any Cooperative Unit, the rent or fee paid
by the Mortgagor to the Cooperative Corporation pursuant to the Proprietary
Lease.
"Majority Certificateholders": The Holders of Certificates evidencing at
least 51% of the Voting Rights.
"Maximum Mortgage Rate": With respect to each Mortgage Loan, the percentage
set forth in the related Mortgage Note as the maximum Mortgage Rate thereunder.
"Minimum Mortgage Rate": With respect to each Mortgage Loan, the
percentage, if any, set forth in the related Mortgage Note as the minimum
Mortgage Rate thereunder.
"Monthly Interest Distributable Amount": With respect to each Class of
Certificates for any Distribution Date, the amount of interest accrued during
the related Accrual Period at the related Pass-Through Rate on the related Class
Certificate Principal Balance or Class Certificate Notional Balance, as
applicable, immediately prior to that Distribution Date; provided, however, that
in the case of the Class X Certificates, any Carryover Reserve Fund Deposit to
be paid on such Distribution Date shall be deemed to be distributed to the Class
X Certificateholders and then deposited into the Carryover Reserve Fund.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
Servicer pursuant to Section 3.01 hereof; and (c) on the assumption that all
other amounts, if any, due under such Mortgage Loan are paid when due.
15
"Moody's: Xxxxx'x Investors Service, Inc.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on, or first priority security interest in, a Mortgaged Property
securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.03(d) hereof as from time to time held as
a part of the Trust Fund, the Mortgage Loans so held being identified in the
Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The Agreement between the Seller and
the Depositor, dated as of November 1, 2001, regarding the transfer of the
Mortgage Loans by the Seller to or at the direction of the Depositor.
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in the Trust Fund on such date, attached hereto as Schedule I. The
Mortgage Loan Schedule shall be prepared by the Seller and shall set forth the
following information with respect to each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property including the state
and five-digit ZIP code;
(iv) a code indicating whether the Mortgaged Property was represented
by the borrower, at the time of origination, as being owner-
occupied;
(v) a code indicating whether the Residential Dwelling constituting
the Mortgaged Property is (a) a detached single family dwelling,
(b) a dwelling in a PUD, (c) a condominium unit, (d) a two- to
four-unit residential property or (e) a Cooperative Unit (and a
code indicating whether the related Cooperative Loan is an
Unrecognized Cooperative Loan);
(vi) if the related Mortgage Note permits the borrower to make Monthly
Payments of interest only for a specified period of time, (a) the
original number of such specified Monthly Payments and (b) the
remaining number of such Monthly Payments as of the Cut-off Date;
(vii) [reserved];
(viii) the original months to maturity;
16
(ix) the stated remaining months to maturity from the Cut-off Date
based on the original amortization schedule;
(x) the Loan-to-Value Ratio at origination;
(xi) [reserved];
(xii) [reserved];
(xiii) the Mortgage Rate in effect immediately following the Cut-off
Date;
(xiv) the date on which the first Monthly Payment is or was due on the
Mortgage Loan;
(xv) the stated maturity date;
(xvi) the amount of the Monthly Payment at origination;
(xvii) the amount of the Monthly Payment due on the first Due Date after
the Cut-off Date;
(xviii) the last Due Date on which a Monthly Payment was actually applied
to the unpaid Stated Principal Balance;
(xix) the original principal amount of the Mortgage Loan;
(xx) the Stated Principal Balance of the Mortgage Loan on the Cut-off
Date and a code indicating the purpose of the Mortgage Loan
(i.e., purchase financing, rate/term refinancing, cash-out
refinancing);
(xxi) the Mortgage Rate at origination;
(xxii) the Index and Gross Margin specified in related Mortgage Note;
(xxiii) the next Adjustment Date;
(xxiv) the maximum Mortgage Rate;
(xxv) the rounding code;
(xxvi) the Value of the Mortgaged Property;
(xxvii) the sale price of the Mortgaged Property, if applicable;
(xxviii) [reserved]; and
(xxix) the program code.
17
The Mortgage Loan Schedule, as in effect from time to time, shall set forth
the following information, as of the Cut-off Date with respect to the Mortgage
Loans sold by the Seller: (1) the number of Mortgage Loans; (2) the current
Principal Balance of the Mortgage Loans; (3) the weighted average Mortgage Rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans. The Mortgage Loan Schedule shall be amended from time to time by the
Seller in accordance with the provisions of this Agreement.
"Mortgage Note": The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool Balance": As of any date, the aggregate of the Principal
Balances of all the Mortgage Loans as of that date.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan from time to time in accordance
with the provisions of the related Mortgage Note, which rate (A) as of any date
of determination until the first Adjustment Date following the Cut-off Date
shall be the rate set forth in the Mortgage Loan Schedule as the Mortgage Rate
in effect immediately following the Cut-off Date and (B) as of any date of
determination thereafter shall be the rate as adjusted on the most recent
Adjustment Date, to equal the sum, rounded to the next highest 0.125% (as
provided in the Mortgage Note), of the applicable Index, determined as set forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination, the
annual rate determined in accordance with the immediately preceding sentence as
of the date such Mortgage Loan became an REO Property.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of (x) an Estate in Real Property
improved by a Residential Dwelling or (y) in the case of a Cooperative Loan, the
related Coop Shares and Proprietary Lease.
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": With respect to any Liquidated Mortgage Loan or
any other disposition of related Mortgaged Property (including REO Property) the
related Liquidation Proceeds net of Advances, Servicing Advances, Servicing Fees
and any other accrued and unpaid servicing fees received and retained in
connection with the liquidation of such Mortgage Loan or Mortgaged Property.
"Net Loan Rate": With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest equal
to the then applicable Mortgage Rate for such Mortgage Loan minus the Servicing
Fee Rate.
"Net Prepayment Interest Shortfalls": As to any Distribution Date, the
amount by which the aggregate of the Prepayment Interest Shortfalls during the
related Prepayment Period exceeds an amount equal to the aggregate Servicing Fee
for such Distribution Date before reduction of the Servicing Fee in respect of
such Prepayment Interest Shortfalls.
18
"Net WAC": With respect to any Distribution Date, the per annum rate equal
to (x) the average of the Mortgage Rates of the Mortgage Loans minus (y) the
average of the Expense Fee Rates of the Mortgage Loans, in each case as of the
first day of the month preceding the month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, the Cut-off Date),
weighted on the basis of the Principal Balances of the Mortgage Loans as of the
first day of the month immediately preceding the month of such Distribution
Date.
"Net WAC Carryover Amount": With respect to any Distribution Date on which
the Pass-Through Rate for the Class A Certificates is limited by the Net WAC of
the Mortgage Loans, the sum of (i) the excess, if any, of (a) the amount of
interest that would have accrued on such Class at the related Pass-Through Rate
(without giving effect to the Net WAC, but only up to 11.25%) over (b) the
amount of interest that accrued at the Net WAC and (ii) any Net WAC Carryover
Amount remaining unpaid from the prior Distribution Date together with interest
thereon at the related Pass-Through Rate (without giving effect to the Net WAC,
but only up to 11.25%). Any Net WAC Carryover Amount will be paid on such
Distribution Date or future Distribution Dates solely from distributions
otherwise payable on the Class X Certificates.
"New Lease": Any lease of REO Property entered into on behalf of the Trust,
including any lease renewed or extended on behalf of the Trust if the Trust has
the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Advance or Servicing Advance previously made
in respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer, will not ultimately be recoverable from Late
Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or
REO Property as provided herein.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a vice president (however
denominated), and by the Treasurer, the Secretary, or one of the assistant
treasurers or assistant secretaries of the Servicer, the Seller or the
Depositor, as applicable.
"One-Month LIBOR": With respect to the LIBOR Certificates and the related
Accrual Period other than the initial Accrual Period, the rate determined by the
Trustee on the related LIBOR Determination Date on the basis of the interbank
offered rate for one-month United States dollar deposits in the London market as
quoted on Telerate Screen 3750, as of 11:00 a.m. (London time) on such LIBOR
Determination Date. The One-Month LIBOR value for the initial Accrual Period
shall be 2.11875% per annum. If on any LIBOR Determination Date One-Month LIBOR
does not appear on Telerate Screen 3750 or any page replacing that page,
One-Month LIBOR for the related Accrual Period shall be established by the
Trustee as follows:
(i) If on such LIBOR Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related Accrual Period
shall be the arithmetic mean of such offered quotations (rounded upwards if
necessary to the nearest whole multiple of 0.001%); and
(ii) If on such Interest Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the related Accrual
Period shall
19
be the higher of (x) One-Month LIBOR as determined on the previous LIBOR
Determination Date and (y) the Reserve LIBOR Rate.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be a salaried counsel for the Depositor or the Servicer, acceptable
to the Trustee, except that any opinion of counsel relating to (a) the
qualification of the REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
"Optional Termination Date": The first Distribution Date on which the
Servicer may opt to terminate this Agreement pursuant to Section 10.01 hereof.
"Original Applicable Credit Support Percentage": With respect to each Class
of Subordinate Certificates, the corresponding percentage set forth below
opposite its Class designation:
Class B-1 3.00%
Class B-2 2.00%
Class B-3 1.60%
Class B-4 1.00%
Class B-5 0.60%
Class B-6 0.30%
"Original Class Certificate Principal Balance": With respect to each Class
of Certificates (other than the Class X Certificates), the corresponding amount
set forth opposite the Class designation of such Class in the Preliminary
Statement.
"Original Class Certificate Notional Balance": With respect to the Class X
Certificates, $400,629,000.
"Original Subordinated Principal Balance": The aggregate of the Original
Class Certificate Principal Balances of the Classes of Subordinate Certificates.
"Outstanding Mortgage Loan": As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero, which was not the subject of a
Prepayment in Full prior to such Due Date and which did not become a Liquidated
Mortgage Loan prior to such Due Date.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to each Class of Certificates and any
Distribution Date, the Class A Certificate Pass-Through Rate, the Class X
Certificate Pass-Through Rate, the Class A-R Certificate Pass-Through Rate or
the Subordinate Certificate Pass-Through Rate, as applicable.
"Paying Agent": Any paying agent appointed pursuant to Section 5.05 hereof.
20
"Percentage Interest": With respect to any Certificate other than the Class
A-R Certificate, a fraction, expressed as a percentage, the numerator of which
is the Initial Certificate Balance or Initial Certificate Notional Balance, as
applicable, represented by such Certificate and the denominator of which is the
Original Class Certificate Principal Balance or Original Class Certificate
Notional Balance, as applicable, of the related Class. With respect to the Class
A-R Certificate, 100%.
"Permitted Investments": Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued or managed by the Depositor, the Servicer, the Seller, the
Trustee or any of their respective Affiliates or for which an Affiliate of the
Trustee serves as an advisor:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by or federal funds sold by any depository
institution or trust company (including the Trustee or its agent acting in
their respective commercial capacities) incorporated under the laws of the
United States of America or any state thereof and subject to supervision
and examination by federal and/or state authorities, so long as, at the
time of such investment or contractual commitment providing for such
investment, such depository institution or trust company or its ultimate
parent has a short-term uninsured debt rating in one of the two highest
available rating categories of each Rating Agency and provided that each
such investment has an original maturity of no more than 365 days and (B)
any other demand or time deposit or deposit which is fully insured by the
FDIC;
(iii) repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered into with
a depository institution or trust company (acting as principal) rated A or
higher by both Rating Agencies; provided, however, that collateral
transferred pursuant to such repurchase obligation must be of the type
described in clause (i) above and must (A) be valued daily at current
market prices plus accrued interest or (B) pursuant to such valuation, be
equal, at all times, to 105% of the cash transferred by the Trustee in
exchange for such collateral and (C), be delivered to the Trustee or, if
the Trustee is supplying the collateral, an agent for the Trustee, in such
a manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
(iv) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America or any State thereof and that are rated by the Rating Agencies in
its highest long-term unsecured rating categories at the time of such
investment or contractual commitment providing for such investment;
(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
21
30 days after the date of acquisition thereof) that is rated by the Rating
Agencies in its highest short-term unsecured debt rating available at the
time of such investment;
(vi) units of money market funds registered under the Investment
Company Act of 1940 including funds managed or advised by the Trustee or an
affiliate thereof having the highest applicable rating from S&P and
Xxxxx'x; and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies in writing as a
permitted investment of funds backing securities having ratings equivalent
to its highest initial ratings of the Senior Certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
"Permitted Transferee": Any Transferee of the Class A-R Certificate other
than a Disqualified Organization or a non-U.S. Person.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Physical Certificates": The Private Certificates and the Class A-R
Certificate.
"Prepayment Interest Shortfall": With respect to any Distribution Date, for
each Mortgage Loan that was the subject of a Principal Prepayment during the
related Prepayment Period, an amount equal to the excess of one month's interest
at the applicable Net Loan Rate on the amount of such Principal Prepayment over
the amount of interest (adjusted to the Net Loan Rate) actually paid by the
related Mortgagor with respect to such Prepayment Period. The obligations of the
Servicer in respect of any Prepayment Interest Shortfall are set forth in
Section 3.24.
"Prepayment Period": With respect to any Distribution Date, the calendar
month preceding the month in which such Distribution Date occurs.
"Principal Balance": As to any Mortgage Loan, other than a Liquidated
Mortgage Loan, and any day, the related Cut-off Date Principal Balance minus all
collections credited against the Principal Balance of such Mortgage Loan. For
purposes of this definition, a Liquidated Mortgage Loan shall be deemed to have
a Principal Balance equal to the Principal Balance of the related Mortgage Loan
as of the final recovery of related Liquidation Proceeds and a Principal Balance
of zero thereafter. As to any REO Property and any day, the Principal Balance of
the related Mortgage Loan immediately prior to such Mortgage Loan becoming REO
Property minus any REO Principal Amortization received with respect thereto on
or prior to such day.
22
"Principal Distribution Amount": With respect to any Distribution Date, the
sum of (a) each scheduled payment of principal collected or advanced on the
related Mortgage Loans by the Servicer in respect of the related Due Period
(without giving effect to Debt Service Reductions or Deficient Valuations), (b)
that portion of the Purchase Price, representing principal of any repurchased
Mortgage Loan, deposited to the Collection Account during the related Prepayment
Period, (c) the principal portion of any related Substitution Adjustments
deposited in the Collection Account during the related Prepayment Period, (d)
the principal portion of all Insurance Proceeds received during the related
Prepayment Period with respect to Mortgage Loans that are not yet Liquidated
Mortgage Loans, (e) the principal portion of all related Net Liquidation
Proceeds received during the related Prepayment Period with respect to
Liquidated Mortgage Loans, (f) the principal portion of all partial and full
principal prepayments of Mortgage Loans received by the Servicer during the
related Prepayment Period, and (g) on the Distribution Date on which the Trust
is to be terminated pursuant to Section 10.01 hereof, that portion of the
Termination Price in respect of principal.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any Due Date in any month or months subsequent to the
month of prepayment.
"Private Certificates": The Class B-4, Class B-5 and Class B-6
Certificates.
"Pro Rata Senior Percentage": For each Distribution Date, the percentage
equivalent of a fraction the numerator of which is the aggregate of the Class
Certificate Principal Balances of the Senior Certificates immediately prior to
such Distribution Date and the denominator of which is the aggregate of the
Class Certificate Principal Balances of all Classes of the Certificates
immediately prior to such Distribution Date.
"Pro Rata Share": As to any Distribution Date, the Subordinated Principal
Distribution Amount and any Class of Subordinate Certificates, the portion of
the Subordinated Principal Distribution Amount allocable to such Class, equal to
the product of the Subordinated Principal Distribution Amount on such date and a
fraction, the numerator of which is the related Class Certificate Principal
Balance of that Class immediately prior to such Distribution Date and the
denominator of which is the aggregate of the Class Certificate Principal
Balances of all the Classes of Subordinate Certificates immediately prior to
such Distribution Date.
"Proprietary Lease": With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and the holder of the
related Coop Shares.
"Prospectus Supplement": That certain Prospectus Supplement dated November
29, 2001 relating to the initial sale of the Class A, Class X, Class A-R, Class
B-1, Class B-2 and Class B-3 Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or Section 10.01
hereof, and as confirmed by an Officers' Certificate from the Servicer to the
Trustee, an amount equal to the sum of (i) 100% of the Principal Balance thereof
as of the date of purchase (or such other price as provided in
23
Section 10.01), (ii) in the case of (x) a Mortgage Loan, accrued interest on
such Principal Balance at the applicable Mortgage Rate from the Due Date as to
which interest was last covered by a payment by the Mortgagor or an Advance by
the Servicer, which payment or Advance had as of the date of purchase been
distributed pursuant to Section 4.01 hereof, through the end of the calendar
month in which the purchase is to be effected, and (y) an REO Property, the sum
of (1) accrued interest on such Principal Balance at the applicable Mortgage
Rate (or at the applicable Adjusted Mortgage Rate if the purchaser is the
Servicer or if the purchaser is the Seller and the Seller is the Servicer) from
the Due Date as to which interest was last covered by a payment by the Mortgagor
or an Advance by the Servicer through the end of the calendar month immediately
preceding the calendar month in which such REO Property was acquired, plus (2)
REO Imputed Interest for such REO Property for each calendar month commencing
with the calendar month in which such REO Property was acquired and ending with
the calendar month in which such purchase is to be effected, net of the total of
all net rental income, Insurance Proceeds, Liquidation Proceeds and Advances
that as of the date of purchase had been distributed as or to cover REO Imputed
Interest pursuant to Section 4.04 hereof, (iii) any unreimbursed Servicing
Advances and Advances and any unpaid Servicing Fees allocable to such Mortgage
Loan or REO Property, (iv) any amounts previously withdrawn from the Collection
Account in respect of such Mortgage Loan or REO Property pursuant to Section
3.23 hereof, and (v) in the case of a Mortgage Loan required to be purchased
pursuant to Section 2.03 hereof, expenses reasonably incurred or to be incurred
by the Servicer or the Trustee in respect of the breach or defect giving rise to
the purchase obligation.
"Qualified Insurer": A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a Xxxxxx
Mae-approved mortgage insurer and having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
"Qualified Substitute Mortgage Loan": A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on the
date of such substitution, (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of, and not more than 5% less
than, the outstanding principal balance of the Deleted Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs, (ii) have a
Maximum Mortgage Rate not less than the Maximum Mortgage Rate of the Deleted
Mortgage Loan, (iii) have a Gross Margin equal to or greater than the Gross
Margin of the Deleted Mortgage Loan, (iv) have the same Index as the Deleted
Mortgage Loan, (v) have its next Adjustment Date not more than two months after
the next Adjustment Date of the Deleted Mortgage Loan, (vi) have a remaining
term to maturity not greater than (and not more than one year less than) that of
the Deleted Mortgage Loan, (vii) be current as of the date of substitution,
(viii) have a Loan-to-Value Ratio as of the date of substitution equal to or
lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date,
(ix) have a risk grading determined by the Seller to be at least equal to the
risk grading assigned on the Deleted Mortgage
24
Loan, (x) have been underwritten or re-underwritten by the Seller in accordance
with the same underwriting criteria and guidelines as the Deleted Mortgage Loan
and (xi) conform to each representation and warranty set forth in Section 2.04
hereof applicable to the Deleted Mortgage Loan. In the event that one or more
Mortgage Loans are substituted for one or more Deleted Mortgage Loans, the
amounts described in clause (i) hereof shall be determined on the basis of
aggregate Principal Balances, the terms described in clause (vi) hereof shall be
determined on the basis of weighted average remaining term to maturity, the
Loan-to-Value Ratios described in clause (viii) hereof shall be satisfied as to
each such Mortgage Loan, the risk gradings described in clause (ix) hereof shall
be satisfied as to each such Mortgage Loan, and, except to the extent otherwise
provided in this sentence, the representations and warranties described in
clause (xi) hereof must be satisfied as to each Qualified Substitute Mortgage
Loan or in the aggregate, as the case may be.
"Rating Agencies": S&P and Xxxxx'x or their respective successors. If
either such agency or its successors shall no longer be in existence, "Rating
Agencies" shall include such nationally recognized statistical rating agency, or
other comparable Person, as shall have been designated by the Depositor, notice
of which designation shall be given to the Trustee and the Servicer.
"Realized Loss": With respect to any Liquidated Mortgage Loan, the amount
of loss realized equal to the portion of the Principal Balance remaining unpaid
after application of all Net Liquidation Proceeds in respect of such Mortgage
Loan.
"Recognition Agreement": With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative Property.
"Record Date": With respect to each Distribution Date and each Certificate
(other than the Class A Certificates so long as they are represented by
Book-Entry Certificates), the last Business Day of the calendar month preceding
the month in which such Distribution Date occurs (except that, in the case of
the first Distribution Date, the Record Date for such Classes of Certificates
shall be the Closing Date); and with respect to each Distribution Date and the
Class A Certificates so long as they are represented by Book-Entry Certificates,
the Close of Business on the Business Day immediately preceding such
Distribution Date.
"Reference Banks": Leading banks selected by the Trustee which are engaged
in transactions in United States dollar deposits in the international
Eurocurrency market with an established place of business in London, England
which have been designated as such by the Trustee.
"Refinancing Mortgage Loan": Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
"Regular Certificate": Any Certificate other than the Class A-R
Certificate.
"Relief Act": The Soldiers' and Sailors Civil Relief Act of 1940, as
amended.
25
"Relief Act Reductions": With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Due Period as a result of the
application of the Relief Act, the amount, if any, by which (i) interest
collectible on that Mortgage Loan during such Due Period is less than (ii) one
month's interest on the Principal Balance of such Mortgage Loan at the Mortgage
Rate for such Mortgage Loan before giving effect to the application of the
Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC 1": As defined in the Preliminary Statement.
"REMIC 2": As defined in the Preliminary Statement.
"REMIC 1 Regular Interest": As defined in the Preliminary Statement.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
"Remittance Report": A report prepared by the Servicer and delivered to the
Trustee pursuant to Section 4.05 hereof.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code.
"REO Account": The account or accounts maintained by the Servicer in
respect of an REO Property pursuant to Section 3.23 hereof.
"REO Disposition": The sale or other disposition of an REO Property on
behalf of the Trust Fund.
"REO Imputed Interest": As to any REO Property, for any calendar month
during which such REO Property was at any time part of the Trust Fund, one
month's interest at the applicable Net Loan Rate on the Principal Balance of
such REO Property (or, in the case of the first such calendar month, of the
related Mortgage Loan if appropriate) as of the Close of Business on the Due
Date in such calendar month.
"REO Principal Amortization": With respect to any REO Property, for any
calendar month, the excess, if any, of (a) the aggregate of all amounts received
in respect of such REO Property during such calendar month, whether in the form
of rental income, sale proceeds (including, without limitation, that portion of
the Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 hereof that is allocable to
such REO Property) or otherwise, net of any portion of such amounts (i) payable
pursuant to Section 3.23 hereof in respect of the proper operation, management
and maintenance of such REO Property or (ii) payable or reimbursable to the
Servicer pursuant to Section 3.23 for unpaid Servicing Fees in respect of the
related Mortgage Loan and unreimbursed Servicing
26
Advances and Advances in respect of such REO Property or the related Mortgage
Loan, over (b) the REO Imputed Interest in respect of such REO Property for such
calendar month.
"REO Property": A Mortgaged Property acquired by the Servicer on behalf of
the Trust Fund through foreclosure or deed-in-lieu of foreclosure, as described
in Section 3.23 hereof.
"Request for Release": A release signed by a Servicing Officer, in the form
of Exhibit F attached hereto.
"Reserve LIBOR Rate": With respect to any LIBOR Determination Date, the
rate per annum that the Trustee determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 0.001%) of the
one-month United States dollar lending rates which banks in The City of New York
selected by the Trustee are quoting on the relevant LIBOR Determination Date to
the principal London offices of leading banks in the London interbank market or
(ii) in the event that the Trustee can determine no such arithmetic mean, the
lowest one-month United States dollar lending rate which such New York banks
selected by the Trustee are quoting on such LIBOR Determination Date to leading
European banks.
"Residential Dwelling": Any one of the following: (i) a detached one-family
dwelling, (ii) a detached two- to four-family dwelling, (iii) a one-family
dwelling unit in a condominium project, (iv) a manufactured home, (v) a detached
or attached one-family dwelling in a planned unit development or (vi) a
Cooperative Unit, none of which is a mobile home.
"Responsible Officer": When used with respect to the Trustee, the Chairman
or Vice Chairman of the Board of Directors or Trustees, the Chairman or Vice
Chairman of the Executive or Standing Committee of the Board of Directors or
Trustees, the President, any vice president, any assistant vice president, the
Secretary, any assistant secretary, the Treasurer, any assistant treasurer, the
Cashier, any assistant cashier, any trust officer or assistant trust officer,
the Controller and any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and, with respect to a particular matter, to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Classes": As defined in Section 4.01(f).
"S&P": Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., and its successors.
"Seller": First Republic Bank, a Nevada state-chartered commercial bank,
and its successors in interest, in its capacity as seller under this Agreement.
"Senior Certificate": Any one of the Class A or Class X Certificates or the
Class A-R Certificate as designated on the face thereof, substantially in the
form annexed hereto as Exhibit A, Exhibit B or Exhibit C, as applicable,
executed, authenticated and delivered by the Trustee, representing the right to
distributions as set forth herein and therein.
"Senior Certificateholder": Any Holder of a Senior Certificate.
27
"Senior Credit Support Depletion Date": The date on which the aggregate of
the Class Certificate Principal Balances of the Subordinate Certificates has
been reduced to zero.
"Senior Percentage": Except as described below, for any Distribution Date
occurring before December 2011, 100%. For any Distribution Date occurring (i)
before December 2011 but in or after November 2004 on which the Two Times Test
is satisfied, or (ii) in or after December 2011, the Pro Rata Senior Percentage.
For any Distribution Date occurring prior to November 2004 on which the Two
Times Test is satisfied, an amount equal to (a) the Pro Rata Senior Percentage
plus (b) 50% of an amount equal to 100% minus the Pro Rata Senior Percentage.
"Senior Prepayment Percentage": With respect to any Distribution Date
during the ten years beginning on the first Distribution Date, 100%. Except as
provided herein, the Senior Prepayment Percentage for any Distribution Date
occurring on or after the tenth anniversary of the first Distribution Date will
be as follows: (i) from December 2011 through November 2012, the Senior
Percentage plus 70% of the Subordinate Percentage for that Distribution Date;
(ii) from December 2012 through November 2013, the Senior Percentage plus 60% of
the Subordinate Percentage for that Distribution Date; (iii) from December 2013
through November 2014, the Senior Percentage plus 40% of the Subordinate
Percentage for that Distribution Date; (iv) from December 2014 through November
2015, the Senior Percentage plus 20% of the Subordinate Percentage for that
Distribution Date; and (v) from and after December 2015, the Senior Percentage
for that Distribution Date; provided, however, that there shall be no reduction
in the Senior Prepayment Percentage unless both Step Down Conditions are
satisfied; and provided, further, that if on any such Distribution Date the Pro
Rata Senior Percentage exceeds the initial Pro Rata Senior Percentage, the
Senior Prepayment Percentage for that Distribution Date will again equal 100%.
Notwithstanding the above, if on any Distribution Date the Two Times Test
is satisfied, the Senior Prepayment Percentage will equal the Senior Percentage.
"Senior Principal Distribution Amount": With respect to any Distribution
Date, the sum of:
(1) the Senior Percentage of all amounts described in clauses (a)
through (d) and (g) of the definition of "Principal Distribution Amount"
for that Distribution Date;
(2) with respect to each Mortgage Loan which became a Liquidated
Mortgage Loan during the related Prepayment Period, the lesser of
(x) the Senior Percentage of the Stated Principal
Balance of that Mortgage Loan and
either
(y) the Senior Prepayment Percentage of the amount of
the Net Liquidation Proceeds allocable to principal
received with respect to that Mortgage Loan
28
or
(z) if an Excess Loss was sustained with respect to
such Liquidated Mortgage Loan during such related
Prepayment Period, the Senior Percentage of the
amount of Net Liquidation Proceeds allocable to
principal received with respect to that Mortgage
Loan; and
(3) the Senior Prepayment Percentage of the amounts described in
clause (f) of the definition of "Principal Distribution Amount" for that
Distribution Date; and
provided, however, that if a Bankruptcy Loss that is an Excess Loss is sustained
with respect to any Mortgage Loan that is not a Liquidated Mortgage Loan, such
Senior Principal Distribution Amount will be reduced on such Distribution Date
by the Senior Percentage of the principal portion of such Bankruptcy Loss.
"Servicer": First Republic Bank, a Nevada state-chartered commercial bank,
or any successor servicer appointed as herein provided.
"Servicer Affiliate": A Person (i) controlling, controlled by or under
common control with the Servicer or which is 50% or more owned by the Servicer
and (ii) which is qualified to service residential mortgage loans.
"Servicer Event of Termination": One or more of the events described in
Section 7.01 hereof.
"Servicer Remittance Date": With respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.09 hereof.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and expenses)
incurred by the Servicer in the performance of its servicing obligations,
including, but not limited to, the cost of (i) the preservation, restoration,
inspection and protection of the Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of the REO Property and (iv) compliance with the obligations under
Sections 3.01, 3.09, 3.16, and 3.23 hereof.
"Servicing Fee": With respect to each Mortgage Loan and for any calendar
month, an amount equal to one month's interest (or in the event of any payment
of interest which accompanies a Principal Prepayment made by the Mortgagor
during such calendar month, interest for the number of days covered by such
payment of interest) at the related Servicing Fee Rate on the same principal
amount on which interest on such Mortgage Loan accrues for such calendar month.
The Servicing Fee may be retained by any Sub-Servicer as its servicing
compensation.
"Servicing Fee Rate": 0.30% per annum.
29
"Servicing Officer": Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans, whose
name and specimen signature appear on a list of servicing officers furnished by
the Servicer to the Trustee and the Depositor on the Closing Date, as such list
may from time to time be amended.
"Servicing Standard": The standards set forth in Section 3.01 hereof.
"Special Hazard Coverage Termination Date": The date on which the Special
Hazard Loss Coverage Amount is reduced to zero.
"Special Hazard Loss": Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to be
maintained with respect to such Mortgaged Property pursuant to Section 3.14
hereof to the extent of the amount of such loss covered thereby, or (ii) any
loss caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the Trustee,
the Servicer or any of their agents or employees (without regard to any portion
of the loss not covered by any errors and omissions policy);
(c) errors in design, faulty workmanship or faulty materials, unless the
collapse of the property or a part thereof ensues and then only for the ensuing
loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive or
chemical contamination, all whether controlled or uncontrolled, and whether such
loss be direct or indirect, proximate or remote or be in whole or in part caused
by, contributed to or aggravated by a peril covered by the definition of the
term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war, including action in
hindering, combating or defending against an actual, impending or expected
attack:
1. by any government or sovereign power, de jure or de facto, or by
any authority maintaining or using military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or action
taken by governmental authority in hindering, combating or defending against
such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority or
risks of contraband or illegal transportation or trade.
30
"Special Hazard Loss Coverage Amount": With respect to the first
Distribution Date, $12,264,821.51. With respect to any Distribution Date after
the first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the Principal Balances of the Mortgage Loans, (ii) twice the
Principal Balance of the largest Mortgage Loan and (iii) the aggregate of the
Principal Balances of the Mortgage Loans secured by Mortgaged Properties located
in the single five-digit ZIP code area in the State of California having the
highest aggregate Principal Balance of any such ZIP code area and (b) the
Special Hazard Loss Coverage Amount as of the Closing Date less the amount, if
any, of Special Hazard Losses allocated to the Certificates since the Closing
Date; provided, however, that the Special Hazard Loss Coverage Amount may also
be reduced pursuant to a letter from each Rating Agency to the Trustee to the
effect that any such reduction will not result in the downgrading of the then
current ratings assigned by such Rating Agency to the Classes of Senior
Certificates. All Principal Balances for the purpose of this definition will be
calculated as of the first day of the calendar month preceding the month of such
Distribution Date after giving effect to scheduled payments on the Mortgage
Loans then due, whether or not paid.
"Special Hazard Mortgage Loan": A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
"Startup Day": As defined in Section 9.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan: (a) as of
the Distribution Date in December 2001, the outstanding Principal Balance of
such Mortgage Loan as of the Cut-off Date, reduced by any principal payment due
on the Cut-off Date, (b) thereafter as of any date of determination up to and
including the Distribution Date on which the proceeds, if any, of a Liquidation
Event with respect to such Mortgage Loan would be distributed, the outstanding
principal balance of such Mortgage Loan as of the Cut-off Date, as shown in the
Mortgage Loan Schedule, minus, in the case of each Mortgage Loan, the sum of (i)
the principal portion of each Monthly Payment due on a Due Date subsequent to
the Cut-off Date, to the extent received from the Mortgagor or advanced by the
Servicer and distributed pursuant to Section 4.01 hereof before such date of
determination, (ii) all Principal Prepayments received on or after the Cut-off
Date, to the extent distributed pursuant to Section 4.01 before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds applied by
the Servicer as recoveries of principal in accordance with the provisions of
Section 3.16 hereof, to the extent distributed pursuant to Section 4.01 before
such date of determination, and (iv) any Realized Loss incurred with respect
thereto as a result of a Deficient Valuation made during or prior to the
Prepayment Period for the most recent Distribution Date preceding such date of
determination; and (c) as of any date of determination subsequent to the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such Mortgage Loan would be distributed, zero. With respect to any
REO Property: (x) as of any date of determination up to and including the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such REO Property would be distributed, an amount (not less than
zero) equal to the Stated Principal Balance of the related Mortgage Loan as of
the date on which such REO Property was acquired on behalf of the Trust Fund,
minus the aggregate amount of REO Principal Amortization in respect of such REO
Property for all previously ended calendar months, to the extent distributed
pursuant to Section 4.01 before such date of determination; and
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(y) as of any date of determination subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such REO Property
would be distributed, zero.
"Step Down Conditions": Both (i) the outstanding Principal Balance of all
Mortgage Loans 60 days or more Delinquent (averaged over the preceding six month
period), as a percentage of the aggregate of the Class Certificate Principal
Balances of the Classes of Subordinate Certificates on such Distribution Date,
does not equal or exceed 50% and (ii) cumulative Realized Losses with respect to
the Mortgage Loans do not exceed (a) with respect to the Distribution Date in
December 2011, 30% of the Original Subordinated Principal Balance, (b) with
respect to the Distribution Date in December 2012, 35% of the Original
Subordinated Principal Balance, (c) with respect to Distribution Date in
December 2013, 40% of the Original Subordinated Principal Balance, (d) with
respect to the Distribution Date in December 2014, 45% of the Original
Subordinated Principal Balance and (e) with respect to the Distribution Date in
December 2015, 50% of the Original Subordinated Principal Balance.
"Subordinate Certificate": Any one of the Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Certificates as designated on the face thereof
substantially in the form annexed hereto as Exhibit C, executed by the Trustee
and authenticated and delivered by the Trustee, representing the right to
distributions as set forth herein and therein.
"Subordinate Certificate Pass-Through Rate": With respect to (a) the Class
B-1 Certificates and any Distribution Date, the rate per annum equal to the Net
WAC for such Distribution Date minus 0.205% per annum; and (b) the Class B-2,
Class B-3, Class B-4, Class B-5 and Class B-6 Certificates and any Distribution
Date, the Net WAC for such Distribution Date; provided however, that for the
first Distribution Date, the Subordinate Certificate Pass-Through Rate shall be
(a) 3.87723% with respect to the Class B-1 Certificates and (b) 4.08223% with
respect to the Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates.
"Subordinate Percentage": With respect to any Distribution Date, the
difference between 100% and the Senior Percentage for such Distribution Date.
"Subordinate Prepayment Percentage": With respect to any Distribution Date,
the difference between 100% and the Senior Prepayment Percentage for that
Distribution Date.
"Subordinated Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to (x) the sum of:
(1) the related Subordinate Percentage of all amounts described in
clauses (a) through (d) and (g) of the definition of "Principal
Distribution Amount" for that Distribution Date;
(2) with respect to each Mortgage Loan which became a Liquidated
Mortgage Loan during the related Prepayment Period the amount of the Net
Liquidation Proceeds allocated to principal received with respect thereto
remaining after application thereof pursuant to clause (2) of the
definition of "Senior Principal Distribution Amount" for that Distribution
Date, up to the related Subordinate Percentage of the Stated Principal
Balance of such Mortgage Loan; and
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(3) the related Subordinate Prepayment Percentage of all amounts
described in clause (f) of the definition of "Principal Distribution
Amount" for that Distribution Date;
provided, however, that if a Bankruptcy Loss that is an Excess Loss is sustained
with respect to any Mortgage Loan that is not a Liquidated Mortgage Loan, such
Subordinated Principal Distribution Amount will be reduced on such Distribution
Date by the Subordinate Percentage of the principal portion of such Bankruptcy
Loss.
"Sub-Servicer": Any Person with which the Servicer has entered into a
Sub-Servicing Agreement and which meets the qualifications of a Sub-Servicer
pursuant to Section 3.02.
"Sub-Servicing Account": An account established by a Sub-Servicer which
meets the requirements set forth in Section 3.08 and is otherwise acceptable to
the Servicer.
"Sub-Servicing Agreement": The written contract between the Servicer and a
Sub-Servicer relating to servicing and administration of certain Mortgage Loans
as provided in Section 3.02.
"Substitution Adjustment": As defined in Section 2.03(d) hereof.
"Tax Matters Person": The tax matters person appointed pursuant to Section
9.01(e) hereof.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
the REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be
filed on behalf of the Trust in its capacity as a REMIC under the REMIC
Provisions, together with any and all other information reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal tax laws or under Applicable State and Local
Income Tax Laws.
"Telerate Screen 3750": The display designated as page 3750 on Bridge
Telerate Service (or such other page as may replace page 3750 on that service
for the purpose of displaying interbank offered rates of major London banks).
"Termination Price": As defined in Section 10.01(a) hereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in the Class A-R Certificate.
"Transfer Affidavit": As defined in Section 5.02(e)(ii) hereof.
"Trust": First Republic Mortgage Loan Trust 2001-FRB1, the trust created
hereunder.
"Trust Fund": The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to which a REMIC election is to be made, such Trust Fund consisting of: (i) such
Mortgage Loans as from time to time are
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subject to this Agreement, together with the Mortgage Files relating thereto,
and together with all collections thereon and proceeds thereof, (ii) any REO
Property, together with all collections thereon and proceeds thereof, (iii) the
Trustee's rights with respect to the Mortgage Loans under all insurance policies
required to be maintained pursuant to this Agreement and any proceeds thereof,
(iv) the Depositor's rights under the Mortgage Loan Purchase Agreement
(including any security interest created thereby); and (v) the Collection
Account, the Distribution Account (subject to the last sentence of this
definition) and any REO Account and the Carryover Reserve Fund and such assets
that are deposited therein from time to time and any investments thereof,
together with any and all income, proceeds and payments with respect thereto.
Notwithstanding the foregoing, however, the Trust Fund specifically excludes (1)
all payments and other collections of interest and principal due on the Mortgage
Loans on or before the Cut-off Date and (2) all income and gain realized from
Permitted Investments of funds on deposit in the Collection Account and the
Distribution Account.
"Trustee": Xxxxx Fargo Bank Minnesota, National Association, a national
banking association, or any successor trustee appointed as herein provided.
"Trustee Fee": As to any Distribution Date, an amount equal to one-twelfth
of the Trustee Fee Rate multiplied by the aggregate of the Principal Balances of
all the Mortgage Loans as of the beginning of the related Due Period.
"Trustee Fee Rate": 0.005% per annum.
"Two Times Test": As to any Distribution Date, (i) the Aggregate
Subordinate Percentage is at least two times the Aggregate Subordinate
Percentage as of the Closing Date; (ii) the aggregate of the Principal Balances
of all Mortgage Loans delinquent 60 days or more (averaged over the preceding
six-month period), as a percentage of the aggregate of the Class Certificate
Principal Balances of the Subordinate Certificates, does not equal or exceed
50%; and (iii) cumulative Realized Losses do not exceed 30% of the Original
Subordinated Principal Balance.
"Uninsured Cause": Any cause of damage to a Mortgaged Property such that
the complete restoration of such property is not fully reimbursable by the
hazard insurance policies required to be maintained pursuant to Section 3.14
hereof.
"United States Person" or "U.S. Person": A citizen or resident of the
United States, a corporation, partnership or other entity treated as a
corporation or partnership for federal income tax purposes (other than a
partnership that is not treated as a U.S. Person pursuant to any applicable
Treasury regulations) created or organized in, or under the laws of, the United
States, any state thereof or the District of Columbia, or an estate the income
of which from sources without the United States is includable in gross income
for United States federal income tax purposes regardless of its connection with
the conduct of a trade or business within the United States, or a trust if a
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trust. The term "United States"
shall have the meaning set forth in Section 7701 of the Code or successor
provisions.
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"Unpaid Interest Shortfall Amount": With respect to each Class of
Certificates and (i) the first Distribution Date, zero, and (ii) any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for that
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for that Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on that Class in
respect of interest pursuant to clause (a) of this definition on the preceding
Distribution Date.
"Unrecognized Cooperative Loan": A Cooperative Loan which is not recognized
by the related Cooperative Corporation.
"Value": With respect to any Mortgage Loan and the related Mortgaged
Property, the lesser of:
(i) the value of such Mortgaged Property as determined by an appraisal
made for the originator of the Mortgage Loan at the time of origination of
the Mortgage Loan by an appraiser who met the minimum requirements of
Xxxxxx Xxx and Xxxxxxx Mac; and
(ii) the purchase price paid for the related Mortgaged Property by the
Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a Refinancing Mortgage Loan, such value
of the Mortgaged Property is based solely upon (i) above.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. For so long as the Class X
Certificates are outstanding, 1% of the voting rights shall be allocated to the
Class X Certificates (such Voting Rights to be allocated among the Holders of
the Class X Certificates in accordance with the respective Percentage Interests)
and the remainder of the voting rights (or 100% thereof when the Class X
Certificates are no longer outstanding) shall be allocated among the Classes of
Certificates other than the Class X Certificates, pro rata, based on a fraction,
expressed as a percentage, the numerator of which is the Class Certificate
Principal Balance of such Class and the denominator of which is the aggregate of
the Class Certificate Principal Balances then outstanding; provided, however,
that the Class A-R Certificate and the Subordinate Certificates shall not be
entitled to any voting rights for so long as any Senior Certificates (other than
the Class A-R Certificate) remain outstanding; and, provided further, that when
none of the Regular Certificates is outstanding, 100% of the voting rights shall
be allocated to the Holder of the Class A-R Certificate. The voting rights
allocated to a Class of Certificates shall be allocated among all Holders of
such Class, pro rata, based on a fraction the numerator of which is the
Certificate Balance or Certificate Notional Balance of each Certificate of such
Class and the denominator of which is the Class Certificate Principal Balance or
Class Certificate Notional Balance of such Class.
Section 1.02. Accounting.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders all the right, title
and interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in and to (i) each Mortgage Loan identified on the
Mortgage Loan Schedule, including the related Cut-off Date Principal Balance,
all interest and principal due thereon after the Cut-off Date and all
collections in respect of interest and principal due after the Cut-off Date;
(ii) any real property that secured each such Mortgage Loan and that has been
acquired by foreclosure or deed in lieu of foreclosure; (iii) the Depositor's
interest in any insurance policies in respect of the Mortgage Loans; (iv) all
proceeds of any of the foregoing; and (v) all other assets included or to be
included in the Trust Fund. Such assignment includes all interest and principal
due to the Depositor or the Servicer after the Cut-off Date with respect to the
Mortgage Loans.
In connection with such transfer and assignment, the Seller, on behalf
of the Depositor, does hereby deliver on the Closing Date, unless otherwise
specified in this Section 2.01, to, and deposit with the Trustee the following
documents or instruments with respect to each Mortgage Loan (a "Mortgage File")
so transferred and assigned:
(i) the original Mortgage Note, endorsed either on its face or by
allonge attached thereto in the following form: "Pay to the order
of Xxxxx Fargo Bank Minnesota, National Association, as Trustee
under the Pooling and Servicing Agreement, dated as of November
1, 2001, Mortgage Loan Trust 2001-FRB1, Mortgage Pass-Through
Certificates, Series 2001-FRB1, without recourse", or with
respect to any lost Mortgage Note, an original Lost Note
Affidavit stating that the original Mortgage Note was lost,
misplaced or destroyed, together with a copy of the related
Mortgage Note; provided, however, that such substitutions of Lost
Note Affidavits for original Mortgage Notes may occur only with
respect to Mortgage Loans, the aggregate Cut-off Date Principal
Balance of which is less than or equal to 2% of the Cut-off Date
Aggregate Principal Balance;
(ii) except with respect to a Cooperative Loan and except as provided
below, the original Mortgage with evidence of recording thereon,
and the original recorded power of attorney, if the Mortgage was
executed pursuant to a power of attorney, with evidence of
recording thereon or, if such Mortgage or power of attorney has
been submitted for recording but has not been returned from the
applicable public recording office, has been lost or is not
otherwise available, a copy of such Mortgage or power of
attorney, as the case may be, certified to be a true and complete
copy of the original submitted for recording;
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(iii) except with respect to a Cooperative Loan, an original
Assignment of Mortgage, in form and substance acceptable for
recording. The Mortgage shall be assigned to "Xxxxx Fargo Bank
Minnesota, National Association, as Trustee";
(iv) an original copy of any intervening Assignment of Mortgage
showing a complete chain of assignments;
(v) except with respect to a Cooperative Loan, the original or a
duplicate lender's title insurance policy or a certified copy
thereof;
(vi) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any;
(vii) in the case of a Cooperative Loan other than a California
Cooperative Loan, the following documents or instruments:
(A) the original Coop Shares, together with an original stock
power in blank;
(B) the original executed Security Agreement or a copy thereof;
(C) the original executed Proprietary Lease or a copy thereof;
(D) the original executed Recognition Agreement or a copy
thereof;
(E) the original executed UCC-1 financing statement with
evidence of recording thereon which has been filed in all
places required to perfect the Seller's interest in the Coop
Shares and the Proprietary Lease; and
(F) the original executed UCC-3 financing statements 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); and
(viii) in the case of a California Cooperative Loan, the following
documents or instruments:
(A) the original Coop Shares, together with an original stock
power in blank;
(B) the original executed Security Agreement or a copy thereof;
(C) the original executed Proprietary Lease or a copy thereof;
(D) the original executed Recognition Agreement or a copy
thereof;
(E) the original executed leasehold deed of trust for the
related Mortgaged Property with evidence of recording
thereon or, if such leasehold deed of trust has been
submitted for recording but has not been returned from the
applicable public recording office, has been lost or is not
otherwise
37
available, a copy of such leasehold deed of trust certified
to be a true and complete copy of the original submitted for
recording;
(F) an original assignment of leasehold deed of trust, in form
and substance acceptable for recording, assigned to "Xxxxx
Fargo Bank Minnesota, National Association, as Trustee"; and
(G) an original copy of any intervening assignment of leasehold
deed of trust showing a complete chain of assignments.
The Seller shall deliver the required documents to the Trustee prior to the
Closing Date.
The Trustee agrees to execute and deliver to the Depositor on or prior
to the Closing Date an acknowledgment of receipt of the original Mortgage Note
(with any exceptions noted), substantially in the form attached as Exhibit G-3
hereto.
If, as of the Closing Date, any of the documents referred to in Section
2.01(ii) or (iv) above has been submitted for recording but either (x) has not
been returned from the applicable public recording office or (y) has been lost
or such public recording office has retained the original of such document, the
obligations of the Seller to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee, no later than the Closing Date, of a
copy of each such document certified by the Seller in the case of (x) above or
the applicable public recording office in the case of (y) above to be a true and
complete copy of the original that was submitted for recording and (2) if such
copy is certified by the Seller, delivery to the Trustee, promptly upon receipt
thereof, of either the original or a copy of such document certified by the
applicable public recording office to be a true and complete copy of the
original. If the original lender's title insurance policy, or a certified copy
thereof, was not delivered pursuant to Section 2.01(v) above, the Seller shall
deliver or cause to be delivered to the Trustee the original or a copy of a
written commitment or interim binder or preliminary report of title issued by
the title insurance or escrow company, with the original or a certified copy
thereof to be delivered to the Trustee, promptly upon receipt thereof. The
Seller shall deliver or cause to be delivered to the Trustee, promptly upon
receipt thereof, any other documents constituting a part of a Mortgage File
received with respect to any Mortgage Loan sold to the Depositor by the Seller,
including, but not limited to, any original documents evidencing an assumption
or modification of any Mortgage Loan.
Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File, the Seller
shall have 90 days to cure such defect or deliver such missing document to the
Trustee. If the Seller does not cure such defect or deliver such missing
document within such time period, the Seller shall either repurchase or
substitute for such Mortgage Loan in accordance with Section 2.03 hereof. If any
event that is described in clause (iii) or clause (iv) of the definition of
"Servicer Event of Termination" shall occur and be continuing, the Trustee shall
cause the Assignments of Mortgage referred to in Section 2.01(iii) hereof and,
to the extent necessary, in Section 2.01(iv) hereof to be recorded at the
Seller's expense; provided, however, that the Trustee need not cause to be
recorded any Assignment of Mortgage that relates to a Mortgaged Property located
in a jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered by the Seller to the Trustee and the Rating
38
Agencies, the recordation of such Assignment of Mortgage is not necessary to
protect the Trustee's interest in the related Mortgage Loan. The opinion set
forth in Part B clause (5) of the Opinion of Counsel to the Seller set forth as
Exhibit N hereto shall be deemed to satisfy the proviso to the preceding
sentence. From time to time, the Servicer will cause the recording of such
Assignments of Mortgage as the Servicer may deem appropriate to enable it to
carry out its servicing duties. The Trustee, at the Servicer's request and
expense, shall cooperate with the Servicer, in connection with such recording.
The Depositor herewith delivers to the Trustee an executed copy of the
Mortgage Loan Purchase Agreement.
The Servicer shall forward to the Trustee original documents evidencing
an assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Servicer shall provide the Trustee with a
certified true copy of any such document submitted for recordation within two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 270 days
of its submission for recordation. In the event that the Servicer cannot provide
a copy of such document certified by the public recording office within such 270
day period, the Servicer shall deliver to the Trustee, within such 270 day
period, an Officers' Certificate of the Servicer which shall (A) identify the
recorded document, (B) state that the recorded document has not been delivered
to the Trustee due solely to a delay caused by the public recording office, (C)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, if known, and (D)
specify the date the applicable recorded document is expected to be delivered to
the Trustee, if known, and, upon receipt of a copy of such document certified by
the public recording office, the Servicer shall immediately deliver such
document to the Trustee. In the event the appropriate public recording office
will not certify as to the accuracy of such document, the Servicer shall deliver
a copy of such document certified by an officer of the Servicer to be a true and
complete copy of the original to the Trustee.
Section 2.02. Acceptance by Trustee.
The Trustee acknowledges the receipt, subject to the provisions of
Section 2.01 and subject to the review described below and any exceptions noted
on the exception report described in the next paragraph below, of the documents
referred to in Section 2.01 above and all other assets included in the
definition of "Trust Fund" and declares that it holds and will hold such
documents and the other documents delivered to it constituting a Mortgage File,
and that it holds or will hold all such assets and such other assets included in
the definition of "Trust Fund" in trust for the exclusive use and benefit of all
present and future Certificateholders.
The Trustee further agrees, for the benefit of the Certificateholders,
to review each Mortgage File delivered to it and to certify and deliver to the
Depositor, the Servicer and each Rating Agency in substantially the form
attached hereto as Exhibit G-1, within 45 days after the Closing Date (or, with
respect to any document delivered after the Startup Day, within 45 days of
receipt and with respect to any Qualified Substitute Mortgage, within 45 days
after the assignment thereof) that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other
39
than any Mortgage Loan paid in full or any Mortgage Loan specifically identified
in the exception report annexed thereto as not being covered by such
certification), (i) all documents required to be delivered to it pursuant
Section 2.01 of this Agreement are in its possession, (ii) such documents have
been reviewed by it and have not been mutilated, damaged or torn and relate to
such Mortgage Loan and (iii) based on its examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items (i) and (ii) of the Mortgage Loan Schedule accurately
reflects information set forth in the Mortgage File. It is herein acknowledged
that, in conducting such review, the Trustee is under no duty or obligation to
inspect, review or examine any such documents, instruments, certificates or
other papers to determine that they are genuine, enforceable, or appropriate for
the represented purpose or that they have actually been recorded or that they
are other than what they purport to be on their face.
Prior to the first anniversary date of this Agreement, the Trustee
shall deliver to the Depositor and the Servicer a final certification in the
form annexed hereto as Exhibit G-2 evidencing the completeness of the Mortgage
Files, with any applicable exceptions noted thereon.
If, in the process of reviewing the Mortgage Files and making or
preparing, as the case may be, the certifications referred to above, the Trustee
finds any document or documents constituting a part of a Mortgage File to be
missing or defective in any material respect, at the conclusion of its review
the Trustee shall so notify the Seller, the Depositor and the Servicer. In
addition, upon the discovery by the Seller, the Depositor or the Servicer (or
upon receipt by the Trustee of written notification of such breach) of a breach
of any of the representations and warranties made by the Seller in the Mortgage
Loan Purchase Agreement in respect of any Mortgage Loan which materially
adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties to this Agreement.
The Depositor and the Trustee intend that the assignment and transfer
herein contemplated constitute a sale of the Mortgage Loans, the related
Mortgage Notes and the related documents, conveying good title thereto free and
clear of any liens and encumbrances, from the Depositor to the Trustee and that
such property not be part of the Depositor's estate or property of the Depositor
in the event of any insolvency by the Depositor. In the event that such
conveyance is deemed to be, or to be made as security for, a loan, the parties
intend that the Depositor shall be deemed to have granted and does hereby grant
to the Trustee a first priority perfected security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans, the related
Mortgage Notes and the related documents, and that this Agreement shall
constitute a security agreement under applicable law.
Section 2.03. Repurchase or Substitution of Mortgage Loans by the
Seller.
(a) Upon discovery or receipt of written notice of any materially
defective document in, or that a document is missing from, a Mortgage File or
of the breach by the Seller of any representation, warranty or covenant under
the Mortgage Loan Purchase Agreement or in Section 2.04 or Section 2.08 hereof
in respect of any Mortgage Loan which materially adversely affects the value
of that Mortgage Loan or the interest therein of the Certificateholders, the
Trustee shall promptly notify the Seller and the Servicer of such defect,
missing document or
40
breach and request that the Seller deliver such missing document or cure such
defect or breach within 90 days from the date that the Seller was notified of
such missing document, defect or breach, and if the Seller does not deliver
such missing document or cure such defect or breach in all material respects
during such period, the Trustee shall enforce the Seller's obligation under
the Mortgage Loan Purchase Agreement and cause the Seller to repurchase that
Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the
Determination Date following the expiration of such 90 day period (subject to
Section 2.03(e) below); provided, however, that, in connection with any such
breach that could not reasonably have been cured within such 90 day period, if
the Seller shall have commenced to cure such breach within such 90 day period,
the Seller shall be permitted to proceed thereafter diligently and
expeditiously to cure the same within the additional period provided under the
Mortgage Loan Purchase Agreement; and, provided further, that, in the case of
the breach of any representation, warranty or covenant made by the Seller in
Section 3.01 of the Mortgage Loan Purchase Agreement, the Servicer shall be
obligated to cure such breach or purchase the affected Mortgage Loans. The
Purchase Price for the repurchased Mortgage Loan shall be deposited in the
Collection Account, and the Trustee, upon receipt of written certification
from the Servicer of such deposit, shall release to the Seller the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as the Seller shall furnish to it
and as shall be necessary to vest in the Seller any Mortgage Loan released
pursuant hereto and the Trustee shall have no further responsibility with
regard to such Mortgage File (it being understood that the Trustee shall have
no responsibility for determining the sufficiency of such assignment for its
intended purpose). In lieu of repurchasing any such Mortgage Loan as provided
above, the Seller may cause such Mortgage Loan to be removed from the Trust
Fund (in which case it shall become a Deleted Mortgage Loan) and substitute
one or more Qualified Substitute Mortgage Loans in the manner and subject to
the limitations set forth in Section 2.03(d) below. It is understood and
agreed that the obligation of the Seller to cure or to repurchase (or to
substitute for) any Mortgage Loan as to which a document is missing, a
material defect in a constituent document exists or as to which such a breach
has occurred and is continuing shall constitute the sole remedy against the
Seller respecting such omission, defect or breach available to the Trustee on
behalf of the Certificateholders.
The Trustee shall enforce the obligations of the Seller under the
Mortgage Loan Purchase Agreement including, without limitation, any obligation
of the Seller to purchase a Mortgage Loan on account of missing or defective
documentation or on account of a breach of a representation, warranty or
covenant as described in this Section 2.03(a).
(b) [Reserved]
(c) Within 90 days of the earlier of discovery by the Servicer or
receipt of notice by the Servicer of the breach of any representation,
warranty or covenant of the Servicer set forth in Section 2.05 which
materially and adversely affects the interests of the Certificateholders in
any Mortgage Loan, the Servicer shall cure such breach in all material
respects.
(d) Any substitution of Qualified Substitute Mortgage Loans for
Deleted Mortgage Loans made pursuant to Section 2.03(a) above must be effected
prior to the last Business Day that is within two years after the Closing
Date. As to any Deleted Mortgage Loan for which the Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, such substitution shall be
41
effected by the Seller delivering to the Trustee, for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
Assignment to the Trustee, and such other documents and agreements, with all
necessary endorsements thereon, as are required by Section 2.01 hereof,
together with an Officers' Certificate stating that each such Qualified
Substitute Mortgage Loan satisfies the definition thereof and specifying the
Substitution Adjustment (as described below), if any, in connection with such
substitution. The Trustee shall acknowledge receipt for such Qualified
Substitute Mortgage Loan or Loans and, within 45 days thereafter, shall review
such documents as specified in Section 2.02 hereof and deliver to the
Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a
certification substantially in the form attached hereto as Exhibit G-1, with
any exceptions noted thereon. Within one year of the date of substitution, the
Trustee shall deliver to the Servicer a certification substantially in the
form of Exhibit G-2 hereto with respect to such Qualified Substitute Mortgage
Loan or Loans, with any exceptions noted thereon. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution
are not part of the Trust Fund and will be retained by the Seller. For the
month of substitution, distributions to Certificateholders will reflect the
collections and recoveries in respect of such Deleted Mortgage Loan in the Due
Period preceding the month of substitution and the Depositor or the Seller, as
the case may be, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Seller
shall give or cause to be given written notice to the Certificateholders that
such substitution has taken place, shall amend the Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage Loan or
Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the
Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or
Loans shall constitute part of the Trust Fund and shall be subject in all
respects to the terms of this Agreement and, in the case of a substitution
effected by the Seller, the Mortgage Loan Purchase Agreement, including, in
the case of a substitution effected by the Seller all representations and
warranties thereof included in the Mortgage Loan Purchase Agreement and all
representations and warranties thereof set forth in Section 2.04 hereof, in
each case as of the date of substitution.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer
will determine the amount (each, a "Substitution Adjustment"), if any, by which
the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the
aggregate, as to each such Qualified Substitute Mortgage Loan, of the principal
balance thereof as of the date of substitution, together with one month's
interest on such principal balance at the applicable Net Loan Rate. On the date
of such substitution, the Seller shall deliver or cause to be delivered to the
Servicer for deposit in the Collection Account an amount equal to the related
Substitution Adjustment, if any, and the Trustee, upon receipt of the related
Qualified Substitute Mortgage Loan or Loans and certification by the Servicer of
such deposit, shall release to the Seller the related Mortgage File or Files and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as the Seller shall deliver to it and as shall be
necessary to vest therein any Deleted Mortgage Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and deliver to
the Trustee an Opinion of Counsel to the effect that such substitution (either
specifically or as a class of transactions) will not cause (a) any federal tax
to be imposed on the Trust Fund, including
42
without limitation, any federal tax imposed on "prohibited transactions" under
Section 860F(a)(l) of the Code or on "contributions after the startup date"
under Section 860G(d)(l) of the Code, or (b) the REMIC to fail to qualify as a
REMIC at any time that any Certificate is outstanding. If such Opinion of
Counsel can not be delivered, then such substitution may only be effected at
such time as the required Opinion of Counsel can be given.
(e) Upon discovery by the Seller, the Servicer or the Trustee that any Mortgage
Loan does not constitute a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall within two
Business Days give written notice thereof to the other parties. In connection
therewith, the Seller shall repurchase or, subject to the limitations set forth
in Section 2.03(d), substitute one or more Qualified Substitute Mortgage Loans
for the affected Mortgage Loan within 90 days of the earlier of discovery or
receipt of such notice with respect to such affected Mortgage Loan. Any such
repurchase or substitution shall be made in the same manner as set forth in
Section 2.03(a) above, if made by the Seller. The Trustee shall reconvey to the
Seller the Mortgage Loan to be released pursuant hereto in the same manner, and
on the same terms and conditions, as it would a Mortgage Loan repurchased for
breach of a representation or warranty.
Section 2.04. Representations and Warranties of the Seller with
Respect to the Mortgage Loans.
The Seller hereby represents and warrants to the Trustee for the
benefit of the Certificateholders that, as of the Closing Date or as of such
other date specifically provided herein, the representations and warranties made
by the Seller pursuant to Section 3.01 of the Mortgage Loan Purchase Agreement
are hereby being made to the Trustee and are true and correct as of the Closing
Date.
With respect to the representations and warranties incorporated in this
Section 2.04 that are made to the best of the Seller's knowledge or as to which
the Seller has no knowledge, if it is discovered by the Depositor, the Seller,
the Servicer or the Trustee that the substance of such representation and
warranty is inaccurate and such inaccuracy materially and adversely affects the
value of the related Mortgage Loan or the interest therein of the
Certificateholders then, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty being inaccurate at
the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
Within 90 days of its discovery or its receipt of notice of any such
missing or materially defective documentation or any such breach of a
representation or warranty, the Seller shall promptly deliver such missing
document or cure such defect or breach in all material respects or, in the event
such defect or breach cannot be cured, the Seller shall repurchase the affected
Mortgage Loan or cause the removal of such Mortgage Loan from the Trust Fund and
substitute for it one or more Qualified Substitute Mortgage Loans, in either
case, in accordance with Section 2.03 hereof.
It is understood and agreed that the representations and warranties
incorporated in this Section 2.04 shall survive delivery of the Mortgage Files
to the Trustee and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or
43
assignment. Upon discovery by any of the Depositor, the Servicer, the Seller
or the Trustee of a breach of any of the foregoing representations and
warranties which materially and adversely affects the value of any Mortgage
Loan or the interests therein of the Certificateholders, the party discovering
such breach shall give prompt written notice to the other parties, and in no
event later than two Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Seller set forth in Section
2.03(a) hereof to cure, substitute for or repurchase a related Mortgage Loan
pursuant to the Mortgage Loan Purchase Agreement constitute the sole remedies
available to the Certificateholders or to the Trustee on their behalf
respecting a breach of the representations and warranties incorporated in this
Section 2.04.
Section 2.05. Representations, Warranties and Covenants of the
Servicer.
The Servicer hereby represents, warrants and covenants to the Trustee,
for the benefit of each of the Trustee, the Certificateholders and to the
Depositor that as of the Closing Date or as of such date specifically provided
herein:
(i) The Servicer is duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its formation
and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing or is
exempt from such licensure, qualification or requirement of good
standing in each state where a Mortgaged Property is located if the
laws of such state require licensing or qualification in order to
conduct business of the type conducted by the Servicer or is a
condition to the enforceability or validity of each Mortgage Loan;
the Servicer has the power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement)
by the Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized and are
part of its official records; this Agreement constitutes the valid,
binding and enforceable obligation of the Servicer, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or the rights of federally insured financial institutions;
and all requisite corporate action has been taken by the Servicer to
make this Agreement valid and binding upon the Servicer in
accordance with its terms;
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer and
will not result in the breach of any term or provision of the
charter or by-laws of the Servicer or result in the breach of any
term or provision of, or conflict with or constitute a default under
or result in the acceleration of any obligation under, any
agreement, indenture or loan or credit agreement or other instrument
to which the Servicer or its property is subject, or result in the
violation of any law, rule, regulation, order, judgment or decree to
which the Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the
Servicer and the performance and compliance with its obligations and
covenants hereunder do not require the consent or approval of any
governmental authority or, if such consent or approval is required,
it has been obtained;
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(iv) This Agreement, and all documents and instruments
contemplated hereby which are executed and delivered by the
Servicer, constitute and will constitute valid, legal and binding
obligations of the Servicer, enforceable in accordance with their
respective terms, except as the enforcement thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally, or the rights of creditors of federally insured financial
institutions, and general principles of equity;
(v) The Servicer is a servicer approved by Xxxxxx Xxx and
Xxxxxxx Mac;
(vi) The Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation
pending or, to its knowledge, threatened against the Servicer that,
either individually or in the aggregate, (A) could reasonably be
expected to prohibit or materially and adversely affect the
performance by the Servicer of its obligations under, or validity or
enforceability of, this Agreement, or (B) could reasonably be
expected to result in any material impairment of the right or
ability of the Servicer to carry on its business substantially as
now conducted, or (C) could reasonably be expected to result in any
material liability on the part of the Servicer, or (D) would draw
into question the validity or enforceability of this Agreement or of
any action taken or to be taken in connection with the obligations
of the Servicer contemplated herein, or (E) would otherwise be
likely to impair materially the ability of the Servicer to perform
under the terms of this Agreement; and
(viii) Neither this Agreement nor any information, certificate
of an officer, statement furnished in writing or report delivered to
the Trustee by the Servicer in connection with the transactions
contemplated hereby contains any untrue statement of a material
fact.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the Mortgage
Files to the Trustee and shall inure to the benefit of the Trustee, the
Depositor and the Certificateholders. Upon discovery by any of the Depositor,
the Servicer, the Seller or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice (but in no event later than two Business Days following such discovery)
to the Depositor, the Servicer, the Seller and the Trustee.
Section 2.06. Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Trust and the Trustee on
behalf of the Certificateholders as follows:
(i) This agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the
enforcement of
45
creditors' rights in general an except as such enforceability may be
limited by general principles of equity (whether considered in a
proceeding at law or in equity);
(ii) Immediately prior to the sale and assignment by the
Depositor to the Trustee on behalf of the Trust of each Mortgage
Loan, the Depositor had good and marketable title to each Mortgage
Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other
interest of any nature;
(iii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on
behalf of the Trust;
(iv) The Depositor has not transferred the Mortgage Loans to
the Trustee on behalf of the Trust with any intent to hinder, delay
or defraud any of its creditors;
(v) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with full corporate power and authority to own its assets
and conduct its business as presently being conducted;
(vi) The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is
a party or by which it or its properties may be bound, which default
might result in any material adverse changes in the financial
condition, earnings, affairs or business of the Depositor or which
might materially and adversely affect the properties or assets,
taken as a whole, of the Depositor;
(vii) The execution, delivery and performance of this Agreement
by the Depositor, and the consummation of the transactions
contemplated thereby, do not and will not result in a material
breach or violation of any of the terms or provisions of, or, to the
knowledge of the Depositor, constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by
which the Depositor is bound or to which any of the property or
assets of the Depositor is subject, nor will such actions result in
any violation of the provisions of the certificate of incorporation
or by-laws of the Depositor or, to the best of the Depositor's
knowledge without independent investigation, any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its properties
or assets (except for such conflicts, breaches, violations and
defaults as would not have a material adverse effect on the ability
of the Depositor to perform its obligations under this Agreement);
(viii) To the best of the Depositor's knowledge without any
independent investigation, no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or
the consummation by the Depositor of the other transactions
contemplated by this Agreement, except such
46
consents, approvals, authorizations, registrations or qualifications
as (a) may be required under State securities or "blue sky" laws,
(b) have been previously obtained or (c) the failure of which to
obtain would not have a material adverse effect on the performance
by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement; and
(ix) There are no actions, proceedings or investigations
pending before or, to the Depositor's knowledge, threatened by any
court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the
subject: (a) which if determined adversely to the Depositor would
have a material adverse effect on the business, results of
operations or financial condition of the Depositor; (b) asserting
the invalidity of this Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation by the
Depositor of any of the transactions contemplated by this Agreement,
as the case may be; or (d) which might materially and adversely
affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement.
Section 2.06A. No Solicitations by the Depositor.
From and after the Closing Date, the Depositor agrees that it will
not take any action or permit or cause any action to be taken by any of its
agents and Affiliates, or by any independent contractors or independent
mortgage brokerage companies on the Depositor's behalf, to personally, by
telephone or mail, solicit the Mortgagor under any Mortgage Loan for any
purpose; provided, however, that it is understood and agreed that promotions
undertaken by the Depositor or any of its Affiliates which are directed to the
customers of the Depositor or its Affiliates or to the general public,
including, without limitation, mass mailings based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this section, nor is the Depositor prohibited
from responding to unsolicited requests or inquiries made by a Mortgagor or an
agent of a Mortgagor.
Section 2.07. Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it of the Mortgage Files, subject to the provisions of
Sections 2.01 and 2.02 hereof, together with the assignment to it of all other
assets included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, authenticated and delivered to or upon
the order of the Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
Section 2.08. Representations and Warranties of the Seller.
The Seller hereby represents and warrants to the Trust and the
Trustee on behalf of the Certificateholders that as of the Closing Date or as
of such date specifically provided herein:
(i) The Seller is duly organized, validly existing and in good
standing as a bank under the laws of the State of Nevada and has the
power and authority to own its assets
47
and to transact the business in which it is currently engaged. The
Seller is duly qualified to do business and is in good standing in
each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such
qualification and in which the failure to so qualify would have a
material adverse effect on (a) its business, properties, assets or
condition (financial or other), (b) the performance of its
obligations under this Agreement, (c) the value or marketability of
the related Mortgage Loans, or (d) its ability to foreclose on the
related Mortgaged Properties to the extent such foreclosure is
conducted by the Servicer.
(ii) The Seller has the power and authority to make, execute,
deliver and perform this Agreement and to consummate all of the
transactions contemplated hereunder and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement which is part of its official records. When executed and
delivered, this Agreement will constitute the Seller's legal, valid
and binding obligations enforceable in accordance with its terms,
except as enforcement of such terms may be limited by (1)
bankruptcy, insolvency, reorganization, receivership, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and the rights of creditors of federally insured financial
institutions and by the availability of equitable remedies, (2)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (3) public policy
considerations underlying the securities laws, to the extent that
such policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide
indemnification from securities laws liabilities.
(iii) The Seller holds all necessary licenses, certificates and
permits from all governmental authorities necessary for conducting
its business as it is currently conducted. It is not required to
obtain the consent of any other party or any consent, license,
approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(iv) The execution, delivery and performance of this Agreement
by the Seller will not conflict with or result in a breach of, or
constitute a default under, any provision of any existing law or
regulation or any order or decree of any court applicable to the
Seller or any of its properties or any provision of its articles of
incorporation, charter or by-laws, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to any mortgage,
indenture, contract or other agreement to which it is a party or by
which it may be bound.
(v) No certificate of an officer, written statement or written
report delivered pursuant to the terms hereof of the Seller contains
any untrue statement of a material fact or omits to state any
material fact necessary to make the certificate, statement or report
not misleading.
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(vi) The transactions contemplated by this Agreement are in the
ordinary course of the Seller's business.
(vii) The Seller is not insolvent, nor will the Seller be made
insolvent by the transfer of the Mortgage Loans to the Depositor,
nor is the Seller aware of any pending insolvency of the Seller.
(viii) The Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court, or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially and
adversely affect the Seller's financial condition (financial or
otherwise) or operations, or materially and adversely affect the
performance of any of its duties hereunder.
(ix) There are no actions or proceedings against the Seller, or
pending or, to its knowledge, threatened, before any court,
administrative agency or other tribunal; nor, to the Seller's
knowledge, are there any investigations (i) that, if determined
adversely, would prohibit the Seller from entering into this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) that, if
determined adversely, would prohibit or materially and adversely
affect the Seller's ability to perform any of its respective
obligations under, or the validity or enforceability of, this
Agreement.
(x) The Seller did not transfer the Mortgage Loans to the
Depositor with any intent to hinder, delay or defraud any of its
creditors.
(xi) The Seller acquired title to the Mortgage Loans in good
faith, without notice of any adverse claims.
(xii) The transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Seller to the Depositor are not
subject to the bulk transfer laws or any similar statutory
provisions in effect in any applicable jurisdiction.
(xiii) The Seller does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant
contained in this Agreement.
Section 2.09. Covenants of the Seller. The Seller hereby covenants
that, except for the transfer hereunder, the Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any lien on any Mortgage Loan, or any interest therein; the
Seller will notify the Trustee, as assignee of the Depositor, and the Servicer
of the existence of any lien on any Mortgage Loan immediately upon discovery
thereof, and the Seller will defend the right, title and interest of the
Trust, as assignee of the Depositor, in, to and under the Mortgage Loans,
against all claims of third parties claiming through or under the Seller;
provided, however, that nothing in this Section 2.09 shall prevent or be
deemed to prohibit the Seller from suffering to exist upon any of the Mortgage
Loans any liens for municipal or other local taxes and other governmental
charges if such taxes or governmental charges shall not at the time be due and
payable or if the Seller shall currently be contesting the validity thereof in
good
49
faith by appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
Section 3.01. Servicer to Act as Servicer.
The Servicer shall service and administer the Mortgage Loans on
behalf of the Trustee and in the best interests of and for the benefit of the
Certificateholders (as determined by the Servicer in its reasonable judgment)
in accordance with the terms of this Agreement and the Mortgage Loans and, to
the extent consistent with such terms, in the same manner in which it services
and administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any Sub-Servicer or any
Affiliate of the Servicer or any Sub-Servicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make Advances or Servicing
Advances; or
(iv) the Servicer's or any Sub-Servicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, the Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
Mortgage Notes. Subject only to the above-described servicing standards and
the terms of this Agreement and of the Mortgage Loans, the Servicer shall have
full power and authority, acting alone or through Sub-Servicers as provided in
Section 3.02 hereof, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary
or desirable. Without limiting the generality of the foregoing, the Servicer
in its own name or in the name of a Sub-Servicer is hereby authorized and
empowered by the Trustee, when the Servicer believes it appropriate in its
best judgment in accordance with the servicing standards set forth above, to
execute and deliver, on behalf of the Certificateholders and the Trustee, and
upon notice to the Trustee, 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 the Mortgaged
Properties and to institute foreclosure proceedings or obtain a deed-in-lieu
of foreclosure so as to convert the ownership of such properties, and to hold
or cause to be held title to such properties, on behalf of the Trustee and
Certificateholders. The Servicer shall service and administer the Mortgage
Loans in accordance with applicable state and federal law and shall provide to
the Mortgagors any reports required to be provided to them thereby. The
Servicer shall also comply in the performance of this Agreement with all
reasonable rules and requirements of each insurer under
50
any standard hazard insurance policy. Subject to Section 3.17 hereof, the
Trustee shall execute, at the written request of the Servicer, and furnish to
the Servicer and any Sub-Servicer any special or limited powers of attorney
and other documents prepared by the Servicer and necessary or appropriate to
enable the Servicer or any Sub-Servicer to carry out their servicing and
administrative duties hereunder; provided, however, such limited powers of
attorney or other documents shall be prepared by the Servicer and submitted to
the Trustee for execution. The Trustee shall not be liable for the actions of
the Servicer or any Sub-Servicers under such powers of attorney.
Subject to Section 3.09 hereof, in accordance with the standards of the
preceding paragraph, the Servicer shall advance or cause to be advanced funds as
necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11
hereof. Any cost incurred by the Servicer or by Sub-Servicers in effecting the
timely payment of taxes and assessments on a Mortgaged Property shall not, for
the purpose of calculating distributions to Certificateholders, be added to the
unpaid Principal Balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit.
Notwithstanding anything in this Agreement to the contrary, the
Servicer may not make any future advances with respect to a Mortgage Loan and
the Servicer shall not (i) permit any modification with respect to any Mortgage
Loan that would change the Mortgage Rate, reduce or increase the Principal
Balance (except for reductions resulting from actual payments of principal) or
change the final maturity date on such Mortgage Loan (unless, as provided in
Section 3.07 hereof, the Mortgagor is in default with respect to the Mortgage
Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder) and (B) cause the REMIC to fail to qualify as a REMIC
under the Code or the imposition of any tax on "prohibited transactions" or
"contributions after the startup date" under the REMIC Provisions.
The Servicer may delegate its responsibilities under this Agreement;
provided, however, that no such delegation shall release the Servicer from the
responsibilities or liabilities arising under this Agreement.
Section 3.02. Sub-Servicing Agreements Between Servicer and
Sub-Servicers.
(a) The Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers for the servicing and administration of the Mortgage Loans;
provided, however, that such agreements would not result in a withdrawal or a
downgrading by the Rating Agencies of the rating on any Class of Certificates.
Each Sub-Servicer shall be (i) authorized to transact business in the
state or states where the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the Sub-Servicing
Agreement and (ii) a mortgage servicer approved by Xxxxxx Xxx or Xxxxxxx Mac.
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Each Sub-Servicing Agreement must impose on the Sub-Servicer requirements
conforming to the provisions set forth in Section 3.08 hereof and provide for
servicing of the Mortgage Loans consistent with the terms of this Agreement. The
Servicer will examine each Sub-Servicing Agreement and will be familiar with the
terms thereof. The terms of any Sub-Servicing Agreement will not be inconsistent
with any of the provisions of this Agreement. The Servicer and the Sub-Servicers
may enter into and make amendments to the Sub-Servicing Agreements or enter into
different forms of Sub-Servicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of this Agreement, and that no such amendment or different form shall
be made or entered into which could be reasonably expected to be materially
adverse to the interests of the Certificateholders without the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights; provided,
further, that the consent of the Holders of Certificates entitled to at least
66% of the Voting Rights shall not be required (i) to cure any ambiguity or
defect in a Sub-Servicing Agreement, (ii) to correct, modify or supplement any
provisions of a Sub-Servicing Agreement, or (iii) to make any other provisions
with respect to matters or questions arising under a Sub-Servicing Agreement,
which, in each case, shall not be inconsistent with the provisions of this
Agreement. Any variation without the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights from the provisions set forth in
Section 3.08 hereof relating to insurance or priority requirements of
Sub-Servicing Accounts, or credits and charges to the Sub-Servicing Accounts or
the timing and amount of remittances by the Sub-Servicers to the Servicer, are
conclusively deemed to be inconsistent with this Agreement and therefore
prohibited. The Servicer shall deliver to the Trustee copies of all
Sub-Servicing Agreements, and any amendments or modifications thereof, promptly
upon the Servicer's execution and delivery of such instruments.
(b) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall enforce the
obligations of each Sub-Servicer under the related Sub-Servicing Agreement
including, without limitation, any obligation to make advances in respect of
delinquent payments as required by a Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-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 Servicer, in its good faith business judgment, would require were
it the owner of the related Mortgage Loans. The Servicer shall pay the costs
of such enforcement at its own expense, and shall be reimbursed therefor only
(i) from a general recovery resulting from such enforcement, 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.
Section 3.03. Successor Sub-Servicers.
The Servicer shall be entitled to terminate any Sub-Servicing Agreement
and the rights and obligations of any Sub-Servicer pursuant to any Sub-Servicing
Agreement in accordance with the terms and conditions of such Sub-Servicing
Agreement. In the event of termination of any Sub-Servicer, all servicing
obligations of such Sub-Servicer shall be assumed simultaneously by the Servicer
without any act or deed on the part of such Sub-Servicer or the Servicer, and
the Servicer either shall service directly the related Mortgage Loans or shall
enter into a Sub-Servicing Agreement with a successor Sub-Servicer which
qualifies under Section 3.02 hereof.
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Any Sub-Servicing Agreement shall include the provision that such
agreement may be immediately terminated by the Servicer or the Trustee (if the
Trustee is acting as successor Servicer) without fee, in accordance with the
terms of this Agreement, in the event that the Servicer (or the Trustee, if such
party is then acting as successor Servicer) shall, for any reason, no longer be
the Servicer (including termination due to a Servicer Event of Termination).
Section 3.04. Liability of the Servicer.
Notwithstanding any Sub-Servicing Agreement or the provisions of this
Agreement relating to agreements or arrangements between the Servicer and a
Sub-Servicer or reference to actions taken through a Sub-Servicer or otherwise,
the Servicer shall remain obligated and primarily liable to the Trustee and the
Certificateholders for the servicing and administering of the Mortgage Loans in
accordance with the provisions of Section 3.01 hereof without diminution of such
obligation or liability by virtue of such Sub-Servicing Agreements or
arrangements or by virtue of indemnification from the Sub-Servicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans. The Servicer shall be
entitled to enter into any agreement with a Sub-Servicer for indemnification of
the Servicer by such Sub-Servicer and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
Section 3.05. No Contractual Relationship Between Sub-Servicers and
the Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such shall be deemed to be between the Sub-Servicer and the
Servicer alone, and the Trustee and the Certificateholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Sub-Servicer except as set forth in Section 3.06
hereof. The Servicer shall be solely liable for all fees owed by it to any
Sub-Servicer, irrespective of whether the Servicer's compensation pursuant to
this Agreement is sufficient to pay such fees.
Section 3.06. Assumption or Termination of Sub-Servicing Agreements
by Trustee.
In the event the Servicer shall for any reason no longer be the
Servicer (including by reason of the occurrence of a Servicer Event of
Termination), the Trustee shall thereupon assume all of the rights and
obligations of the Servicer under each Sub-Servicing Agreement that the Servicer
may have entered into, unless the Trustee elects to terminate any Sub-Servicing
Agreement in accordance with its terms as provided in Section 3.03 hereof. Upon
such assumption, the Trustee (or the successor Servicer appointed pursuant to
Section 7.02 hereof) shall be deemed, subject to Section 3.03, to have assumed
all of the departing Servicer's interest therein and to have replaced the
departing Servicer as a party to each Sub-Servicing Agreement to the same extent
as if each Sub-Servicing Agreement had been assigned to the assuming party,
except that (i) the departing Servicer shall not thereby be relieved of any
liability or obligations under any Sub-Servicing Agreement that arose before it
ceased to be the Servicer and (ii) neither the Trustee nor any successor
Servicer shall be deemed to have assumed any liability or obligation of the
Servicer that arose before it ceased to be the Servicer.
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The Servicer at its expense shall deliver to the assuming party all
documents and records relating to each Sub-Servicing Agreement and the Mortgage
Loans then being serviced and an accounting of amounts collected and held by or
on behalf of it, and otherwise use its best efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreements to the assuming party.
Section 3.07. Collection of Certain Mortgage Loan Payments.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans, and shall, to
the extent such procedures shall be consistent with this Agreement and the terms
and provisions of any applicable insurance policies, follow such collection
procedures as it would follow with respect to mortgage loans comparable to the
Mortgage Loans and held for its own account. Consistent with the foregoing, the
Servicer may in its discretion (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the due dates for the Monthly
Payments due on a Mortgage Note for a period of not greater than 180 days;
provided, however, that any extension pursuant to clause (ii) above shall not
affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the Servicer shall make timely
advances on such Mortgage Loan during such extension pursuant to Section 4.04
hereof and in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangement. Notwithstanding the
foregoing, in the event that any Mortgage Loan is in default or, in the judgment
of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section 3.01 hereof, may also waive,
modify or vary any term of such Mortgage Loan (including modifications that
would change the Mortgage Rate, forgive the payment of principal or interest or
extend the final maturity date of such Mortgage Loan), accept payment from the
related Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements, or indulgences collectively referred to herein as
"forbearance"); provided, however, that in no event shall the Servicer grant any
such forbearance (other than as permitted by the second sentence of this
Section) with respect to any one Mortgage Loan more than once in any 12-month
period or more than three times over the life of such Mortgage Loan. The
Servicer's analysis supporting any forbearance and the conclusion that any
forbearance meets the standards of Section 3.01 hereof (including the standard
that such forbearance will maximize the timely and complete recovery of
principal and interest on the Mortgage Notes) shall be reflected in writing in
the Mortgage File.
Section 3.08. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage Loan
pursuant to a Sub-Servicing Agreement, the Sub-Servicer will be required to
establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
comply with all requirements of this Agreement relating to the Collection
Account. The Sub-Servicer shall deposit in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day
54
after the Sub-Servicer's receipt thereof, all proceeds of Mortgage Loans
received by the Sub-Servicer less its servicing compensation to the extent
permitted by the Sub-Servicing Agreement, and shall thereafter deposit such
amounts in the Sub-Servicing Account, in no event more than two Business Days
after the receipt of such amounts. The Sub-Servicer shall thereafter deposit
such proceeds in the Collection Account or remit such proceeds to the Servicer
for deposit in the Collection Account not later than two Business Days after
the deposit of such amounts in the Sub-Servicing Account. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on the
Mortgage Loans when the Sub-Servicer receives such payments.
Section 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
The Servicer shall establish and maintain, or cause to be established
and maintained, one or more accounts (the "Servicing Accounts"), into which
all Escrow Payments shall be deposited and retained. Servicing Accounts shall
be Eligible Accounts. The Servicer shall deposit in the clearing account in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and
in no event more than one Business Day after the Servicer's receipt thereof,
all Escrow Payments collected on account of the Mortgage Loans and shall
thereafter deposit such Escrow Payments in the Servicing Accounts, in no event
more than two Business Days after the receipt of such Escrow Payments, all
Escrow Payments collected on account of the Mortgage Loans for the purpose of
effecting the timely payment of any such items as required under the terms of
this Agreement. Withdrawals of amounts from a Servicing Account may be made
only to (i) effect payment of taxes, assessments, hazard insurance premiums,
and comparable items in a manner and at a time that assures that the lien
priority of the Mortgage is not jeopardized (or, with respect to the payment
of taxes, in a manner and at a time that avoids the loss of the Mortgaged
Property due to a tax sale or the foreclosure as a result of a tax lien); (ii)
reimburse the Servicer (or a Sub-Servicer to the extent provided in the
related Sub-Servicing Agreement) out of related collections for any Servicing
Advances made pursuant to Section 3.01 hereof (with respect to taxes and
assessments) and Section 3.14 hereof (with respect to hazard insurance); (iii)
refund to Mortgagors any sums as may be determined to be overages; (iv) pay
interest, if required and as described below, to Mortgagors on balances in the
Servicing Account; or (v) clear and terminate the Servicing Account at the
termination of the Servicer's obligations and responsibilities in respect of
the Mortgage Loans under this Agreement in accordance with Article X hereof.
The Servicer will be responsible for the administration of the Servicing
Accounts and will be obligated to make Servicing Advances to such accounts
when and as necessary to avoid the lapse of insurance coverage on the
Mortgaged Property, or which the Servicer knows, or in the exercise of the
required standard of care of the Servicer hereunder should know, is necessary
to avoid the loss of the Mortgaged Property due to a tax sale or the
foreclosure as a result of a tax lien. If any such payment has not been made
and the Servicer receives notice of a tax lien with respect to the Mortgage
being imposed, the Servicer will, within ten business days of such notice,
advance or cause to be advanced funds necessary to discharge such lien on the
Mortgaged Property. As part of its servicing duties, the Servicer or
Sub-Servicers shall pay to the Mortgagors interest on funds in the Servicing
Accounts, to the extent required by law and, to the extent that interest
earned on funds in the Servicing Accounts is insufficient, to pay such
interest from its or their own funds, without any reimbursement therefor.
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Section 3.10. Collection Account and Distribution Account.
(a) On behalf of the Trust Fund, the Servicer shall establish and
maintain, or cause to be established and maintained, one or more accounts
(such account or accounts, the "Collection Account"), held in trust for the
benefit of the Trustee and the Certificateholders. The Servicer shall deposit
into the Collection Account, no later than two Business Days following the
Closing Date, any amounts representing payments of principal due in respect of
the Mortgage Loans on or after the Cut-off Date and received by the Servicer
prior to the Closing Date and any amounts representing payments of interest
due in respect of the Mortgage Loans after the Cut-off Date and received by
the Servicer prior to the Closing Date. Thereafter, on behalf of the Trust
Fund, the Servicer shall deposit or cause to be deposited in the clearing
account in which it customarily deposits payments and collections on mortgage
loans in connection with its mortgage loan servicing activities on a daily
basis, and in no event more than one Business Day after the Servicer's receipt
thereof, and shall thereafter deposit in the Collection Account, in no event
more than two Business Days after the Servicer's receipt thereof, as and when
received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than
in respect of principal or interest on the Mortgage Loans due on or before the
Cut-off Date) or payments (other than Principal Prepayments) received by it on
or prior to the Cut-off Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Liquidation Proceeds (other than
proceeds collected in respect of any particular REO Property and amounts
paid in connection with a purchase of Mortgage Loans and REO Properties
pursuant to Section 10.01 hereof);
(iv) any amounts required to be deposited pursuant to Section 3.12
hereof in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer pursuant to
the second paragraph of Section 3.14(a) hereof in respect of any blanket
policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with Section 2.03 or Section 10.01 hereof; and
(vii) all amounts required to be deposited in connection with
Substitution Adjustments pursuant to Section 2.03 hereof.
The foregoing requirements for deposit in the Collection Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
assumption fees, insufficient funds charges, prepayment premiums or other
ancillary income need not be deposited by the Servicer in the Collection Account
and may be retained by the Servicer as additional compensation. In the event the
56
Servicer shall deposit in the Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding.
(b) On behalf of the Trust Fund, the Trustee shall establish and
maintain one or more accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deliver to
the Trustee in immediately available funds for deposit in the Distribution
Account on or before the Close of Business New York time on the Servicer
Remittance Date, that portion of the Available Funds (calculated without
regard to the references in the definition thereof to amounts that may be
withdrawn from the Distribution Account) for the related Distribution Date
then on deposit in the Collection Account.
(c) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12
hereof. The Servicer shall give notice to the Trustee of the location of the
Collection Account maintained by it when established and prior to any change
thereof. The Trustee shall give notice to the Servicer and the Depositor of
the location of the Distribution Account when established and prior to any
change thereof.
(d) Funds held in the Collection Account at any time may be delivered
by the Servicer to the Trustee for deposit in an account (which may be the
Distribution Account and must satisfy the standards for the Distribution
Account as set forth in the definition thereof) and for all purposes of this
Agreement shall be deemed to be a part of the Collection Account; provided,
however, that the Trustee shall have the sole authority to withdraw any funds
held in the Distribution Account pursuant to this subsection (d). In the event
the Servicer shall deliver to the Trustee for deposit in the Distribution
Account any amount not required to be deposited therein, it may at any time
request that the Trustee withdraw such amount from the Distribution Account
and remit to it any such amount, any provision herein to the contrary
notwithstanding. In addition, the Servicer, with respect to items (i) through
(iv) below, shall deliver to the Trustee from time to time for deposit, and
the Trustee, with respect to items (i) through (iv) below, shall so deposit,
in the Distribution Account:
(i) any Advances, as required pursuant to Section 4.05 hereof;
(ii) any amounts required to be deposited pursuant to Section
3.23(d) or (f) hereof in connection with any REO Property;
(iii) any amounts to be paid in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section 10.01 hereof;
and
(iv) any Compensating Interest to be deposited pursuant to
Section 3.24 hereof in connection with any Prepayment Interest
Shortfall.
(e) [Reserved].
(f) The Servicer shall deposit in the Collection Account any amounts
required to be deposited pursuant to Section 3.12(b) hereof in connection with
losses realized on Permitted Investments with respect to funds held in the
Collection Account.
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Section 3.11. Withdrawals from the Collection Account and
Distribution Account.
(a) The Servicer shall, from time to time, make withdrawals from the
Collection Account for any of the following purposes or as described in
Section 4.05 hereof:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be so remitted pursuant to Section
3.10(b) hereof or permitted to be so remitted pursuant to the first
sentence of Section 3.10(d) hereof;
(ii) subject to Section 3.16(d) hereof, to reimburse the
Servicer for Advances, but only to the extent of amounts received
which represent Late Collections (net of the related Servicing Fees)
of Monthly Payments, Liquidation Proceeds and Insurance Proceeds on
Mortgage Loans with respect to which such Advances were made in
accordance with the provisions of Section 4.05;
(iii) subject to Section 3.16(d), to pay the Servicer or any
Sub-Servicer (a) any unpaid Servicing Fees, (b) any unreimbursed
Servicing Advances with respect to each Mortgage Loan, but only to
the extent of any Late Collections, Liquidation Proceeds and
Insurance Proceeds received with respect to such Mortgage Loan, and
(c) any Servicing Advances with respect to the final liquidation of
a Mortgage Loan that are Nonrecoverable Advances, but only to the
extent that Late Collections, Liquidation Proceeds and Insurance
Proceeds received with respect to such Mortgage Loan are
insufficient to reimburse the Servicer or any Sub-Servicer for
Servicing Advances;
(iv) to pay to the Servicer as servicing compensation (in
addition to the Servicing Fee) on the Servicer Remittance Date any
interest or investment income earned on funds deposited in the
Collection Account;
(v) to pay to the Servicer or the Seller, as applicable, with
respect to each related Mortgage Loan that has previously been
purchased or replaced pursuant to Section 2.03 hereof all amounts
received thereon subsequent to the date of substitution;
(vi) to reimburse the Servicer for any Advance previously made
which the Servicer has determined to be a Nonrecoverable Advance in
accordance with the provisions of Section 4.05;
(vii) to pay, or to reimburse the Servicer for Servicing
Advances in respect of expenses incurred in connection with any
Mortgage Loan pursuant to Section 3.16(b) hereof;
(viii) to pay or reimburse the Servicer and the Trustee
pursuant to Section 9.01(c) and 9.01(f), respectively, and
(ix) to clear and terminate the Collection Account pursuant to
Section 10.01 hereof.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account,
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to the extent held by or on behalf of it, pursuant to subclauses (ii), (iii),
(iv), (v), (vi) and (vii) above. The Servicer shall provide written
notification to the Trustee, on or prior to the next succeeding Servicer
Remittance Date, upon making any withdrawals from the Collection Account
pursuant to subclause (vi) above; provided, however, that an Officers'
Certificate in the form described under Section 4.05(d) shall suffice for such
written notification to the Trustee in respect hereof.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without priority:
(i) to make distributions in accordance with Sections 4.01 and
8.05 hereof;
(ii) to pay any amounts in respect of taxes pursuant to Section
9.01(g) hereof; and
(iii) to clear and terminate the Distribution Account pursuant
to Section 10.01 hereof.
Section 3.12. Investment of Funds in the Collection Account.
(a) The Servicer may direct any depository institution maintaining
the Collection Account (each such account, for purposes of this Section 3.12,
an "Investment Account"), to invest the funds in such Investment Account in
one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. Funds in the Distribution Account may be
held uninvested. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment Account
shall be made in the name of the Trustee (in its capacity as such), or in the
name of a nominee of the Trustee. The Trustee may be entitled to sole
possession or control (except with respect to investment direction of funds
held in the Collection Account and any income and gain realized thereon) over
each such investment, and any certificate, securities entitlement or other
instrument evidencing any such investment shall be delivered directly to the
Trustee or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trustee or its nominee. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Servicer shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (A) all amounts then payable thereunder and (B) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by a Responsible Officer of the Trustee that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Investment Account.
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(b) All income and gain realized from the investment of funds
deposited in the Collection Account and any REO Account held by or on behalf
of the Servicer shall be for the benefit of the Servicer and shall be subject
to its withdrawal in accordance with Section 3.11 or Section 3.23 hereof, as
applicable. The Servicer shall deposit in the Collection Account or any REO
Account, as applicable, the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All benefit derived from funds deposited in the Distribution
Account shall be for the benefit of the Trustee.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.01 and Section
8.02(a)(v), upon the request of the Holders of Certificates representing more
than 50% of the Voting Rights allocated to any Class of Certificates, shall
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
Section 3.13. [Reserved]
Section 3.14. Maintenance of Hazard Insurance Polices and Errors and
Omissions and Fidelity Coverage.
(a) Except in the case of Cooperative Loans, the Servicer shall cause
to be maintained for each Mortgage Loan fire insurance with extended coverage
on all buildings upon the Mortgaged Property in an amount which is at least
equal to the lesser of the current Principal Balance of such Mortgage Loan and
the amount necessary to fully compensate for any damage or loss to the
improvements that are a part of such property on a replacement cost basis, in
each case in an amount not less than such amount as is necessary to avoid the
application of any coinsurance clause contained in the related hazard
insurance policy. The Servicer shall also cause to be maintained fire
insurance with extended coverage on each REO Property in an amount which is at
least equal to the lesser of (i) the maximum insurable value of the
improvements which are a part of such property and (ii) the outstanding
Principal Balance of the related Mortgage Loan at the time it became an REO
Property. The Servicer will comply in the performance of this Agreement with
all reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by the Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor in
accordance with the procedures that the Servicer would follow in servicing
loans held for its own account, subject to the terms and conditions of the
related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11 hereof, if received in
respect of a Mortgage Loan, or in the REO Account, subject to withdrawal
pursuant to Section 3.23 hereof, if received in respect of an REO Property.
Any cost incurred by the Servicer in maintaining any such insurance shall not,
for the purpose of calculating distributions to Certificateholders, be added
to the unpaid Principal Balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit. It is understood and agreed
that no earthquake or other
60
additional insurance is to be required of any Mortgagor other than pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property or REO
Property is at any time in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards and flood
insurance has been made available, the Servicer will cause to be maintained a
flood insurance policy in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid Principal Balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program
(assuming that the area in which such Mortgaged Property is located is
participating in such program).
If a Mortgage is secured by a unit in a condominium, the Servicer
shall have received a certificate of insurance evidencing a master policy held
by the owner's association and naming the Servicer as loss payee. All policies
required hereunder shall name the Servicer as loss payee and shall be endorsed
with standard mortgage clauses, which shall provide for at least 30 days'
prior written notice of any cancellation, reduction in amount or material
change in coverage. The Servicer shall not interfere with the Mortgagor's
freedom of choice in selecting an insurance carrier or agent; provided,
however, that the Servicer shall not accept any such insurance policies from
insurance companies unless such companies satisfy the requirements of Xxxxxx
Xxx or Xxxxxxx Mac and are licensed to do business in the jurisdiction in
which the Mortgaged Property is located. Any amounts collected by the Servicer
under any such policies (other than the amounts to be deposited in the Escrow
Account and to be applied to the restoration or repair of the related
Mortgaged Property) (or, in the case of a Cooperative Loan, the related
Cooperative Unit) or property acquired in liquidation of the Mortgage Loan, or
amounts released to the Mortgagor in accordance with the Servicer's normal
servicing procedures) shall be deposited in the Collection Account. Any cost
incurred by the Servicer in maintaining any such insurance shall not, for the
purpose of calculating monthly distributions to the Certificateholders or
remittances to the Trustee for their benefit, be added to the Principal
Balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan so permit. Such costs shall be recoverable by the Servicer out of late
payments by the related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.10 hereof. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor or
maintained on property acquired in respect of a Mortgage other than pursuant
to such applicable laws and regulations as shall at any time be in force and
as shall require such additional insurance.
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy Rating of AX or better in
Best's Key Rating Guide (or such other rating that is comparable to such
rating) insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first two sentences of the first two paragraphs of this Section 3.14, it being
understood and agreed that such policy may contain a deductible clause, in
which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy
complying with the first two sentences of this Section 3.14, and there shall
have been one or more losses which would have been covered by such policy,
deposit to the Collection Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself, the
Trustee and the
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Certificateholders, claims under any such blanket policy in a timely fashion
in accordance with the terms of such policy.
(b) [Reserved.]
(c) [Reserved.]
(d) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of Xxxxxx Mae or
Xxxxxxx Mac, unless the Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall be deemed to have complied
with this provision if an Affiliate of the Servicer has such errors and
omissions and fidelity bond coverage and, by the terms of such insurance
policy or fidelity bond, the coverage afforded thereunder extends to the
Servicer. Any such errors and omissions policy and fidelity bond shall by its
terms not be cancelable without thirty days' prior written notice to the
Trustee. The Servicer shall also cause each Sub-Servicer to maintain a policy
of insurance covering errors and omissions and a fidelity bond which would
meet such requirements.
Section 3.15. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether
by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note and/or the
Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause, if any, applicable thereto; provided,
however, that the Servicer shall not be required to take such action if in its
sole business judgment the Servicer believes it is not in the best interests
of the Trust Fund and shall not exercise any such rights if prohibited by law
from doing so. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, or if any of the other
conditions set forth in the proviso to the preceding sentence apply, the
Servicer will enter into an assumption and modification agreement from or with
the person to whom such property has been conveyed or is proposed to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. The Servicer is also authorized to enter into a substitution
of liability agreement with such person, pursuant to which the original
Mortgagor is released from liability and such person is substituted as the
Mortgagor and becomes liable under the Mortgage Note, provided that no such
substitution shall be effective unless such person satisfies the underwriting
criteria of the Servicer and has a credit risk rating at least equal to that
of the original Mortgagor. In connection with any assumption or substitution,
the Servicer shall apply such underwriting standards and follow such practices
and procedures as shall be normal and usual in its general mortgage servicing
activities and as it applies to other mortgage loans owned solely by it. The
Servicer shall not take or enter into any assumption and modification
agreement, however, unless (to the extent practicable in the circumstances) it
shall have received confirmation, in writing, of
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the continued effectiveness of any applicable hazard insurance policy. Any fee
collected by the Servicer in respect of an assumption, modification or
substitution of liability agreement shall be retained by the Servicer as
additional servicing compensation. In connection with any such assumption, no
material term of the Mortgage Note (including but not limited to the related
Mortgage Rate and the amount of the Monthly Payment) may be amended or
modified, except as otherwise required pursuant to the terms thereof. The
Servicer shall notify the Trustee that any such substitution, modification or
assumption agreement has been completed by forwarding to the Trustee the
executed original of such substitution, modification or assumption agreement,
which document shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption
of a Mortgage Loan by operation of law or by the terms of the Mortgage Note or
any assumption which the Servicer may be restricted by law from preventing,
for any reason whatever. For purposes of this Section 3.15, the term
"assumption" is deemed to also include a sale (of the Mortgaged Property)
subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
Section 3.16. Realization upon Defaulted Mortgage Loans.
(a) The Servicer shall use its best efforts, consistent with
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments pursuant to Section 3.07 hereof. The
Servicer shall be responsible for all costs and expenses incurred by it in any
such proceedings; provided, however, that such costs and expenses will be
recoverable as Servicing Advances by the Servicer as contemplated in Section
3.11 and Section 3.23 hereof. The foregoing is subject to the provision that,
in any case in which Mortgaged Property shall have suffered damage from an
Uninsured Cause, the Servicer shall not be required to expend its own funds
toward the restoration of such property unless it shall determine in its
discretion that such restoration will increase the proceeds of liquidation of
the related Mortgage Loan after reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section 3.16 or
any other provision of this Agreement, with respect to any Mortgage Loan as to
which the Servicer has received actual notice of, or has actual knowledge of,
the presence of any toxic or hazardous substance on the related Mortgaged
Property, the Servicer shall not, on behalf of the Trustee, either (i) obtain
title to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, or take any other action
with respect to, such Mortgaged Property, if, as a result of any such action,
the Trustee, the Trust Fund or the Certificateholders would be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
from time to time, or any comparable law, unless the Servicer has also
previously determined,
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based on its reasonable judgment and a report prepared by a Person who
regularly conducts environmental audits using customary industry standards,
that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(ii) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any
hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or that if any
such materials are present for which such action could be required,
that it would be in the best economic interest of the Trust Fund to
take such actions with respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by this
Section 3.16 shall be advanced by the Servicer, subject to the Servicer's
right to be reimbursed therefor from the Collection Account as provided in
Section 3.11(a)(vii) above, such right of reimbursement being prior to the
rights of Certificateholders to receive any amount in the Collection Account
received in respect of the affected Mortgage Loan or other Mortgage Loans.
If the Servicer determines, as described above, that it is in the
best economic interest of the Trust Fund to take such actions as are necessary
to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials,
hazardous wastes or petroleum-based materials affecting any such Mortgaged
Property, then the Servicer shall take such action as it deems to be in the
best economic interest of the Trust Fund; provided that any amounts disbursed
by the Servicer pursuant to this Section 3.16(b) shall constitute Servicing
Advances, subject to Section 4.05(d) hereof. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Servicer, subject
to the Servicer's right to be reimbursed therefor from the Collection Account
as provided in Section 3.11(a)(iii) and (a)(vii) hereof, such right of
reimbursement being prior to the rights of Certificateholders to receive any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
(c) [Reserved].
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds in respect of any Mortgage Loan
will be applied in the following order of priority: first, to reimburse the
Servicer or any Sub-Servicer for any related unreimbursed Servicing Advances
and Advances, pursuant to Section 3.11(a)(ii) or (a)(iii) hereof; second, to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the
amount of such recovery will be
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allocated by the Servicer as follows: first, to unpaid Servicing Fees; and
second, to the balance of the interest then due and owing. The portion of the
recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
Servicer or any Sub-Servicer pursuant to Section 3.11(a)(iii).
Section 3.17. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon (i) the payment in full of any Mortgage Loan, (ii) the
receipt by the Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes or (iii) in the case of a
Mortgage Loan as to which the related Mortgaged Property is located in the
State of California, at such time as the Servicer reasonably expects that it
will have received payment in full, the Servicer shall deliver to the Trustee
two executed copies of a Request for Release in the form of Exhibit F (which
shall include a certification to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Collection Account pursuant to Section 3.10 hereof have been or will be so
deposited) of a Servicing Officer and shall request delivery to it of the
Mortgage File. Upon receipt of such certification and request, the Trustee
shall, within five Business Days, release and send the related Mortgage File
to the Servicer by overnight mail, at the expense of the Servicer. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account or the Distribution
Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection
under any insurance policy relating to the Mortgage Loans, the Trustee shall,
upon any request made by or on behalf of the Servicer and delivery to the
Trustee of two copies of a Request for Release in the form of Exhibit F,
release the related Mortgage File to the Servicer, and the Trustee shall, at
the direction of the Servicer, execute such documents as shall be necessary to
the prosecution of any such proceedings. Such Request for Release shall
obligate the Servicer to return each and every document previously requested
from the Mortgage File to the Trustee, when the need therefor by the Servicer
no longer exists, unless the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Collection Account or the Mortgage File or such document has been delivered to
an attorney, or to a public trustee or other public official as required by
law, for purposes of initiating or pursuing legal action or other proceedings
for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered, or caused to be delivered, to
the Trustee an additional Request for Release certifying as to such
liquidation or action or proceedings. Upon the request of the Trustee, the
Servicer shall provide notice to the Trustee of the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that
are required to be deposited into the Collection Account have been so
deposited, or that such Mortgage Loan has become an REO Property, any
outstanding Requests for Release with respect to such Mortgage Loan shall be
released by the Trustee to the Servicer or its designee.
(c) Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the Servicer or the Sub-Servicer, as the case may
be, copies of, any court pleadings, requests for trustee's sale or other
documents prepared by the Servicer and necessary to the
65
foreclosure or trustee's sale in respect of a Mortgaged Property or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity. Each such certification shall include a request
that such pleadings or documents be executed by the Trustee and a statement as
to the reason such documents or pleadings are required and that the execution
and delivery thereof by the Trustee will not invalidate or otherwise affect
the lien of the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
(d) Each Request for Release delivered to the Trustee hereunder shall
be signed by a Servicing Officer or shall be delivered in a mutually agreed
upon electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer.
Section 3.18. Servicing Compensation.
As compensation for the activities of the Servicer hereunder, the
Servicer shall be entitled to the Servicing Fee with respect to each Mortgage
Loan payable solely from payments of interest in respect of such Mortgage
Loan; provided, however, that the Servicing Fee shall be reduced with respect
to each Distribution Date, by an amount equal to the aggregate of the
Prepayment Interest Shortfalls, if any, with respect to such Distribution
Date, but the aggregate reductions shall not exceed an amount equal to the
Servicing Fee for such Distribution Date before reduction thereof in respect
of such Prepayment Interest Shortfalls.
Additional servicing compensation in the form of late payment
charges, assumption fees, insufficient funds charges, prepayment premiums or
other ancillary income shall be retained by the Servicer only to the extent
such fees or charges are received by the Servicer. The Servicer shall also be
entitled pursuant to Section 3.11(a)(iv) hereof to withdraw from the
Collection Account and pursuant to Section 3.23(b) hereof to withdraw from any
REO Account, as additional servicing compensation, interest or other income
earned on deposits therein, subject to Section 3.12 and Section 3.24 hereof.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including premiums for the
insurance required by Section 3.14 hereof, to the extent such premiums are not
paid by the related Mortgagors) and shall not be entitled to reimbursement
therefor except as specifically provided herein.
Section 3.19. Reports to the Trustee; Collection Account Statements.
Not later than 20 days after each Distribution Date, the Servicer
shall forward, upon request, to the Trustee and the Depositor the most current
available bank statement for the Collection Account. Copies of such statement
shall be provided by the Trustee to any Certificateholder and to any Person
identified to the Trustee as a prospective transferee of a Certificate, upon
request at the expense of the requesting party, provided such statement is
delivered by the Servicer to the Trustee.
Section 3.20. Statement as to Compliance.
The Servicer shall deliver to the Trustee and the Depositor not later
than 90 days following the end of the fiscal year of the Servicer, commencing
with the fiscal year that begins
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in 2001, an Officers' Certificate stating, as to each signatory thereof, that
(i) a review of the activities of the Servicer during the preceding year and
of performance under this Agreement has been made under such officers'
supervision and (ii) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and
the nature and status thereof. Copies of any such statement shall be provided
by the Trustee to any Certificateholder and to any Person identified to the
Trustee as a prospective transferee of a Certificate, upon request at the
expense of the requesting party, provided such statement is delivered by the
Servicer to the Trustee.
Section 3.21. Independent Public Accountants' Servicing Report.
Not later than 90 days following the end of each fiscal year of the
Servicer, commencing with the fiscal year that begins in 2001, the Servicer at
its own expense shall cause a nationally recognized firm of Independent
certified public accountants to furnish to the Servicer a report stating that
(i) it has obtained a letter of representation regarding certain matters from
the management of the Servicer which includes an assertion that the Servicer
has complied with certain minimum residential mortgage loan servicing
standards, identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with
respect to the servicing of residential mortgage loans during the most
recently completed fiscal year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the
American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted
in accordance with the same standards (rendered within one year of such
report) with respect to those Sub-Servicers. Copies of such statement shall be
provided by the Trustee to any Certificateholder upon request at the expense
of the Servicer provided that such statement is delivered by the Servicer to
the Trustee.
Section 3.22. Access to Certain Documentation; Filing of Reports by
Trustee.
(a) The Servicer shall provide to the Office of Thrift Supervision,
the FDIC, and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to
the documentation regarding the Mortgage Loans required by applicable laws and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer designated by it. In addition, access to the documentation regarding
the Mortgage Loans will be provided to any Certificateholder, the Trustee and
to any Person identified to the Servicer as a prospective transferee of a
Certificate, upon reasonable request during normal business hours at the
offices of the Servicer designated by it at the expense of the Person
requesting such access.
(b) Within 15 days after each Distribution Date, the Trustee shall,
in accordance with industry standards, file with the Commission, via the
Electronic Data Gathering and Retrieval System (XXXXX), a Form 8-K with a copy
of the statement to the Certificateholders for such Distribution Date as an
exhibit thereto. Prior to January 31, 2002, the Trustee shall, in
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accordance with industry standards, file a Form 15 Suspension Notification
with respect to the Trust Fund, if applicable. Prior to March 30, 2002, the
Trustee shall file a Form 10-K, in substance conforming to industry standards,
with respect to the Trust Fund. The Depositor hereby grants to the Trustee a
limited power of attorney to execute and file each such document on behalf of
the Depositor. Such power of attorney shall continue until either the earlier
of (i) receipt by the Trustee from the Depositor of written termination of
such power of attorney and (ii) the termination of the Trust Fund. The
Depositor and the Servicer agree to furnish to the Trustee promptly, from time
to time upon request, such further information, reports, and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Trustee reasonably deems appropriate to prepare and file all necessary
reports with the Commission. The Trustee shall have no responsibility to file
any items other than those specified in this section.
Section 3.23. Title, Management and Disposition of REO Property.
(a) The deed or certificate of sale of any REO Property shall be
taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. The Servicer, on behalf of the REMIC, shall either
sell any REO Property by the end of the third full taxable year after the
taxable year in which the REMIC acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code or request from the Internal
Revenue Service, no later than 61 days before the day on which the three-year
grace period would otherwise expire, an extension of such three-year period,
unless the Servicer shall have delivered to the Trustee an Opinion of Counsel,
addressed to the Trustee and the Depositor, to the effect that the holding by
the REMIC of such REO Property subsequent to three years after its acquisition
will not result in the imposition on the REMIC of taxes on "prohibited
transactions" thereof, as defined in Section 860F of the Code, or cause the
REMIC to fail to qualify as a REMIC under Federal law at any time that any
Certificates are outstanding. The Servicer shall manage, conserve, protect and
operate each REO Property for the Certificateholders solely for the purpose of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by the REMIC of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code, or any "net income from foreclosure property" which is subject to
taxation under the REMIC Provisions.
(b) The Servicer shall separately account for all funds collected and
received in connection with the operation of any REO Property and shall
establish and maintain, or cause to be established and maintained, with
respect to REO Properties an account held in trust for the Trustee for the
benefit of the Certificateholders (the "REO Account"), which shall be an
Eligible Account. The Servicer shall be permitted to allow the Collection
Account to serve as the REO Account, subject to separate ledgers for each REO
Property. The Servicer shall be entitled to retain or withdraw any interest
income paid on funds deposited in the REO Account.
(c) The Servicer shall have full power and authority, subject only to
the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with the
manner in which the Servicer manages and operates similar property owned by
the Servicer or any of its Affiliates, all on such terms and for such period
as the Servicer deems to be in the best interests of Certificateholders. In
connection
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therewith, the Servicer shall deposit, or cause to be deposited in the
clearing account in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Servicer's
receipt thereof, and shall thereafter deposit in the REO Account, in no event
more than two Business Days after the Servicer's receipt thereof, all revenues
received by it with respect to an REO Property and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of such
REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with respect to an
REO Property are insufficient for the purposes set forth in clauses (i)
through (iii) above with respect to such REO Property, the Servicer shall
advance from its own funds such amount as is necessary for such purposes if,
but only if, the Servicer would make such advances if the Servicer owned the
REO Property and if in the Servicer's judgment, the payment of such amounts
will be recoverable from the rental or sale of the REO Property.
Notwithstanding the foregoing, the Servicer shall not:
(i) authorize the Trust Fund to enter into, renew or extend any
New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents
from Real Property;
(ii) authorize any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize any construction on any REO Property, other
than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such
building or other improvement was completed before default on the
related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) authorize any Person to Directly Operate any REO Property
on any date more than 90 days after its date of acquisition by the
Trust Fund;
unless, in any such case, the Servicer has obtained an Opinion of Counsel,
provided to the Trustee, to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by the REMIC, in
which case the Servicer may take such actions as are specified in such Opinion
of Counsel.
The Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
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(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and
expenses incurred in connection with the operation and management of
such REO Property, including those listed above and remit all
related revenues (net of such costs and expenses) to the Servicer as
soon as practicable, but in no event later than thirty days
following the receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.23(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Servicer of any of its
duties and obligations to the Trustee on behalf of the
Certificateholders with respect to the operation and management of
any such REO Property; and
(iv) the Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
REO Property.
The Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it to
any such Independent Contractor, irrespective of whether the Servicer's
compensation pursuant to Section 3.18 hereof is sufficient to pay such fees;
provided, however, that to the extent that any payments made by such Independent
Contractor would constitute Servicing Advances if made by the Servicer, such
amounts shall be reimbursable as Servicing Advances made by the Servicer.
(d) In addition to the withdrawals permitted under Section 3.23(c)
hereof, the Servicer may from time to time make withdrawals from the REO
Account for any REO Property: (i) to pay itself or any Sub-Servicer unpaid
Servicing Fees in respect of the related Mortgage Loan; and (ii) to reimburse
itself or any Sub-Servicer for unreimbursed Servicing Advances and Advances
made in respect of such REO Property or the related Mortgage Loan. On the
Servicer Remittance Date, the Servicer shall withdraw from each REO Account
maintained by it and deposit into the Distribution Account in accordance with
Section 3.10(d)(ii) hereof, for distribution on the related Distribution Date
in accordance with Section 4.01 hereof, the income from the related REO
Property received during the prior calendar month, net of any withdrawals made
pursuant to Section 3.23(c) hereof or this Section 3.23(d).
(e) Subject to the time constraints set forth in Section 3.23(a)
hereof, each REO Disposition shall be carried out by the Servicer at such
price and upon such terms and conditions as the Servicer shall deem necessary
or advisable, as shall be normal and usual in its Servicing Standard.
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(f) The proceeds from the REO Disposition, net of any amount required
by law to be remitted to the Mortgagor under the related Mortgage Loan and net
of any payment or reimbursement to the Servicer or any Sub-Servicer as
provided above, shall be deposited in the Distribution Account in accordance
with Section 3.10(d)(ii) hereof on the Servicer Remittance Date in the month
following the receipt thereof for distribution on the related Distribution
Date in accordance with Section 4.01 hereof. Any REO Disposition shall be for
cash only (unless changes in the REMIC Provisions made subsequent to the
Startup Day allow a sale for other consideration).
(g) The Servicer shall file information returns with respect to the
receipt of mortgage interest received in a trade or business, reports of
foreclosures and abandonments of any Mortgaged Property and cancellation of
indebtedness income with respect to any Mortgaged Property as required by
Sections 6050H, 6050J and 6050P of the Code, respectively. Such reports shall
be in form and substance sufficient to meet the reporting requirements imposed
by such Sections 6050H, 6050J and 6050P of the Code.
Section 3.24. Obligations of the Servicer in Respect of Prepayment
Interest Shortfalls.
Not later than the Close of Business on each Servicer Remittance
Date, the Servicer shall remit to the Collection Account an amount
("Compensating Interest") equal to the lesser of (A) the aggregate of the
Prepayment Interest Shortfalls for the related Distribution Date and (B) the
Servicing Fee received in the related Due Period. The Servicer shall not have
the right to reimbursement for any amounts remitted to the Trustee in respect
of Compensating Interest. Such amounts so remitted shall be included in the
Available Funds and distributed therewith on the next Distribution Date. The
Servicer shall not be obligated to pay Compensating Interest with respect to
Relief Act Interest Shortfalls.
Section 3.25. [Reserved]
Section 3.26. Obligations of the Servicer in Respect of Adjustments.
In the event that a shortfall in any collection on or liability with
respect to the Mortgage Loans in the aggregate results from or is attributable
to adjustments to Stated Principal Balances that were made by the Servicer in
a manner not consistent with the terms of the related Mortgage Note and this
Agreement, the Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Trustee for deposit in the Distribution
Account from its own funds the amount of any such shortfall and shall
indemnify and hold harmless the Trust Fund, the Trustee, the Depositor and any
successor servicer in respect of any such liability. Such indemnities shall
survive the termination or discharge of the Servicer or this Agreement.
Notwithstanding the foregoing, this Section 3.26 shall not limit the ability
of the Servicer to seek recovery of any such amounts from the related
Mortgagor under the terms of the related Mortgage Note, as permitted by law.
Section 3.27. Solicitations.
From and after the Closing Date, the Servicer agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
and Affiliates, or by any independent contractors or independent mortgage
brokerage companies on the Servicer's behalf, to
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personally, by telephone or mail, solicit the Mortgagor under any Mortgage
Loan for the purpose of refinancing such Mortgage Loan; provided, however,
that the Servicer may solicit any Mortgagor for whom the Servicer has received
a request for verification of mortgage, a request for demand for payoff, a
mortgagor initiated written or verbal communication indicating a desire to
prepay the related Mortgage Loan, or the Mortgagor initiates a title search;
and provided, further, it is understood and agreed that promotions undertaken
by the Servicer or any of its Affiliates which (i) concern optional insurance
products or other additional products or (ii) are generally directed to the
customers of the Servicer or its Affiliates, including, without limitation,
mass mailings based on commercially acquired mailing lists, newspaper, radio
and television advertisements shall not constitute solicitation under this
Section, nor is the Servicer prohibited from responding to unsolicited
requests or inquiries made by a Mortgagor or an agent of a Mortgagor.
ARTICLE IV
FLOW OF FUNDS
Section 4.01. Distributions.
(a) On each Distribution Date the Trustee shall withdraw funds on
deposit in the Distribution Account and make the following disbursements and
transfers as described below and to the extent of such funds, based upon
information provided to the Trustee pursuant to Section 4.04(a) hereof.
(i) The Available Funds shall be distributed on each Distribution
Date in the following order of priority:
(A) to the Holders of the Senior Certificates, the related
Interest Distributable Amounts for that date, pro rata
(based on the Interest Distributable Amount to which each
such Class is entitled);
(B) to the Carryover Reserve Fund in an amount equal to the
Carryover Reserve Fund Deposit for such Distribution Date
from amounts otherwise payable to the Class X
Certificates;
(C) to the Class A Certificates, from the Carryover Reserve
Fund as a distribution of any unpaid Net WAC Carryover
Amount for such Distribution Date; and
(D) from the Principal Distribution Amount for such
Distribution Date, an amount equal to the Senior Principal
Distribution Amount for that date, as follows:
first, to the Holder of Class A-R Certificate,
until the Class Certificate Principal Balance of
such Class is reduced to zero, and
second, to the Holders of the Class A Certificates,
until the Class
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Certificate Principal Balance of such Class is
reduced to zero.
(ii) On each Distribution Date, the Available Funds remaining after
giving effect to the distributions specified in subsection (i)
above will be distributed in the following order of priority:
(A) to the Servicer, the amount to which the Servicer shall be
entitled, by way of indemnification, pursuant to Section
6.03;
(B) to the Holders of the Class B-1 Certificates, the related
Interest Distributable Amount for that date;
(C) to the Holders of the Class B-1 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(D) to the Holders of the Class B-2 Certificates, the related
Interest Distributable Amount for that date;
(E) to the Holders of the Class B-2 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(F) to the Holders of the Class B-3 Certificates, the related
Interest Distributable Amount for that date;
(G) to the Holders of the Class B-3 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(H) to the Holders of the Class B-4 Certificates, the related
Interest Distributable Amount for that date;
(I) to the Holders of the Class B-4 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(J) to the Holders of the Class B-5 Certificates, the related
Interest Distributable Amount for that date;
(K) to the Holders of the Class B-5 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(L) to the Holders of the Class B-6 Certificates, the related
Interest Distributable Amount for that date;
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(M) to the Holders of the Class B-6 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero; and
(N) to the Holder of the Class A-R Certificate, any Available
Funds then remaining.
(b) Amounts to be paid to the Holders of a Class of Certificates
shall be payable with respect to all Certificates of that Class, pro rata,
based on the Certificate Balance or Certificate Notional Balance of each
Certificate of that Class.
(c) [Reserved]
(d) On each Distribution Date, the Interest Distributable Amounts for
the Classes of Senior Certificates and Subordinate Certificates on such
Distribution Date shall be reduced by the pro rata share of each such Class
in:
(i) Net Prepayment Interest Shortfalls and Relief Act
Reductions, based on such Class's Interest Distributable Amount
without taking into account such Net Prepayment Interest Shortfalls
and Relief Act Reductions;
(ii) after the Special Hazard Coverage Termination Date, with
respect to each Mortgage Loan that became a Special Hazard Mortgage
Loan during the related Prepayment Period, the excess of one month's
interest at the related Net Loan Rate on the Stated Principal
Balance of such Mortgage Loan as of the first day in such month over
the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such related Prepayment Period;
(iii) after the Bankruptcy Coverage Termination Date, with
respect to each Mortgage Loan that became subject to a Bankruptcy
Loss during the related Prepayment Period, the interest portion of
the related Debt Service Reduction or Deficient Valuation; and
(iv) after the Fraud Coverage Termination Date, with respect to
each Mortgage Loan that became a Fraud Loan during the related
Prepayment Period, the excess of one month's interest at the related
Net Loan Rate on the Stated Principal Balance of such Mortgage Loan
as of the first day in such month over the amount of Liquidation
Proceeds applied as interest on such Mortgage Loan with respect to
such month.
(e) [Reserved].
(f) Notwithstanding the priority and allocation set forth in Section
4.01(a)(ii) above, if with respect to any Class of Subordinate Certificates on
any Distribution Date the sum of the related Class Subordination Percentages
of such Class and of all other Classes of Subordinate Certificates which have
a higher numerical Class designation than such Class (the "Applicable Credit
Support Percentage") is less than the Original Applicable Credit Support
Percentage for such Class, no distribution of Principal Prepayments will be
made to any such Classes (the "Restricted Classes") and the amount of such
Principal Prepayment otherwise distributable to the
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Restricted Classes shall be distributed to any Classes of Subordinate
Certificates having lower numerical Class designations than such Class, pro
rata, based on the Class Certificate Principal Balances of the respective
Classes immediately prior to such Distribution Date and shall be distributed
in the sequential order provided in Section 4.01(a)(ii) above.
(g) Distributions on Physical Certificates. The Trustee shall make
distributions in respect of a Distribution Date to each Certificateholder of
record on the related Record Date (other than as provided in Section 10.01
hereof respecting the final distribution), in the case of Certificateholders
of the Physical Certificates, by check or money order mailed to such
Certificateholder at the address appearing in the Certificate Register, or by
wire transfer. Distributions among Certificateholders of a Class shall be made
in proportion to the Percentage Interests evidenced by the Certificates of
that Class held by such Certificateholders.
(h) Distributions on Book-Entry Certificates. Each distribution with
respect to a Book-Entry Certificate shall be paid to the Depository, which
shall credit the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing
funds to the Certificate Owners that it represents. All such credits and
disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions
of the Certificates. None of the Trustee, the Depositor, the Servicer or the
Seller shall have any responsibility therefor.
Section 4.02. [Intentionally Deleted.]
Section 4.03. Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Servicer shall
determine the total amount of Realized Losses, including Excess Losses, with
respect to the related Distribution Date.
(b) Realized Losses, Bankruptcy Losses, Fraud Losses and Special
Hazard Losses with respect to any Distribution Date shall be allocated as
follows:
(i) Realized Losses, Bankruptcy Losses, Fraud Losses and
Special Hazard Losses (other than Excess Losses) shall be allocated:
first, to the Subordinate Certificates in reverse order of
their respective numerical Class designations (beginning with
the Class of Subordinate Certificates with the highest
numerical Class designation) until the Class Certificate
Principal Balance of each such Class is reduced to zero; and
second, to the Class A and Class A-R Certificates, pro rata in
accordance with their relative Class Certificate Principal
Balances, until the Class Certificate Principal Balance of
each such Class is reduced to zero; and
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(ii) any Excess Losses on the Mortgage Loans shall be allocated
to the Senior Certificates and the Subordinate Certificates then
outstanding, pro rata, as follows:
(A) the product of such Excess Losses multiplied by a
fraction the numerator of which is the aggregate of
the Class Certificate Principal Balances of the
Classes of Senior Certificates immediately prior to
such Distribution Date and the denominator of which
is the aggregate of the Principal Balances, as of the
first day in the month preceding the month which such
Distribution Date occurs, of the Outstanding Mortgage
Loans on that day shall be allocated to the Classes
of Senior Certificates (other than the Class X
Certificates), pro rata, on the basis of their
respective Class Certificate Principal Balances
immediately prior to such Distribution Date, and
(B) the remaining amount of such Excess Losses shall be
allocated to the Classes of Subordinate Certificates,
pro rata, on the basis of their respective Class
Certificate Principal Balances immediately prior to
such Distribution Date;
provided, however, that on any Distribution Date occurring on and after the
Senior Credit Support Depletion Date, any Excess Losses will be allocated among
the Class or Classes of Senior Certificates, pro rata, based on their respective
Class Certificate Principal Balances immediately prior to such Distribution
Date.
(c) The Class Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the amount, if any,
by which the aggregate of the Class Certificate Principal Balances of all
outstanding Classes of Certificates (after giving effect to the distribution
of principal and the allocation of Realized Losses, Bankruptcy Losses, Fraud
Losses and Special Hazard Losses and Excess Losses on such Distribution Date)
exceeds the aggregate of the Stated Principal Balances of all the Mortgage
Loans for the following Distribution Date.
(d) Any Realized Loss, Bankruptcy Loss, Fraud Loss, Special Hazard
Loss or Excess Loss allocated to a Class of Certificates or any reduction in
the Class Certificate Principal Balance of a Class of Certificates pursuant to
Section 4.03(b) or (c) shall be allocated among the Certificates of such
Class, pro rata, in proportion to their respective Certificate Balances.
(e) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Balance of a Certificate pursuant to Section
4.03(b) or (c) shall be accomplished by reducing the Certificate Balance
thereof immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance."
Section 4.04. Statements.
(a) On each Distribution Date, based, as applicable, on information
provided to it by the Servicer, the Trustee shall make available to each
Holder of the Regular Certificates, the
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Servicer and the Rating Agencies, a statement (the "Distribution Date
Statement") as to the distributions made on such Distribution Date:
(i) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates allocable to
principal;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates allocable to
interest;
(iii) the Senior Percentage, Senior Prepayment Percentage,
Subordinate Percentage and Subordinate Prepayment Percentage for
such Distribution Date;
(iv) the aggregate amount of servicing compensation received by
the Servicer during the related Due Period and such other customary
information as the Trustee deems necessary or desirable, or which a
Certificateholder reasonably requests, to enable Certificateholders
to prepare their tax returns;
(v) the aggregate amount of Advances for the related Due Period
and the amount of unreimbursed Advances;
(vi) [reserved];
(vii) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, each as of
the related Determination Date;
(viii) the Net WAC;
(ix) the number, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the
related Due Date;
(x) the number and aggregate unpaid principal balance of
Mortgage Loans (a) 30 to 59 days Delinquent, (b) 60 to 89 days
Delinquent, (c) 90 or more days Delinquent, (d) as to which
foreclosure proceedings have been commenced and (e) in bankruptcy,
in each case as of the Close of Business on the last day of the
calendar month preceding such Distribution Date;
(xi) the book value of any REO Property as of the Close of
Business on the last Business Day of the calendar month preceding
the Distribution Date, and, cumulatively, the total number and
cumulative principal balance of all REO Properties as of the Close
of Business of the last day of the preceding Due Period;
(xii) the aggregate amount of Principal Prepayments made during
the related Prepayment Period;
(xiii) any Net WAC Carryover Amount for such Distribution Date
and any Net WAC Carryover Amount remaining unpaid after giving
effect to the distributions on such Distribution Date;
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(xiv) the aggregate amount of Realized Losses incurred during
the related Due Period and the cumulative amount of Realized Losses;
(xv) the Class Certificate Principal Balance of each Class of
Certificates (other than the Class X Certificates) and the Class X
Certificate Notional Balance of the Class X Certificates after
giving effect to any distributions made thereon on such Distribution
Date;
(xvi) the Interest Distributable Amount in respect of each
Class of the Certificates, for such Distribution Date and the
respective portions thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates on such
Distribution Date;
(xvii) the aggregate amount of any Prepayment Interest
Shortfalls and the Unpaid Interest Shortfall Amount for such
Distribution Date, to the extent not covered by payments by the
Servicer pursuant to Section 3.24 hereof;
(xviii) the Available Funds;
(xix) the Pass-Through Rate for each Class of Certificates for
such Distribution Date; and
(xx) the aggregate Principal Balance of Mortgage Loans
purchased by the Servicer or the Seller during the related Due
Period, and indicating the Section of this Agreement requiring or
allowing the purchase of each such Mortgage Loan.
The Trustee will make the Distribution Date Statement (and, at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders and the other parties to
this Agreement via the Trustee's internet website and will forward the
Distribution Date Statement to each Rating Agency. The Trustee's internet
website shall initially be located at "xxx.xxxxxxx.xxx". Assistance in using
the website or the fax-on-demand service can be obtained by calling the
Trustee's customer service desk at (000) 000-0000. Parties that are unable to
use the above distribution option are entitled to have a paper copy mailed to
them via first class mail by calling the customer service desk and requesting
same. The Trustee shall have the right to change the way Distribution Date
Statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Trustee shall provide
timely and adequate notification to all the above parties regarding any such
changes. The Trustee's obligations pursuant to this Section 4.04 are limited
to the extent of its receipt of all necessary information from the Servicer.
The Trustee may fully rely upon and shall have no liability with respect to
information provided by the Servicer.
In the case of information furnished pursuant to subclauses (i) and
(ii) above, the amounts shall be expressed in a separate section of the report
as a dollar amount for each Class for each $1,000 original dollar amount as of
the Cut-off Date.
(b) Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon written request, furnish to each Person who at
any time during the calendar year was
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a Certificateholder of a Regular Certificate, if requested in writing by such
Person, such information as is reasonably necessary to provide to such Person
a statement containing the information set forth in subclauses (i) through
(iii) above, aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be prepared and furnished by the
Trustee to Certificateholders pursuant to any requirements of the Code as are
in force from time to time.
Section 4.05. Remittance Reports; Advances.
(a) No later than the sixth day of each calendar month (or if such
day is not a Business Day, the next succeeding Business Day), the Servicer
shall deliver to the Trustee, by telecopy or electronic mail (or by such other
means as the Servicer and the Trustee may agree from time to time), a
remittance report (the "Remittance Report") with respect to the related
Distribution Date, which Remittance Report shall include such information with
respect to the Mortgage Loans as the Trustee may reasonably require to perform
the calculations necessary to make the distributions contemplated by Section
4.01 hereof and to prepare the Distribution Date Statements contemplated by
Section 4.04 hereof; provided, however, that with respect to the initial
Distribution Date, the Servicer shall deliver the related Remittance Report to
the Trustee no later than December 10, 2001. The Trustee shall not be
responsible to recompute, recalculate or verify any information provided to it
by the Servicer.
(b) The amount of Advances to be made by the Servicer for any
Distribution Date shall equal, subject to Section 4.05(d) below, the sum of
(i) the aggregate amount of Monthly Payments (net of the related Servicing
Fee) due during the related Due Period in respect of the Mortgage Loans, which
Monthly Payments were Delinquent on a contractual basis as of the Close of
Business on the related Determination Date and (ii) with respect to each REO
Property, which REO Property was acquired during or prior to the related Due
Period and as to which REO Property an REO Disposition did not occur during
the related Due Period, an amount equal to the excess, if any, of the REO
Imputed Interest on such REO Property for the most recently ended calendar
month, over the net income from such REO Property transferred to the
Distribution Account pursuant to Section 3.23 hereof for distribution on such
Distribution Date.
On or before the Close of Business New York time on the Servicer
Remittance Date, the Servicer shall remit in immediately available funds to
the Trustee for deposit in the Distribution Account an amount equal to the
aggregate amount of Advances, if any, to be made in respect of the Mortgage
Loans and REO Properties for the related Distribution Date either (i) from its
own funds or (ii) from the Collection Account, to the extent of funds held
therein for future distribution (in which case it will cause to be made an
appropriate entry in the records of Collection Account that amounts held for
future distribution have been, as permitted by this Section 4.05, used by the
Servicer in discharge of any such Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of Advances to be
made by the Servicer with respect to the Mortgage Loans and REO Properties.
Any amounts held for future distribution and so used shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by deposit in
the Collection Account on or before any future Servicer Remittance Date to the
extent that the Available Funds for the related Distribution Date (determined
without regard to Advances to be made on the Servicer Remittance Date) shall
be less than the total
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amount that would be distributed to the Classes of Certificateholders pursuant
to Section 4.01 on such Distribution Date if such amounts held for future
distributions had not been so used to make Advances. The Trustee will promptly
provide notice to the Servicer by telecopy in the event that the amount
remitted by the Servicer to the Trustee on such date is less than the Advances
required to be made by the Servicer for the related Distribution Date, as set
forth in the related Remittance Report.
(c) The obligation of the Servicer to make such Advances is
mandatory, notwithstanding any other provision of this Agreement but subject
to (d) below and, with respect to any Mortgage Loan, shall continue until the
Mortgage Loan is paid in full or until the recovery of all Liquidation
Proceeds thereon.
(d) Notwithstanding anything herein to the contrary, no Advance or
Servicing Advance shall be required to be made hereunder by the Servicer if
such Advance or Servicing Advance would, if made, constitute a Nonrecoverable
Advance. The determination by the Servicer that it has made a Nonrecoverable
Advance or that any proposed Advance or Servicing Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by an Officers'
Certificate of the Servicer delivered to the Depositor and the Trustee.
Section 4.06. Carryover Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain a
Carryover Reserve Fund (the "Carryover Reserve Fund") which shall be
beneficially owned by the Class X Certificateholders. The Carryover Reserve
Fund shall be an Eligible Account, and funds on deposit therein shall be
applied for the benefit of the Holders of the Class A Certificates. The
Carryover Reserve Fund shall be accounted for by the Trustee as an outside
reserve fund for purposes of Treasury Regulation Section 1.860G-2(h) and not
an asset of any REMIC created under this Agreement and for all federal income
tax purposes, amounts transferred to the Carryover Reserve Fund by REMIC 2
shall be treated as distributed to the Class X Certificateholders.
(b) On each Distribution Date, funds on deposit on such date in the
Carryover Reserve Fund (other than investment income to be paid to the Holders
of the Class X Certificates) shall be applied by the Trustee towards the
distribution of any unpaid Net WAC Carryover Amount to the Holders of the
Class A Certificates in accordance with Section 4.01(a)(i)(C).
(c) The Trustee shall invest funds in the Carryover Reserve Fund in
Eligible Investments as directed in writing by First Republic Bank (or any
successor owner of the majority beneficial interest in the Class X
Certificates, as designated in a written notice to the Trustee from First
Republic Bank or, if applicable, the most recent successor owner of such
majority beneficial interest), which investments shall mature not later than
the Distribution Date following the date of such investment and shall not be
sold or disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee. All net income and gain realized
from any such investment shall be paid to, and for the benefit of, the Holders
of the Class X Certificates on each Distribution Date. To the extent that the
Class X Certificateholders do not deposit into the Carryover Reserve Fund out
of such Holder's own funds immediately as
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realized, without reimbursement the amount of any losses incurred in respect
of any such investments (to the extent not offset by income from other such
investments), such losses may be offset from the amounts that such Holders
would otherwise be entitled to receive under Section 4.01(a). The Class X
Certificates shall evidence ownership of the Carryover Reserve Fund for
federal income tax purposes. Notwithstanding the foregoing, if the Holders of
the Class X Certificates fail to provide written instructions to the Trustee
with respect to investments of funds in the Carryover Reserve Fund, then such
funds shall not be invested by the Trustee.
Upon termination of the Trust Fund, any amounts remaining in the
Carryover Reserve Fund shall be distributed to the Holders of the Class X
Certificates in the same manner as if distributed pursuant to Section 4.01(a)
hereof.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
The Class A Certificates shall be substantially in the form annexed
hereto as Exhibit A, the Class X Certificates shall be substantially in the
form annexed hereto as Exhibit B, the Class A-R Certificate shall be
substantially in the form annexed hereto as Exhibit C and each of the
Subordinate Certificates shall be substantially in the form annexed hereto as
Exhibit D. Each of the Certificates shall, on original issue, be executed,
authenticated and delivered by the Trustee to or upon the order of the
Depositor concurrently with the sale and assignment to the Trustee of the
Trust Fund. Each Class of the Regular Certificates shall be initially
evidenced by one or more Certificates representing a Percentage Interest with
a minimum dollar denomination of $25,000 and integral dollar multiples of $1
in excess thereof, except that one Certificate of each such Class of
Certificates may be in a different denomination so that the sum of the
denominations of all outstanding Certificates of such Class shall equal the
Class Certificate Principal Balance or Class Certificate Notional Balance of
such Class on the Closing Date. The Class A-R Certificate is issuable only in
a Percentage Interest of 100%.
The Certificates shall be executed on behalf of the Trust by manual
or facsimile signature on behalf of the Trustee by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trustee shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement or be valid for any purpose, unless such
Certificate shall have been manually authenticated by the Trustee
substantially in the form provided for herein, and such authentication 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. Subject to
Section 5.02(c), the Senior Certificates (other than the Class A-R
Certificate) and the Class B-1, Class B-2 and Class B-3 Certificates shall be
Book-Entry Certificates. The Class A-R Certificate and the Class B-4, Class
B-5 and Class B-6 Certificates shall be Physical Certificates.
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Section 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall cause to be kept at the Corporate
Trust Office a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for
the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall initially serve as
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph and, in the case of a Private Certificate
or Class A-R Certificate, upon satisfaction of the conditions set forth below,
the Trustee on behalf of the Trust shall execute, authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same aggregate Percentage Interest.
At the option of the Certificateholders, Certificates may be
exchanged for other Certificates in authorized denominations and the same
aggregate Percentage Interests, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute on behalf of the Trust and
authenticate and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall (if so required by
the Trustee or the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer satisfactory to the Trustee
and the Certificate Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry
Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Trustee or the Certificate
Registrar except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Certificates; (iii) ownership and transfers of
registration of such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee shall for all purposes deal with
the Depository as representative of the Certificate Owners of the Certificates
for purposes of exercising the rights of Holders under this Agreement, and
requests and directions for and votes of such representative shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; (vi) the Trustee and the Certificate Registrar may rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and
Persons shown on the books of such indirect participating firms as direct or
indirect Certificate Owners; and (vii) the direct participants of the
Depository shall have no rights under this Agreement under or with respect to
any of the Certificates held on their behalf by the Depository, and the
Depository may be treated by the Trustee, the Certificate Registrar and their
respective agents, employees, officers and directors as the absolute owner of
the Certificates for all purposes whatsoever.
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All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners that it represents or of brokerage firms for which it acts
as agent in accordance with the Depository's normal procedures. The parties
hereto are hereby authorized to execute a Letter of Representations with the
Depository or take such other action as may be necessary or desirable to
register a Book-Entry Certificate to the Depository. In the event of any
conflict between the terms of any such Letter of Representation and this
Agreement, the terms of this Agreement shall control.
(c) If (i)(x) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository and (y) the Trustee or the Depositor is
unable to locate a qualified successor, (ii) the Depositor, at its sole
option, with the consent of the Trustee, elects to terminate the book-entry
system through the Depository or (iii) after the occurrence of a Servicer
Event of Termination, the Certificate Owners of each Book-Entry Certificate
representing Percentage Interests of such Classes aggregating not less than
51% advises the Trustee and Depository through the Financial Intermediaries
and the Depository Participants in writing that the continuation of a
book-entry system through the Depository to the exclusion of definitive, fully
registered certificates (the "Definitive Certificates") to Certificate Owners
is no longer in the best interests of the Certificate Owners. Upon surrender
to the Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall, at the Depositor's expense, in the case of (ii) above, or
the Seller's expense, in the case of (i) and (iii) above, execute on behalf of
the Trust and authenticate the Definitive Certificates. Neither the Depositor
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, the Trustee, the
Certificate Registrar, the Servicer, any Paying Agent and the Depositor shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No transfer, sale, pledge or other disposition of any Private
Certificate shall be made unless such disposition is exempt from the
registration requirements of the 1933 Act, and any applicable state securities
laws or is made in accordance with the 1933 Act and laws. In the event of any
such transfer, (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached hereto as Exhibit I under the 1933 Act, the Trustee and the
Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to
the Trustee and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor or (ii) the
Trustee shall require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit J) and the transferee to
execute an investment letter (in substantially the form attached hereto as
Exhibit I) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which investment letter shall not be an
expense of the Trustee or the Depositor. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee, the Seller, the Servicer and
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the Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate that is also a
Physical Certificate shall be made unless the Trustee shall have received
either (i) a representation from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor (such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I hereto), to the effect that such transferee is not an employee benefit plan
or arrangement subject to Section 406 of ERISA or a plan subject to Section
4975 of the Code, nor a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such transfer or (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60") and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in
the case of any ERISA-Restricted Certificate that is also a Physical
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel
satisfactory to the Trustee which Opinion of Counsel shall not be an expense
of either the Trustee or the Trust, addressed to the Trustee, to the effect
that the purchase and holding of such ERISA-Restricted Certificate that is
also a Physical Certificate will not result in the assets of the Trust being
deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee to any
obligation in addition to those expressly undertaken in this Agreement or to
any liability. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate that is also a Physical
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
In the case of an ERISA-Restricted Certificate that is also a
Book-Entry Certificate, for purposes of clauses (i) or (ii) of the first
sentence of the preceding paragraph, such representations shall be deemed to
have been made to the Trustee by the transferee's acceptance of such
ERISA-Restricted Certificate that is also a Book-Entry Certificate (or the
acceptance by a Certificate Owner of the beneficial interest in such
Certificate).
To the extent permitted under applicable law (including, but not
limited to, ERISA), neither the Trustee nor the Certificate Registrar shall have
any liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered by the Trustee or the
Certificate Registrar in accordance with the foregoing requirements. In
addition, neither the Trustee nor the Certificate Registrar shall be required to
monitor, determine or inquire as to compliance with the transfer restrictions
with respect to any ERISA-Restricted Certificates in the form of Book-Entry
Certificates, and neither the Trustee nor the Certificate Registrar shall have
any liability for transfers of Book-Entry
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Certificates or any interests therein made in violation of the restrictions on
transfer described in the Prospectus Supplement and this Agreement.
(e) Each Person who has or who acquires any Ownership Interest in the
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably appointed the Depositor or its designee as its attorney-in-fact
to negotiate the terms of any mandatory sale under clause (v) below and to
execute all instruments of transfer and to do all other things necessary in
connection with any such sale, and the rights of each Person acquiring any
Ownership Interest in the Class A-R Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
the Class A-R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in the Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of the Class A-R Certificate
unless, in addition to the certificates required to be delivered
under subsection (b) above, the Trustee shall have been furnished
with an affidavit ("Transfer Affidavit") of the initial owner or
proposed transferee in the form attached hereto as Exhibit L.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Class A-R Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it,
in form and substance satisfactory to it, of each of the following:
A. a Transferor Certificate in the form of Exhibit K
hereto from the proposed transferee to the effect that such
transferee is a Permitted Transferee and that it is not
acquiring an Ownership Interest in the Class A-R Certificate
that is the subject of the proposed transfer as a nominee,
trustee or agent for any Person who is not a Permitted
Transferee; and
B. a covenant of the proposed transferee to the effect
that the proposed transferee agrees to be bound by and to abide
by the transfer restrictions applicable to the Class A-R
Certificate.
(iv) Any attempted or purported Transfer of any Ownership
Interest in the Class A-R Certificate in violation of the provisions
of this Section shall be absolutely null and void and shall vest no
rights in the purported transferee. If any purported transferee
shall, in violation of the provisions of this Section, become a
Holder of the Class A-R Certificate, then the prior Holder of the
Class A-R Certificate that is a Permitted Transferee shall, upon
discovery that the registration of Transfer of the Class A-R
Certificate was not in fact permitted by this Section, be restored
to all rights as Holder thereof retroactive to the date of
registration of transfer of the Class A-R Certificate. Neither the
Trustee nor the Certificate Registrar shall have any liability to
any Person for any registration of Transfer of the Class A-R
Certificate that is in fact not permitted by this Section or for
making any distributions due on the Class A-R Certificate to the
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Holder thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the Trustee
received the documents specified in clause (iii). The Trustee shall
be entitled to recover from any Holder of the Class A-R Certificate
that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on the Class A-R
Certificate. Any such distributions so recovered by the Trustee
shall be distributed and delivered by the Trustee to the last Holder
of the Class A-R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires
any Ownership Interest in the Class A-R Certificate in violation of
the restrictions in this Section, then the Trustee shall have the
right but not the obligation, without notice to the Holder of the
Class A-R Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of
the Class A-R Certificate. The proceeds of such sale, net of
commissions (which may include commissions payable to the Depositor
or its affiliates in connection with such sale), expenses and taxes
due, if any, will be remitted by the Trustee to the previous Holder
of the Class A-R Certificate that is a Permitted Transferee, except
that in the event that the Trustee determines that the Holder of the
Class A-R Certificate may be liable for any amount due under this
Section or any other provisions of this Agreement, the Trustee may
withhold a corresponding amount from such remittance as security for
such claim. The terms and conditions of any sale under this clause
(v) shall be determined in the sole discretion of the Trustee and it
shall not be liable to any Person having an Ownership Interest in
the Class A-R Certificate as a result of its exercise of such
discretion.
(vi) If any Person other than a Permitted Transferee acquires
any Ownership Interest in the Class A-R Certificate in violation of
the restrictions in this Section, then the Trustee upon receipt of
reasonable compensation will provide to the Internal Revenue
Service, and to the persons specified in Sections 860E(e)(3) and (6)
of the Code, information needed to compute the tax imposed under
Section 860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee and the Servicer, in form and substance satisfactory to the Trustee, (i)
written notification from the Rating Agencies that the removal of the
restrictions on Transfer set forth in this Section will not cause such Rating
Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause either REMIC hereunder to
fail to qualify as a REMIC.
(f) No service charge shall be made for any registration of transfer or
exchange of Certificates of any Class, 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 transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to its
standard procedures.
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Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate and (ii) there is
delivered to the Trustee, the Depositor and the Certificate Registrar such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser,
the Trustee shall execute on behalf of the Trust, 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 Percentage Interest. Upon the
issuance of any new Certificate under this Section, the Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) in connection therewith. Any duplicate Certificate
issued pursuant to this Section, shall constitute complete and indefeasible
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04. Persons Deemed Owners.
The Servicer, the Depositor, the Trustee, the Certificate Registrar,
any Paying Agent and any agent of the Servicer, the Depositor, the Certificate
Registrar, any Paying Agent or the Trustee may treat the Person, including a
Depository, in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
4.01 hereof and for all other purposes whatsoever, and none of the Servicer,
the Trust, the Trustee, the Certificate Registrar, the Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
Section 5.05. Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to Certificateholders
from the Distribution Account pursuant to Section 4.01 hereof and shall report
the amounts of such distributions to the Trustee. The duties of the Paying
Agent may include the obligation (i) to withdraw funds from the Collection
Account pursuant to Section 3.11(a) hereof and for the purpose of making the
distributions referred to above and (ii) to distribute statements and provide
information to Certificateholders as required hereunder. The Paying Agent
hereunder shall at all times be an entity duly incorporated and validly
existing under the laws of the United States of America or any state thereof,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal or state authorities. The Paying Agent
shall initially be the Trustee. The Trustee may appoint a successor to act as
Paying Agent, which appointment shall be reasonably satisfactory to the
Depositor.
(b) The Trustee shall cause the Paying Agent (if other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent shall hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders and shall agree that it shall comply
with all requirements
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of the Code regarding the withholding of payments in respect of federal income
taxes due from Certificate Owners and otherwise comply with the provisions of
this Agreement applicable to it.
ARTICLE VI
THE SELLER, THE SERVICER AND THE DEPOSITOR
Section 6.01. Liability of the Seller, the Servicer and the
Depositor.
The Seller and the Servicer shall be liable in accordance herewith
only to the extent of the obligations specifically imposed upon and undertaken
by the Seller or the Servicer, as the case may be, herein. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Depositor herein.
Section 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Seller, the Servicer or the Depositor.
Any entity into which the Seller, the Servicer or the Depositor may
be merged or consolidated, or any entity resulting from any merger, conversion
or consolidation to which the Seller, the Servicer or the Depositor shall be a
party, or any corporation succeeding to the business of the Seller, the
Servicer or the Depositor, shall be the successor of the Seller, the Servicer
or the Depositor, as the case may be, 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 Servicer shall satisfy all the requirements of Section 7.02
hereof with respect to the qualifications of a successor Servicer.
Section 6.03. Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Trust
or the Certificateholders for any action taken or for refraining from the
taking of any action by the Servicer in good faith pursuant to this Agreement,
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability which would
otherwise be imposed by reason of its willful misfeasance, bad faith or
negligence in the performance of duties of the Servicer or by reason of its
failure to perform its obligations and duties hereunder; and, provided
further, that this provision shall not be construed to entitle the Servicer to
indemnity in the event that amounts advanced by the Servicer to retire any
senior lien exceed Liquidation Proceeds (in excess of related liquidation
expenses) realized with respect to the related Mortgage Loan. The preceding
sentence shall not limit the obligations of the Servicer pursuant to Section
6.05 hereof. The Servicer and any director or officer or employee or agent of
the 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 Servicer and any director or officer or employee or agent of
the Servicer shall be indemnified by the Trust and held harmless against any
loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant
to this Agreement) and any loss, liability or expense incurred by reason of
its willful
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misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of its failure to perform its obligations and duties hereunder. The
Servicer may undertake any such action which it may deem necessary or
desirable in respect of this Agreement, and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. The
Servicer's right to indemnity or reimbursement pursuant to this Section shall
be subject to the payment priority described in Section 4.01(a) hereof and
shall survive any resignation or termination of the Servicer pursuant to
Section 6.04 or 7.01 hereof with respect to any losses, expenses, costs or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination). This paragraph
shall apply to the Servicer solely in its capacity as Servicer hereunder and
in no other capacities.
Section 6.04. Servicer Not to Resign.
Subject to the provisions of Section 7.01 and Section 6.02 hereof,
the Servicer shall not resign from the obligations and duties hereby imposed
on it except (i) upon determination that the performance of its obligations or
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 or its subsidiaries or Affiliates, the other activities of
the Servicer so causing such a conflict being of a type and nature carried on
by the Servicer or its subsidiaries or Affiliates at the date of this
Agreement or (ii) upon satisfaction of the following conditions: (a) the
Servicer has proposed a successor Servicer to the Trustee in writing and such
proposed successor Servicer is acceptable to the Trustee, (b) each Rating
Agency shall have delivered a letter to the Trustee prior to the appointment
of the successor Servicer stating that the proposed appointment of such
successor Servicer as Servicer hereunder will not result in the reduction or
withdrawal of the then current rating of the Regular Certificates; provided,
however, that no such resignation by the Servicer shall become effective until
such successor servicer or, in the case of clause (i) above, the Trustee shall
have assumed the Servicer's responsibilities and obligations hereunder or, in
the case of clause (ii) above, the Trustee shall have designated a successor
servicer in accordance with Section 7.02 hereof. Any such resignation shall
not relieve the Servicer of responsibility for any of the obligations
specified in Sections 7.01 and 7.02 hereof as obligations that survive the
resignation or termination of the Servicer. Any such determination permitting
the resignation of the Servicer pursuant to clause (i) above shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
Section 6.05. Delegation of Duties.
In the ordinary course of business, the Servicer at any time may
delegate any of its duties hereunder to any Person, including any of its
Affiliates, who agrees to conduct such duties in accordance with standards
comparable to those set forth in Section 3.01 hereof. Such delegation shall
not relieve the Servicer of its liabilities and responsibilities with respect
to such duties and shall not constitute a resignation within the meaning of
Section 6.04 hereof.
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ARTICLE VII
DEFAULT
Section 7.01. Servicer Events of Termination.
(a) If any one of the following events (each, a "Servicer Event of
Termination") shall occur and be continuing:
(i) the failure by the Servicer to make any Advance or to
deposit in the Collection Account or Distribution Account any
deposit required to be made under the terms of this Agreement; or
(ii) the failure by the Servicer to make any required Servicing
Advance which failure continues unremedied for a period of 30 days,
or the failure by the Servicer duly to observe or perform, in any
material respect, any other covenants, obligations or agreements of
the Servicer as set forth in this Agreement, which failure continues
unremedied for a period of 30 days, after the date (A) on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Trustee or to the
Servicer and the Trustee by Holders of Regular Certificates
evidencing at least 25% of the Voting Rights or (B) actual knowledge
of such failure by a Servicing Officer of the Servicer; or
(iii) the entry against the Servicer of a decree or order by a
court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 days; or
(iv) the Servicer shall voluntarily go into liquidation,
consent to the appointment of a conservator or receiver or
liquidator or similar person in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Servicer or of or relating to all or
substantially all of its property; or a decree or order of a court
or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver, liquidator
or similar person 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 Servicer and such decree or order shall have
remained in force undischarged, unbonded or unstayed for a period of
60 days; or the 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;
(b) then, and in each and every such case, so long as a Servicer
Event of Termination shall not have been remedied within the applicable grace
period in the case of (ii), (iii) and (iv) above, the Trustee may, and at the
direction of the Holders of each Class of Regular Certificates
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evidencing Percentage Interests aggregating not less than 51%, by notice then
given in writing to the Servicer (and to the Trustee if given by Holders of
Certificates) shall, terminate all of the rights and obligations of the
Servicer as servicer under this Agreement. Any such notice to the Servicer
shall also be given to the Rating Agencies, the Depositor and the Seller. On
or after the receipt by the Servicer (and by the Trustee if such notice is
given by the Holders) of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Certificates or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the 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 of each
Mortgage Loan and related documents or otherwise. The Servicer agrees to
cooperate with the Trustee in effecting the termination of the
responsibilities and rights of the Servicer hereunder, including, without
limitation, the delivery to the Trustee of all documents and records requested
by it to enable it to assume the Servicer's functions under this Agreement
within ten Business Days subsequent to such notice, the transfer within one
Business Day subsequent to such notice to the Trustee for the administration
by it of all cash amounts that shall at the time be held by the Servicer and
to be deposited by it in the Collection Account, the Distribution Account, any
REO Account or any Servicing Account or that have been deposited by the
Servicer in such accounts or thereafter received by the Servicer with respect
to the Mortgage Loans or any REO Property received by the Servicer.
In connection with the termination of the Servicer, the Trustee will be
entitled to be reimbursed by the Trust Fund (in the event that the Servicer does
not timely reimburse the Trustee) for all of the reasonable costs associated
with the termination of the Servicer, appointment of any successor Servicer and
the transfer of servicing to a successor Servicer, including without limitation
all reasonable costs and expenses associated with the completion, correction or
manipulation of servicing data as may be required to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Trustee or the
successor Servicer to service the Mortgage Loans properly and effectively.
Section 7.02. Trustee to Act; Appointment of Successor.
(a) Within not more than 90 days from the date the Servicer (and the
Trustee, if notice is sent by the Holders) receives a notice of termination
pursuant to Section 7.01, the Trustee (or any successor Servicer appointed by
the Trustee in accordance with this Section 7.02) shall be the successor in
all respects to the Servicer in its capacity as servicer under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto placed on
the Servicer by the terms and provisions hereof arising on and after its
succession. As compensation therefor, the Trustee shall be entitled to such
compensation as the Servicer would have been entitled to hereunder if no such
notice of termination had been given. Notwithstanding the above, (i) if the
Trustee is unwilling to act as successor Servicer or (ii) if the Trustee is
legally unable so to act, the Trustee shall appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer having a
net worth of not less than $15,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder; provided,
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however, that the appointment of any such successor Servicer shall not result
in the qualification, reduction or withdrawal of the ratings that are in
effect on the Certificates by the Rating Agencies as evidenced by a letter to
such effect from the Rating Agencies. Pending appointment of a successor to
the Servicer hereunder, unless the Trustee is prohibited by law from so
acting, the Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the successor shall be
entitled to receive compensation out of payments on Mortgage Loans in an
amount equal to the compensation which the Servicer would otherwise have
received pursuant to Section 3.18 hereof. The appointment of a successor
Servicer shall not affect any liability of the predecessor Servicer which may
have arisen under this Agreement prior to its termination as Servicer,
including without limitation any liability to pay any deductible under an
insurance policy pursuant to Section 3.14 hereof or to indemnify the Trustee
pursuant to Section 8.05 hereof), nor shall any successor Servicer be liable
for any acts or omissions of the predecessor Servicer or for any breach by
such Servicer of any of its representations or warranties contained herein or
in any related document or agreement. The terminated Servicer shall bear all
costs of any servicing transfer hereunder, including but not limited to costs
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 this Agreement, if necessary.
(b) The Trustee shall be entitled to reimbursement by the Servicer
(or by the Trust Fund pursuant to Section 8.05 if the Servicer is unable to
fulfill its obligations hereunder) for all costs associated in the transfer of
servicing from the predecessor Servicer, including, without limitation, any
costs and expenses associated with the complete transfer of all servicing data
and the completion, connection or manipulation of such servicing data as may
be required by the Trustee to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Trustee to service the Mortgage
Loans properly and effectively.
(c) The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
(d) Any successor, including the Trustee, to the Servicer as Servicer
shall during the term of its service as Servicer continue to service and
administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Servicer hereunder and a
Fidelity Bond in respect of its officers, employees and agents to the same
extent as the Servicer is so required pursuant to Section 3.14 hereof.
Section 7.03. Waiver of Servicer Events of Termination.
The Majority Certificateholders may, on behalf of all
Certificateholders, by notice in writing to the Servicer and the Trustee,
waive any events permitting removal of the Servicer as servicer pursuant to
this Article VII, provided, however, that the Majority Certificateholders may
not waive an event that results in a failure to make any required distribution
on a Certificate without the consent of the Holder of such Certificate. Upon
any waiver of a Servicer Event of Termination, such event shall cease to exist
and any Servicer Event of Termination 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 event or impair any right consequent thereto
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except to the extent expressly so waived. Notice of any such waiver shall be
given by the Trustee to the Rating Agencies.
Section 7.04. Notification to Certificateholders.
(a) Upon any termination or appointment of a successor the Servicer
pursuant to this Article VII or Section 6.04 hereof, the Trustee shall give
prompt written notice thereof to the Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating Agencies.
(b) No later than 60 days after the occurrence of any event which
constitutes or which, with notice or a lapse of time or both, would constitute
a Servicer Event of Termination for five Business Days after a Responsible
Officer of the Trustee becomes aware of the occurrence of such an event, the
Trustee shall transmit by mail to all Certificateholders notice of such
occurrence unless such Servicer Event of Termination shall have been waived or
cured.
Section 7.05. Survivability of Servicer Liabilities.
Notwithstanding anything herein to the contrary, upon termination of
the Servicer hereunder, any liabilities of the Servicer which accrued prior to
such termination shall survive such termination.
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of a Servicer Event of
Termination and after the curing or waiver of all Servicer Events of
Termination which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement. If a
Servicer Event of Termination has occurred (which has not been cured or
waived) of which a Responsible Officer has knowledge, 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 man would
exercise or use under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that the Trustee will not be responsible for the accuracy or content of any
such resolutions, certificates, statements, opinions, reports, documents or
other instruments. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner the Trustee shall take
such action as it deems appropriate to have the instrument corrected.
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No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) prior to the occurrence of a Servicer Event of Termination,
and after the curing of all such Servicer Events of Termination
which may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and, in the absence
of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining or investigating the facts related thereto;
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the consent or at the direction of Holders
of Certificates as provided herein relating to the time, method and
place of conducting any remedy pursuant to this Agreement, or
exercising or omitting to exercise any trust or power conferred upon
the Trustee, under this Agreement; and
(iv) the Trustee shall not be charged with knowledge of any
Servicer Event of Termination unless a Responsible Officer of the
Trustee at the Corporate Trust Office obtains actual knowledge of
such failure or the Trustee receives written notice of such Servicer
Event of Termination from the Servicer or the Majority
Certificateholders.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of,
any of the obligations of the 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 Servicer in accordance
with the terms of this Agreement.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01 hereof:
(i) the Trustee may request and rely upon, and shall be
protected in acting or refraining from acting upon, any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine
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and to have been signed or presented by the proper party or parties,
and the manner of obtaining consents and of evidencing the
authorization of the execution thereof by Certificateholders shall
be subject to such reasonable regulations as the Trustee may
prescribe;
(ii) the Trustee may consult with counsel and any written
advice of its counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; 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 any such act;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of a Servicer Event of Termination
and after the curing or waiver of all Servicer Events of Termination
which may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or documents,
unless requested in writing to do so by the Majority
Certificateholder; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such cost, expense
or liability as a condition to such proceeding. The reasonable
expense of every such examination shall be paid by the Servicer or,
if paid by the Trustee, shall be reimbursed by the Servicer upon
demand (or if the Servicer fails to reimburse the Trustee, by the
Trust Fund). Nothing in this clause (v) shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors;
(vi) the Trustee shall not be accountable, shall have no
liability and makes no representation as to any acts or omissions
hereunder of the Servicer until such time as the Trustee may be
required to act as Servicer pursuant to Section 7.02 hereof and
thereupon only for the acts or omissions of the Trustee as successor
Servicer;
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(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian; and
(viii) 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.
Section 8.02A. No Solicitations.
From and after the Closing Date, the Trustee agrees that it will not
take any action, to personally, by telephone or mail, solicit the Mortgagor
under any Mortgage Loan for any purpose; provided, however, that it is
understood and agreed that promotions undertaken by the Trustee which are
directed to the customers of the Trustee or the public generally, including,
without limitation, mass mailings based on commercially acquired mailing
lists, newspaper, radio and television advertisements, shall not constitute
solicitations under this section, nor is the Trustee prohibited from
responding to unsolicited requests or inquiries made by a Mortgagor or an
agent of a Mortgagor. In addition, the Trustee agrees that it will not provide
to any third party, including any Affiliate of the Trustee, any information,
including but not limited to the names of any Mortgagors or the addresses of
any Mortgaged Properties, related to any Mortgagor or Mortgage Loan, except as
otherwise contemplated by this Agreement.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
authentication of the Trustee on the Certificates) shall be taken as the
statements of the Seller, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates (other than
the signature and authentication of the Trustee on the Certificates) or of any
Mortgage Loan or related document. The Trustee shall not be accountable for
the use or application by the Servicer, or for the use or application of any
funds paid to the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Servicer. The Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage or any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the
Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and enforceability of any hazard insurance thereon (other than if the Trustee
shall assume the duties of the Servicer pursuant to Section 7.02 hereof); the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume
the duties of the Servicer pursuant to Section 7.02); the compliance by the
Depositor, the Seller or the Servicer with any warranty or representation made
under this Agreement or in any related document or the accuracy of any such
warranty or representation prior to the Trustee's receipt of notice or other
discovery of any non-compliance therewith or any breach thereof; any
investment of monies by or at the direction of the Servicer or any loss
resulting therefrom, it being understood
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that the Trustee shall remain responsible for any Trust property that it may
hold in its individual capacity; the acts or omissions of the Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to
Section 7.02 and then only for the acts or omissions of the Trustee as
successor Servicer), any Sub-Servicer or any Mortgagor; any action of the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), or any Sub-Servicer taken in the name of the
Trustee; the failure of the Servicer or any Sub-Servicer to act or perform any
duties required of it as agent of the Trustee hereunder; or any action by the
Trustee taken at the instruction of the Servicer (other than if the Trustee
shall assume the duties of the Servicer pursuant to Section 7.02 and then only
for the actions of the Trustee as successor Servicer); provided, however, that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties under this Agreement, including, without limitation, the Trustee's duty
to review the Mortgage Files, if so required pursuant to Section 2.01 hereof.
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 (unless the Trustee shall have become the successor Servicer).
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact any banking and trust business
with the Seller, the Servicer, the Depositor or their Affiliates with the same
rights as it would have if it were not Trustee.
Section 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for all services rendered by the Trustee
in the exercise and performance of any of the powers and duties hereunder, shall
be entitled to withdraw from the Distribution Account on each Distribution Date
an amount equal to the Trustee Fee for such Distribution Date. The Trust Fund
shall pay or reimburse the Trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement (including but not limited to Section
7.01 and Section 8.02(v) hereof and including the reasonable compensation and
the expenses and disbursements of its counsel and of all persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith or which is the responsibility of
Certificateholders or the Trustee hereunder. In addition, the Trust Fund shall
indemnify the Trustee and its officers, directors, employees and agents from,
and hold it harmless against, any and all losses, liabilities, damages, claims
or expenses incurred in connection with any legal action relating to this
Agreement, the Trust Fund or the Certificates, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence of
the Trustee in the performance of its duties hereunder or by reason of the
Trustee's reckless disregard of obligations and duties hereunder. This section
shall survive termination of this Agreement or the resignation or removal of the
Trustee hereunder.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an entity duly organized
and validly existing under the laws of the United States of America or any state
thereof, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000
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and a minimum long-term debt rating of BBB by S&P and Xxxxx'x and a short-term
rating of at least P-1 by Xxxxx'x and in one of S&P's two highest short-term
rating categories, and subject to supervision or examination by federal or
state authority. If such entity publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section 8.06, the
combined capital and surplus of such entity shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The principal office of the Trustee (other than the initial
Trustee) shall be in a state with respect to which an Opinion of Counsel has
been delivered to such Trustee at the time such Trustee is appointed Trustee
to the effect that the Trust will not be a taxable entity under the laws of
such state. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07
hereof.
Section 8.07. Resignation or Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Seller,
the Servicer and the Rating Agencies. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and having accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof or if at any time the Trustee shall
be legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor or the Servicer may remove the Trustee. If the Depositor or the
Servicer removes the Trustee under the authority of the immediately preceding
sentence, the Servicer shall promptly appoint a successor Trustee, with the
consent of the Depositor, which consent shall not be unreasonably withheld, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
The Majority Certificateholders may at any time remove the Trustee by
written instrument or instruments delivered to the Servicer, the Depositor and
the Trustee; the Servicer, with the consent of the Depositor, which consent
shall not be unreasonably withheld, shall thereupon use its best efforts to
appoint a successor trustee in accordance with this Section.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08 hereof.
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Section 8.08. Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor, the Seller, the
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. The Depositor, the Seller, the Servicer and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties and
obligations.
No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 8.06 hereof and the appointment of
such successor Trustee shall not result in a downgrading of the Senior
Certificates by either Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the successor Trustee shall mail notice of the appointment of
a successor Trustee hereunder to all Holders of Certificates at their addresses
as shown in the Certificate Register and to each Rating Agency.
Section 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such entity shall be eligible under the provisions of
Section 8.06 and 8.08 hereof, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or any Mortgaged Property may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons, with the
consent of the Depositor, which consent shall not be unreasonably withheld,
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Servicer and the Trustee
may consider necessary or desirable. Any such co-trustee or separate trustee
shall be subject to the written approval of the Servicer. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by
it of a request so to do, or in the case a Servicer Event of Termination shall
have occurred and be
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continuing, the Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 8.06 hereof, and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08 hereof.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to
be performed (whether as Trustee hereunder or as successor to the
Servicer hereunder), the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Servicer and the Trustee, acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee except that following the occurrence of a Servicer Event
of Termination, the Trustee acting alone may accept the resignation
or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Depositor and the Servicer.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
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Section 8.11. Limitation of Liability.
The Certificates are executed by the Trustee, not in its individual
capacity but solely as Trustee of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the
undertakings and agreements made on the part of the Trustee in the
Certificates is made and intended not as a personal undertaking or agreement
by the Trustee but is made and intended for the purpose of binding only the
Trust.
Section 8.12. Trustee May Enforce Claims Without Possession of
Certificates.
(a) All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee
shall be brought in its own name or in its capacity as Trustee for the benefit
of all Holders of such Certificates, subject to the provisions of this
Agreement. Any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursement and advances of the
Trustee, its agents and counsel, be for the ratable benefit or the
Certificateholders in respect of which such judgment has been recovered.
(b) The Trustee shall afford the Seller, the Depositor, the Servicer
and each Certificateholder upon reasonable notice during normal business hours
at its Corporate Trust Office or other office designated by the Trustee,
access to all records maintained by the Trustee in respect of its duties
hereunder and access to officers of the Trustee responsible for performing
such duties. Upon request, the Trustee shall furnish the Depositor, the
Servicer and any requesting Certificateholder with its most recent audited
financial statements. The Trustee shall cooperate fully with the Seller, the
Servicer, the Depositor and such Certificateholder and shall, subject to the
first sentence of this Section 8.12(b), make available to the Seller, the
Servicer, the Depositor and such Certificateholder for review and copying such
books, documents or records as may be requested with respect to the Trustee's
duties hereunder. The Seller, the Depositor, the Servicer and the
Certificateholders shall not have any responsibility or liability for any
action or failure to act by the Trustee and are not obligated to supervise the
performance of the Trustee under this Agreement or otherwise.
Section 8.13. Suits for Enforcement.
In case a Servicer Event of Termination or other default by the
Servicer or the Depositor hereunder shall occur and be continuing, the Trustee
may proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution
of any power granted in this Agreement or for the enforcement of any other
legal, equitable or other remedy, as the Trustee, being advised by counsel,
and subject to the foregoing, shall deem most effectual to protect and enforce
any of the rights of the Trustee and the Certificateholders.
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Section 8.14. Waiver of Bond Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee post a bond or other surety with any
court, agency or body whatsoever.
Section 8.15. Waiver of Inventory, Accounting and Appraisal
Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
Section 8.16. Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or
more custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee, by entering into a Custodial Agreement. The custodian may at any
time be terminated by the Servicer and a substitute custodian appointed
therefor with the consent of the Trustee, which consent shall not be
unreasonably withheld. Subject to this Article VIII, the Trustee agrees to
comply with the terms of each Custodial Agreement and to enforce the terms and
provisions thereof against the custodian for the benefit of the
Certificateholders having an interest in any Mortgage File held by such
custodian. Each custodian shall be a depository institution or trust company
subject to supervision by federal or state authority, shall have combined
capital and surplus of at least $15,000,000 and shall be qualified to do
business in the jurisdiction in which it holds any Mortgage File. The Servicer
shall pay from its own funds, without any right to reimbursement, the fees,
costs and expenses of each custodian (including the costs of custodian's
counsel).
ARTICLE IX
REMIC ADMINISTRATION
Section 9.01. REMIC Administration.
(a) As set forth in the Preliminary Statement to this Agreement, two
REMIC elections shall be made by the Trustee on Form 1066 or other appropriate
federal tax or information return and, if applicable, under Applicable State
or Local Tax Laws for the taxable year ending on the last day of the calendar
year in which the Certificates are issued. The regular interests and the sole
class of residual interests in each REMIC shall be as designated in the
Preliminary Statement. The Servicer shall not permit the creation of, nor
shall the Trustee create, any "interests" (within the meaning of Section 860G
of the Code) in any REMIC created hereunder other than the interests specified
in the immediately preceding sentence. Following the Closing Date, the Trustee
shall apply to the IRS for an employer identification number for each REMIC
created hereunder by means of a Form SS-4 or other acceptable method.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC created hereunder within the meaning of section 86OG(a)(9) of the
Code.
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(c) Except as provided in subsection (d) of this Section 9.01, the
Trustee shall pay any and all tax related expenses (not including taxes) of
each REMIC created hereunder, 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 referred to in clause (i) above
from the Collection Account.
(d) The Trustee shall prepare, and the Trustee shall sign (or cause
to be signed) and file, all of the federal and state tax and information
returns of each REMIC created hereunder as the direct representative. The
expenses of preparing and filing such returns shall be borne by the Trustee.
Notwithstanding the foregoing, the Trustee shall have no obligation to
prepare, file or otherwise deal with partnership tax information or returns.
In the event that partnership tax information or returns are required by the
Internal Revenue Service, the Seller, at its own cost and expense, will
prepare and file all necessary returns.
(e) The Holder of the Class A-R Certificate at any time holding the
largest Percentage Interest thereof shall be the "tax matters person" as
defined in the REMIC Provisions (the "Tax Matters Person") with respect to
each REMIC created hereunder and shall act as Tax Matters Person for each such
REMIC. By its acceptance hereof, the Tax Matters Person hereby appoints the
Trustee as its agent to perform all of the duties of the Tax Matters Person
with respect to each REMIC created hereunder and the Trustee hereby accepts
such appointment. The Trustee, as agent for the Tax Matters Person, shall
perform on behalf of each REMIC created hereunder all reporting and other tax
compliance duties that are the responsibility of each 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, as agent for the Tax Matters Person, 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 the Class A-R
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 (to the extent that the affairs of the REMICs are
within its control and the scope of its specific responsibilities under the
Agreement), the Servicer and the Holders of Certificates shall take any action
or cause any REMIC created hereunder to take any action necessary to create or
maintain the status of each REMIC created hereunder as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain such
status. Neither the Trustee, the Servicer nor the Holder of the Class A-R
Certificate shall take any action, cause any REMIC created hereunder 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 any REMIC created hereunder as a REMIC or (ii)
result in the imposition of a tax upon any REMIC created hereunder (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
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Event") unless the Trustee and the Servicer have received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such status or result in
the imposition of such a tax. In addition, prior to taking any action with
respect to any REMIC created hereunder or the assets therein, or causing any
such REMIC to take any action which is not expressly permitted under the terms
of this Agreement, any Holder of the Class A-R Certificate will consult with
the Trustee and the Servicer, or their respective designees, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur
with respect to any such REMIC, and no such Person shall take any such action
or cause any REMIC created hereunder to take any such action as to which the
Trustee or the Servicer has advised it in writing that an Adverse REMIC Event
could occur. Should the Trustee choose to consult tax counsel as permitted
under Section 8.02(a)(ii) in advising any Holder of the Class A-R Certificate
that a proposed action may result in an Adverse REMIC Event, fees and expenses
related to such consultation with tax counsel shall be paid from the
Collection Account.
(g) Each Holder of the Class A-R Certificate shall pay when due any
and all taxes imposed on each REMIC created hereunder by federal or state
governmental authorities. To the extent that such Trust taxes are not paid by
the Class A-R Certificateholder, the Trustee shall pay any remaining REMIC
taxes out of current or future amounts otherwise distributable to the Holder
of the Class A-R Certificate or, if no such amounts are available, out of
other amounts held in the Distribution Account, and shall reduce amounts
otherwise payable to holders of regular interests in each such REMIC, as the
case may be.
(h) The Trustee, as agent for the Tax Matters Person, shall, for
federal income tax purposes, maintain books and records with respect to each
REMIC created hereunder on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC
created hereunder, except as expressly provided in this Agreement with respect
to eligible substitute mortgage loans.
(j) Neither the Trustee nor the Servicer shall enter into any
arrangement by which any REMIC created hereunder will receive a fee or other
compensation for services.
(k) The Trustee shall treat the Carryover Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that is
owned by the Class X Certificateholders and that is not an asset of any REMIC
created hereunder. The Trustee shall treat Net WAC Carryover Amounts paid with
respect to the Holders of the Class A Certificates as paid first by REMIC 2 to
the Class X Certificateholders, deposited by the Class X Certificateholders
into the Carryover Reserve Fund, and then paid to the Holders of the Class A
Certificates pursuant to an interest rate cap contract written by the Class X
Certificateholders in favor of the Class A Certificates. Thus, each Class A
Certificate shall be treated as representing ownership of not only regular
interests in REMIC 2, but also ownership of an interest in an interest rate
cap contract. For purposes of determining the issue price of the regular
interests in REMIC 2, the Trustee shall assume that each interest rate cap
contract has a value of $5,000.
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Section 9.02. Prohibited Transactions and Activities.
Neither the Depositor, the 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 any REMIC created
hereunder pursuant to Article X 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
created hereunder, nor sell or dispose of any investments in the Distribution
Account for gain, nor accept any contributions to any REMIC created hereunder
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 any REMIC created hereunder as a REMIC or of the
interests therein other than the Class A-R Certificate as the "residual
interest" 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 any REMIC created hereunder to be subject to a tax on
prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
Section 9.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status.
In the event that any REMIC created hereunder fails to qualify as a
REMIC, lose 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 Servicer of its
duties and obligations set forth herein, the Servicer shall indemnify the
Holder of the Class A-R Certificate against any and all losses, claims,
damages, liabilities or expenses ("Losses") resulting from such negligence;
provided, however, that the Servicer shall not be liable for any such Losses
attributable to the action or inaction of the Trustee, the Depositor or the
Holder of Class A-R Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Trustee or the Holder of the
Class A-R Certificate on which the Servicer has relied. The foregoing shall
not be deemed to limit or restrict the rights and remedies of the Holder of
the Class A-R Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Servicer 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 Servicer 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 9.04. REO Property.
(a) Notwithstanding any other provision of this Agreement, the
Servicer, acting on behalf of the Trustee hereunder, shall not, and shall not
permit any Subservicer to, rent, lease, or otherwise earn income on behalf of
any REMIC created hereunder 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 such
REMIC of any "income from non-permitted assets" within the meaning of section
860F(a)(2) of the Code or
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any "net income from foreclosure property" which is subject to tax under the
REMIC Provisions unless the Servicer has obtained an Opinion of Counsel (a
copy of which shall be delivered to the Trustee) to the effect that, under the
REMIC Provisions, such action would not adversely affect the status of any
REMIC created hereunder 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 Servicer shall make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Servicer shall
dispose of any REO Property within three years of its acquisition by the Trust
Fund unless the Servicer on behalf of the Trust Fund has received a grant of
extension (a copy of which shall be provided to the Trustee) 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 such REMIC
status of any REMIC created hereunder or causing the imposition of a federal
or state tax upon such REMIC. If the Servicer has received such an extension,
then the Servicer shall 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 Servicer has not received such an
extension and the Servicer is unable to sell the REO Property within 33 months
after its acquisition by the Trust Fund or if the Servicer has received such
an extension, and the Servicer is unable to sell the REO Property within the
period ending three months before the close of the Extended Period, the
Servicer shall 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 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 X
TERMINATION
Section 10.01. Termination.
(a) The respective obligations and responsibilities of the Seller,
the Servicer, the Depositor and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments to Certificateholders after
the final Distribution Date and the obligation of the Servicer to send certain
notices as hereinafter set forth) shall terminate upon notice to the Trustee
upon the earliest of (i) the Distribution Date on which the Class Certificate
Principal Balance of each Class of Certificates has been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan, (iii) the
optional purchase by the Servicer of the Mortgage Loans as described below and
(iv) the Latest Possible Maturity Date. Notwithstanding the foregoing, in no
event shall the trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. James's,
living on the date hereof.
The Servicer may, at its option, terminate this Agreement on any date
on which the aggregate of the Principal Balances of the Mortgage Loans on such
date is 5% or less of the aggregate of the Cut-off Date Principal Balance of
the Mortgage Loans, by purchasing, on the
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related Distribution Date, all of the outstanding Mortgage Loans and REO
Properties at a price equal to the sum of the outstanding Principal Balances
of the Mortgage Loans (including each Mortgage Loan related to an REO
Property) and accrued and unpaid interest thereon at the weighted average of
the Adjusted Mortgage Rates through the end of the Due Period preceding the
final Distribution Date, plus unreimbursed Servicing Advances and any unpaid
Servicing Fees allocable to such Mortgage Loans and REO Properties, plus all
amounts, if any, then due and owing to the Trustee under this Agreement (the
"Termination Price").
In connection with any such purchase pursuant to the preceding
paragraph, the Servicer shall deposit in the Distribution Account all amounts
then on deposit in the Collection Account, which deposit shall be deemed to
have occurred immediately preceding such purchase.
(b) Notice of any termination pursuant to the second paragraph of
Section 10.01(a), specifying the Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon the
Trustee receiving notice of such date from the Servicer, by letter to the
Certificateholders mailed not earlier than the 5th day and not later than the
15th day of the month immediately preceding the month of such final
distribution specifying (1) the Distribution Date upon which final
distribution of the Certificates will be made upon presentation and surrender
of such Certificates at the office or agency of the Trustee therein
designated, (2) the amount of any such final distribution and (3) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified.
(c) Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed to
such Holders in accordance with the provisions of Section 4.01 hereof for such
Distribution Date.
(d) In the event that all Certificateholders shall not surrender
their Certificates for final payment and cancellation on or before such final
Distribution Date, the Trustee shall promptly following such date cause all
funds in the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate account for the
benefit of such Certificateholders, and the Servicer (if the Servicer has
exercised its right to purchase the Mortgage Loans) or the Trustee (in any
other case) 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 nine months
after the second notice all the Certificates shall not have been surrendered
for cancellation, the Class A-R Certificateholder shall be entitled to all
unclaimed funds and other assets which remain subject hereto, and the Trustee
upon transfer of such funds shall be discharged of any responsibility for such
funds, and the Certificateholders shall look to the Class A-R
Certificateholder for payment.
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Section 10.02. Additional Termination Requirements.
(a) In the event that the Servicer exercises its purchase option as
provided in Section 10.01, the Trust shall be terminated in accordance with
the following additional requirements, unless the Trustee shall have been
furnished with an Opinion of Counsel to the effect that the failure of the
Trust to comply with the requirements of this Section will not (i) result in
the imposition of taxes on "prohibited transactions" of the Trust as defined
in Section 860F of the Code or (ii) cause the REMIC constituting the Trust
Fund to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) within 90 days prior to the final Distribution Date, the
Trustee shall adopt and sign a plan of complete liquidation of the
REMIC meeting the requirements of a "Qualified Liquidation" under
Section 860F of the Code and any regulations thereunder;
(ii) at or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date,
the Trustee shall sell all of the assets of the Trust to the
Servicer for cash pursuant to the terms of the plan of complete
liquidation; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited to the Holders of each Class of the
Certificates, the related Class Certificate Principal Balance of the
Class, plus one month's interest thereon at the applicable
Pass-Through Rate, and the Trust shall terminate at such time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to appoint the Trustee as their attorney in fact to: (i) adopt such a
plan of complete liquidation (and the Certificateholders hereby appoint the
Trustee as their attorney in fact to sign such plan) as appropriate and (ii)
to take such other action in connection therewith as may be reasonably
required to carry out such plan of complete liquidation all in accordance with
the terms hereof.
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Amendment.
This Agreement may be amended from time to time by Seller, the
Depositor, the Servicer and the Trustee; and without the consent of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement
any provisions herein which may be defective or inconsistent with any other
provisions herein or (iii) to make any other provisions with respect to
matters or questions arising under this Agreement, which shall not be
inconsistent with the provisions of this Agreement; provided, however, that
any such action listed in clause (i) through (iii) above shall be deemed not
to adversely affect in any material respect the interests of any
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Certificateholder, if evidenced by (i) written notice to the Depositor, the
Seller, the Servicer and the Trustee from the Rating Agencies that such action
will not result in the reduction or withdrawal of the rating of any
outstanding Class of Certificates with respect to which it is a Rating Agency
or (ii) an Opinion of Counsel delivered to the Servicer and the Trustee.
In addition, this Agreement may be amended from time to time for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of any Class of Certificates by the Seller, the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates of each
Class affected thereby evidencing a majority Percentage Interest in such Class;
provided, however, that no such amendment or waiver shall (x) reduce in any
manner the amount of, or delay the timing of, payments on the Certificates which
are required to be made on any Certificate without the consent of the Holder of
such Certificate, (y) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner other than as described in
clause (x) above, without the consent of the Holders of Certificates of such
Class evidencing at least a 66% Percentage Interest in such Class, or (z) reduce
the percentage of Voting Rights required by clause (y) above without the consent
of the Holders of all Certificates of such Class then outstanding. Upon approval
of an amendment, a copy of such amendment shall be sent to the Rating Agencies.
Notwithstanding any provision of this Agreement to the contrary, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, delivered by and at the expense of
the Person seeking such Amendment (unless such Person is the Trustee, in which
case the Trustee shall be entitled to be reimbursed for such expenses by the
Trust pursuant to Section 8.05 hereof), to the effect that such amendment will
not result in the imposition of a tax on any REMIC created hereunder pursuant to
the REMIC Provisions or cause any REMIC created hereunder to fail to qualify as
a REMIC at any time that any Certificates are outstanding and that the amendment
is being made in accordance with the terms hereof.
Promptly after the execution of any such amendment the Trustee shall
furnish, at the expense of the Person that requested the amendment if such
Person is the Seller or the Servicer (but in no event at the expense of the
Trustee), otherwise at the expense of the Trust, a copy of such amendment and
the Opinion of Counsel referred to in the immediately preceding paragraph to the
Servicer and the Rating Agencies.
It shall not be necessary for the consent of Certificateholders under
this Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this 12.01 Section that affects its rights, duties and
immunities under this Agreement or otherwise.
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Section 12.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Servicer
at the expense of the Trust, but only upon direction of Certificateholders
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall together constitute
but one and the same instrument.
Section 12.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not (i)
operate to terminate this Agreement or the Trust, (ii) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
the Trust or (iii) otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
Except as expressly provided for herein, no Certificateholder shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third person by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 15 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more
Holders of Certificates shall have any right in any manner whatever by virtue
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, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal,
ratable and common
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benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 12.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.04. Governing Law; Jurisdiction.
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. With respect to
any claim arising out of this Agreement, each party irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in The City of New
York, and each party irrevocably waives any objection which it may have at any
time to the laying of venue of any suit, action or proceeding arising out of
or relating hereto brought in any such courts, irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in any inconvenient forum and further irrevocably waives the right to
object, with respect to such claim, suit, action or proceeding brought in any
such court, that such court does not have jurisdiction over such party,
provided that service of process has been made by any lawful means.
Section 12.05. Notices.
All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed
by first class mail, postage prepaid, or by express delivery service or
facsimile to (a) in the case of the Seller or the Servicer, to First Republic
Bank, 000 Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx
(telecopy number (000) 000-0000) with a copy to the General Counsel (telecopy
number (000) 000-0000) or such other address or telecopy number as may
hereafter be furnished to the Depositor, the Trustee and the Servicer in
writing by the Seller or the Servicer, (b) in the case of the Trustee, to
Xxxxx Fargo Bank Minnesota, National Association, 00000 Xxxxxx Xxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Services - Mortgage
Loan Pass-Through Certificates, Series 2001-FRB1 (telecopy number (410)
884-2600), with a copy to the Corporate Trust Office or such other address or
telecopy number as may hereafter be furnished to the Depositor, the Seller and
the Servicer in writing by the Trustee, (c) in the case of the Depositor,
Greenwich Capital Acceptance, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: General Counsel (telecopy number (000) 000-0000), or such
other address or telecopy number as may be furnished to the Seller, the
Servicer and the Trustee in writing by the Depositor. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Notice of any Servicer Event of Termination shall be
given by telecopy and by certified mail. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have duly been
given when mailed, whether or not the Certificateholder receives such notice.
A copy of any notice required to be telecopied hereunder shall also be mailed
to the appropriate party in the manner set forth above.
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Section 12.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall for any reason whatsoever be 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 12.07. Article and Section References.
All article and section references used in this Agreement, unless
otherwise provided, are to articles and sections in this Agreement.
Section 12.08. Notice to the Rating Agencies.
(a) Each of the Trustee and the Servicer shall be obligated to use
its best reasonable efforts promptly to provide notice to the Rating Agencies
with respect to each of the following of which a Responsible Officer of the
Trustee or the Servicer, as the case may be, has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Servicer Event of Termination that
has not been cured or waived;
(iii) the resignation or termination of the Servicer or the
Trustee;
(iv) the final payment to Holders of the Certificates of any
Class;
(v) any change in the location of any Account; and
(vi) if the Trustee is acting as successor Servicer pursuant to
Section 7.02 hereof, any event that would result in the inability of
the Trustee to make Advances.
(b) The Servicer shall promptly furnish to each Rating Agency copies
of the following:
(i) each annual statement as to compliance described in Section
3.20 hereof;
(ii) each annual independent public accountants' servicing
report described in Section 3.21 hereof; and
(iii) each notice delivered pursuant to Section 7.01(a) hereof
which relates to the fact that the Servicer has not made an Advance.
Any such notice pursuant to this Section 12.08 shall be in writing
and shall be deemed to have been duly given if personally delivered or mailed
by first class mail, postage prepaid, or by express delivery service to
Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
and to Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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Section 12.09. Further Assurances.
Notwithstanding any other provision of this Agreement, neither the
Regular Certificateholders nor the Trustee shall have any obligation to
consent to any amendment or modification of this Agreement unless they have
been provided reasonable security or indemnity against their out-of-pocket
expenses (including reasonable attorneys' fees) to be incurred in connection
therewith.
Section 12.10. Benefits of Agreement.
Nothing in this Agreement or in the Certificates, expressed or
implied, shall give to any Person, other than the Certificateholders and the
parties hereto and their successors hereunder, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
Section 12.11. Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or
by agent duly appointed in writing, and such action shall become effective
when such instrument or instruments are delivered to the Trustee, the Seller
and the Servicer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "act"
of the Certificateholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and conclusive in favor
of the Trustee and the Trust, if made in the manner provided in this Section
12.11.
(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 a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Whenever such execution is by a signer acting in a capacity other than his or
her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by any Certificateholder shall bind every future Holder
of such 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 Trust in reliance thereon, whether or not notation of such action is made
upon such Certificate.
113
IN WITNESS WHEREOF, the Depositor, the Seller and the Servicer and
the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Depositor
By: /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
FIRST REPUBLIC BANK,
as Seller and Servicer
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
STATE OF Connecticut )
) ss.:
COUNTY OF Fairfield )
On the 4th day of December 2001, before me, a notary public in and
for said State, personally appeared Xxxx Xxxxxxx known to me to be a Senior
Vice President of Greenwich Capital Acceptance, Inc., a Delaware corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Xxxxxxx XxXxxxx
---------------------------
Notary Public
STATE OF California )
) ss.:
COUNTY OF San Francisco )
On the 4th day of December 2001, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxx known to me to be a Senior
Vice President of First Republic Bank, a Nevada state-chartered bank that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said bank, and acknowledged to me that such bank
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
X. Xxxxxxx
--------------------------
Notary Public
STATE OF Maryland )
) ss.:
COUNTY OF Xxxxxx )
On the 4th day of December 2001, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxx, known to me to be an
Assistant Vice President of Xxxxx Fargo Bank Minnesota, National Association,
a national banking association that executed the within instrument, and also
known to me to be the person who executed it on behalf of said association,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Xxxxxxxx X. Xxxx
---------------------------
Notary Public
SCHEDULE I
Mortgage Loan Schedule
(Not included in 8-K filing)
S-I-1
SCHEDULE II
Form of Monthly Servicer Report
[TO BE AGREED UPON BY THE TRUSTEE AND THE SERVICER]
S-II-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATES (OTHER THAN THE
CLASS X CERTIFICATES AND CLASS A-R CERTIFICATE)]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
A-1
Certificate No. :
Cut-off Date : November 1, 2001
First Distribution Date : December 15, 2001
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $
Original Class Certificate
Principal Balance of this
Class : $
Pass-Through Rate :
CUSIP :
Class :
Assumed Final Distribution Date :
First Republic Mortgage Loan Trust 2001-FRB1,
Mortgage Loan Pass-Through Certificates,
Series 2001-FRB1,
Class A-[ ]
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of first lien, adjustable rate mortgage
loans (the "Mortgage Loans") purchased from the Seller by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this Class
A Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class A
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer or the Trustee referred
to below or any of their respective affiliates.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class A Certificate (obtained by
dividing the Denomination of this Class A Certificate by the Original Class
Certificate Principal Balance) in certain monthly distributions with respect
to a Trust consisting primarily of the Mortgage Loans deposited by Greenwich
Capital Acceptance, Inc. (the "Depositor"). The Trust was created pursuant to
a Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among the Depositor, First Republic Bank, as seller and servicer
(the "Seller" and "Servicer"), and Xxxxx Fargo Bank
A-2
Minnesota, National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Class A Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
Reference is hereby made to the further provisions of this Class A
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Class A Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: December __, 2001
FIRST REPUBLIC MORTGAGE LOAN TRUST 2001-FRB1
By: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By
---------------------------------------------------------
This is one of the Certificates
referenced in the within-mentioned Agreement
By ___________________________________________________
Authorized Signatory of Xxxxx Fargo Bank Minnesota,
National Association, as Trustee
A-4
EXHIBIT B
[FORM OF CLASS X CERTIFICATES]
THIS CLASS X CERTIFICATE IS AN INTEREST ONLY CERTIFICATE, HAS NO PRINCIPAL
BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
B-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Percentage Interest :
Pass-Through Rate :
Class :
Assumed Maturity Date :
First Republic Mortgage Loan Trust 2001-FRB1
Mortgage Loan Pass-Through Certificates,
Series 2001-FRB1
Class X
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of three groups of first lien, adjustable
rate mortgage loans (the "Mortgage Loans") purchased from the Seller
by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Seller, the Servicer or the Trustee referred to below or any of their
respective affiliates.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class X Certificate in certain monthly
distributions with respect to a Trust consisting primarily of the Mortgage
Loans deposited by Greenwich Capital Acceptance, Inc. (the "Depositor"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
November 1, 2001 (the "Agreement") among the Depositor, First Republic Bank,
as seller and servicer (the "Seller" and "Servicer"), and Xxxxx Fargo Bank
Minnesota, National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Class X Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class X Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
This Certificate does not have a principal balance and will be
entitled to distributions only to the extent set forth in the Agreement.
Reference is hereby made to the further provisions of this Class X
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
B-2
This Class X Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
B-3
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: December __, 2001
FIRST REPUBLIC MORTGAGE LOAN TRUST 2001-FRB1
By: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By _____________________________________
This is the Class X Certificate
referenced in the within-mentioned Agreement
By ________________________________________
Authorized Signatory of
Xxxxx Fargo Bank Minnesota, National Association, as Trustee
B-4
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE ON BEHALF OF PLAN OR USING PLAN ASSETS, OR AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date : November 1, 2001
First Distribution Date : December 15, 2001
Initial Certificate Principal
Balance of this Certificate ("Denomination") : $
Original Class Certificate
Principal Balance of
this Class : $
Pass-Through Rate :
CUSIP :
Class :
Assumed Final Distribution Date :
First Republic Mortgage Loan Trust 2001-FRB1
Mortgage Loan Pass-Through Certificates,
Series 2001-FRB1
Class A-R
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of a pool of first lien, adjustable rate
mortgage loans (the "Mortgage Loans") purchased from the Seller by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that First Republic Bank the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this
Certificate belongs in a Trust consisting primarily of the Mortgage Loans
deposited by Greenwich Capital Acceptance, Inc. (the "Depositor"). The Trust
was created pursuant to a Pooling and Servicing Agreement dated as of November
1, 2001 (the "Agreement") among the Depositor, certain affiliates of First
Republic Bank, as seller and servicer, (the "Seller" and "Servicer"), and
Xxxxx Fargo Bank Minnesota, National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to
C-2
the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to the Trustee and in substantially
the form attached to the Agreement, to the effect that such transferee is not
an employee benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee, or (ii) if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under PTCE 95-60.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Certificate of this Class to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the opinion of counsel satisfactory to
the Trustee as described above shall be void and of no effect.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Certificate must be a Permitted Transferee, (ii) no Ownership Interest
in this Certificate may be transferred without delivery to the Trustee of (a)
a transfer affidavit of the proposed transferee and (b) a transfer certificate
of the transferor, each of such documents to be in the form described in the
Agreement, (iii) each person holding or acquiring any Ownership Interest in
this Certificate must agree to require a transfer affidavit and to deliver a
transfer certificate to the Trustee as required pursuant to the Agreement,
(iv) each person holding or acquiring an Ownership Interest in this
Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be absolutely null and void and will vest no rights in the purported
transferee. The Trustee will provide the Internal Revenue Service and any
pertinent persons with the information needed to compute the tax imposed under
the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest on a Class A-R Certificate in violation of the restrictions
mentioned above.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized officer of the Trustee.
* * *
C-3
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: December __, 2001
FIRST REPUBLIC MORTGAGE LOAN TRUST 2001-FRB1
By: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By _____________________________________
This is the Class A-R Certificate
referenced in the within-mentioned Agreement
By ___________________________________________
Authorized Signatory of
Xxxxx Fargo Bank Minnesota, National Association
C-4
EXHIBIT D
[FORM OF SUBORDINATE CERTIFICATE]
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY APPLICABLE STATE OR
FOREIGN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS CERTIFICATE, THE OWNER OF
THIS CERTIFICATE IS DEEMED TO REPRESENT TO THE TRUSTEE THAT (I) IT IS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D PROMULGATED UNDER THE SECURITIES ACT AND THAT IT IS ACQUIRING
THIS CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS
A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL
ACCREDITED INVESTORS) FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF OR (II) THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT AND IS ACQUIRING SUCH CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUICIARY OR AGENT FOR OTHERS (WHICH OTHERS ARE
ALSO QUALIFIED INSTITUTIONAL BUYERS).]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[THIS CLASS OF CERTIFICATES CONSISTS OF SUBORDINATED SECURITIES AND THEY WILL
NOT SATISFY THE REQUIREMENTS OF CERTAIN PROHIBITED TRANSACTION EXEMPTIONS. AS
A RESULT, THE PURCHASE OR HOLDING OF ANY OF THIS CLASS OF CERTIFICATES BY A
PLAN INVESTOR MAY CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION OR RESULT IN
THE IMPOSITION OF
D-1
EXCISE TAXES OR CIVIL PENALTIES UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA") OR THE CODE. ACCORDINGLY, NONE OF THIS CLASS
OF CERTIFICATES ARE OFFERED FOR SALE, AND ARE NOT TRANSFERABLE, TO PLAN
INVESTORS UNLESS AN EXEMPTION FROM THE PROHIBITED TRANSACTION RULES OF ERISA
AND THE CODE APPLIES TO THE ACQUISITION, HOLDING, AND RESALE OF SUCH
CERTIFICATE. EACH PURCHASER OF THIS CLASS OF CERTIFICATE, BY VIRTUE OF ITS
PURCHASE OF SUCH CERTIFICATE, WILL BE DEEMED TO HAVE REPRESENTED EITHER THAT
IT IS NOT A PLAN INVESTOR OR THAT CERTAIN EXEMPTIONS FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE APPLY TO THE PLAN INVESTOR'S
ACQUISITION, HOLDING, AND RESALE OF SUCH CERTIFICATES.]
THIS CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.
D-2
Certificate No. :
Cut-off Date : November 1, 2001
First Distribution Date : December 15, 2001
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $
Original Class Certificate
Principal Balance of
this Class : $
Pass-Through Rate :
CUSIP :
Class :
Assumed Final Distribution Date :
First Republic Mortgage Loan Trust 2001-FRB1,
Mortgage Loan Pass-Through Certificates,
Series 2001-FRB1
Class B-[ ]
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of first lien, fixed rate mortgage loans
(the "Mortgage Loans") purchased from the Seller by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this Class
B-[ ] Certificate at any time may be less than the Initial Certificate
Principal Balance set forth on the face hereof, as described herein. This
Class B-[ ] Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates.
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Class B-[ ] Certificate (obtained by
dividing the Denomination of this Class B-[ ] Certificate by the Original
Class Certificate Principal Balance) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Greenwich Capital Acceptance, Inc. (the "Depositor"). The Trust was
D-3
created pursuant to a Pooling and Servicing Agreement dated as of November 1,
2001 (the "Agreement") among the Depositor, First Republic Bank, as seller and
servicer (the "Seller" and "Servicer"), and Xxxxx Fargo Bank Minnesota,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class B-[ ] Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class B-[ ] Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
[The Class B-[ ] Certificates are subordinated securities and they
will not satisfy the requirements of certain prohibited transaction
exemptions. As a result, the purchase or holding of any of the Class B-[ ]
Certificates by a plan investor may constitute a non-exempt prohibited
transaction or result in the imposition of excise taxes or civil penalties
under the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or the Code. Accordingly, none of the Class B-[ ] Certificates are
offered for sale, and are not transferable, to plan investors unless an
exemption from the prohibited transaction rules of ERISA and the Code applies
to the acquisition, holding, and resale of such certificate. Each purchaser of
a Class B-[ ] Certificate, by virtue of its purchase of such Certificate, will
be deemed to have represented either that it is not a plan investor or that
certain exemptions from the prohibited transaction provisions of ERISA and the
Code apply to the plan investor's acquisition, holding, and resale of such
Certificates.]
[No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to the Trustee and in substantially
the form attached to the Agreement, to the effect that such transferee is not
an employee benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee, or (ii) if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under PTCE 95-60.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Certificate of this Class to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the opinion of counsel satisfactory to
the Trustee as described above shall be void and of no effect.]
[No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached to the Pooling and Servicing Agreement, the Trustee and the
Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to
the Trustee and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor or (ii) the
Trustee shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Pooling and Servicing
D-4
Agreement) and the transferee to execute an investment letter (in
substantially the form attached to the Pooling and Servicing Agreement)
acceptable to and in form and substance reasonably satisfactory to the
Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which investment letter shall not be an
expense of the Trustee or the Depositor.]
Reference is hereby made to the further provisions of this Class B-[ ]
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Class B-[ ] Certificate shall not be entitled to any benefit
under the Agreement or be valid for any purpose unless manually countersigned
by an authorized signatory of the Trustee.
D-5
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: December __, 2001
FIRST REPUBLIC MORTGAGE LOAN TRUST 2001-FRB1
By: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By _____________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By ________________________________
Authorized Signatory of Xxxxx Fargo Bank Minnesota,
National Association, as Trustee
D-6
EXHIBIT E
[Form of Reverse of the Certificates]
FIRST REPUBLIC MORTGAGE LOAN TRUST 2001-FRB1
Mortgage Loan Pass-Through Certificates,
Series 2001-FRB1
This Certificate is one of a duly authorized issue of Certificates
designated as First Republic Mortgage Loan Trust 2001-FRB1, Mortgage Loan
Pass-Through Certificates, Series 2001-FRB1 (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 15th day of each month or, if such 15th day is not a Business Day then
the first Business Day following such Distribution Date (the "Distribution
Date"), commencing on the first Distribution Date specified on the face
hereof, to the Person in whose name this Certificate is registered at the
close of business on the applicable Record Date in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of Certificates of the Class to
which this Certificate belongs on such Distribution Date pursuant to the
Agreement.
Distributions on this Certificate shall be made by check or money
order mailed to the address of the person entitled thereto as it appears on
the Certificate Register or, upon the request of a Certificateholder, by wire
transfer as set forth in the Agreement. The final distribution on each
Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the office or agency of the Trustee specified
in the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time, by the Depositor, the Seller, the Servicer and the Trustee and of
Holders of the requisite percentage of the Percentage Interests of each Class
of Certificates affected by such amendment, as specified in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon
E-1
this Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
[As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust will be issued to the
designated transferee or transferees.]
[Subject to the terms of the Agreement, each Class of Book-Entry
Certificates will be registered as being held by the Depository or its nominee
and beneficial interests will be held by Certificate Owners through the
book-entry facilities of the Depository or its nominee in minimum
denominations of $25,000 and integral multiples of $1 in excess thereof.]
[The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.]
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date following the date at which the remaining
aggregate Principal Balance of the Mortgage Loans in the Trust is less than 5%
of the aggregate Principal Balance of the Mortgage Loans as of the Cut-off
Date, the Servicer may purchase, in whole, from the Trust the Mortgage Loans,
at a purchase price determined as provided in the Agreement. In the event that
no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon notice to the Trustee upon the
earliest of (i) the Distribution Date on which the aggregate Certificate
Principal Balance of the Certificates has been reduced to zero, (ii) the final
payment or other liquidation of the last Mortgage Loan in the Trust and (iii)
the Distribution Date in [______________]. In no event, however, will the
trust created by the Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Capitalized terms used herein that are defined in the Agreement shall
have the meanings ascribed to them in the Agreement, and nothing herein shall
be deemed inconsistent with that meaning.
E-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal ZIP code of
assignee) the Percentage Interest evidenced by the within Certificate and hereby
authorizes
the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated: _____________
______________________________________
Signature by or on behalf of assignor
E-3
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to______________________________________________for
the account of_______________________________________________________________,
account number ________________________, or, if mailed by check, to
_____________________________________________________________________Applicable
statements should be mailed to ________________________________________________
______________________________________________________________________________.
This information is provided by _________________________, the assignee
named above, or ______________________________________________, as its agent.
E-4
EXHIBIT F
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank Minnesota, National Association
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Inventory Control
Re: Pooling and Servicing Agreement dated November 1, 2001,
among Greenwich Capital Acceptance, Inc., as depositor,
First Republic Bank, as seller and servicer, and
Xxxxx Fargo Bank Minnesota, National Association, as trustee,
for First Republic Mortgage Loan Trust 2001-FRB1
________________________________________________
In connection with the administration of the Mortgage Loans held by you,
as Trustee, pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File
for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address and ZIP Code:
Reason for Requesting Documents (check one):
______ 1. Mortgage Paid in Full
______ 2. Foreclosure
______ 3. Substitution
______ 4. Other Liquidation
______ 5. Nonliquidation, including Repurchase
_____ 6. California Mortgage Loan expected to be paid in full
Reason:
--------------------------------------
By:
----------------------------------------
(authorized signer)
Issuer:
-------------------------------------------
Address:
-------------------------------------------
-------------------------------------------
Date:
-------------------------------------------
F-1
Trustee
-------
Xxxxx Fargo Bank Minnesota, National Association
Please acknowledge the execution of the above request by your signature and
date below:
---------------------------- -----------------------
Signature Date
Documents returned to Trustee:
---------------------------- -----------------------
Trustee Date
F-2
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
Re: Pooling and Servicing Agreement among Greenwich Capital Acceptance,
Inc., as Depositor, First Republic Bank, as Seller and Servicer, and
Xxxxx Fargo Bank Minnesota, National Association, as Trustee, Mortgage
Loan Pass-Through Certificates, Series 0000-XXX0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as 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
the attached schedule) it has received:
(i) all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Pooling and Servicing Agreement are in its possession;
(ii) such documents have been reviewed by the Trustee and have not been
mutilated, damaged or torn and relate to such Mortgage Loan; and
(iii) based on the Trustee's examination and only as to the foregoing,
the information set forth in the Mortgage Loan Schedule that corresponds to
items (i) and (ii) of the Mortgage Loan Schedule accurately reflects
information set forth in the Mortgage File
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
G-1
EXHIBIT G-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
Re: Pooling and Servicing Agreement among Greenwich Capital Acceptance,
Inc., as Depositor , First Republic Bank, as Seller and Servicer, and
Xxxxx Fargo Bank Minnesota, National Association, as Trustee,
Mortgage Loan Pass-Through Certificates, Series 0000-XXX0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as 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
the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed either on its face or
by allonge attached thereto in the following form: "Pay to
the order of Xxxxx Fargo Bank Minnesota, National
Association, as Trustee under the Pooling and Servicing
Agreement, dated as of November 1, 2001, Mortgage Loan Trust
2001-FRB1, Mortgage Pass-Through Certificates, Series
2001-FRB1, without recourse", or with respect to any lost
Mortgage Note, an original Lost Note Affidavit stating that
the original mortgage note was lost, misplaced or destroyed,
together with a copy of the related mortgage note;
(ii) except with respect to a Cooperative Loan and except as
provided below, the original Mortgage with evidence of
recording thereon, and the original recorded power of
attorney, if the Mortgage was executed pursuant to a power
of attorney, with evidence of recording thereon or, if such
Mortgage or power of attorney has been submitted for
recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise
available, a copy of such Mortgage or power of attorney, as
the case may be, certified to be a true and complete copy of
the original submitted for recording;
(iii) except with respect to a Cooperative Loan, an original
Assignment of Mortgage, in form and substance acceptable for
recording. The Mortgage shall be assigned to "Xxxxx Fargo
Bank Minnesota, National Association, as Trustee;
(iv) an original copy of any intervening Assignment of Mortgage
showing a complete chain of assignments;
G-2-1
(v) except with respect to a Cooperative Loan, the original or a
certified copy of lender's title insurance policy;
(vi) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vii) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) the original Coop Shares, together with a stock power
in blank;
(B) the original executed Security Agreement or a copy
hereof;
(C) the original executed Proprietary Lease or a copy
hereof;
(D) the original executed Recognition Agreement or a copy
hereof;
(E) the original executed UCC-1 financing statement with
evidence of recording thereon which has been filed in
all places required to perfect the Seller's interest in
the Coop Shares and the Proprietary Lease; and
(F) the original executed UCC-3 financing statements 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); and
(viii) in the case of a California Cooperative Loan, the following
documents or instruments:
(A) the original Coop Shares, together with an original
stock power in blank;
(B) the original executed Security Agreement or a copy
thereof;
(C) the original executed Proprietary Lease or a copy
thereof;
(D) the original executed Recognition Agreement or a copy
thereof;
(E) the original executed leasehold deed of trust for the
related Mortgaged Property with evidence of recording
thereon or, if such leasehold deed of trust has been
submitted for recording but has not been returned from
the applicable public recording office, has been lost
or is not otherwise available, a copy of such leasehold
deed of trust certified to be a true and complete copy
of the original submitted for recording;
(F) an original assigment of leasehold deed of trust, in
form and substance acceptable for recording, assigned
to "Xxxxx Fargo Bank Minnesota, National Association,
as Trustee"; and
G-2-2
(G) an original copy of any intervening assignment of
leasehold deed of trust showing a complete chain of
assignments.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(xiii), (xv), (xvi) and (xix) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------------------
Name:
----------------------------------------------
Title:
----------------------------------------------
G-2-3
EXHIBIT G-3
FORM OF RECEIPT OF MORTGAGE NOTE
Greenwich Capital Acceptance, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: First Republic Mortgage Loan Trust 2001-FRB1,
Mortgage Loan Pass-Through Certificates, Series 2001-FRB1
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing Agreement,
dated as of November 1, 2001, among Greenwich Capital Acceptance, Inc., as
Depositor, First Republic Bank, as Seller and Servicer, and Xxxxx Fargo Bank
Minnesota, National Association, as Trustee, we hereby acknowledge the receipt
of the original Mortgage Note with respect to each Mortgage Loan listed on
Exhibit 1, with any exceptions thereto listed on Exhibit 2.
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
Name:
Title:
G-3-1
EXHIBIT H
FORM OF LOST NOTE AFFIDAVIT
Personally appeared before me the undersigned authority to administer
oaths, ______________________ who first being duly sworn deposes and says:
Deponent is ______________________ of First Republic Bank (the "Seller") and
who has personal knowledge of the facts set out in this affidavit.
On ___________________, _________________________ did execute and deliver
a promissory note in the principal amount of $__________.
That said note has been misplaced or lost through causes unknown and is
currently lost and unavailable after diligent search has been made. The
Seller's records show that an amount of principal and interest on said note is
still presently outstanding, due, and unpaid, and such Seller is still owner
and holder in due course of said lost note.
Seller executes this Affidavit for the purpose of inducing Xxxxx Fargo
Bank Minnesota, National Association, as trustee on behalf of First Republic
Mortgage Loan Trust 2001-FRB1, Mortgage Loan Pass-Through Certificates, Series
2001-FRB1, to accept the transfer of the above described loan from Seller.
Seller agrees to indemnify Xxxxx Fargo Bank Minnesota, National
Association and Greenwich Capital Acceptance, Inc. and hold them harmless for
any losses incurred by such parties resulting from the fact that the above
described Note has been lost or misplaced.
By: __________________________________
__________________________________
STATE OF )
) ss:
COUNTY OF )
On this ____ day of _______ 2001, before me, a Notary Public, in and for
said County and State, appeared ________________________, who acknowledged the
extension of the foregoing and who, having been duly sworn, states that any
representations therein contained are true.
Witness my hand and Notarial Seal this ____ day of _______ 2001.
___________________________________
___________________________________
My commission expires _______________.
H-1
EXHIBIT I
FORM OF ERISA REPRESENTATION
Greenwich Capital Acceptance, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Xxxxx Fargo Bank Minnesota, National Association
Norwest Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
Re: Mortgage Loan Trust 2001-FRB1,
Mortgage Loan Pass-Through Certificates, Series 2001-FRB1
Ladies and Gentlemen:
1. The undersigned is the ______________________ of (the "Transferee") a
[corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The Transferee either (x)(1) 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 Transferee is an insurance company, such Transferee 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 Transferee 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, the Servicer or the Depositor to any obligation in
addition to those undertaken by such entities in the Pooling and Servicing
Agreement, which opinion of counsel shall not be an expense of the Trustee or
the Depositor.
3. The Transferee hereby acknowledges that under the terms of the Pooling
and Servicing Agreement (the "Agreement") among Greenwich Capital Acceptance,
Inc., as Depositor, First Republic Bank, as Seller and Servicer, and Xxxxx
Fargo Bank Minnesota, National Association, as Trustee, 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.
I-1
IN WITNESS WHEREOF, the Transferee has executed this certificate.
---------------------------------
[Transferee]
By:______________________________
Name:
Title:
I-2
EXHIBIT J
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Greenwich Capital Acceptance, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Xxxxx Fargo Bank Minnesota, National Association
Norwest Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
Re: Mortgage Loan Trust 2001-FRB1,
Mortgage Loan Pass-Through Certificates, Series 2001-FRB1
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates,
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of any such plan, (e) we
are acquiring the Certificates for investment for our own account and not with
a view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt
from such registration requirements, and if requested, we will at our expense
provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made
J-1
pursuant to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and Servicing Agreement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
---------------------------------
Authorized Officer
J-2
FORM OF RULE 144A INVESTMENT LETTER
[DATE]
Greenwich Capital Acceptance, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Xxxxx Fargo Bank Minnesota, National Association
Norwest Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
Re: Mortgage Loan Trust 2001-FRB1,
Mortgage Loan Pass-Through Certificates, Series 2001-FRB1
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have had the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or any additional information deemed necessary to our decision to purchase the
Certificates, (c) we are not an employee benefit plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended, or a plan that is
subject to Section 4975 of the Internal Revenue Code of 1986, as amended, nor
are we acting on behalf of any such plan, (d) we have not, nor has anyone
acting on our behalf offered, transferred, pledged, sold or otherwise disposed
of the Certificates, any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Certificates, any interest in the Certificates or any
other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under the Securities Act or that would render the disposition of the
Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(e) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
J-3
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
Very truly yours,
[NAME OF TRANSFEREE]
By:
----------------------------------
Authorized Officer
J-4
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
i. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
ii. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $____(1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or
the District of Columbia, the business of which is
substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
___ Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the ------------- Securities Exchange
Act of 1934.
________________
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that
case, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
J-5
___ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established
and maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan
within the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
iii. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
v. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
vi. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information
J-6
and conclusions herein. Until such notice is given, the Buyer's purchase of
the Certificates will constitute a reaffirmation of this certification as of
the date of such purchase. In addition, if the Buyer is a bank or savings and
loan is provided above, the Buyer agrees that it will furnish to such parties
updated annual financial statements promptly after they become available.
------------------------------
Print Name of Buyer
By:
------------------------------
Name:
Title:
Date:
------------------------------
J-7
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Buyer or the Buyer's Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If clause
(ii) in the preceding sentence applies, the securities may be valued at
market.
___ The Buyer owned $____ in securities (other than
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment
Companies which owned in the aggregate $____ in securities
(other than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
J-8
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
------------------------------
Print Name of Buyer or Adviser
By:
--------------------------------------
Name:
Title:
IF AN ADVISER:
-----------------------------
Print Name of Buyer
Date:
------------------------------------
J-9
EXHIBIT K
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Greenwich Capital Acceptance, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Xxxxx Fargo Bank Minnesota, National Association
Norwest Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
Re: Mortgage Loan Trust 2001-FRB1,
Mortgage Loan Pass-Through Certificates, Series 2001-FRB1
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act, (c) to the extent we are disposing of a
Class [ ] Certificate, we have no knowledge the Transferee is not a Permitted
Transferee and (d) no purpose of the proposed disposition of a Class [ ]
Certificate is to impede the assessment or collection of tax.
Very truly yours,
[---------------------]
By: ______________________________
K-1
EXHIBIT L
AFFIDAVIT OF TRANSFER OF CLASS A-R CERTIFICATE
PURSUANT TO SECTION 5.02(d)
FIRST REPUBLIC MORTGAGE LOAN TRUST 2001-FRB1,
MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2001-FRB1
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of __________, the proposed
Transferee of a 100% Ownership Interest in the Class A-R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, (the
"Agreement"), relating to the above-referenced Certificates, among Greenwich
Capital Acceptance, Inc., as Depositor, First Republic Bank, as Seller and
Servicer, and Xxxxx Fargo Bank Minnesota, National Association, as Trustee.
Capitalized terms used, but not defined herein or in Exhibit 1 hereto, shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii)
as nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit.
The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false. The Transferee has provided financial statements or other financial
information requested by the Transferor in connection with the transfer of the
Certificate to permit the Transferor to assess the financial capability of the
Transferee to pay such taxes.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
L-1
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(d) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(d) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit L to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is . ------------
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan that is subject to Section 4975 of the Code, nor are we acting
on behalf of such a plan.
L-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this day of ___ ______________, 20__.
[NAME OF TRANSFEREE]
By:
--------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
----------------------------
[Assistant] Secretary
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 Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of ___, 20__.
------------------------------
NOTARY PUBLIC
My Commission
expires the ___ day
of _____________, 20__.
L-3
EXHIBIT 1 to EXHIBIT L
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in Code Section 1381(a)(2)(c), (v) a Person that is not a citizen or resident
of the United States, a corporation, partnership, or other entity created or
organized in or under the laws of the United States, any state thereof or the
District of Columbia, or an estate or trust whose income from sources without
the United States is includible in gross income for United States federal
income tax purposes regardless of its connection with the conduct of a trade
or business within the United States, (vi) an "electing large partnership" as
set forth in Code Section 775, and (vii) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the Transfer of Ownership
Interest in the Class A-R Certificate to such Person may cause the Trust Fund
to fail to qualify as a REMIC at any time that certain Certificates are
Outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in Code Section 7701 or
successor provisions. A corporation 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 Xxxxxxx
Mac, a majority of its board of directors is not selected by such governmental
unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
L-4
EXHIBIT 2 to EXHIBIT L
Sections 5.02(d) and (e) of the Agreement
(d) No transfer, sale, pledge or other disposition of any Private
Certificate shall be made unless such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, (i) unless such
transfer is made in reliance upon Rule 144A (as evidenced by the investment
letter delivered to the Trustee, in substantially the form attached hereto as
Exhibit I under the 1933 Act, the Trustee and the Depositor shall require a
written Opinion of Counsel (which may be in-house counsel) acceptable to and
in form and substance reasonably satisfactory to the Trustee and the Depositor
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being
made pursuant to the 1933 Act, which Opinion of Counsel shall not be an
expense of the Trustee or the Depositor or (ii) the Trustee shall require the
transferor to execute a transferor certificate (in substantially the form
attached hereto as Exhibit J) and the transferee to execute an investment
letter (in substantially the form attached hereto as Exhibit I) acceptable to
and in form and substance reasonably satisfactory to the Depositor and the
Trustee certifying to the Depositor and the Trustee the facts surrounding such
transfer, which investment letter shall not be an expense of the Trustee or
the Depositor. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Seller,
the Servicer and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of an ERISA-Restricted Certificate that is also a
Physical Certificate shall be made unless the Trustee shall have received
either (i) a representation from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor (such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I hereto), to the effect that such transferee is not an employee benefit plan
or arrangement subject to Section 406 of ERISA or a plan subject to Section
4975 of the Code, nor a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such transfer or (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60") and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in
the case of any ERISA-Restricted Certificate that is also a Physical
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel
satisfactory to the Trustee which Opinion of Counsel shall not be an expense
of either the Trustee or the Trust, addressed to the Trustee, to the effect
that the purchase and holding of such ERISA-Restricted Certificate that is
also a Physical Certificate will not result in the assets of the Trust being
deemed to be "plan assets" and subject to the prohibited transaction
L-5
provisions of ERISA and the Code and will not subject the Trustee to any
obligation in addition to those expressly undertaken in this Agreement or to
any liability. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate that is also a Physical
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
In the case of an ERISA-Restricted Certificate that is also a
Book-Entry Certificate, for purposes of clauses (i) or (ii) of the first
sentence of the preceding paragraph, such representations shall be deemed to
have been made to the Trustee by the transferee's acceptance of such
ERISA-Restricted Certificate that is also a Book-entry Certificate (or the
acceptance by a Certificate Owner of the beneficial interest in such
Certificate).
To the extent permitted under applicable law (including, but not
limited to, ERISA), neither the Trustee nor the Certificate Registrar shall
have any liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the transfer was registered by the
Trustee or the Certificate Registrar in accordance with the foregoing
requirements. In addition, neither the Trustee nor the Certificate Registrar
shall be required to monitor, determine or inquire as to compliance with the
transfer restrictions with respect to any ERISA-Restricted Certificates in the
form of Book-Entry Certificates, and neither the Trustee nor the Certificate
Registrar shall have any liability for transfers of Book-Entry Certificates or
any interests therein made in violation of the restrictions on transfer
described in the Prospectus Supplement and this Agreement.
(e) Each Person who has or who acquires any Ownership Interest in the
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably appointed the Depositor or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in the Class A-R Certificate are expressly
subject to the following provisions:
Each Person holding or acquiring any Ownership Interest in the Class
A-R Certificate shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee.
No Ownership Interest in the Class A-R Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of the Class A-R Certificate unless, in addition to the
certificates required to be delivered under subsection (b) above, the Trustee
shall have been furnished with an affidavit ("Transfer Affidavit") of the
initial owner or proposed transferee in the form attached hereto as Exhibit L.
In connection with any proposed transfer of any Ownership Interest
in a Class A-R Certificate, the Trustee shall as a condition to registration
of the transfer, require delivery to it, in form and substance satisfactory to
it, of each of the following:
L-6
A. a Transferor Certificate in the form of Exhibit K hereto from the
proposed transferee to the effect that such transferee is a Permitted
Transferee and that it is not acquiring an Ownership Interest in the Class A-R
Certificate that is the subject of the proposed transfer as a nominee, trustee
or agent for any Person who is not a Permitted Transferee; and
B. a covenant of the proposed transferee to the effect that the
proposed transferee agrees to be bound by and to abide by the transfer
restrictions applicable to the Class A-R Certificate.
Any attempted or purported Transfer of any Ownership Interest in the
Class A-R Certificate in violation of the provisions of this Section shall be
absolutely null and void and shall vest no rights in the purported transferee.
If any purported transferee shall, in violation of the provisions of this
Section, become a Holder of the Class A-R Certificate, then the prior Holder
of the Class A-R Certificate that is a Permitted Transferee shall, upon
discovery that the registration of Transfer of the Class A-R Certificate was
not in fact permitted by this Section, be restored to all rights as Holder
thereof retroactive to the date of registration of transfer of the Class A-R
Certificate. Neither the Trustee nor the Certificate Registrar shall have any
liability to any Person for any registration of Transfer of the Class A-R
Certificate that is in fact not permitted by this Section or for making any
distributions due on the Class A-R Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of this
Agreement so long as the Trustee received the documents specified in clause
(iii). The Trustee shall be entitled to recover from any Holder of the Class
A-R Certificate that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on the Class A-R Certificate.
Any such distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the last Holder of the Class A-R Certificate that
is a Permitted Transferee.
If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Class A-R Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right but not
the obligation, without notice to the Holder of the Class A-R Certificate or
any other Person having an Ownership Interest therein, to notify the Depositor
to arrange for the sale of the Class A-R Certificate. The proceeds of such
sale, net of commissions (which may include commissions payable to the
Depositor or its affiliates in connection with such sale), expenses and taxes
due, if any, will be remitted by the Trustee to the previous Holder of the
Class A-R Certificate that is a Permitted Transferee, except that in the event
that the Trustee determines that the Holder of the Class A-R Certificate may
be liable for any amount due under this Section or any other provisions of
this Agreement, the Trustee may withhold a corresponding amount from such
remittance as security for such claim. The terms and conditions of any sale
under this clause (v) shall be determined in the sole discretion of the
Trustee and it shall not be liable to any Person having an Ownership Interest
in the Class A-R Certificate as a result of its exercise of such discretion.
If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Class A-R Certificate in violation of the
restrictions in this Section, then the Trustee upon receipt of reasonable
compensation will provide to the Internal Revenue Service, and to the persons
specified in Sections 860E(e)(3) and (6) of the Code, information needed to
compute the tax
L-7
imposed under Section 860E(e)(5) of the Code on transfers of residual
interests to disqualified organizations.
The foregoing provisions of this Section shall cease to apply to
transfers occurring on or after the date on which there shall have been
delivered to the Trustee and the Servicer, in form and substance satisfactory
to the Trustee, (i) written notification from the Rating Agencies that the
removal of the restrictions on Transfer set forth in this Section will not
cause such Rating Agency to downgrade its rating of the Certificates and (ii)
an Opinion of Counsel to the effect that such removal will not cause either
REMIC hereunder to fail to qualify as a REMIC.
L-8
EXHIBIT M
Form of Liquidation Report
Customer Name:
Account Number:
Original Principal Balance:
1. Type of Liquidation (REO disposition/charge-off/short pay-off)
Date last paid
Date of foreclosure
Date of REO
Date of REO Disposition
Property Sale Price/Estimated Market Value at disposition
2. Liquidation Proceeds
Principal Prepayment $____________
Property Sale Proceeds ____________
Insurance Proceeds ____________
Other (itemize) ____________
Total Proceeds $____________
3. Liquidation Expenses
Servicing Advances $____________
Delinquency Advances ____________
Monthly Advances ____________
Servicing Fees ____________
Other Servicing Compensation ____________
Total Advances $____________
4. Net Liquidation Proceeds $____________
(Item 2 minus Item 3)
5. Principal Balance of Mortgage Loan $____________
6. Loss, if any (Item 5 minus Item 4) $____________
M-1
