EXECUTION
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GE CAPITAL MORTGAGE SERVICES, INC.,
Seller and Servicer
and
STATE STREET BANK AND TRUST COMPANY,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2000
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GE Capital Mortgage Services, Inc.,
2000-5 Trust
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Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................................................1
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans....................................34
Section 2.02. Acceptance by Trustee...........................................38
Section 2.03. Representations and Warranties of the Company; Mortgage
Loan Repurchase...............................................39
Section 2.04. Execution of Certificates.......................................44
Section 2.05. Designations under the REMIC Provisions.........................44
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Company to Act as Servicer......................................45
Section 3.02. Collection of Certain Mortgage Loan Payments; Mortgage
Loan Payment Record; Certificate Account......................48
Section 3.03. Collection of Taxes, Assessments and Other Items................51
Section 3.04. Permitted Debits to the Mortgage Loan Payment Record............51
Section 3.05. Maintenance of the Primary Insurance Policies...................53
Section 3.06. Maintenance of Hazard Insurance.................................53
Section 3.07. Assumption and Modification Agreements..........................54
Section 3.08. Realization Upon Defaulted Mortgage Loans.......................55
Section 3.09. Trustee to Cooperate; Release of Mortgage Files.................57
Section 3.10. Servicing Compensation; Payment of Certain Expenses by
the Company...................................................58
Section 3.11. Reports to the Trustee..........................................59
Section 3.12. Annual Statement as to Compliance...............................59
Section 3.13. Annual Independent Public Accountants' Servicing Report.........59
Section 3.14. Access to Certain Documentation and Information Regarding
the Mortgage Loans............................................60
Section 3.15. Maintenance of Certain Servicing Policies.......................60
Section 3.16. Optional Purchase of Defaulted Mortgage Loans...................60
ARTICLE IV
PAYMENTS AND STATEMENTS
Section 4.01. Distributions...................................................60
Section 4.02. Method of Distribution..........................................65
Section 4.03. Allocation of Losses............................................66
Section 4.04. Monthly Advances; Purchases of Defaulted Mortgage Loans.........68
Section 4.05. Statements to Certificateholders................................68
Section 4.06. Servicer's Certificate..........................................71
Section 4.07. Reports of Foreclosures and Abandonments of Mortgaged
Property......................................................71
Section 4.08. Reduction of Servicing Fees by Compensating Interest
Payments......................................................71
Section 4.09. Surety Bond.....................................................71
Section 4.10. Distributions to Holders of Designated Retail
Certificates....................................................71
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates................................................77
Section 5.02. Registration of Transfer and Exchange of Certificates...........78
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...............83
Section 5.04. Persons Deemed Owners...........................................84
Section 5.05. Access to List of Certificateholders' Names and Addresses.......84
Section 5.06. Representation of Certain Certificateholders....................84
Section 5.07. Determination of COFI...........................................85
Section 5.08. Determination of LIBOR..........................................85
ARTICLE VI
THE COMPANY
Section 6.01. Liability of the Company........................................87
Section 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Company...................................87
Section 6.03. Assignment......................................................87
Section 6.04. Limitation on Liability of the Company and Others...............87
Section 6.05. The Company Not to Resign.......................................88
ARTICLE VII
DEFAULT
Section 7.01. Events of Default...............................................88
Section 7.02. Trustee to Act; Appointment of Successor........................89
Section 7.03. Notification to Certificateholders..............................90
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee...............................................90
Section 8.02. Certain Matters Affecting the Trustee...........................92
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans...........93
Section 8.04. Trustee May Own Certificates....................................93
Section 8.05. The Company to Pay Trustee's Fees and Expenses..................93
Section 8.06. Eligibility Requirements for Trustee............................93
Section 8.07. Resignation or Removal of Trustee...............................94
Section 8.08. Successor Trustee...............................................94
Section 8.09. Merger or Consolidation of Trustee..............................95
Section 8.10. Appointment of Co-Trustee or Separate Trustee...................95
Section 8.11. Compliance with REMIC Provisions; Tax Returns...................96
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Repurchase by the Company or Liquidation
of All Mortgage Loans.........................................97
Section 9.02. Additional Termination Requirements.............................98
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment......................................................98
Section 10.02. Recordation of Agreement......................................100
Section 10.03. Limitation on Rights of Certificateholders....................100
Section 10.04. Governing Law.................................................101
Section 10.05. Notices.......................................................101
Section 10.06. Notices to the Rating Agencies................................101
Section 10.07. Severability of Provisions....................................101
Section 10.08. Certificates Nonassessable and Fully Paid.....................102
Exhibits
EXHIBIT A Forms of Certificates
EXHIBIT B Principal Balance Schedules
EXHIBIT C Mortgage Loans (including list of Cooperative Loans)
EXHIBIT D Form of Servicer's Certificate
EXHIBIT E Form of Transfer Certificate as to ERISA Matters for Definitive
ERISA-Restricted Certificates
EXHIBIT F Form of Residual Certificate Transferee Affidavit
EXHIBIT G Form of Residual Certificate Transferor Letter
EXHIBIT H Additional Servicer Compensation
EXHIBIT I Form of Investment Letter for Definitive Restricted Certificates
EXHIBIT J Form of Distribution Date Statement
EXHIBIT K Form of Special Servicing and Collateral Fund Agreement
EXHIBIT L Form of Lost Note Affidavit and Agreement
EXHIBIT M Schedule of Designated Loans
EXHIBIT N Schedule of Pledged Asset Mortgage Loans
EXHIBIT O Senior Principal Priorities
EXHIBIT P Schedule of CashSaver Mortgage Loans
THIS POOLING AND SERVICING AGREEMENT, dated as of April 1, 2000, between GE
CAPITAL MORTGAGE SERVICES, INC., a corporation organized and existing under the
laws of the State of New Jersey, and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts banking corporation, as Trustee.
W I T N E S S E T H T H A T :
In consideration of the mutual agreements herein contained, GE Capital
Mortgage Services, Inc. and State Street Bank and Trust Company agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
Accretion Directed Certificate: None.
Accretion Directed Component: None.
Accretion Termination Date: None.
Accrual Amount: As to any Class of Accrual Certificates and any
Accrual Component and each Distribution Date through the related Accretion
Termination Date, the sum of (x) any amount of Accrued Certificate Interest
allocable to such Class or Component pursuant to Section 4.01(a)(i) on such
Distribution Date and (y) any amount of Unpaid Class Interest Shortfall
allocable to such Class or Component pursuant to Section 4.01(a)(ii) on
such Distribution Date, to the extent that such amounts are distributed to
any Accretion Directed Certificates and any Accretion Directed Components
pursuant to Section 4.01(e). As to any Class of Accrual Certificates and
any Accrual Component and each Distribution Date after the related
Accretion Termination Date, zero.
Accrual Certificates: None.
Accrual Component: None.
Accrued Certificate Interest: As to any Distribution Date and any
Class of Certificates (other than any Class of Principal Only Certificates
and any Class of Certificates consisting of Specified Components), interest
accrued during the related Interest Accrual Period at the applicable
Certificate Interest Rate on the Class Certificate Principal Balance (or,
in the case of any Class of Notional Certificates other than the Class S
Certificates, on the aggregate Notional Principal Balance) thereof
immediately prior to (or, in the case of the Class S Certificates, on the
aggregate Notional Principal Balance thereof with respect to) such
Distribution Date, calculated on the basis of a 360-day year consisting of
twelve 30-day months. As to any Distribution Date and any
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Specified Component (other than any Principal Only Component), interest
accrued during the related Interest Accrual Period at the applicable
Component Interest Rate on the Component Principal Balance (or Notional
Component Principal Balance) thereof immediately prior to such Distribution
Date, calculated on the basis of a 360-day year consisting of twelve 30-day
months. As to any Distribution Date and any Class of Certificates
consisting of Specified Components, the aggregate of Accrued Certificate
Interest on such Specified Components for such Distribution Date.
Accrued Certificate Interest on each Class of Certificates (other than
any Class of Principal Only Certificates and any Class of Certificates
consisting of Specified Components) and any Specified Component (other than
any Principal Only Component) shall be reduced by such Class's or Specified
Component's share of the amount of any Net Interest Shortfall and Interest
Losses for such Distribution Date. Any Net Interest Shortfall and Interest
Losses shall be allocated among (x) the Classes of Certificates (other than
any Class of Principal Only Certificates and any Class of Certificates
consisting of Specified Components) and (y) the Specified Components (other
than any Principal Only Component) of any Component Certificate in
proportion to the respective amounts of Accrued Certificate Interest that
would have resulted absent such shortfall or losses.
Additional Collateral: With respect to any Mortgage 100SM Loan, the
marketable securities held from time to time as security for the repayment
of such Mortgage 100SM Loan and any related collateral. With respect to any
Parent PowerSM Loan, the third-party guarantee for such Parent PowerSM
Loan, together with (i) any marketable securities held from time to time as
security for the performance of such guarantee and any related collateral
or (ii) any mortgaged property securing the performance of such guarantee,
the related home equity line of credit loan and any related collateral.
With respect to any CashSaver Mortgage Loan, the cash and/or marketable
securities held from time to time as security for the repayment of such
CashSaver Mortgage Loan and any related collateral.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Allocable Share: (a) As to any Distribution Date and amounts
distributable pursuant to clauses (i) and (iii) of the definition of Junior
Optimal Principal Amount, and as to each Class of Junior Certificates, the
fraction, expressed as a percentage, the numerator of which is the Class
Certificate Principal Balance of such Class and the denominator of which is
the aggregate Class Certificate Principal Balance of the Junior
Certificates.
(b) As to any Distribution Date and amounts distributable pursuant to
clauses (ii), (iv) and (v) of the definition of Junior Optimal Principal
Amount, and as to the Class M Certificates and each Class of Class B
Certificates for which the related Prepayment Distribution Trigger has been
satisfied on such Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Class Certificate Principal
Balance of such Class and the denominator of which is the aggregate Class
Certificate Principal Balance
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of all such Classes. As to any Distribution Date and each Class of Class B
Certificates for which the related Prepayment Distribution Trigger has not
been satisfied on such Distribution Date, 0%.
Amortization Payment: As to any REO Mortgage Loan and any month, the
payment of principal and accrued interest due in such month in accordance
with the terms of the related Mortgage Note as contemplated by Section
3.08(b).
Amount Held for Future Distribution: As to each Distribution Date, the
total of all amounts credited to the Mortgage Loan Payment Record as of the
preceding Determination Date on account of (i) Principal Prepayments,
Insurance Proceeds and Liquidation Proceeds received subsequent to the
preceding Prepayment Period applicable to such receipts, and (ii) monthly
payments of principal and interest due subsequent to the preceding Due
Date.
Anniversary Determination Date: The Determination Date occurring in
May of each year that the Certificates are outstanding, commencing in May
2001.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
the assignment of the related Proprietary Lease from the Mortgagor to the
originator of the Cooperative Loan.
Assumed Monthly Payment Reduction: As of any Anniversary Determination
Date and as to any Non-Primary Residence Loan remaining in the Mortgage
Pool whose original principal balance was 80% or greater of the Original
Value thereof, the excess of (i) the Monthly Payment thereof calculated on
the assumption that the Mortgage Rate thereon was equal to the weighted
average (by principal balance) of the Net Mortgage Rates of all Outstanding
Mortgage Loans (the "Weighted Average Rate") as of such Anniversary
Determination Date over (ii) the Monthly Payment thereof calculated on the
assumption that the Net Mortgage Rate thereon was equal to the Weighted
Average Rate less 1.25% per annum.
Available Funds: As to each Distribution Date, an amount equal to the
sum of (i) all amounts credited to the Mortgage Loan Payment Record
pursuant to Section 3.02 as of the preceding Determination Date, (ii) any
Monthly Advance and any Compensating Interest Payment for such Distribution
Date, (iii) the Purchase Price of any Defective Mortgage Loans and
Defaulted Mortgage Loans deposited in the Certificate Account on the
Business Day preceding such Distribution Date (including any amounts
deposited in the Certificate Account in connection with any substitution of
a Mortgage Loan as specified in Section 2.03(b)), and (iv) the purchase
price of any defaulted Mortgage Loan purchased under an agreement entered
into pursuant to Section 3.08(e) as of the end of the preceding Prepayment
Period less the sum of (x) the Amount Held for Future Distribution, (y) the
amount of any Unanticipated Recovery credited to the Mortgage Loan Payment
Record pursuant to clause (vi) of Section 3.02(b), and (z) amounts
permitted to be debited from the Mortgage Loan Payment Record pursuant to
clauses (i) through (vii) and (ix) of Section 3.04.
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Bankruptcy Coverage Termination Date: The Distribution Date upon which
the Bankruptcy Loss Amount has been reduced to zero or a negative number
(or the Cross-Over Date, if earlier).
Bankruptcy Loss Amount: As of any Determination Date prior to the
first Anniversary Determination Date, the Bankruptcy Loss Amount shall
equal $100,000, as reduced by the aggregate amount of Deficient Valuations
and Debt Service Reductions since the Cut-off Date. As of any Determination
Date after the first Anniversary Determination Date, other than an
Anniversary Determination Date, the Bankruptcy Loss Amount shall equal the
Bankruptcy Loss Amount on the immediately preceding Anniversary
Determination Date as reduced by the aggregate amount of Deficient
Valuations and Debt Service Reductions since such preceding Anniversary
Determination Date. As of any Anniversary Determination Date, the
Bankruptcy Loss Amount shall equal the lesser of (x) the Bankruptcy Loss
Amount as of the preceding Determination Date as reduced by any Deficient
Valuations and Debt Service Reductions for the preceding Distribution Date,
and (y) the greater of (i) the Fitch Formula Amount for such Anniversary
Determination Date and (ii) the Formula Amount for such Anniversary
Determination Date.
The Bankruptcy Loss Amount may be further reduced by the Company
(including accelerating the manner in which such coverage is reduced)
provided that prior to any such reduction, the Company shall obtain written
confirmation from each Rating Agency that such reduction shall not
adversely affect the then-current rating assigned to the related Classes of
Certificates by such Rating Agency and shall provide a copy of such written
confirmation to the Trustee.
BBA: The British Bankers' Association.
BIF: The Bank Insurance Fund of the FDIC, or its successor in
interest.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the
rules of such Depository). As of the Closing Date, each Class of
Certificates, other than the Class B3, Class B4, Class B5, Class R, Class
PO and Class S Certificates, constitutes a Class of Book-Entry
Certificates.
Business Day: Any day other than a Saturday or a Sunday, or a day on
which banking institutions in New York City or the city in which the
Corporate Trust Office is located are authorized or obligated by law or
executive order to be closed.
Buydown Funds: Funds contributed by the Mortgagor or another source in
order to reduce the interest payments required from the Mortgagor for a
specified period in specified amounts.
Buydown Mortgage Loan: Any Mortgage Loan as to which the Mortgagor
pays less than the full monthly payment specified in the Mortgage Note
during the Buydown
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Period and the difference between the amount paid by the Mortgagor and the
amount specified in the Mortgage Note is paid from the related Buydown
Funds.
Buydown Period: The period during which Buydown Funds are required to
be applied to the related Buydown Mortgage Loan.
CashSaver Mortgage Loan: A Mortgage Loan identified on Exhibit P
hereof that has a Loan-to-Value Ratio at origination of a minimum of 97%
and a maximum of 100% and that is secured by Additional Collateral.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The trust account or accounts created and
maintained with the Trustee pursuant to Section 3.02 and which must be an
Eligible Account.
Certificate Interest Rate: With respect to any Class of Certificates,
other than the Class S Certificates, any COFI Certificates or any LIBOR
Certificates, and as of any Distribution Date, the per annum rate specified
or described in Section 5.01(b). With respect to any Class of LIBOR
Certificates, the per annum variable rate at any time at which interest
accrues on the Certificates of such Class, as determined pursuant to
Section 5.01(f). With respect to any Class of COFI Certificates, the per
annum variable rate at any time at which interest accrues on the
Certificates of such Class, as determined pursuant to Section 5.01(e). With
respect to the Class S Certificates and any Distribution Date, the Strip
Rate for such Distribution Date.
Certificate Owner: With respect to any Book-Entry Certificate, the
person who is the beneficial owner thereof.
Certificate Principal Balance: As to any Certificate other than a
Notional Certificate, and as of any Distribution Date, the Initial
Certificate Principal Balance of such Certificate (plus, in the case of any
Accrual Certificate, its Percentage Interest of any related Accrual Amount
for each previous Distribution Date) less the sum of (i) all amounts
distributed with respect to such Certificate in reduction of the
Certificate Principal Balance thereof on previous Distribution Dates
pursuant to Section 4.01, (ii) any Realized Losses allocated to such
Certificate on previous Distribution Dates pursuant to Section 4.03(b) and
(c), and (iii) in the case of a Subordinate Certificate, such Certificate's
Percentage Interest of the Subordinate Certificate Writedown Amount
allocated to such Certificate on previous Distribution Dates. The Notional
Certificates are issued without Certificate Principal Balances.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the
purposes of giving any consent pursuant to this Agreement, a Certificate of
any Class to the extent that the Company or any affiliate is the
Certificate Owner or Holder thereof (except to the extent the Company
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or any affiliate thereof shall be the Certificate Owner or Holder of all
Certificates of such Class), shall be deemed not to be outstanding and the
Percentage Interest (or Voting Rights) evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage
Interests (or Voting Rights) necessary to effect any such consent has been
obtained; provided, however, that in determining whether the Trustee shall
be protected in relying on such consent only the Certificates that the
Trustee knows to be so held shall be so disregarded.
Class: All Certificates bearing the same class designation.
Class B Certificate: Any Class B1, Class B2, Class B3, Class B4 or
Class B5 Certificate.
Class Certificate Principal Balance: As to any Class of Certificates,
other than any Class of Notional Certificates, and as of any date of
determination, the aggregate of the Certificate Principal Balances of all
Certificates of such Class. The Class Certificate Principal Balance of each
such Class of Certificates as of the Closing Date is specified in Section
5.01(b).
Class Interest Shortfall: As to any Distribution Date and any Class of
Certificates (other than any Class of Principal Only Certificates or any
Class consisting of Specified Components) or any Specified Component, any
amount by which the amount distributed to Holders of such Class of
Certificates or in respect of such Specified Component (or added to the
Class Certificate Principal Balance of any Class of Accrual Certificates or
to the Component Principal Balance of any Accrual Component constituting a
Specified Component) on such Distribution Date pursuant to Sections
4.01(a)(i), (a)(v), (a)(viii), (a)(xi), (a)(xiv), (a)(xvii) or (a)(xx), as
applicable), is less than the Accrued Certificate Interest thereon or in
respect thereof for such Distribution Date. As to any Distribution Date and
any Class of Certificates consisting of Specified Components, the sum of
the Class Interest Shortfalls for such Components on such date.
Class PO Deferred Amount: As to any Distribution Date on or prior to
the Cross-Over Date, the aggregate of the applicable PO Percentage of the
principal portion of each Realized Loss, other than any Excess Loss, to be
allocated to the Class PO Certificates on such Distribution Date or
previously allocated to the Class PO Certificates and not yet paid to the
Holders of the Class PO Certificates pursuant to Section 4.01(a)(iv).
Class PO Principal Distribution Amount: As to any Distribution Date,
an amount equal to the sum of the applicable PO Percentage of:
(i) the principal portion of each Monthly Payment due on the related
Due Date on each Outstanding Mortgage Loan as of such Due Date as specified
in the amortization schedule at the time applicable thereto (after
adjustments for previous Principal Prepayments and the principal portion of
Debt Service Reductions subsequent to the Bankruptcy Coverage Termination
Date but before any adjustment to such amortization schedule by reason of
any bankruptcy (except as aforesaid) or similar proceeding or any
moratorium or similar waiver or grace period);
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(ii) all principal prepayments in part received during the related
Prepayment Period, together with the Scheduled Principal Balance (as
reduced by any Deficient Valuation occurring on or prior to the Bankruptcy
Coverage Termination Date) of each Mortgage Loan which was the subject of a
Voluntary Principal Prepayment in full during the related Prepayment
Period;
(iii) the sum of (A) all Net Liquidation Proceeds allocable to
principal received in respect of each Mortgage Loan that became a
Liquidated Mortgage Loan during the related Prepayment Period (other than
Mortgage Loans described in clause (B)) and (B) the principal balance of
each Mortgage Loan purchased by an insurer from the Trustee pursuant to the
related Primary Insurance Policy, in each case during the related
Prepayment Period;
(iv) the Scheduled Principal Balance (as reduced by any Deficient
Valuation occurring on or prior to the Bankruptcy Coverage Termination
Date) of each Mortgage Loan which was purchased on such Distribution Date
pursuant to Section 2.02, 2.03(a) or 3.16; and
(v) the Substitution Amount for any Mortgage Loan substituted during
the month of such Distribution Date; for purposes of this clause (v), the
definition of "Substitution Amount" shall be modified to reduce the
Scheduled Principal Balance of the Mortgage Loan that is substituted for by
any Deficient Valuation occurring on or prior to the Bankruptcy Coverage
Termination Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment in
full with respect to a Mortgage Loan serviced by a Primary Servicer shall
be deemed to have been received when the Company, as servicer, receives
notice thereof.
Closing Date: April 27, 2000.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time, any successor statutes thereto, and applicable U.S.
Department of the Treasury temporary or final regulations promulgated
thereunder.
COFI: The monthly weighted average cost of funds for savings
institutions the home offices of which are located in Arizona, California,
or Nevada that are member institutions of the Eleventh Federal Home Loan
Bank District, as computed from statistics tabulated and published by the
Federal Home Loan Bank of San Francisco in its monthly Information
Bulletin.
COFI Certificates: None.
COFI Determination Date: As to each Interest Accrual Period for any
COFI Certificates, the last Business Day of the calendar month preceding
the commencement of such Interest Accrual Period.
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Company: GE Capital Mortgage Services, Inc., a corporation organized
and existing under the laws of the State of New Jersey, or its successor in
interest or, if any successor servicer is appointed as herein provided,
then such successor servicer.
Compensating Interest Payment: With respect to any Distribution Date,
an amount equal to the aggregate of the Interest Shortfalls described in
clauses (A) and (B) of the definition thereof with respect to such
Distribution Date; provided, however, that such amount shall not exceed the
lesser of (i) an amount equal to the product of (x) the Pool Scheduled
Principal Balance with respect to such Distribution Date and (y)
one-twelfth of 0.125%, and (ii) the aggregate of the Servicing Fees that
the Company would be entitled to retain on such Distribution Date (less any
portion thereof paid as servicing compensation to any Primary Servicer)
without giving effect to any Compensating Interest Payment.
Component: Any of the components of a Class of Component Certificates
having the designations and the initial Component Principal Balances as
follows:
Initial Component
Designation Principal Balance
----------- -----------------
N/A N/A
Component Certificate: None.
Component Interest Rate: None.
Component Principal Balance: As of any Distribution Date, and with
respect to any Component, other than any Notional Component, the initial
Component Principal Balance thereof (as set forth, as applicable, in the
definition of Component) (plus, in the case of any Accrual Component, any
related Accrual Amount for each previous Distribution Date) less the sum of
(x) all amounts distributed in reduction thereof on previous Distribution
Dates pursuant to Section 4.01 and (y) the amount of all Realized Losses
allocated thereto pursuant to Section 4.03(d).
Confirmatory Mortgage Note: With respect to any Mortgage Loan, a note
or other evidence of indebtedness executed by the Mortgagor confirming its
obligation under the note or other evidence of indebtedness previously
executed by the Mortgagor upon the origination of the related Mortgage
Loan.
Cooperative: A private, cooperative housing corporation organized in
accordance with applicable state laws which owns or leases land and all or
part of a building or buildings located in the relevant state, including
apartments, spaces used for commercial purposes and common areas therein
and whose board of directors authorizes, among other things, the sale of
Cooperative Stock.
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Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of one or more Proprietary Leases.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate(s),
(iii) an assignment of the Proprietary Lease(s), (iv) financing statements
and (v) a stock power (or other similar instrument), and in addition
thereto, a recognition agreement between the Cooperative and the originator
of the Cooperative Loan, each of which was transferred and assigned to the
Trustee pursuant to Section 2.01 and are from time to time held as part of
the Trust Fund. The Mortgage Loans identified as such in Exhibit C hereto
are Cooperative Loans.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate(s) or other instrument evidencing the related Cooperative
Stock.
Corporate Trust Office: The principal office of the Trustee at which
at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this instrument is located at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate
Trust Department.
Cross-Over Date: The first Distribution Date on which the aggregate
Class Certificate Principal Balance of the Junior Certificates has been
reduced to zero (giving effect to all distributions on such Distribution
Date).
Custodial Agreement: The Custodial Agreement, dated as of April 27,
2000, among the Company, the Trustee and the Custodian, as the same may be
amended or modified from time to time in accordance with the terms thereof.
Custodian: First Union National Bank, or its successor in interest, or
if any successor Custodian is appointed pursuant to the terms of Section
3.5 of the Custodial Agreement, such successor custodian.
Cut-off Date: April 1, 2000.
Debt Service Reduction: As to any Mortgage Loan and any Determination
Date, the excess of (a) the then current Monthly Payment for such Mortgage
Loan over (b) the amount of the monthly payment of principal and interest
required to be paid by the Mortgagor as established by a court of competent
jurisdiction as a result of a proceeding initiated by or against the
related Mortgagor under the Bankruptcy Code, as amended from time to time
(11 U.S.C.).
Deceased Holder: With respect to a Holder of any Designated Retail
Certificate, as defined in Section 4.10(b).
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Defaulted Mortgage Loan: With respect to any Determination Date, a
Mortgage Loan as to which the related Mortgagor has failed to make
unexcused payment in full of a total of three or more consecutive
installments of principal and interest, and as to which such delinquent
installments have not been paid, as of the close of business on the last
Business Day of the month next preceding the month of such Determination
Date.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
purchased by the Company (or which the Company may replace with a
substitute Mortgage Loan) pursuant to Section 2.02 or 2.03(a).
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (a) the then outstanding indebtedness under such
Mortgage Loan over (b) the valuation by a court of competent jurisdiction
of the related Mortgaged Property as a result of a proceeding initiated by
or against the related Mortgagor under the Bankruptcy Code, as amended from
time to time (11 U.S.C.), pursuant to which such Mortgagor retained such
Mortgaged Property.
Definitive Certificate: Any Certificate, other than a Book-Entry
Certificate, issued in definitive, fully registered form.
Definitive Restricted Junior Certificate: Any Restricted Junior
Certificate that is in the form of a Definitive Certificate.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York, as amended, or any
successor provisions thereto.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for which, from time to time, the Depository
effects book-entry transfers and pledges of securities deposited with such
Depository.
Designated Loan Closing Documents: With respect to any Designated
Loan, a Lost Note Affidavit substantially in the form of Exhibit L, and an
assignment of the related Mortgage to the Trustee in recordable form
(except for the omission therein of recording information concerning such
Mortgage).
Designated Loans: The Mortgage Loans listed in Exhibit M hereto.
Designated Maturity: Fifteen years.
Designated Rate: 7.25% per annum.
Designated Retail Certificate: None.
Designated Telerate Page: The Dow Xxxxx Telerate Service page 3750 (or
such other page as may replace page 3750 on that service or such other
service as may be nominated by the BBA for the purpose of displaying the
Interest Settlement Rates).
10
Determination Date: With respect to any Distribution Date, the fifth
Business Day prior thereto.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate
less than the Designated Rate.
Disqualified Organization: Any of the following: (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing (including but not limited to state
pension organizations); (ii) a foreign government, International
Organization or any agency or instrumentality of either of the foregoing;
(iii) an organization (except certain farmers' cooperatives described in
Code section 521) which is exempt from tax imposed by Chapter 1 of the Code
(including the tax imposed by section 511 of the Code on unrelated business
taxable income); and (iv) a rural electric and telephone cooperative
described in Code section 1381(a)(2)(C). The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
section 7701 or successor provisions. A corporation will not be treated as
an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject
to tax and a majority of its board of directors is not selected by such
governmental unit.
Distribution Date: The 25th day of each calendar month after the month
of initial issuance of the Certificates, or, if such 25th day is not a
Business Day, the next succeeding Business Day.
Distribution Date Statement: The statement referred to in Section
4.05(a).
Document File: As defined in Section 2.01.
Due Date: The first day of the month of the related Distribution Date.
Eligible Account: An account that is either (i) maintained with a
depository institution the debt obligations of which have been rated by
each Rating Agency in one of its two highest long-term rating categories
and has been assigned by S&P its highest short-term rating, (ii) an account
or accounts the deposits in which are fully insured by either the BIF or
the SAIF, (iii) an account or accounts, in a depository institution in
which such accounts are insured by the BIF or the SAIF (to the limits
established by the FDIC), the uninsured deposits in which accounts are
either invested in Permitted Investments or are otherwise secured to the
extent required by the Rating Agencies such that, as evidenced by an
Opinion of Counsel delivered to the Trustee, the Certificateholders have a
claim with respect to the funds in such account or a perfected first
security interest against any collateral (which shall be limited to
Permitted Investments) securing such funds that is superior to claims of
any other depositors or creditors of the depository institution with which
such account is maintained, (iv) a trust account maintained with the
corporate trust department of a federal or state chartered depository
institution or of a trust company with trust powers and acting in its
fiduciary capacity for the benefit of the Trustee hereunder or (v) such
account as will not cause
11
either Rating Agency to downgrade or withdraw its then-current rating
assigned to the Certificates, as evidenced in writing by the Rating
Agencies.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Restricted Certificate: Any Junior Certificate.
Event of Default: An event described in Section 7.01.
Excess Bankruptcy Loss: Any Deficient Valuation or Debt Service
Reduction, or portion thereof, (i) occurring after the Bankruptcy Coverage
Termination Date or (ii) if on such date, in excess of the then-applicable
Bankruptcy Loss Amount.
Excess Fraud Loss: Any Fraud Loss, or portion thereof, (i) occurring
after the Fraud Coverage Termination Date or (ii) if on such date, in
excess of the then-applicable Fraud Loss Amount.
Excess Loss: Any Excess Bankruptcy Loss, Excess Fraud Loss or Excess
Special Hazard Loss.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion
thereof, (i) occurring after the Special Hazard Termination Date or (ii) if
on such date, in excess of the then-applicable Special Hazard Loss Amount.
FDIC: The Federal Deposit Insurance Corporation, or its successor in
interest.
FHLMC: The Federal Home Loan Mortgage Corporation or its successor in
interest.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Fitch: Fitch IBCA, Inc. and its successors.
Fitch Formula Amount: As to each Anniversary Determination Date, the
greater of (i) $50,000 and (ii) the product of (x) the greatest Assumed
Monthly Payment Reduction for any Non-Primary Residence Loan whose original
principal balance was 80% or greater of the Original Value thereof, (y) the
weighted average remaining term to maturity (expressed in months) of all
the Non-Primary Residence Loans remaining in the Mortgage Pool as of such
Anniversary Determination Date, and (z) the sum of (A) one plus (B) the
number of all remaining Non-Primary Residence Loans divided by the total
number of Outstanding Mortgage Loans as of such Anniversary Determination
Date.
FNMA: The Federal National Mortgage Association or its successor in
interest.
Formula Amount: As to each Anniversary Determination Date, the greater
of (i) $100,000 and (ii) the product of (x) 0.06% and (y) the Scheduled
Principal Balance of
12
each Mortgage Loan remaining in the Mortgage Pool whose original principal
balance was 75% or greater of the Original Value thereof.
Fraud Coverage Termination Date: The Distribution Date upon which the
related Fraud Loss Amount has been reduced to zero or a negative number (or
the Cross-Over Date, if earlier).
Fraud Loss: Any Realized Loss attributable to fraud in the origination
of the related Mortgage Loan.
Fraud Loss Amount: As of any Distribution Date after the Cut-off Date,
(x) prior to the first anniversary of the Cut-off Date, an amount equal to
$1,269,857 minus the aggregate amount of Fraud Losses that would have been
allocated to the Junior Certificates in accordance with Section 4.03 in the
absence of the Loss Allocation Limitation since the Cut-off Date, and (y)
from the first to the fifth anniversary of the Cut-off Date, an amount
equal to (1) the lesser of (a) the Fraud Loss Amount as of the most recent
anniversary of the Cut-off Date and (b) 1% (from the first to but excluding
the third anniversaries of the Cut-off Date) or 0.5% (from and including
the third to but excluding the fifth anniversaries of the Cut-off Date) of
the aggregate outstanding principal balance of all of the Mortgage Loans as
of the most recent anniversary of the Cut-off Date minus (2) the Fraud
Losses that would have been allocated to the Junior Certificates in
accordance with Section 4.03 in the absence of the Loss Allocation
Limitation since the most recent anniversary of the Cut-off Date. On or
after the fifth anniversary of the Cut-off Date the Fraud Loss Amount shall
be zero.
Initial Certificate Principal Balance: With respect to any
Certificate, other than a Notional Certificate, the Certificate Principal
Balance of such Certificate or any predecessor Certificate on the Closing
Date.
Initial LIBOR Rate: None.
Insurance Proceeds: Proceeds paid pursuant to the Primary Insurance
Policies, if any, and amounts paid by any insurer pursuant to any other
insurance policy covering a Mortgage Loan.
Insured Expenses: Expenses covered by the Primary Insurance Policies,
if any, or any other insurance policy or policies applicable to the
Mortgage Loans.
Interest Accrual Period: With respect to any Distribution Date and any
Class of Certificates (other than any Class of Principal Only Certificates)
or Component, the one-month period ending on the last day of the month
preceding the month in which such Distribution Date occurs.
Interest Losses: The interest portion of (i) on or prior to the
Cross-Over Date, any Excess Losses and (ii) after the Cross-Over Date, any
Realized Losses and Debt Service Reductions.
13
Interest Settlement Rate: With respect to any Interest Accrual Period,
the rate (expressed as a percentage per annum) for one-month U.S. Dollar
deposits reported by the BBA at 11:00 a.m. London time on the related LIBOR
Determination Date and as it appears on the Designated Telerate Page.
Interest Shortfall: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the subject of
a Voluntary Principal Prepayment or constitutes a Relief Act Mortgage Loan,
an amount determined as follows:
(A) partial principal prepayments: one month's interest at the
applicable Net Mortgage Rate on the amount of such prepayment;
(B) principal prepayments in full received on or after the
sixteenth day of the month preceding the month of such Distribution
Date (or, in the case of the first Distribution Date, on or after the
Cut-off Date) but on or before the last day of the month preceding the
month of such Distribution Date, the difference between (i) one
month's interest at the applicable Net Mortgage Rate on the Scheduled
Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month of
such prepayment (adjusted to the applicable Net Mortgage Rate)
received at the time of such prepayment;
(C) principal prepayments in full received by the Company (or of
which the Company receives notice, in the case of a Mortgage Loan
serviced by a Primary Servicer) on or after the first day but on or
before the fifteenth day of the month of such Distribution Date: none;
and
(D) Relief Act Mortgage Loans: As to any Relief Act Mortgage
Loan, the excess of (i) 30 days' interest (or, in the case of a
Principal Prepayment in full, interest to the date of prepayment) on
the Scheduled Principal Balance thereof (or, in the case of a
Principal Prepayment in part, on the amount so prepaid) at the related
Net Mortgage Rate over (ii) 30 days' interest (or, in the case of a
Principal Prepayment in full, interest to the date of prepayment) on
such Scheduled Principal Balance (or, in the case of a Principal
Prepayment in part, on the amount so prepaid) at the Net Mortgage Rate
required to be paid by the Mortgagor as limited by application of the
Relief Act.
Junior Certificate: Any Class M or Class B Certificate.
Junior Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of the following (but in no event greater than the
aggregate Certificate Principal Balance of the Junior Certificates
immediately prior to such Distribution Date):
(i) the Junior Percentage of the applicable Non-PO Percentage of the
principal portion of each Monthly Payment due on the related Due Date on
each Outstanding Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time applicable thereto (after adjustment for
previous Principal Prepayments and the principal portion of Debt Service
Reductions subsequent to the
14
Bankruptcy Coverage Termination Date but before any adjustment to such
amortization schedule by reason of any bankruptcy (other than as aforesaid)
or similar proceeding or any moratorium or similar waiver or grace period);
(ii) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of all principal prepayments in part received during the related
Prepayment Period, and 100% of any Senior Optimal Principal Amount not
distributed to the Senior Certificates on such Distribution Date, together
with the Junior Prepayment Percentage of the applicable Non-PO Percentage
of the Scheduled Principal Balance of each Mortgage Loan which was the
subject of a Voluntary Principal Prepayment in full during the related
Prepayment Period;
(iii) the excess, if any, of (x) the applicable Non-PO Percentage of
the sum of (A) all Net Liquidation Proceeds allocable to principal received
during the related Prepayment Period (other than in respect of Mortgage
Loans described in clause (B)) and (B) the principal balance of each
Mortgage Loan that was purchased by an insurer from the Trustee during the
related Prepayment Period pursuant to the related Primary Insurance Policy,
over (y) the amount distributable pursuant to clause (iii) of the
definition of Senior Optimal Principal Amount on such Distribution Date;
(iv) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of the Scheduled Principal Balance of each Mortgage Loan which
was purchased on such Distribution Date pursuant to Section 2.02, 2.03(a)
or 3.16; and
(v) the Junior Prepayment Percentage of the applicable Non-PO
Percentage of the Substitution Amount for any Mortgage Loan substituted
during the month of such Distribution Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment in
full with respect to a Mortgage Loan serviced by a Primary Servicer shall
be deemed to have been received when the Company, as servicer, receives
notice thereof.
After the Class Certificate Principal Balances of the Junior
Certificates have been reduced to zero, the Junior Optimal Principal Amount
shall be zero.
Junior Percentage: As to any Distribution Date, the excess of 100%
over the Senior Percentage for such Distribution Date.
Junior Prepayment Percentage: As to any Distribution Date, the excess
of 100% over the Senior Prepayment Percentage for such Distribution Date,
except that (i) after the aggregate Certificate Principal Balance of the
Senior Certificates other than the Class PO Certificates has been reduced
to zero, the Junior Prepayment Percentage shall be 100%, and (ii) after the
Cross-Over Date, the Junior Prepayment Percentage shall be zero.
Latest Possible Maturity Date: April 25, 2017.
15
LIBOR: With respect to any Interest Accrual Period, the per annum rate
determined, pursuant to Section 5.08, on the basis of the Interest
Settlement Rate or as otherwise provided in such Section.
LIBOR Certificate: None.
LIBOR Determination Date: The second London Banking Day immediately
preceding the commencement of each Interest Accrual Period for any LIBOR
Certificates.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Company has determined that all amounts which it expects to recover on
behalf of the Trust Fund from or on account of such Mortgage Loan have been
recovered, including any Mortgage Loan with respect to which the Company
determines not to foreclose upon the related Mortgaged Property based on
its belief that such Mortgaged Property may be contaminated with or
affected by hazardous or toxic wastes, materials or substances.
Liquidation Expenses: Expenses which are incurred by the Company in
connection with the liquidation of any defaulted Mortgage Loan and not
recovered by the Company under any Primary Insurance Policy for reasons
other than the Company's failure to comply with Section 3.05, such expenses
including, without limitation, legal fees and expenses, and, regardless of
when incurred, any unreimbursed amount expended by the Company pursuant to
Section 3.03 or Section 3.06 respecting the related Mortgage Loan and any
related and unreimbursed Property Protection Expenses.
Liquidation Proceeds: Cash (other than Insurance Proceeds) received in
connection with the liquidation of any defaulted Mortgage Loan whether
through judicial foreclosure or otherwise.
Living Holder: Any Certificate Owner of a Designated Retail
Certificate, other than a Deceased Holder.
Loan-to-Value Ratio: With respect to each Mortgage Loan, the original
principal amount of such Mortgage Loan, divided by the Original Value of
the related Mortgaged Property.
London Banking Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England.
Loss Allocation Limitation: As defined in Section 4.03(g).
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or its successor in interest.
Minimum Servicing Standards: As defined in Section 3.13(a).
MLCC: Xxxxxxx Xxxxx Credit Corporation, or its successor in interest.
16
Monthly Advance: With respect to any Distribution Date, the aggregate
of the advances required to be made by the Company pursuant to Section
4.04(a) (or by the Trustee pursuant to Section 4.04(b)) on such
Distribution Date, the amount of any such Monthly Advance being equal to
(a) the aggregate of payments of principal and interest (adjusted to the
related Net Mortgage Rate) on the Mortgage Loans that were due on the
related Due Date, without regard to any arrangements entered into by the
Company with the related Mortgagors pursuant to Section 3.02(a)(ii), and
delinquent as of the close of business on the Business Day next preceding
the related Determination Date, less (b) the amount of any such payments
which the Company or the Trustee, as applicable, in its reasonable judgment
believes will not be ultimately recoverable by it either out of late
payments by the Mortgagor, Net Liquidation Proceeds, Insurance Proceeds,
REO Proceeds or otherwise. With respect to any Mortgage Loan, the portion
of any such advance or advances made with respect thereto.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan for
any month allocable to principal or interest on such Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc. and its successors.
Mortgage: The mortgage or deed of trust creating a first lien on a fee
simple interest or leasehold estate in real property securing a Mortgage
Note.
Mortgage 100(SM) Loan: A Mortgage Loan identified on Exhibit N hereof
that has a Loan-to-Value Ratio at origination in excess of 80.00% and that
is secured by Additional Collateral and does not have a Primary Insurance
Policy.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents
required to be added to such documents pursuant to this Agreement.
Mortgage Loan Payment Record: The record maintained by the Company
pursuant to Section 3.02(b).
Mortgage Loan Schedule: As of any date of determination, the schedule
of Mortgage Loans included in the Trust Fund. The initial schedule of
Mortgage Loans as of the Cut-off Date is attached hereto as Exhibit C.
Mortgage Loans: As of any date of determination, each of the mortgage
loans identified on the Mortgage Loan Schedule (as amended pursuant to
Section 2.03(b)) delivered and assigned to the Trustee pursuant to Section
2.01 or 2.03(b), and not theretofore released from the Trust Fund by the
Trustee.
Mortgage Note: With respect to any Mortgage Loan, the note or other
evidence of indebtedness (which may consist of a Confirmatory Mortgage
Note) evidencing the indebtedness of a Mortgagor under such Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
17
Mortgage Rate: The per annum rate of interest borne by a Mortgage Loan
as set forth in the related Mortgage Note.
Mortgaged Property: The underlying real property securing the Mortgage
Loan, or with respect to a Cooperative Loan, the related Proprietary Lease
and Cooperative Stock.
Mortgagor: With respect to any Mortgage Loan, each obligor on the
related Mortgage Note.
Net Interest Shortfall: With respect to any Distribution Date, the
excess, if any, of the aggregate Interest Shortfalls allocable to the
Certificates (as determined in accordance with the definition of Interest
Shortfall) for such Distribution Date over any Compensating Interest
Payment for such date.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, the sum
of (i) any Liquidation Proceeds therefor less the related Liquidation
Expenses, and (ii) any Insurance Proceeds therefor, other than any such
Insurance Proceeds applied to the restoration of the related Mortgaged
Property.
Net Mortgage Rate: With respect to any Mortgage Loan, the related
Mortgage Rate less the applicable Servicing Fee Rate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate
greater than or equal to the Designated Rate.
Non-permitted Foreign Holder: As defined in Section 5.02(b).
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage
Rate of such Discount Mortgage Loan and the denominator of which is the
Designated Rate. As to any Non-Discount Mortgage Loan, 100%.
Non-Primary Residence Loan: Any Mortgage Loan secured by a Mortgaged
Property that is (on the basis of representations made by the Mortgagors at
origination) a second home or investor-owned property.
Nonrecoverable Advance: All or any portion of any Monthly Advance or
Monthly Advances previously made by the Company (or the Trustee) which, in
the reasonable judgment of the Company (or, as applicable, the Trustee)
will not be ultimately recoverable from related Net Liquidation Proceeds,
Insurance Proceeds, REO Proceeds or otherwise. The determination by the
Company that it has made a Nonrecoverable Advance or that any advance, if
made, would constitute a Nonrecoverable Advance, shall be evidenced by an
Officer's Certificate of the Company delivered to the Trustee and detailing
the reasons for such determination.
18
Non-U.S. Person: As defined in Section 4.02(c).
Notional Certificate: Any Class S Certificate.
Notional Component: None.
Notional Component Balance: None.
Notional Principal Balance: As to any Distribution Date and the Class
S Certificates, the aggregate Scheduled Principal Balance of the
Outstanding Non-Discount Mortgage Loans as of the Due Date in the month
preceding such Distribution Date. As to any Distribution Date and any Class
S Certificate, such Certificate's Percentage Interest of the aggregate
Notional Principal Balance of the Class S Certificates for such
Distribution Date.
Officer's Certificate: A certificate signed by the President, a Senior
Vice President or a Vice President of the Company and delivered to the
Trustee.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Company; provided, however, that any Opinion of Counsel with
respect to the interpretation or application of the REMIC Provisions or the
status of an account as an Eligible Account shall be the opinion of
independent counsel satisfactory to the Trustee.
Original Subordinate Principal Balance: As set forth in the definition
of Senior Prepayment Percentage.
Original Value: The value of the property underlying a Mortgage Loan
based, in the case of the purchase of the underlying Mortgaged Property, on
the lower of an appraisal satisfactory to the Company or the sales price of
such property or, in the case of a refinancing, on an appraisal
satisfactory to the Company.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage
Loan which, prior to such Due Date, was not the subject of a Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and was not
purchased pursuant to Section 2.02, 2.03(a) or 3.16 or replaced pursuant to
Section 2.03(b).
Outstanding Non-Discount Mortgage Loan: Any Outstanding Mortgage Loan
that is a Non-Discount Mortgage Loan.
PAC Balance: As to any Distribution Date and any Class of PAC
Certificates and any PAC Component, the balance designated as such for such
Distribution Date and such Class or Component as set forth in the Principal
Balance Schedules.
PAC Certificate: None.
PAC Component: None.
19
Parent Power(SM) Loan: A Mortgage Loan identified on Exhibit N hereto
that has a Loan-to-Value Ratio at origination in excess of 80.00%, that is
supported by Additional Collateral and does not have a Primary Insurance
Policy.
Pay-out Rate: With respect to any Class of Certificates (other than
any Class of Principal Only Certificates) and any Distribution Date, the
rate at which interest is distributed on such Class on such Distribution
Date and which is equal to a fraction (expressed as an annualized
percentage) the numerator of which is the Accrued Certificate Interest for
such Class and Distribution Date, and the denominator of which is the Class
Certificate Principal Balance (or, in the case of the Notional
Certificates, the Notional Principal Balance) of such Class immediately
prior to such Distribution Date.
Percentage Interest: With respect to any Certificate, the percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by Certificates of the same Class as such Certificate. With
respect to any Certificate (other than any Designated Retail Certificate),
the Percentage Interest evidenced thereby shall equal the Initial
Certificate Principal Balance (or, in the case of a Notional Certificate,
the initial Notional Principal Balance) thereof divided by the aggregate
Initial Certificate Principal Balance (or, in the case of a Notional
Certificate, the aggregate initial Notional Principal Balance) of all
Certificates of the same Class. With respect to any Designated Retail
Certificate, the Percentage Interest evidenced thereby shall equal the
Certificate Principal Balance thereof divided by the aggregate Certificate
Principal Balance of all Certificates of the same Class.
Permitted Investments: One or more of the following; provided,
however, that no such Permitted Investment may mature later than the
Business Day preceding the Distribution Date after such investment except
as otherwise provided in Section 3.02(e) hereof, provided, further, that
such investments qualify as "cash flow investments" as defined in section
860G(a)(6) of the Code:
(i) obligations of, or guaranteed as to timely receipt of principal
and interest by, the United States or any agency or instrumentality thereof
when such obligations are backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i)
provided that the unsecured obligations of the party agreeing to repurchase
such obligations are at the time rated by each Rating Agency in the highest
long-term rating category;
(iii) federal funds, certificates of deposit, time deposits and
banker's acceptances, of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state provided that
the debt obligations of such depository institution or trust company at the
date of acquisition thereof have been rated by each Rating Agency in the
highest long-term rating category;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof which on the date of acquisition
has the highest short term rating of each Rating Agency; and
20
(v) other obligations or securities that are acceptable to each Rating
Agency as a Permitted Investment hereunder and will not, as evidenced in
writing, result in a reduction or withdrawal in the then current rating of
the Certificates.
Notwithstanding the foregoing, Permitted Investments shall not include
"stripped securities" and investments which contractually may return less
than the purchase price therefor.
Person: Any legal person, including any individual, corporation,
partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
Plan: Any Person which is an employee benefit plan subject to ERISA or
a plan subject to section 4975 of the Code.
Pledged Asset Loan-to-Value Ratio: With respect to any Pledged Asset
Mortgage Loan, (i) the original loan amount less the portion of any
required Additional Collateral which is covered by the Surety Bond, divided
by (ii) the Original Value of the related Mortgaged Property.
Pledged Asset Mortgage Loan: Each Mortgage 100SM Loan and Parent
PowerSM Loan purchased from MLCC that is supported by Additional Collateral
and identified on Exhibit N hereto.
Pledged Asset Mortgage Servicing Agreement: The Amended and Restated
Pledged Asset Mortgage Servicing Agreement, dated as of June 2, 1998,
between MLCC and the Company.
PO Percentage: As to any Discount Mortgage Loan, a fraction (expressed
as a percentage), the numerator of which is the excess of the Designated
Rate over the Net Mortgage Rate of such Discount Mortgage Loan and the
denominator of which is the Designated Rate. As to any Non-Discount
Mortgage Loan, 0%.
Pool Scheduled Principal Balance: With respect to any Distribution
Date, the aggregate Scheduled Principal Balance of all the Mortgage Loans
that were Outstanding Mortgage Loans on the Due Date in the month next
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, the Cut-off Date; or, if so specified, such other date).
Prepayment Assumption: The assumed fixed schedule of prepayments on a
pool of new mortgage loans with such schedule given as a monthly sequence
of prepayment rates, expressed as annualized percent values. These values
start at 0.2% per year in the first month, increase by 0.2% per year in
each succeeding month until month 30, ending at 6.0% per year. At such
time, the rate remains constant at 6.0% per year for the balance of the
remaining term. Multiples of the Prepayment Assumption are calculated from
this prepayment rate series.
21
Prepayment Assumption Multiple: 200% of the Prepayment
Assumption.
Prepayment Distribution Trigger: As of any Distribution Date and as to
each Class of Class B Certificates, the related Prepayment Distribution
Trigger is satisfied if (x) the fraction, expressed as a percentage, the
numerator of which is the aggregate Class Certificate Principal Balance of
such Class and each Class subordinate thereto, if any, on such Distribution
Date, and the denominator of which is the Pool Scheduled Principal Balance
for such Distribution Date, equals or exceeds (y) such percentage
calculated as of the Closing Date.
Prepayment Interest Excess: As to any Voluntary Principal Prepayment
in full received from the first day through the fifteenth day of any
calendar month (other than the calendar month in which the Cut-off Date
occurs), all amounts paid in respect of interest on such Principal
Prepayment. For purposes of determining the amount of Prepayment Interest
Excess for any month, a Voluntary Principal Prepayment in full with respect
to a Mortgage Loan serviced by a Primary Servicer shall be deemed to have
been received when the Company, as servicer, receives notice thereof. All
Prepayment Interest Excess shall be retained by the Company, as servicer,
as additional servicing compensation.
Prepayment Period: With respect to any Distribution Date and any
Voluntary Principal Prepayment in part or other Principal Prepayment other
than a Voluntary Principal Prepayment in full, the calendar month preceding
the month of such Distribution Date; with respect to any Distribution Date
and any Voluntary Principal Prepayment in full, the period beginning on the
sixteenth day of the calendar month preceding the month of such
Distribution Date (or, in the case of the first Distribution Date,
beginning on the Cut-off Date) and ending on the fifteenth day of the month
in which such Distribution Date occurs.
Primary Insurance Policy: The certificate of private mortgage
insurance relating to a particular Mortgage Loan, or an electronic screen
print setting forth the information contained in such certificate of
private mortgage insurance, including, without limitation, information
relating to the name of the mortgage insurance carrier, the certificate
number, the loan amount, the property address, the effective date of
coverage, the amount of coverage and the expiration date of the policy.
Each such policy covers defaults by the Mortgagor, which coverage shall
equal the portion of the unpaid principal balance of the related Mortgage
Loan that exceeds 75% (or such lesser coverage required or permitted by
FNMA or FHLMC) of the Original Value of the underlying Mortgaged Property.
Primary Servicer: Any servicer with which the Company has entered into
a servicing agreement, as described in Section 3.01(f).
Principal Balance Schedules: Any principal balance schedules attached
hereto, if applicable, as Exhibit B, setting forth the PAC Balances of any
PAC Certificates and PAC Components, the TAC Balances of any TAC
Certificates and TAC Components and the Scheduled Balances of any Scheduled
Certificates and Scheduled Components.
22
Principal Distribution Request: Any request for a distribution in
reduction of the Class Certificate Principal Balance of any Designated
Retail Certificate, submitted in writing to a Depository Participant or
Financial Intermediary (or, if such Designated Retail Certificate is no
longer represented by a Book-Entry Certificate, to the Trustee) by the
Certificate Owner (or Certificateholder) of such Designated Retail
Certificate pursuant to Section 4.10(c) or 4.10(g), as applicable.
Principal Only Certificate: Any Class PO Certificate.
Principal Only Component: None.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan (including, for this purpose, any refinancing permitted by
Section 3.01 and any REO Proceeds treated as such pursuant to Section
3.08(b)) which is received in advance of its scheduled Due Date and is not
accompanied by an amount of interest representing scheduled interest for
any month subsequent to the month of prepayment.
Private Placement Memorandum: The Company's private placement
memorandum relating to the placement of the Restricted Junior Certificates
dated the date of the prospectus supplement referred to in the definition
of Prospectus.
Prohibited Transaction Exemption: U.S. Department of Labor Prohibited
Transaction Exemption 89-88, 54 Fed. Reg. 42581, October 17, 1989, as
amended.
Property Protection Expenses: With respect to any Mortgage Loan,
expenses paid or incurred by or for the account of the Company in
accordance with the related Mortgage for (a) real estate property taxes and
property repair, replacement, protection and preservation expenses and (b)
similar expenses reasonably paid or incurred to preserve or protect the
value of such Mortgage to the extent the Company is not reimbursed therefor
pursuant to the Primary Insurance Policy, if any, or any other insurance
policy with respect thereto.
Proprietary Lease: With respect to a Cooperative Loan, the proprietary
lease(s) or occupancy agreement with respect to the Cooperative Apartment
occupied by the Mortgagor and relating to the related Cooperative Stock,
which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
Prospectus: The Company's prospectus supplement dated April 25, 2000,
and the related prospectus dated January 25, 2000, relating to the public
offering of the Certificates other than the Restricted Certificates.
Purchase Price: With respect to any Mortgage Loan required or
permitted to be purchased hereunder from the Trust Fund, an amount equal to
100% of the unpaid principal balance thereof plus interest thereon at the
applicable Mortgage Rate from the date to which interest was last paid to
the first day of the month in which such purchase price is to be
distributed; provided, however, that if the Company is the servicer
hereunder, such purchase price shall be net of unreimbursed Monthly
Advances with
23
respect to such Mortgage Loan, and the interest component of the Purchase
Price may be computed on the basis of the Net Mortgage Rate for such
Mortgage Loan.
QIB: A "qualified institutional buyer" as defined in Rule 144A under
the Securities Act of 1933, as amended.
Random Lot: With respect to any Distribution Date prior to the
Cross-Over Date, if the amount available for distribution in reduction of
the Class Certificate Principal Balance of any Class of Designated Retail
Certificates on such Distribution Date exceeds the amount needed to honor
all Principal Distribution Requests with respect to such Class on such
date, the method by which the Depository will determine which Depository
Participants holding interests in such Class of Certificates will receive
payments of amounts distributable in respect of principal on such Class on
such Distribution Date, using its established random lot procedures or, if
such Class of Certificates is no longer represented by Book-Entry
Certificates, the method by which the Trustee will determine which
Certificates of such Class will receive payments of amounts distributable
in respect of principal on such Class on such Distribution Date, using its
own random lot procedures comparable to those used by the Depository.
Rating Agency: Any statistical credit rating agency, or its successor,
that rated any of the Certificates at the request of the Company at the
time of the initial issuance of the Certificates. If such agency or a
successor is no longer in existence, "Rating Agency" shall be such
statistical credit rating agency, or other comparable Person, designated by
the Company, notice of which designation shall be given to the Trustee.
References herein to the two highest long-term rating categories of a
Rating Agency shall mean such ratings without any modifiers. As of the date
of the initial issuance of the Certificates, the Rating Agencies are Fitch
and S&P; except that for purposes of the Junior Certificates, other than
the Class B5 Certificates, Fitch shall be the sole Rating Agency. The Class
B5 Certificates are issued without ratings.
Realized Loss: Any (i) Deficient Valuation or (ii) as to any
Liquidated Mortgage Loan, (x) the unpaid principal balance of such
Liquidated Mortgage Loan plus accrued and unpaid interest thereon at the
Net Mortgage Rate through the last day of the month of such liquidation
less (y) the related Liquidation Proceeds and Insurance Proceeds (as
reduced by the related Liquidation Expenses).
Record Date: The last Business Day of the month immediately preceding
the month of the related Distribution Date.
Reference Banks: As defined in Section 5.08.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly
Payment thereof has been reduced due to the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
24
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Part IV of Subchapter M of Chapter 1 of the Code, and
related provisions, and U.S. Department of the Treasury temporary or final
regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
REO Mortgage Loan: Any Mortgage Loan which is not a Liquidated
Mortgage Loan and as to which the related Mortgaged Property is held as
part of the Trust Fund.
REO Proceeds: Proceeds, net of any related expenses of the Company,
received in respect of any REO Mortgage Loan (including, without
limitation, proceeds from the rental of the related Mortgaged Property).
Required Surety Payment: With respect to any Pledged Asset Mortgage
Loan that becomes a Liquidated Mortgage Loan, the lesser of (i) the
principal portion of the Realized Loss with respect to such Mortgage Loan
and (ii) the excess, if any, of (a) the amount of Additional Collateral
required at origination with respect to such Mortgage Loan which is covered
by the Surety Bond over (b) the net proceeds realized by MLCC from the
liquidation of the related Additional Collateral.
Reserve Fund: None.
Reserve Interest Rate: As defined in Section 5.08.
Residual Certificate: Any Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer or assistant officer assigned to and working in the Corporate Trust
Department of the Trustee and, also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Restricted Certificate: Any Restricted Junior Certificate, Class PO
Certificate or Class S Certificate.
Restricted Junior Certificate: Any Class B3, Class B4 or Class B5
Certificate.
Rounding Account: With respect to each Class of Designated Retail
Certificates, the respective segregated, non-interest bearing Eligible
Account created and maintained therefor pursuant to Section 4.10.
Rounding Account Depositor: None.
Rounding Amount: With respect to any Class of Designated Retail
Certificates and each Distribution Date prior to the Cross-Over Date on
which such Class of Certificates is entitled to a distribution in reduction
of the Class Certificate Principal Balance thereof, the amount, if any,
necessary to round the aggregate of such distribution
25
(after giving effect to any deposit into the related Rounding Account on
such Distribution Date) upward to the next higher integral multiple of
$1,000.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., and its successors.
SAIF: The Savings Association Insurance Fund of the FDIC, or its
successor in interest.
Scheduled Balance: As to any Distribution Date and any Class of
Scheduled Certificates and any Scheduled Component, the balance designated
as such for such Distribution Date and such Class or Component as set forth
in the Principal Balance Schedules.
Scheduled Certificate: None.
Scheduled Component: None.
Scheduled Principal Balance: As to any Mortgage Loan and Distribution
Date, the principal balance of such Mortgage Loan as of the Due Date in the
month next preceding the month of such Distribution Date (or, if so
specified, such other date) as specified in the amortization schedule at
the time relating to such Mortgage Loan (before any adjustment to such
amortization schedule by reason of any bankruptcy or similar proceeding or
any moratorium or similar waiver or grace period) after giving effect to
any previous Principal Prepayments, Deficient Valuations incurred
subsequent to the Bankruptcy Coverage Termination Date, adjustments due to
the application of the Relief Act and the payment of principal due on such
Due Date, irrespective of any delinquency in payment by the related
Mortgagor. As to any Mortgage Loan and the Cut-off Date, the "unpaid
balance" thereof specified in the initial Mortgage Loan Schedule.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock and Proprietary Lease.
Senior Certificate: Any Certificate other than a Junior Certificate or
Class S Certificate.
Senior Certificate Principal Balance: As of any Distribution Date, an
amount equal to the sum of the Certificate Principal Balances of the Senior
Certificates (other than any Class PO Certificates).
Senior Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum of:
(i) the Senior Percentage of the applicable Non-PO Percentage of the
principal portion of each Monthly Payment due on the related Due Date on
each Outstanding Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time applicable thereto (after adjustments for
previous Principal
26
Prepayments and the principal portion of Debt Service Reductions subsequent
to the Bankruptcy Coverage Termination Date but before any adjustment to
such amortization schedule by reason of any bankruptcy (except as
aforesaid) or similar proceeding or any moratorium or similar waiver or
grace period);
(ii) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of all principal prepayments in part received during the related
Prepayment Period, together with the Senior Prepayment Percentage of the
applicable Non-PO Percentage of the Scheduled Principal Balance of each
Mortgage Loan which was the subject of a Voluntary Principal Prepayment in
full during the related Prepayment Period;
(iii) the lesser of (x) the Senior Percentage of the applicable Non-PO
Percentage of the sum of (A) the Scheduled Principal Balance of each
Mortgage Loan that became a Liquidated Mortgage Loan (other than Mortgage
Loans described in clause (B)) during the related Prepayment Period and (B)
the Scheduled Principal Balance of each Mortgage Loan that was purchased by
an insurer from the Trustee during the related Prepayment Period pursuant
to the related Primary Insurance Policy, as reduced in each case by the
Senior Percentage of the applicable Non-PO Percentage of the principal
portion of any Excess Losses (other than Excess Bankruptcy Losses
attributable to Debt Service Reductions), and (y) the Senior Prepayment
Percentage of the applicable Non-PO Percentage of the sum of (A) all Net
Liquidation Proceeds allocable to principal received in respect of each
such Liquidated Mortgage Loan (other than Mortgage Loans described in
clause (B)) and (B) the principal balance of each such Mortgage Loan
purchased by an insurer from the Trustee pursuant to the related Primary
Insurance Policy, in each case during the related Prepayment Period;
(iv) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of the Scheduled Principal Balance of each Mortgage Loan which
was purchased on such Distribution Date pursuant to Section 2.02, 2.03(a)
or 3.16; and
(v) the Senior Prepayment Percentage of the applicable Non-PO
Percentage of the Substitution Amount for any Mortgage Loan substituted
during the month of such Distribution Date.
For purposes of clause (ii) above, a Voluntary Principal Prepayment in
full with respect to a Mortgage Loan serviced by a Primary Servicer shall
be deemed to have been received when the Company, as servicer, receives
notice thereof.
Senior Percentage: As to any Distribution Date, the lesser of (i) 100%
and (ii) the percentage (carried to six places rounded up) obtained by
dividing the Senior Certificate Principal Balance immediately prior to such
Distribution Date by an amount equal to the sum of the Certificate
Principal Balances of all the Certificates other than any Class PO
Certificates immediately prior to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date occurring
prior to the fifth anniversary of the first Distribution Date, 100%. For
any Distribution Date
27
occurring on or after the fifth anniversary of the first Distribution Date,
an amount as follows:
(i) for any Distribution Date subsequent to April 2005 to and
including the Distribution Date in April 2006, the Senior Percentage for
such Distribution Date plus 70% of the Junior Percentage for such
Distribution Date;
(ii) for any Distribution Date subsequent to April 2006 to and
including the Distribution Date in April 2007, the Senior Percentage for
such Distribution Date plus 60% of the Junior Percentage for such
Distribution Date;
(iii) for any Distribution Date subsequent to April 2007 to and
including the Distribution Date in April 2008, the Senior Percentage for
such Distribution Date plus 40% of the Junior Percentage for such
Distribution Date;
(iv) for any Distribution Date subsequent to April 2008 to and
including the Distribution Date in April 2009, the Senior Percentage for
such Distribution Date plus 20% of the Junior Percentage for such
Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage for
such Distribution Date.
Notwithstanding the foregoing, if on any Distribution Date the Senior
Percentage exceeds the Senior Percentage as of the Closing Date, the Senior
Prepayment Percentage for such Distribution Date will equal 100%.
In addition, notwithstanding the foregoing, no reduction of the Senior
Prepayment Percentage below the level in effect for the most recent prior
period as set forth in clauses (i) through (iv) above shall be effective on
any Distribution Date unless at least one of the following two tests is
satisfied:
Test I: If, as of the last day of the month preceding such
Distribution Date, (i) the aggregate Scheduled Principal Balance of
Mortgage Loans delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and REO Mortgage Loans) as a percentage of
the aggregate Class Certificate Principal Balance of the Junior
Certificates as of such date, does not exceed 50%, and (ii) cumulative
Realized Losses with respect to the Mortgage Loans do not exceed (a) 30% of
the aggregate Class Certificate Principal Balance of the Junior
Certificates as of the Closing Date (the "Original Subordinate Principal
Balance") if such Distribution Date occurs between and including May 2005
and April 2006, (b) 35% of the Original Subordinate Principal Balance if
such Distribution Date occurs between and including May 2006 and April
2007, (c) 40% of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2007 and April 2008, (d)
45% of the Original Subordinate Principal Balance if such Distribution Date
occurs between and including May 2008 and April 2009 and (e) 50% of the
Original Subordinate Principal Balance if such Distribution Date occurs
during or after May 2009; or
28
Test II: If, as of the last day of the month preceding such
Distribution Date, (i) the aggregate Scheduled Principal Balance of
Mortgage Loans delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and REO Mortgage Loans) averaged over the
last three months, as a percentage of the aggregate Scheduled Principal
Balance of Mortgage Loans averaged over the last three months, does not
exceed 4%, and (ii) cumulative Realized Losses with respect to the Mortgage
Loans do not exceed (a) 10% of the Original Subordinate Principal Balance
if such Distribution Date occurs between and including May 2005 and April
2006, (b) 15% of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2006 and April 2007, (c)
20% of the Original Subordinate Principal Balance if such Distribution Date
occurs between and including May 2007 and April 2008, (d) 25% of the
Original Subordinate Principal Balance if such Distribution Date occurs
between and including May 2008 and April 2009 and (e) 30% of the Original
Subordinate Principal Balance if such Distribution Date occurs during or
after May 2009.
Senior Principal Priorities: The priorities for the distribution of
principal to the Senior Certificates as set forth in Exhibit O hereto.
Servicer's Certificate: A certificate, completed by and executed on
behalf of the Company by a Servicing Officer in accordance with Section
4.06, substantially in the form of Exhibit D hereto or in such other form
as the Company and the Trustee shall agree.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an
amount equal to the product of (i) the Scheduled Principal Balance of such
Mortgage Loan as of the Due Date in the preceding calendar month and (ii)
the Servicing Fee Rate for such Mortgage Loan.
Servicing Fee Rate: As to any Mortgage Loan, the per annum rate
identified as such for such Mortgage Loan and set forth in the Mortgage
Loan Schedule.
Servicing Officer: Any officer of the Company involved in, or
responsible for, the administration and servicing of the Mortgage Loans
whose name appears on a list of servicing officers attached to an Officer's
Certificate furnished to the Trustee by the Company, as such list may from
time to time be amended.
Single Certificate: A Certificate with an Initial Certificate
Principal Balance, or initial Notional Principal Balance, of $1,000 or, in
the case of a Class of Certificates issued with an initial Class
Certificate Principal Balance or initial Notional Principal Balance of less
than $1,000, such lesser amount.
Special Event Loss: Any Fraud Loss, Special Hazard Loss or Deficient
Valuation.
Special Hazard Loss: (i) A Realized Loss suffered by a Mortgaged
Property on account of direct physical loss, exclusive of (a) any loss
covered by a hazard policy or a flood insurance policy required to be
maintained in respect of such Mortgaged Property under Section 3.06 and (b)
any loss caused by or resulting from:
29
(A) normal wear and tear;
(B) conversion or other dishonest act on the part of the Trustee,
the Company or any of their agents or employees; or
(C) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues;
or (ii) any Realized Loss suffered by the Trust Fund arising from or
related to the presence or suspected presence of hazardous wastes or
hazardous substances on a Mortgaged Property unless such loss to a
Mortgaged Property is covered by a hazard policy or a flood insurance
policy required to be maintained in respect of such Mortgaged Property
under Section 3.06.
Special Hazard Loss Amount: As of any Distribution Date, an amount
equal to $2,990,940 minus the sum of (i) the aggregate amount of Special
Hazard Losses that would have been allocated to the Junior Certificates in
accordance with Section 4.03 in the absence of the Loss Allocation
Limitation and (ii) the Adjustment Amount (as defined below) as most
recently calculated. On each anniversary of the Cut-off Date, the
"Adjustment Amount" shall be equal to the amount, if any, by which the
amount calculated in accordance with the preceding sentence (without giving
effect to the deduction of the Adjustment Amount for such anniversary)
exceeds the lesser of (x) the greater of (A) the product of the Special
Hazard Percentage for such anniversary multiplied by the outstanding
principal balance of all the Mortgage Loans on the Distribution Date
immediately preceding such anniversary and (B) twice the outstanding
principal balance of the Mortgage Loan which has the largest outstanding
principal balance on the Distribution Date immediately preceding such
anniversary, and (y) an amount calculated by the Company and approved by
each Rating Agency, which amount shall not be less than $500,000.
Special Hazard Percentage: As of each anniversary of the Cut-off Date,
the greater of (i) 1.00% and (ii) the largest percentage obtained by
dividing (x) the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of the Mortgage Loans secured by
Mortgaged Properties located in a single, five-digit zip code area in the
State of California by (y) the outstanding principal balance of all the
Mortgage Loans as of the immediately preceding Distribution Date.
Special Hazard Termination Date: The Distribution Date upon which the
Special Hazard Loss Amount has been reduced to zero or a negative number
(or the Cross-Over Date, if earlier).
Specified Component: None.
Startup Day: As defined in Section 2.05(b).
Strip Rate: With respect to the Class S Certificates and any
Distribution Date, a variable rate per annum equal to the excess of (x) the
weighted average (by Scheduled Principal Balance) carried to six decimal
places, rounded down, of the Net Mortgage
30
Rates of the Outstanding Non-Discount Mortgage Loans as of the Due Date in
the preceding calendar month (or the Cut-off Date, in the case of the first
Distribution Date) over (y) the Designated Rate; provided, however, that
such calculation shall not include any Mortgage Loan that was the subject
of a Voluntary Principal Prepayment in full received by the Company (or of
which the Company received notice, in the case of a Mortgage Loan serviced
by a Primary Servicer) on or after the first day but on or before the 15th
day of such preceding calendar month.
Subordinate Certificates: As to any date of determination, first, the
Class B5 Certificates until the Class Certificate Principal Balance thereof
has been reduced to zero; second, the Class B4 Certificates until the Class
Certificate Principal Balance thereof has been reduced to zero; third, the
Class B3 Certificates until the Class Certificate Principal Balance thereof
has been reduced to zero; fourth, the Class B2 Certificates until the Class
Certificate Principal Balance thereof has been reduced to zero; fifth, the
Class B1 Certificates until the Class Certificate Principal Balance thereof
has been reduced to zero; and sixth, the Class M Certificates until the
Class Certificate Principal Balance thereof has been reduced to zero.
Subordinate Certificate Writedown Amount: As to any Distribution Date,
first, any amount distributed to the Class PO Certificates on such
Distribution Date pursuant to Section 4.01(a)(iv) and second, after giving
effect to the application of clause first above, the amount by which (i)
the sum of the Class Certificate Principal Balances of all the Certificates
(after giving effect to the distribution of principal and the application
of Realized Losses in reduction of the Certificate Principal Balances of
the related Certificates on such Distribution Date) exceeds (ii) the Pool
Scheduled Principal Balance on the first day of the month of such
Distribution Date less any Deficient Valuations occurring on or prior to
the Bankruptcy Coverage Termination Date.
Substitution Amount: With respect to any Mortgage Loan substituted
pursuant to Section 2.03(b), the excess of (x) the Scheduled Principal
Balance of the Mortgage Loan that is substituted for, over (y) the
Scheduled Principal Balance of the related substitute Mortgage Loan, each
balance being determined as of the date of substitution.
Surety: Ambac Assurance Corporation, or its successors in interest.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE),
dated February 28, 1996, issued by the Surety for the benefit of certain
beneficiaries, including the Trustee for the benefit of the Holders of the
Certificates, but only to the extent that such Limited Purpose Surety Bond
covers any Pledged Asset Mortgage Loans.
TAC Balance: As to any Distribution Date and any Class of TAC
Certificates and any TAC Component, the balance designated as such for such
Distribution Date and such Class or Component as set forth in the Principal
Balance Schedules attached as Exhibit B hereto.
TAC Certificates: None.
TAC Component: None.
31
Trigger Event: Any one or more of the following: (i) if the Company is
not a wholly-owned direct or indirect subsidiary of General Electric
Company or if General Electric Capital Corporation shall not own (directly
or indirectly) at least two-thirds of the voting shares of the capital
stock of the Company, (ii) if the long-term senior unsecured rating of
General Electric Capital Corporation is downgraded or withdrawn by Fitch or
S&P below their two highest rating categories, (iii) if General Electric
Capital Corporation is no longer obligated pursuant to the terms of the
support agreement, dated as of October 1, 1990, between General Electric
Capital Corporation and the Company, to maintain the Company's net worth or
liquidity (as such terms are defined therein) at the levels specified
therein, or if such support agreement, including any amendment thereto, has
been breached, terminated or otherwise held to be unenforceable and (iv) if
such support agreement, including any amendment thereto, is amended or
modified.
Trust Fund: The corpus of the trust created by this Agreement
evidenced by the Certificates and consisting of:
(i) the Mortgage Loans;
(ii) all payments on or collections in respect of such Mortgage Loans,
except as otherwise described in the first paragraph of Section 2.01,
including the proceeds from the liquidation of any Additional Collateral
for any Pledged Asset Mortgage Loan;
(iii) the obligation of the Company to deposit in the Certificate
Account the amounts required by Sections 3.02(d), 3.02(e) and 4.04(a), and
the obligation of the Trustee to deposit in the Certificate Account any
amount required pursuant to Section 4.04(b);
(iv) the obligation of the Company to purchase or replace any
Defective Mortgage Loan pursuant to Section 2.02 or 2.03;
(v) all property acquired by foreclosure or deed in lieu of
foreclosure with respect to any REO Mortgage Loan;
(vi) the proceeds of the Primary Insurance Policies, if any, and the
hazard insurance policies required by Section 3.06, in each case, in
respect of the Mortgage Loans, and the Company's interest in the Surety
Bond transferred to the Trustee pursuant to Section 2.01;
(vii) the Certificate Account established pursuant to Section 3.02(d);
(viii) the Eligible Account or Accounts, if any, established pursuant
to Section 3.02(e);
(ix) any collateral funds established to secure the obligations of the
Holder of the Class B4 and Class B5 Certificates, respectively, under any
agreements entered into between such holder and the Company pursuant to
Section 3.08(e) (which collateral funds will not constitute a part of any
REMIC established hereunder);
32
(x) all rights of the Company as assignee under any security
agreements, pledge agreements or guarantees relating to the Additional
Collateral supporting any Pledged Asset Mortgage Loan (which rights will
not constitute a part of any REMIC established hereunder); and
(xi) all rights of the Company as assignee under any security
agreements or pledge agreements relating to the Additional Collateral
supporting any CashSaver Mortgage Loan (which rights will not constitute a
part of any REMIC established hereunder).
Trustee: The institution executing this Agreement as Trustee, or its
successor in interest, or if any successor trustee is appointed as herein
provided, then such successor trustee so appointed.
Unanticipated Recovery: As defined in Section 4.01(f) herein.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of the property is not fully
reimbursable by the hazard insurance policies required to be maintained
pursuant to Section 3.06.
Unpaid Class Interest Shortfall: As to any Distribution Date and any
Class of Certificates (other than any Class of Principal Only Certificates
and any Class consisting of Specified Components) or any Specified
Component (other than any Principal Only Component), the amount, if any, by
which the aggregate of the Class Interest Shortfalls for such Class or in
respect of such Specified Component for prior Distribution Dates is in
excess of the aggregate amounts distributed on prior Distribution Dates to
Holders of such Class of Certificates or in respect of such Specified
Component (or added to the Class Certificate Principal Balance of any Class
of Accrual Certificates, or to the Component Principal Balance of any
Accrual Component constituting a Specified Component) pursuant to Section
4.01(a)(ii), in the case of the Senior Certificates (other than any Class
of Principal Only Certificates) and any Specified Component thereof (other
than any Principal Only Component) and the Class S Certificates, Section
4.01(a)(vi), in the case of the Class M Certificates, Section 4.01(a)(ix),
in the case of the Class B1 Certificates, Section 4.01(a)(xii), in the case
of the Class B2 Certificates, Section 4.01(a)(xv), in the case of the Class
B3 Certificates, Section 4.01(a)(xviii), in the case of the Class B4
Certificates, and Section 4.01(a)(xxi), in the case of the Class B5
Certificates. As to any Class of Certificates consisting of Specified
Components and any Distribution Date, the sum of the Unpaid Class Interest
Shortfalls for the Specified Components thereof on such date.
Voluntary Principal Prepayment: With respect to any Distribution Date,
any prepayment of principal received from the related Mortgagor on a
Mortgage Loan.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the
voting provisions of Section 10.01. At all times during the term of this
Agreement, 99% of all Voting Rights shall be allocated to the Certificates
other than the Class S Certificates, and 1% of all Voting Rights shall be
33
allocated to the Class S Certificates. Voting Rights allocated to the Class
S Certificates shall be allocated among the Certificates of such Class in
proportion to their Notional Principal Balances. Voting Rights allocated to
the other Classes of Certificates shall be allocated among such Classes
(and among the Certificates within each such Class) in proportion to their
Class Certificate Principal Balances (or Certificate Principal Balances),
as the case may be.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans. (a) The Company, concurrently
with the execution and delivery of this Agreement, does hereby transfer, assign,
set-over and otherwise convey to the Trustee without recourse (except as
provided herein) all the right, title and interest of the Company in and to the
Mortgage Loans, including all interest and principal received by the Company on
or with respect to the Mortgage Loans (other than payments of principal and
interest due and payable on the Mortgage Loans on or before, and all Principal
Prepayments received on or before, the Cut-off Date). The Company acknowledges
it has sold all right, title and interest in and to the Mortgage Loans to the
Trustee to the extent provided above and that retention of record title of
Mortgages (subject to Section 2.01(d) of this Agreement) is for convenience only
and that the Company holds record title solely as custodian for the Trustee for
benefit of the Certificateholders. The Company agrees that it will take no
action inconsistent with ownership of the Mortgage Loans by the Trustee and will
not deliver any instrument of satisfaction or conveyance with respect to a
Mortgage or a Mortgage Loan, or convey or purport to convey any interest in a
Mortgage Loan, except in accordance with the terms and the intent of this
Agreement.
With respect to any Pledged Asset Mortgage Loan, the Company does hereby
transfer, assign, set-over and otherwise convey to the Trustee without recourse
(except as provided herein) (i) its rights as assignee under any security
agreements, pledge agreements or guarantees relating to the Additional
Collateral supporting any Pledged Asset Mortgage Loan, (ii) its security
interest in and to any Additional Collateral, (iii) its right to receive
payments in respect of any Pledged Asset Mortgage Loan pursuant to the Pledged
Asset Mortgage Servicing Agreement, and (iv) its rights as beneficiary under the
Surety Bond in respect of any Pledged Asset Mortgage Loan.
In addition, with respect to any CashSaver Mortgage Loan, the Company does
hereby transfer, assign, set-over and otherwise convey to the Trustee without
recourse (except as provided herein) (i) its rights as assignee under any
security agreements, pledge agreements or guarantees relating to the Additional
Collateral supporting any CashSaver Mortgage Loan, (ii) its security interest in
and to any Additional Collateral and (iii) its right to receive payments in
respect of any CashSaver Mortgage Loan.
(b) In connection with such transfer and assignment, the Company does
hereby deliver to the Trustee (or the Custodian, on behalf of the Trustee) the
following documents or instruments with respect to:
34
(1) Each Mortgage Loan (other than any Cooperative Loan or Designated
Loan) so transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in
blank by the Company, including all intervening endorsements showing a
complete chain of endorsement from the originator to the Company;
provided, however, that if such Mortgage Note is a Confirmatory
Mortgage Note, such Confirmatory Mortgage Note may be payable directly
to the Company or may show a complete chain of endorsement from the
named payee to the Company;
(ii) Any assumption and modification agreement;
(iii) Except for any Mortgage which has been recorded in the name
of MERS or its designee, an assignment in recordable form (which may
be included in a blanket assignment or assignments) of the Mortgage to
the Trustee; and
(2) Each Cooperative Loan (other than a Designated Loan) so
transferred and assigned:
(i) The original Mortgage Note, endorsed without recourse in
blank by the Company and showing an unbroken chain of endorsements
from the originator to the Company; provided, however, that if such
Mortgage Note is a Confirmatory Mortgage Note, such Confirmatory
Mortgage Note may be payable directly to the Company or may show a
complete chain of endorsement from the named payee to the Company;
(ii) A counterpart of the Proprietary Lease and the Assignment of
Proprietary Lease executed in blank or to the originator of the
Cooperative Loan;
(iii) The related Cooperative Stock Certificate, together with an
undated stock power (or other similar instrument) executed in blank;
(iv) A counterpart of the recognition agreement by the
Cooperative of the interests of the mortgagee with respect to the
related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such Cooperative
Loan as secured party, each with evidence of recording thereof,
evidencing the interest of the originator in the Cooperative Stock and
the Proprietary Lease;
(vii) If applicable, copies of the UCC-3 assignments of the
security interest described in clause (vi) above, sent to the
appropriate public office for filing, showing an unbroken chain of
title from the originator to the Company, evidencing the security
interest of the originator in the Cooperative Stock and the
Proprietary Lease;
35
(viii) An executed assignment (which may be a blanket assignment
for all Cooperative Loans) of the interest of the Company in the
Security Agreement, Assignment of Proprietary Lease and the
recognition agreement described in clause (iv) above, showing an
unbroken chain of title from the originator to the Trustee; and
(ix) A UCC-3 assignment from the Company to the Trustee of the
security interest described in clause (vi) above, in form suitable for
filing, otherwise complete except for filing information regarding the
original UCC-1 if unavailable (which may be included in a blanket
assignment to the Trustee).
Except for any Mortgage which has been recorded in the name of MERS or
its designee, in instances where a completed assignment of the Mortgage in
recordable form cannot be delivered by the Company to the Trustee (or the
Custodian) in accordance with Section 2.01(b)(1)(iii) prior to or
concurrently with the execution and delivery of this Agreement, due to a
delay in connection with recording of the Mortgage, the Company may, in
lieu of delivering the completed assignment in recordable form, deliver to
the Trustee (or the Custodian) the assignment in such form, otherwise
complete except for recording information. With respect to any Mortgage
that has been recorded in the name of MERS or its designee, no assignment
of the Mortgage in favor of the Trustee shall be required to be prepared or
delivered; instead, the Company shall take all actions as are necessary to
cause the Trust Fund to be shown as the owner of the related Mortgage Loan
on the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS, and shall provide
evidence thereof to the Trustee (or the Custodian).
(3) With respect to each Designated Loan, the Company does hereby
deliver to the Trustee (or the Custodian) the Designated Loan Closing
Documents.
(c) In connection with each Mortgage Loan transferred and assigned to the
Trustee, the Company shall deliver to the Trustee (or the Custodian) the
following documents or instruments as promptly as practicable, but in any event
within 30 days, after receipt by the Company of all such documents and
instruments for all of the outstanding Mortgage Loans:
(1) the Mortgage with evidence of recording indicated thereon (other
than with respect to a Cooperative Loan);
(2) a copy of the title insurance policy (other than with respect to a
Cooperative Loan);
(3) with respect to any Mortgage that has been assigned to the
Company, the related recorded intervening assignment or assignments of
Mortgage, showing a complete chain of assignment from the originator to the
Company (other than with respect to a Cooperative Loan); and
(4) with respect to any Cooperative Loan that has been assigned to the
Company, the related filed intervening UCC-3 financing statements (not
previously delivered pursuant to Section 2.01(b)(2)(vii)), showing a
complete chain of assignment from the named originator to the Company.
36
Pending such delivery, the Company shall retain in its files (a) copies of the
documents described in clauses (1) and (3) of the preceding sentence, without
evidence of recording thereon, and (b) title insurance binders with respect to
the Mortgage Loans (other than with respect to a Cooperative Loan). The Company
shall also retain in its files the Primary Insurance Policy evidencing any
primary mortgage insurance relating to the Mortgage Loans during the period when
the related insurance is in force. (The copies of the Mortgage, intervening
assignments of Mortgage, if any, title insurance binder and the Primary
Insurance Policy, if any, described in the two preceding sentences are
collectively referred to herein as the "Document File" with respect to each
Mortgage Loan.) The Company shall advise the Trustee in writing if such delivery
to the Trustee (and the Custodian) shall not have occurred on or before the
first anniversary of the Closing Date. The Company shall promptly furnish to the
Trustee (or the Custodian) the documents included in the Document Files (other
than any such documents previously delivered to the Trustee (or the Custodian)
as originals or copies) either (a) upon the written request of the Trustee or
(b) when the Company or the Trustee obtains actual notice or knowledge of a
Trigger Event. The Trustee shall have no obligation to request delivery of the
Document Files unless a Responsible Officer of the Trustee has actual notice or
knowledge of the occurrence of a Trigger Event.
In the case of Mortgage Loans which have been prepaid in full after the
Cut-off Date and prior to the date of execution and delivery of this Agreement,
the Company, in lieu of delivering the above documents to the Trustee, herewith
delivers to the Trustee a certification of a Servicing Officer of the nature set
forth in Section 3.09.
(d) The Company shall not be required to record the assignments of the
Mortgages referred to in Section 2.01(b)(1)(iii) or file the UCC-3 assignments
referred to in Section 2.01(b)(2)(ix) to the Trustee unless the Company or the
Trustee obtains actual notice or knowledge of the occurrence of any Trigger
Event; provided, however, that such recording or filing shall not be required if
the Company delivers to the Trustee a letter from each Rating Agency to the
effect that the failure to take such action will not cause such Rating Agency to
reduce or withdraw its then current ratings of the Certificates. The party
obtaining actual notice or knowledge of any of such events shall give the other
party (and the Custodian, if applicable) prompt written notice thereof. For
purposes of the foregoing (as well as for purposes of determining whether the
Company shall be required to deliver the Document Files to the Trustee following
the occurrence of a Trigger Event), the Company shall be deemed to have
knowledge of any such downgrading referred to in the definition of Trigger Event
if, in the exercise of reasonable diligence, the Company has or should have had
knowledge thereof. As promptly as practicable subsequent to the Company's
delivery or receipt of such written notice, as the case may be, the Company
shall insert the recording or filing information in the assignments of the
Mortgages or UCC-3 assignments to the Trustee and shall cause the same to be
recorded or filed, at the Company's expense, in the appropriate public office
for real property records or UCC financing statements, except that the Company
need not cause to be so completed and recorded any assignment of mortgage which
relates to a Mortgage Loan secured by property in a jurisdiction under the laws
of which, on the basis of an Opinion of Counsel reasonably satisfactory to the
Trustee and satisfactory to each Rating Agency (as evidenced in writing),
recordation of such assignment is not necessary to protect the Trustee against
discharge of such Mortgage Loan by the Company or any valid assertion that any
Person other than the Trustee has title to or any rights in such Mortgage Loan.
In the event that the Company fails or refuses to
37
record or file the assignment of Mortgages or UCC-3 financing statement in the
circumstances provided above, the Trustee shall record or cause to be recorded
or filed such assignment or UCC-3 financing statement at the expense of the
Company. In connection with any such recording or filing, the Company shall
furnish such documents as may be reasonably necessary to accomplish such
recording or filing. Notwithstanding the foregoing, at any time the Company may
record or file, or cause to be recorded or filed, the assignments of Mortgages
or UCC-3 financing statement at the expense of the Company.
Section 2.02. Acceptance by Trustee. Subject to the examination hereinafter
provided, the Trustee acknowledges receipt (or shall cause the Custodian to
acknowledge receipt) of the Mortgage Notes, the assignments of the Mortgages to
the Trustee (except for any Mortgage which has been recorded in the name of MERS
or its designee), the assumption and modification agreements, if any, the
documents specified in Section 2.01(b)(2) (subject to any permitted delayed
delivery of the documents described in Section 2.01(c)(4)), and the Designated
Loan Closing Documents, if any, delivered pursuant to Section 2.01, and declares
that the Trustee (or the Custodian on its behalf) holds and will hold such
documents and each other document delivered to it pursuant to Section 2.01 in
trust, upon the trusts herein set forth, for the use and benefit of all present
and future Certificateholders. The Trustee agrees, for the benefit of the
Certificateholders, to review (or cause the Custodian to review) each Mortgage
File within 45 days after (i) the execution and delivery of this Agreement, in
the case of the Mortgage Notes, the assignments of the Mortgages to the Trustee,
the assumption and modification agreements, if any, the documents specified in
Section 2.01(b)(2) (subject to any permitted delayed delivery of the documents
described in Section 2.01(c)(4)), and the Designated Loan Closing Documents, if
any, (ii) delivery to the Trustee (or the Custodian) after the Closing Date of
the Mortgage Notes and the assumption and modification agreements, if any, with
respect to each Designated Loan, and (iii) delivery of the recorded Mortgages,
title insurance policies, recorded intervening assignments of Mortgage, if any,
and filed intervening UCC-3 financing statements, if any, with respect to any
Cooperative Loan to ascertain that all required documents set forth in Section
2.01 have been executed, received and recorded, if applicable, and that such
documents relate to the Mortgage Loans identified in Exhibit C hereto. In
performing such examination, the Trustee (or the Custodian, if applicable) may
conclusively assume the due execution and genuineness of any such document and
the genuineness of any signature thereon. It is understood that the scope of the
Trustee's (or the Custodian's, if applicable) examination of the Mortgage Files
is limited solely to confirming, after receipt of the documents listed in
Section 2.01, that such documents have been executed, received and recorded, if
applicable, and relate to the Mortgage Loans identified in Exhibit C to this
Agreement. If in the course of such review the Trustee (or the Custodian, if
applicable) finds (1) that any document required to be delivered as aforesaid
has not been delivered, or (2) any such document has been mutilated, defaced or
physically altered without the borrower's authorization or approval, or (3)
based upon its examination of such documents, the information with respect to
any Mortgage Loan set forth on Exhibit C is not accurate, the Trustee shall
promptly so notify the Company in writing, which shall have a period of 60 days
after receipt of such notice to correct or cure any such defect. The Company
hereby covenants and agrees that, if any such material defect cannot be
corrected or cured, the Company will on a Distribution Date which is not later
than the first Distribution Date which is more than ten days after the end of
such 60-day period repurchase the related Mortgage Loan from the Trustee at the
Purchase Price therefor or replace such Mortgage Loan pursuant to Section
2.03(b); provided, however, that if the defect (or breach pursuant to Section
2.03(a)) is one that,
38
had it been discovered before the Startup Day, would have prevented the Mortgage
Loan from being a "qualified mortgage" within the meaning of the REMIC
Provisions, such defect or breach shall be cured, or the related Mortgage Loan
shall be repurchased or replaced, on a Distribution Date which falls within 90
days of the date of discovery of such defect or breach. The Purchase Price for
the repurchased Mortgage Loan, or any amount required in respect of a
substitution pursuant to Section 2.03(b), shall be deposited by the Company in
the Certificate Account pursuant to Section 3.02(d) on the Business Day prior to
the applicable Distribution Date and, upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, the Trustee shall
release or cause to be released to the Company the related Mortgage File and
shall execute and deliver or cause to be executed and delivered such instruments
of transfer or assignment, in each case without recourse, as shall be necessary
to vest in the Company any Mortgage Loan released pursuant hereto. It is
understood and agreed that the obligation of the Company to repurchase or
replace any Mortgage Loan as to which a material defect in a constituent
document exists shall constitute the sole remedy respecting such defect
available to Certificateholders or the Trustee on behalf of Certificateholders.
Upon receipt by the Trustee (or the Custodian, if applicable) of the
original Mortgage Note with respect to a Designated Loan that is not defective
in accordance with the fifth sentence of the preceding paragraph, the related
Lost Note Affidavit delivered pursuant to Section 2.01 shall be void and the
Trustee (or Custodian, if applicable) shall return it (or cause to be returned)
to the Company.
Section 2.03. Representations and Warranties of the Company; Mortgage Loan
Repurchase. (a) The Company hereby represents and warrants to the Trustee that:
(i) The information set forth in Exhibit C hereto was true and correct
in all material respects at the date or dates respecting which such
information is furnished;
(ii) As of the date of the initial issuance of the Certificates, other
than with respect to Cooperative Loans, each Mortgage is a valid and
enforceable first lien on the property securing the related Mortgage Note
subject only to (a) the lien of current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of
such Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally in the area wherein the property
subject to the Mortgage is located or specifically reflected in the
appraisal obtained in connection with the origination of the related
Mortgage Loan obtained by the Company and (c) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by such Mortgage;
(iii) Immediately prior to the transfer and assignment herein
contemplated, the Company had good title to, and was the sole owner of,
each Mortgage Loan and all action had been taken to obtain good record
title to each related Mortgage. Each Mortgage Loan has been transferred
free and clear of any liens, claims and encumbrances;
(iv) As of the date of the initial issuance of the Certificates, no
payment of principal of or interest on or in respect of any Mortgage Loan
is 30 or more days past due
39
and none of the Mortgage Loans have been past due 30 or more days more than
once during the preceding 12 months;
(v) As of the date of the initial issuance of the Certificates, other
than with respect to Cooperative Loans, there is no mechanics' lien or
claim for work, labor or material affecting the premises subject to any
Mortgage which is or may be a lien prior to, or equal or coordinate with,
the lien of such Mortgage except those which are insured against by the
title insurance policy referred to in (x) below;
(vi) As of the date of the initial issuance of the Certificates, other
than with respect to Cooperative Loans, there is no delinquent tax or
assessment lien against the property subject to any Mortgage;
(vii) As of the date of the initial issuance of the Certificates,
there is no valid offset, defense or counterclaim to any Mortgage Note or
Mortgage, including the obligation of the Mortgagor to pay the unpaid
principal and interest on such Mortgage Note;
(viii) As of the date of the initial issuance of the Certificates, the
physical property subject to any Mortgage (or, in the case of a Cooperative
Loan, the related Cooperative Apartment) is free of material damage and is
in good repair;
(ix) Each Mortgage Loan at the time it was made complied in all
material respects with applicable state and federal laws, including,
without limitation, usury, equal credit opportunity and disclosure laws;
(x) Other than with respect to Cooperative Loans, a lender's title
insurance policy or binder, or other assurance of title insurance customary
in the relevant jurisdiction therefor was issued on the date of the
origination of each Mortgage Loan and each such policy or binder is valid
and remains in full force and effect;
(xi) Each Mortgage Loan (other than a Pledged Asset Mortgage Loan)
that had, as of the Cut-off Date, a Loan-to-Value Ratio of more than 80% is
covered by a Primary Insurance Policy so long as its then outstanding
principal amount exceeds 80% of the greater of (a) the Original Value and
(b) the then current value of the related Mortgaged Property as evidenced
by an appraisal thereof satisfactory to the Company, except to the extent
such coverage may otherwise be terminable under applicable law. Each
Primary Insurance Policy is issued by a private mortgage insurer acceptable
to FNMA or FHLMC;
(xii) Each Mortgage Note is payable on the first day of each month in
self-amortizing monthly installments of principal and interest, with
interest payable in arrears, over an original term of not more than the
Designated Maturity;
(xiii) Other than with respect to Cooperative Loans, the improvements
on the Mortgaged Properties are insured against loss under a hazard
insurance policy with extended coverage and conforming to the requirements
of Section 3.06 hereof. As of the
40
date of initial issuance of the Certificates, all such insurance policies
are in full force and effect;
(xiv) As to each condominium securing a Mortgage Loan or the related
Mortgage Loan, (a) the related condominium is in a project that is on the
FNMA or FHLMC approved list, (b) the related condominium is in a project
that, upon submission of appropriate application, could be so approved by
either FNMA or FHLMC, (c) the related Mortgage Loan meets the requirements
for purchase by FNMA or FHLMC, (d) the related Mortgage Loan is of the type
that could be approved for purchase by FNMA or FHLMC but for the principal
balance of the related Mortgage Loan or the pre-sale requirements or (e)
the related Mortgage Loan has been approved by a nationally recognized
mortgage pool insurance company for coverage under a mortgage pool
insurance policy issued by such insurer;
(xv) Other than with respect to Cooperative Loans, no Mortgage Loan is
secured by a leasehold interest in the related Mortgaged Property and each
Mortgagor holds fee title to the related Mortgaged Property;
(xvi) The Mortgage Loans and the Mortgaged Properties, individually
and in the aggregate, conform in all material respects to the applicable
descriptions thereof contained in the Prospectus;
(xvii) All appraisals have been prepared substantially in accordance
with the description contained under the caption "The Trusts -- Appraisals"
in the Prospectus;
(xviii) No selection procedures, other than those necessary to comply
with the representations and warranties set forth herein or the description
of the Mortgage Loans made in any disclosure document delivered to
prospective investors in the Certificates, have been utilized in selecting
the Mortgage Loans from the Company's portfolio which would be adverse to
the interests of the Certificateholders;
(xix) Other than with respect to Cooperative Loans, to the best of the
Company's knowledge, at origination no improvement located on or being part
of a Mortgaged Property was in violation of any applicable zoning and
subdivision laws and ordinances;
(xx) None of the Mortgage Loans is a temporary construction loan. With
respect to any Mortgaged Property which constitutes new construction, the
related construction has been completed substantially in accordance with
the specifications therefor and any incomplete aspect of such construction
shall not be material or interfere with the habitability or legal occupancy
of the Mortgaged Property. Mortgage Loan amounts sufficient to effect any
such completion are in escrow for release upon or in connection with such
completion or a performance bond or completion bond is in place to provide
funds for this purpose and such completion shall be accomplished within 120
days after weather conditions permit the commencement thereof;
(xxi) As of the Closing Date, each Mortgage Loan is a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code;
41
(xxii) As of the Closing Date, the Company possesses the Document File
with respect to each Mortgage Loan, and, other than with respect to
Cooperative Loans, the related Mortgages and intervening assignment or
assignments of Mortgages, if any, have been delivered to a title insurance
company for recording;
(xxiii) With respect to each Mortgage Loan identified in Exhibit C as
a Cooperative Loan:
(A) The Security Agreement creates a first lien in the stock
ownership and leasehold rights associated with the related Cooperative
Apartment;
(B) The lien created by the related Security Agreement is a
valid, enforceable and subsisting first priority security interest in
the related Cooperative Stock securing the related Mortgage Note,
subject only to (a) liens of the Cooperative for unpaid assessments
representing the Mortgagor's pro rata share of the Cooperative's
payments for its blanket mortgage, current and future real property
taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject and (b) other matters to
which like collateral is commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
the Security Agreement. There are no liens against or security
interest in the Cooperative Stock relating to such Cooperative Loan
(except for unpaid maintenance, assessments and other amounts owed to
the related Cooperative which individually or in the aggregate do not
have a material adverse effect on such Cooperative Loan), which have
priority over the Trustee's security interest in such Cooperative
Stock;
(C) The Cooperative Stock that is pledged as security for the
Mortgage Loan is held by a person as a "tenant-stockholder" within the
meaning of section 216 of the Code, the related Cooperative that owns
title to the related cooperative apartment building is a "cooperative
housing corporation" within the meaning of section 216 of the Code,
and such Cooperative is in material compliance with applicable
federal, state and local laws which, if not complied with, could have
a material adverse effect on the Mortgaged Property; and
(D) There is no prohibition against pledging the Cooperative
Stock or assigning the Proprietary Lease; and
(xxiv) With respect to each Mortgage Loan identified on Exhibit C as
having been originated or acquired under the Company's Enhanced Streamlined
Refinance program, the value of the related Mortgaged Property, as of the
date of such origination or acquisition under the Company's Enhanced
Streamlined Refinance program, is no less than the value thereof
established at the time the mortgage loan that is the subject of the
refinancing was originated.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(a) shall survive delivery of the respective Mortgage
Files to the Trustee (or the Custodian, if applicable). Upon discovery by either
the Company or the Trustee of a breach of
42
any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders in the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other. Subject to the following sentence, within 60 days of its
discovery or its receipt of notice of breach, or, with the prior written consent
of a Responsible Officer of the Trustee, such longer period specified in such
consent, the Company shall cure such breach in all material respects or shall
repurchase such Mortgage Loan from the Trustee or replace such Mortgage Loan
pursuant to Section 2.03(b). Any such repurchase by the Company shall be
accomplished in the manner set forth in Section 2.02, subject to the proviso of
the third-to-last sentence thereof, and at the Purchase Price. It is understood
and agreed that the obligation of the Company to repurchase or replace any
Mortgage Loan as to which a breach occurred and is continuing shall constitute
the sole remedy respecting such breach available to Certificateholders or the
Trustee on behalf of Certificateholders and such obligation of the Company to
repurchase or replace any such Mortgage Loan shall not be assumed by any Person
which may succeed the Company as servicer hereunder, but shall continue as an
obligation of the Company. Notwithstanding the preceding sentence, if a breach
of the representation and warranty of the Company contained in Section
2.03(a)(ix) occurs as a result of a violation of the federal Truth in Lending
Act, 15 U.S.C. ss. 1601 et seq., as amended ("TILA") or any state truth-in
lending or similar statute, and the Trustee or the Trust Fund is named as a
defendant in a TILA suit or a suit under any such statutes in respect of such
violation and liability in respect thereof is imposed upon the Trustee or the
Trust Fund as assignees of the related Mortgage Loan pursuant to Section 1641 of
TILA, or any analogous provision of any such statute, the Company shall
indemnify the Trustee and the Trust Fund from, and hold them harmless against,
any and all losses, liabilities, damages, claims or expenses (including
reasonable attorneys' fees) to which the Trustee and the Trust Fund, or either
of them, become subject pursuant to TILA or any such statute, insofar as such
losses, damages, claims or expenses (including reasonable attorneys' fees)
result from such violation. The Company's obligations under the preceding
sentence shall not impair or derogate from the Company's obligations to the
Trustee under Section 8.05.
(b) If the Company is required to repurchase any Mortgage Loan pursuant to
Section 2.02 or 2.03(a), the Company may, at its option, within the applicable
time period specified in such respective Sections, remove such Defective
Mortgage Loan from the terms of this Agreement and substitute one or more other
mortgage loans for such Defective Mortgage Loan, in lieu of repurchasing such
Defective Mortgage Loan, provided that no such substitution shall occur more
than two years after the Closing Date. Any substitute Mortgage Loan shall (a)
have a Scheduled Principal Balance (together with that of any other Mortgage
Loan substituted for the same Defective Mortgage Loan) as of the first
Distribution Date following the month of substitution not in excess of the
Scheduled Principal Balance of the Defective Mortgage Loan as of such date (the
amount of any difference, plus one month's interest thereon at the respective
Net Mortgage Rate, to be deposited by the Company in the Certificate Account
pursuant to Section 2.02), (b) have a Mortgage Rate not less than, and not more
than one percentage point greater than, the Mortgage Rate of the Defective
Mortgage Loan, (c) have the same Net Mortgage Rate as the Defective Mortgage
Loan, (d) have a remaining term to stated maturity not later than, and not more
than one year less than, the remaining term to stated maturity of the Defective
Mortgage Loan, (e) be, in the reasonable determination of the Company, of the
same type, quality and character as the Defective Mortgage Loan as if the defect
or breach had not occurred, (f) have a ratio of its current principal amount to
its Original Value not greater than that of the removed Mortgage Loan and (g)
be, in the reasonable determination of the Company,
43
in compliance with the representations and warranties contained in Section
2.03(a), other than subparagraph (xvi) thereof, as of the date of substitution.
The Company shall amend the Mortgage Loan Schedule to reflect the
withdrawal of any Defective Mortgage Loan and the substitution of a substitute
Mortgage Loan therefor. Upon such amendment the Company shall be deemed to have
made as to such substitute Mortgage Loan the representations and warranties set
forth in Section 2.03(a), other than subparagraph (xvi) thereof, as of the date
of such substitution, which shall be continuing as long as any Certificate shall
be outstanding or this Agreement has not been terminated, and the remedies for
breach of any such representation or warranty shall be as set forth in Section
2.03(a). Upon such amendment, the Trustee (or the Custodian, if applicable)
shall review the Mortgage File delivered to it relating to the substitute
Mortgage Loan, within the time and in the manner and with the remedies specified
in Section 2.02, except that for purposes of this Section 2.03(b) (other than
the two-year period specified in the first sentence of the preceding paragraph
of this Section 2.03(b)), such time shall be measured from the date of the
applicable substitution.
Section 2.04. Execution of Certificates. The Trustee has caused to be
executed, countersigned and delivered to or upon the order of the Company, in
exchange for the Mortgage Loans, the Certificates in authorized denominations
evidencing the entire ownership of the Trust Fund.
Section 2.05. Designations under the REMIC Provisions. (a) The Company
hereby designates the Classes of Certificates identified in Section 5.01(b),
other than the Residual Certificate, as "regular interests," and the Class R
Certificate as the single class of "residual interest," in the REMIC established
hereunder for purposes of the REMIC Provisions. The assets of the REMIC
established hereunder will consist of the assets and rights specified in clauses
(i) though (viii) of the definition of the term Trust Fund, and any Rounding
Accounts.
(b) The Closing Date will be the "Startup Day" for the REMIC established
hereunder for purposes of the REMIC Provisions.
(c) The "tax matters person" with respect to the REMIC established
hereunder for purposes of the REMIC Provisions shall be (i) the Company, if the
Company is the owner of a Class R Certificate, or (ii) in any other case, the
beneficial owner of the Class R Certificate having the largest Percentage
Interest of such Class; provided, however, that such largest beneficial owner
and, to the extent relevant, each other holder of a Class R Certificate, by its
acceptance thereof irrevocably appoints the Company as its agent and
attorney-in-fact to act as "tax matters person" with respect to the REMIC
established hereunder for purposes of the REMIC Provisions.
(d) The "latest possible maturity date" of the regular interests in the
REMIC established hereunder is the Latest Possible Maturity Date for purposes of
section 860G(a)(1) of the Code.
(e) In the event that the Servicing Fee exceeds the amount reasonable for
such services (within the meaning of Treasury Regulation 1.860D-1(b)(1)(ii)),
the portion or portions of such fee that can be measured as a fixed number of
basis points on some or all of the
44
Mortgage Loans and can be treated as one or more stripped coupons within the
meaning of Treasury Regulation 1.860D-1(b)(2)(iii) shall be treated as such
stripped coupons and shall not be treated as a REMIC asset.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Company to Act as Servicer. (a) It is intended that the REMIC
established hereunder shall constitute, and that the affairs of the REMIC shall
be conducted so as to qualify the Trust Fund (other than any collateral fund
established under the agreement referred to in Section 3.08(e)) as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Company covenants and
agrees that it shall act as agent (and the Company is hereby appointed to act as
agent) on behalf of the Trust Fund and the Holders of the Residual Certificates
and that in such capacity it shall:
(i) prepare and file, or cause to be prepared and filed, in a timely
manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax Return
(Form 1066) and prepare and file or cause to be prepared and filed with the
Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to the
REMIC established hereunder, using the calendar year as the taxable year
and the accrual method of accounting, containing such information and at
the times and in the manner as may be required by the Code or state or
local tax laws, regulations, or rules, and shall furnish or cause to be
furnished to Certificateholders the schedules, statements or information at
such times and in such manner as may be required thereby;
(ii) within thirty days of the Closing Date, shall furnish or cause to
be furnished to the Internal Revenue Service, on Form 8811 or as otherwise
may be required by the Code, the name, title, address, and telephone number
of the person that the holders of the Certificates may contact for tax
information relating thereto (and the Company shall act as the
representative of the REMIC established hereunder for this purpose),
together with such additional information as may be required by such Form,
and shall update such information at the time or times and in the manner
required by the Code;
(iii) make or cause to be made an election, on behalf of the REMIC
established hereunder, to be treated as a REMIC, and make the appropriate
designations, if applicable, in accordance with Section 2.05 hereof on the
federal tax return of the Trust Fund for its first taxable year (and, if
necessary, under applicable state law);
(iv) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and to the Internal Revenue Service and, if
necessary, state tax authorities, all information returns or reports, or
furnish or cause to be furnished by telephone, mail, publication or other
appropriate method such information, as and when required to be provided to
them in accordance with the REMIC Provisions, including without limitation,
the calculation of any original issue discount using the Prepayment
45
Assumption Multiple and the furnishing of Schedule Q to Form 1066 to
Holders of the Class R Certificates;
(v) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Disqualified Organization,
or an agent (including a broker, nominee or other middleman) of a
Disqualified Organization, or a pass-through entity in which a Disqualified
Organization is the record holder of an interest (the reasonable cost of
computing and furnishing such information may be charged to the Person
liable for such tax);
(vi) use its best reasonable efforts to conduct the affairs of the
REMIC established hereunder at all times that any Certificates are
outstanding so as to maintain the status thereof as a REMIC under the REMIC
Provisions;
(vii) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of the
REMIC or that would subject the Trust Fund to tax;
(viii) exercise reasonable care not to allow the creation of any
"interests" in the REMIC within the meaning of section 860D(a)(2) of the
Code other than the interests represented by the Classes of Certificates
identified in Section 5.01(b);
(ix) exercise reasonable care not to allow the occurrence of any
"prohibited transactions" within the meaning of section 860F of the Code,
unless the Company shall have provided an Opinion of Counsel to the Trustee
that such occurrence would not (a) result in a taxable gain, (b) otherwise
subject the Trust Fund to tax, or (c) cause any REMIC established hereunder
to fail to qualify as a REMIC;
(x) exercise reasonable care not to allow the Trust Fund to receive
income from the performance of services or from assets not permitted under
the REMIC Provisions to be held by a REMIC;
(xi) pay the amount of any federal or state tax, including prohibited
transaction taxes, taxes on certain contributions to the REMIC after the
Startup Day, and taxes on net income from foreclosure property, imposed on
the Trust Fund when and as the same shall be due and payable (but such
obligation shall not prevent the Company or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not
prevent the Company from withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings);
(xii) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be
required to sign such returns by the Code or state or local laws,
regulations or rules;
(xiii) maintain such records relating to the REMIC established
hereunder, including but not limited to the income, expenses, individual
Mortgage Loans (including Mortgaged Property), other assets and liabilities
thereof, and the fair market value and adjusted basis of the property of
each determined at such intervals as may be required by the Code, as may be
necessary to prepare the foregoing returns, schedules, statements or
information; and
46
(xiv) ensure that no modification of a Mortgage Loan would be a
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
The Company shall be entitled to be reimbursed pursuant to Section 3.04 for
any federal income taxes paid by it pursuant to clause (xi) of the preceding
sentence, except to the extent that such taxes are imposed as a result of the
bad faith, misfeasance or negligence of the Company in the performance of its
obligations hereunder. With respect to any reimbursement of prohibited
transaction taxes, the Company shall inform the Trustee of the circumstances
under which such taxes were incurred.
(b) The Company shall service and administer the Mortgage Loans and shall
have full power and authority, acting alone or through one or more Primary
Servicers, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Company shall continue, and is hereby
authorized and empowered by the Trustee, to execute and deliver, or file, as
appropriate, on behalf of itself, the Certificateholders and the Trustee or any
of them, any and all continuation statements, termination statements,
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the properties subject to the Mortgages. Without
limitation of the foregoing, if the Company in its individual capacity agrees to
refinance any Mortgage Loan upon the request of the related Mortgagor, the
Company, as servicer hereunder, may execute an instrument of assignment in
customary form to the Company in its individual capacity. In connection with any
such refinancing, the Trustee shall, upon certification of a Servicing Officer
to the effect that an amount equal to the principal balance of the related
Mortgage Loan together with accrued and unpaid interest thereon at the
applicable Net Mortgage Rate to the date of such certification has been credited
to the Mortgage Loan Payment Record, release the related Mortgage File to the
Company whereupon the Company may cancel the related Mortgage Note. Upon request
by the Company after the execution and delivery of this Agreement, the Trustee
shall furnish the Company with any powers of attorney and other documents
necessary or appropriate to enable the Company to carry out its servicing and
administrative duties hereunder. Except as otherwise provided herein, the
Company shall maintain servicing standards substantially equivalent to those
required for approval by FNMA or FHLMC. The Company shall not agree to any
modification of the material terms of any Mortgage Loan except as provided in
the second sentence of Section 3.02(a) and in Section 3.07. The Company shall
not release any portion of any Mortgaged Property from the lien of the related
Mortgage unless the related Mortgage Loan would be a "qualified mortgage" within
the meaning of the REMIC Provisions following such release.
(c) [Intentionally Omitted.]
(d) The relationship of the Company (and of any successor to the Company as
servicer under this Agreement) to the Trustee under this Agreement is intended
by the parties to be that of an independent contractor and not that of a joint
venturer, partner or agent.
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(e) All costs incurred by the Company in effecting the timely payment of
taxes and assessments on the properties subject to the Mortgage Loans shall not,
for the purpose of calculating monthly distributions to Certificateholders, be
added to the amount owing under the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit, and such costs shall be recoverable
by the Company to the extent permitted by Section 3.04. The Company shall
collect such amounts from the Mortgagor and shall credit the Mortgage Loan
Payment Record accordingly.
(f) If the Company enters into a servicing agreement with any servicer (a
"Primary Servicer") pursuant to which such Primary Servicer shall directly
service certain Mortgage Loans and the Company shall perform master servicing
with respect thereto, the Company shall not be released from its obligations to
the Trustee and Certificateholders with respect to the servicing and
administradion of the Mortgage Loans in accordance with the provisions of
Article III hereof and such obligations shall not be diminished by virtue of any
such servicing agreement or arrangement and the Company shall be obligated to
the same extent and under the same terms and conditions as if the Company alone
were servicing and administering the Mortgage Loans. Any amounts received by a
Primary Servicer in respect of a Mortgage Loan shall be deemed to have been
received by the Company whether or not actually received by it. Any servicing
agreement that may be entered into and any transactions or services relating to
the Mortgage Loans involving a Primary Servicer in its capacity as such shall be
deemed to be between the Company and the Primary Servicer alone, and the Trustee
and the Certificateholders shall have no claims, obligations, duties or
liabilities with respect thereto. Notwithstanding the foregoing, in the event
the Company has been removed as the servicer hereunder pursuant to Section 6.05
or Section 7.01, the Trustee or any successor servicer appointed pursuant to
Section 7.02 shall succeed to all of the Company's rights and interests (but not
to any obligations or liabilities of the Company arising prior to the date of
succession) under any servicing agreement with any Primary Servicer in respect
of the Mortgage Loans, subject to the limitation on the Trustee's
responsibilities under Section 7.02.
(g) With respect to any CashSaver Mortgage Loan, the Company shall use
reasonable efforts to cause the Primary Servicer to perform its obligations
under the agreements related to the Additional Collateral for such CashSaver
Mortgage Loan.
(h) In no event shall any collateral fund established under the agreement
referred to in Section 3.08(e) constitute an asset of any REMIC established
hereunder.
Section 3.02. Collection of Certain Mortgage Loan Payments; Mortgage Loan
Payment Record; Certificate Account. (a) The Company shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Mortgage Loans, and shall, to the extent such procedures shall be consistent
with this Agreement, follow such collection procedures as it follows with
respect to mortgage loans comparable to the Mortgage Loans in its servicing
portfolio. Consistent with the foregoing, the Company may in its discretion (i)
waive any late payment charge or any assumption fees or other fees which may be
collected in the ordinary course of servicing such Mortgage Loan and (ii) if a
default on the Mortgage Loan has occurred or is reasonably foreseeable, arrange
at any time prior to foreclosure with a Mortgagor a schedule for the payment of
due and unpaid principal and interest for a period extending not longer than two
years after the date that such schedule is arranged. Any arrangement of the sort
48
described in clause (ii) above shall not affect the amount or timing of the
Company's obligation to make Monthly Advances with respect to any Mortgage Loan
which Monthly Advances shall be made pursuant to the original amortization
schedule applicable to such Mortgage Loan.
(b) The Company shall establish and maintain a Mortgage Loan Payment Record
in which the following payments on and collections in respect of each Mortgage
Loan shall as promptly as practicable be credited by the Company for the account
of the Holders of the Certificates:
(i) All payments on account of principal, including Principal
Prepayments (other than (A) payments of principal due and payable on the
Mortgage Loans on or before, and all Principal Prepayments received before,
the Cut-off Date, (B) in the case of a substitute Mortgage Loan, payments
of principal due and payable on such Mortgage Loan on or before the
Determination Date in the month of substitution, and all Principal
Prepayments received before the first day of the month of substitution, and
(C) in the case of a replaced Mortgage Loan, payments of principal due and
payable on such Mortgage Loan after the Determination Date in the month of
substitution, and all Principal Prepayments received in the month of
substitution);
(ii) All payments (other than (A) those due and payable on or before
the Cut-off Date, (B) in the case of a substitute Mortgage Loan, those due
and payable on such Mortgage Loan on or before the Determination Date in
the month of substitution, and (C) in the case of a replaced Mortgage Loan,
those due and payable on such Mortgage Loan after the Determination Date in
the month of substitution) on account of interest at the applicable Net
Mortgage Rate on the Mortgage Loan received from the related Mortgagor,
including any Buydown Funds applied with respect to interest at the
applicable Net Mortgage Rate on any Buydown Mortgage Loan;
(iii) All Liquidation Proceeds received by the Company with respect to
such Mortgage Loan and the Purchase Price for any Mortgage Loan purchased
by the Company pursuant to Sections 2.02, 2.03 and 3.16 (including any
amounts received in respect of a substitution of a Mortgage Loan);
(iv) All Insurance Proceeds (including, for this purpose, any amounts
required to be credited by the Company pursuant to the last sentence of
Section 3.06) received by the Company for the benefit of the Trust Fund,
other than proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released, or to be released, to
the related Mortgagor in accordance with the normal servicing procedures of
the Company;
(v) All REO Proceeds;
(vi) All Unanticipated Recoveries;
(vii) All amounts received by the Company with respect to any Pledged
Asset Mortgage Loan pursuant to the liquidation of any Additional
Collateral or pursuant to any recovery under the Surety Bond in accordance
with Section 4.09; and
49
(viii) All amounts received by the Company with respect to any
CashSaver Mortgage Loan pursuant to the liquidation of any Additional
Collateral.
The foregoing requirements respecting credits to the Mortgage Loan Payment
Record are exclusive, it being understood that, without limiting the generality
of the foregoing, the Company need not enter in the Mortgage Loan Payment Record
collections, Liquidation Proceeds or Insurance Proceeds in respect of Mortgage
Loans which have been previously released from the terms of this Agreement,
amounts representing fees or late charge penalties payable by Mortgagors, or
amounts received by the Company for the account of Mortgagors for application
towards the payment of taxes, insurance premiums, assessments and similar items.
(c) Subject to subsection (e) below, until the Business Day prior to each
Distribution Date on which amounts are required to be transferred to the
Certificate Account pursuant to subsection (d) of this Section 3.02, the Company
may retain and commingle such amounts with its own funds and shall be entitled
to retain for its own account any gain or investment income thereon, and any
such investment income shall not be subject to any claim of the Trustee or
Certificateholders. To the extent that the Company realizes any net loss on any
such investments, the Company shall deposit in the Certificate Account an amount
equal to such net loss at the time the Company is required to deposit amounts in
the Certificate Account pursuant to subsection (d) of this section 3.02. Any
such deposit shall not increase the Company's obligation under said subsection
(d).
(d) The Trustee shall establish and maintain with the Trustee in its
corporate trust department a single separate trust account designated in the
name of the Trustee for the benefit of the Holders of the Certificates issued
hereunder (the "Certificate Account") into which the Company shall transfer, not
later than 11:00 a.m. New York time on the Business Day prior to each
Distribution Date, an amount in next day funds equal to the sum of Available
Funds for such Distribution Date and any Unanticipated Recoveries received in
the calendar month preceding the month of such Distribution Date. If the Trustee
does not receive such transfer by 2:00 p.m. on such Business Day, it shall give
the Company written notice thereof.
(e) If the Company or a Responsible Officer of the Trustee obtains actual
notice of or knowledge of the occurrence of either (x) any Trigger Event or (y)
the downgrade by S&P of General Electric Capital Corporation's short-term senior
unsecured debt rating below A-1+ then, notwithstanding subsection (c) above, the
Company shall promptly establish, and thereafter maintain, one or more Eligible
Accounts in the name of the Trustee and bearing a designation indicating that
amounts therein are held for the benefit of the Trustee and the
Certificateholders, into which the Company and any Primary Servicer shall
deposit within two Business Days after receipt, all amounts otherwise required
to be credited to the Mortgage Loan Payment Record pursuant to Section 3.02(b);
provided, however, that such action shall not be required if the Company
delivers to the Trustee a letter from each Rating Agency to the effect that the
failure to take such action will not cause such Rating Agency to withdraw or
reduce its then current ratings of the Certificates. All amounts so deposited
shall be held in trust for the benefit of Certificateholders. Amounts so
deposited may be invested at the written instruction of the Company in Permitted
Investments in the name of the Trustee maturing no later than the Business Day
preceding the Distribution Date following the date of such investment; provided,
however, that any such Permitted Investment which is an obligation of State
Street Bank and
50
Trust Company, in its individual capacity and not in its capacity as Trustee,
may mature on such Distribution Date; and, provided further, that no such
Permitted Investment shall be sold before the maturity thereof if the sale
thereof would result in the realization of gain prior to maturity unless the
Company has obtained an Opinion of Counsel that such sale or disposition will
not cause the Trust Fund to be subject to the tax on prohibited transactions
under section 860F of the Code, or otherwise subject the Trust Fund to tax or
cause the REMIC established hereunder to fail to qualify as a REMIC. The Trustee
is hereby authorized, in making or disposing of any investment permitted by this
Section, to deal with itself (in its individual capacity) or with any one or
more of its affiliates, whether it or such affiliate is acting as an agent of
the Trustee or for any third person or dealing as principal for its own account.
The Trustee shall maintain physical possession of all Permitted Investments,
other than Permitted Investments maintained in book-entry form. The Company, as
servicer, shall be entitled to retain for its own account any gain or other
income from Permitted Investments, and neither the Trustee nor
Certificateholders shall have any right or claim with respect to such income.
The Company shall deposit an amount equal to any loss realized on any Permitted
Investment as soon as any such loss is realized. If the provisions in this
subsection (e) become operable, references in this Agreement to the Mortgage
Loan Payment Record and credits and debits to such Record shall be deemed to
refer to Eligible Accounts and transfers to and withdrawals from such Eligible
Accounts. Any action which may be necessary to establish the terms of an account
pursuant to this Section 3.02(e) may be taken by an amendment or supplement to
this Agreement or pursuant to a written order of the Company, which amendment,
supplement or order shall not require the consent of Certificateholders,
provided that the Company has delivered to the Trustee a letter from each Rating
Agency to the effect that such amendment, supplement or order will not cause
such Rating Agency to withdraw or reduce its then current ratings of the
Certificates.
Section 3.03. Collection of Taxes, Assessments and Other Items. Other than
with respect to any Cooperative Loan, the Company shall establish and maintain
with one or more depository institutions one or more accounts into which it
shall deposit all collections of taxes, assessments, private mortgage or hazard
insurance premiums or comparable items for the account of the Mortgagors. As
servicer, the Company shall effect the timely payment of all such items for the
account of Mortgagors. Withdrawals from such account or accounts may be made
only to effect payment of taxes, assessments, private mortgage or standard
hazard insurance premiums or comparable items, to reimburse the Company out of
related collections for any payments made regarding taxes and assessments or for
any payments made pursuant to Section 3.05 regarding premiums on Primary
Insurance Policies and Section 3.06 regarding premiums on standard hazard
insurance policies, to refund to any Mortgagors any sums determined to be
overages, or to pay interest owed to Mortgagors to the extent required by law.
Section 3.04. Permitted Debits to the Mortgage Loan Payment Record. The
Company (or any successor servicer pursuant to Section 7.02) may, from time to
time, make debits to the Mortgage Loan Payment Record for the following
purposes:
(i) To reimburse the Company or the applicable Primary Servicer for
Liquidation Expenses theretofore incurred in respect of any Mortgage Loan
in an amount not to exceed the amount of the related Liquidation Proceeds
credited to the Mortgage Loan Payment Record pursuant to Section
3.02(b)(iii); provided that the Company or the applicable Primary Servicer
shall not be entitled to reimbursement for Liquidation
51
Expenses incurred after the initiation of foreclosure proceedings in
respect of any Defaulted Mortgage Loan that is repurchased pursuant to
Section 3.16;
(ii) To reimburse the Company or the applicable Primary Servicer for
Insured Expenses and amounts expended by it pursuant to Section 3.08 in
good faith in connection with the restoration of property damaged by an
Uninsured Cause, in an amount not to exceed the amount of the related
Insurance Proceeds and Liquidation Proceeds (net of any debits pursuant to
clause (i) above) and amounts representing proceeds of other insurance
policies covering the property subject to the related Mortgage credited to
the Mortgage Loan Payment Record pursuant to Section 3.02(b) (iii) and
(iv);
(iii) To reimburse the Company to the extent permitted by
Sections 3.01(a) and 6.04;
(iv) To pay to the Company amounts received in respect of any
Defective Mortgage Loan or Defaulted Mortgage Loan purchased by the Company
to the extent that the distribution of any such amounts on the Distribution
Date upon which the proceeds of such purchase are distributed would make
the total amount distributed in respect of any such Mortgage Loan on such
Distribution Date greater than the Purchase Price therefor, net of any
unreimbursed Monthly Advances made by the Company;
(v) To reimburse the Company (or the Trustee, as applicable) for
Monthly Advances theretofore made in respect of any Mortgage Loan to the
extent of late payments, REO Proceeds, Insurance Proceeds and Liquidation
Proceeds in respect of such Mortgage Loan;
(vi) To reimburse the Company from any Mortgagor payment of interest
or other recovery with respect to a particular Mortgage Loan, to the extent
not previously retained by the Company, for unpaid Servicing Fees with
respect to such Mortgage Loan, subject to Section 3.08(d);
(vii) To reimburse the Company (or the Trustee, as applicable) for any
Nonrecoverable Advance (which right of reimbursement of the Trustee
pursuant to this clause shall be prior to such right of the Company);
(viii) To make transfers of funds to the Certificate Account pursuant
to Section 3.02(d);
(ix) To pay to the Company amounts received in respect of any Mortgage
Loan purchased by the Company pursuant to Section 9.01 to the extent that
the distribution of any such amounts on the final Distribution Date upon
which the proceeds of such purchase are distributed would make the total
amount distributed in respect of any such Mortgage Loan on such
Distribution Date greater than the purchase price therefor specified in
clause (x) of the first sentence of Section 9.01; and
(x) To deduct any amount credited to the Mortgage Loan Payment Record
in error.
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The Company shall keep and maintain separate accounting records, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for debits
to the Mortgage Loan Payment Record pursuant to clauses (i), (ii), (iv), (v) and
(vi) of this Section 3.04; provided, however, that it is understood and agreed
that the records of such accounting need not be retained by the Company for a
period longer than the five most recent fiscal years.
Section 3.05. Maintenance of the Primary Insurance Policies. (a) The
Company shall not take any action which would result in non-coverage under any
applicable Primary Insurance Policy of any loss which, but for the actions of
the Company, would have been covered thereunder. To the extent coverage is
available, the Company shall keep or cause to be kept in full force and effect
each such Primary Insurance Policy until the principal balance of the related
Mortgage Note is 80% or less of the greater of (i) the related Original Value
and (ii) the then current value of the property underlying the related Mortgage
Note as evidenced by an appraisal thereof satisfactory to the Company; provided
that no such Primary Insurance Policy shall be kept in effect if doing so would
violate applicable law, including, without limitation, the Federal Homeowners
Protection Act of 1998. The Company shall not cancel or refuse to renew any such
Primary Insurance Policy applicable to a Mortgage Loan that is in effect at the
Closing Date and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy is
maintained with an insurer whose claims-paying ability is acceptable to each
Rating Agency for mortgage pass-through certificates having ratings equal to or
better than the ratings then assigned to the Certificates by such Rating Agency.
The Company agrees to effect the timely payment of the premium on each Primary
Insurance Policy, and such costs not otherwise recoverable shall be recoverable
by the Company from related Insurance Proceeds and Liquidation Proceeds pursuant
to Section 3.04.
(b) In connection with its activities as administrator and servicer of the
Mortgage Loans, the Company agrees to present, on behalf of itself, the Trustee
and the Certificateholders, claims to the insurer under each Primary Insurance
Policy and, in this regard, to take such reasonable action as shall be necessary
to permit recovery under any Primary Insurance Policy respecting a related
defaulted Mortgage Loan. To the extent provided in Section 3.02(b), any amounts
collected by the Company under any Primary Insurance Policy in respect of the
Mortgage Loans (including, without limitation, a Mortgage Loan purchased by a
related insurer) shall be credited to the Mortgage Loan Payment Record.
Section 3.06. Maintenance of Hazard Insurance. The Company shall cause to
be maintained for each Mortgage Loan, other than a Cooperative Loan, hazard
insurance with a standard mortgagee clause and with extended coverage in an
amount which is at least equal to the maximum insurable value of the
improvements securing such Mortgage Loan from time to time or the principal
balance owing on such Mortgage Loan from time to time, whichever is less. The
Company shall also maintain on property (other than Cooperative Apartments)
acquired upon foreclosure, or by deed in lieu of foreclosure, hazard insurance
with extended coverage in an amount which is at least equal to the lesser of (i)
the maximum insurable value from time to time of the improvements which are a
part of such property or (ii) the unpaid principal balance of such Mortgage Loan
at the time of such foreclosure or deed in lieu of foreclosure plus accrued
interest and the good-faith estimate of the Company of related Liquidation
Expenses to be incurred in connection therewith. To the extent provided in
Section 3.02(b)(iv), amounts collected by the Company under any such policies in
respect of the Mortgage Loans shall be
53
credited to the Mortgage Loan Payment Record. Such costs shall be recoverable by
the Company pursuant to Sections 3.03 and 3.04. In cases in which property
securing any Mortgage Loan other than a Cooperative Loan is located in a
federally designated flood area, the hazard insurance to be maintained for such
Mortgage Loan shall include flood insurance. All such flood insurance shall be
in such amounts as are required under applicable guidelines of FNMA. The Company
shall be under no obligation to require that any Mortgagor maintain earthquake
or other additional insurance and shall be under no obligation itself to
maintain any such additional insurance on property acquired in respect of a
Mortgage Loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance. If
the Company shall obtain and maintain a blanket policy insuring against hazard
losses on all of the Mortgage Loans (whether or not including Cooperative
Loans), it shall conclusively be deemed to have satisfied its obligations as set
forth in the first sentence of this Section 3.06, it being understood and agreed
that such policy may contain a deductible clause, in which case the Company
shall, in the event that there shall not have been maintained on the related
Mortgaged Property a policy complying with the first sentence of this Section
3.06, and there shall have been a loss which would have been covered by such
policy, credit to the Mortgage Loan Payment Record the amount not otherwise
payable under the blanket policy because of such deductible clause.
Section 3.07. Assumption and Modification Agreements. (a) In any case in
which property subject to a Mortgage has been or is about to be conveyed by the
Mortgagor, the Company shall exercise its right to accelerate the maturity of
such Mortgage Loan under any "due-on-sale" clause applicable thereto, unless in
the reasonable discretion of the Company, such exercise would adversely affect
or jeopardize coverage under the related Primary Insurance Policy, if any;
provided, however, that if the Company is prevented, as provided in Section
3.07(b), from enforcing any such clause, the Company is authorized to make or
enter into an assumption and modification agreement from or with the Person to
whom such property has been or is about to be conveyed, pursuant to which such
Person becomes liable under the Mortgage Note and the Mortgagor remains liable
thereon. In connection with any such assumption and modification agreement, the
Company shall apply its then current underwriting standards to such Person. The
Company shall not make or enter into any such assumption and modification
agreement, however, unless (to the extent practicable in the circumstances) it
shall have received confirmation of the continued effectiveness of any
applicable Primary Insurance Policy and hazard insurance policy. The Company
shall notify the Trustee that any assumption and modification agreement has been
completed by forwarding to the Trustee the original copy thereof, which copy
shall be added by the Trustee to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. In connection with
any such agreement, the Mortgage Rate, mortgage term and any other material term
of such Mortgage Loan shall not be changed. Any fee collected by the Company for
entering into any such agreement will be retained by the Company as additional
servicing compensation.
(b) Notwithstanding Section 3.07(a) or any other provision of this
Agreement, the Company shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan, or transfer
54
of the property subject to a Mortgage without the assumption thereof, by
operation of law or any assumption or transfer which the Company reasonably
believes it may be restricted by law from preventing, for any reason whatsoever.
Section 3.08. Realization Upon Defaulted Mortgage Loans. (a) The Company
shall foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.02. In connection with such foreclosure or other
conversion the Company shall, consistent with Section 3.05, follow such
practices and procedures as it shall deem necessary or advisable and as shall be
normal and usual in its general mortgage servicing activities. The foregoing is
subject to the proviso that the Company shall not be required to expend its own
funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Certificateholders
after reimbursement to itself for such expenses and (ii) that such expenses will
be recoverable to it either through Liquidation Proceeds or Insurance Proceeds.
Notwithstanding the foregoing, the Company shall not be entitled to recover
legal expenses incurred in connection with foreclosure proceedings where the
Mortgage Loan is reinstated and such foreclosure proceedings are terminated
prior to completion, other than sums received from the Mortgagor for such
expenses.
Notwithstanding anything to the contrary contained herein, the Company
shall be under no obligation to foreclose upon or otherwise convert the
ownership of any Mortgaged Property which it believes may be contaminated with
or affected by hazardous or toxic wastes, materials or substances. The Company
may, but shall not be obligated to, make such determination on the basis of a
Phase I environmental assessment with respect to the related Mortgaged Property.
Neither the Trustee nor the Company shall be liable to the Trust Fund or the
Certificateholders if, based on the Company's belief that such contamination or
effect exists, the Company does not foreclose upon or otherwise convert the
ownership of a Mortgaged Property. In addition, neither the Trustee nor the
Company shall be liable to the Trust Fund or the Certificateholders if, based on
the Company's belief that no such contamination or effect exists, the Company
forecloses upon a Mortgaged Property and the Trustee or its nominee on behalf of
the Trust Fund takes title to such Mortgaged Property, and thereafter such
Mortgaged Property is determined to be so contaminated or affected.
(b) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee on behalf of the Trust Fund.
Notwithstanding any such acquisition of title and cancellation of the related
Mortgage Loan, such Mortgage Loan shall (except for purposes of Section 9.01) be
considered to be an Outstanding Mortgage Loan until such time as the Mortgaged
Property shall be sold and such Mortgage Loan becomes a Liquidated Mortgage
Loan. Consistent with the foregoing, for purposes of all calculations hereunder
so long as such Mortgage Loan shall be considered to be an Outstanding Mortgage
Loan, it shall be assumed that the related Mortgage Note and its amortization
schedule in effect on and after such acquisition of title (after giving effect
to any previous Principal Prepayments and Deficient Valuations incurred
subsequent to the related Bankruptcy Coverage Termination Date and before any
adjustment thereto by reason of any bankruptcy (other than as aforesaid) or any
similar proceeding or any moratorium or similar waiver or grace period) remain
in effect (notwithstanding that the
55
indebtedness evidenced by such Mortgage Note shall have been discharged),
subject to adjustment to reflect the application of REO Proceeds received in any
month. REO Proceeds received in any month shall be applied to the payment of the
installments of principal due and interest accrued on the related REO Mortgage
Loan in accordance with the terms of such Mortgage Note. REO Proceeds received
in any month in excess of the Amortization Payment for such month due on any REO
Mortgage Loan shall be treated as a Principal Prepayment received in respect of
such Mortgage Loan.
(c) In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Company shall dispose of such Mortgaged Property prior to the
close of the third calendar year after the year of its acquisition by the Trust
Fund unless (a) the Trustee shall have been supplied with an Opinion of Counsel
to the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to such period (and specifying the period beyond such period for
which the Mortgaged Property may be held) will not result in the imposition of
taxes on "prohibited transactions" of the Trust Fund as defined in section 860F
of the Code, or cause the REMIC established hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel), or (b) the Trustee (at the Company's
expense) or the Company shall have applied for, not later than 61 days prior to
the expiration of such period, an extension of such period in the manner
contemplated by section 856(e)(3) of the Code, in which case such period shall
be extended by the time period permitted by section 856(e)(3) of the Code.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used for the production of income by or on behalf of the Trust Fund
or sold in such a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify at any time as "foreclosure property"
within the meaning of section 860G(a)(8) of the Code, (ii) subject the Trust
Fund to the imposition of any federal or state income taxes on "net income from
foreclosure property" with respect to such Mortgaged Property within the meaning
of section 860G(c) of the Code, or (iii) cause the sale of such Mortgaged
Property to result in the receipt by the Trust Fund of any income from
non-permitted assets as described in section 860F(a)(2)(B) of the Code, unless
the Company has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes.
(d) Any collection of Insurance Proceeds or Liquidation Proceeds will be
applied in the following order of priority: first, to reimburse the Company for
any related unreimbursed Liquidation Expenses and to reimburse the Company or
the Trustee, as applicable, for any related unreimbursed Monthly Advances;
second, to accrued and unpaid interest on the Mortgage Loan at the Mortgage Rate
from the date to which interest was last paid or advanced to the Due Date prior
to the Distribution Date on which such amounts are to be distributed; and third,
as a recovery of principal of the Mortgage Loan. If the amount so allocated to
interest is less than the full amount of accrued and unpaid interest due on such
Mortgage Loan, the amount of such recovery will be allocated between the
Servicing Fee and interest at the Net Mortgage Rate in proportion to the amount
of such accrued interest which would have been allocated to each such category
in the absence of any shortfall.
56
(e) Notwithstanding anything to the contrary contained herein, the Company
shall have the right to enter into an agreement substantially in the form of
Exhibit K hereto with any Person that is the Holder of 100% of the Class B5
Certificates (provided that such form may be revised to delete the option on the
part of such Person to purchase a defaulted Mortgage Loan as set forth in
Section 2.02(f) thereof). Prior to entering into any such agreement with any
Person, the Company shall obtain a certification from such Person to the effect
that (i) such Person is not an "affiliate" (within the meaning of the Prohibited
Transaction Exemption) of the Trustee and (ii) such Person will not purchase any
Certificates if such purchase would cause such Person to hold more than a ten
percent interest in the Mortgage Pool. It is understood that the right of the
Company to be reimbursed for Monthly Advances and Nonrecoverable Advances under
this Agreement shall not be affected in any way by the provisions of any such
agreement. The Trustee hereby agrees to perform such obligations as may be
expressly required of it pursuant to the provisions of such agreement and to
promptly notify each party to such agreement if a Responsible Officer of the
Trustee (with direct responsibility for administration of this Agreement)
becomes aware of any discussions, plans or events that might lead to the
Trustee's becoming an "affiliate" (within the meaning of the Prohibited
Transaction Exemption) of any Person with which the Company has entered into
such agreement, provided that the contents of any such notification shall be
kept confidential by the parties to such agreement. The Company agrees to
promptly notify the Trustee upon entering into any such agreement. In addition,
the Company shall provide the Trustee with such information as may be necessary
for the Trustee to perform its obligations thereunder, including written
instructions, clearly identifying the source, amount and application of funds to
be deposited or withdrawn from the Collateral Fund (as defined in such
agreement). The Trustee shall provide the Company with such information
concerning credits and debits to the Collateral Fund on account of income, gains
and losses realized from Collateral Fund Permitted Investments (as defined in
such agreement), and costs associated with the purchase and sale thereof, as the
Company may request in order to prepare the instructions described in the
preceding sentence.
In addition, subject to the provisions of the preceding paragraph, the
Company shall have the right to enter into an agreement substantially in the
form of Exhibit K hereto with the Person that is the Holder of 100% of the Class
B4 Certificates, provided that (i) such Person is also the Holder of 100% of the
Class B5 Certificates, (ii) such Person shall have no rights under such
agreement until the date on which the Class Certificate Principal Balance of the
Class B5 Certificates has been reduced to zero, and (iii) any rights of such
Person under such agreement shall terminate in the event that such Person
transfers, directly or indirectly, the Class B4 Certificates to any other
Person.
(f) Additional Collateral may be liquidated and the proceeds applied to
cover any shortfalls upon the liquidation of a Mortgaged Property; provided,
however, that the Trust Fund in no event shall acquire ownership of the
Additional Collateral unless the Trustee shall have received an Opinion of
Counsel that such ownership shall not cause the Trust Fund to fail to qualify as
a REMIC or subject the REMIC to any tax.
Section 3.09. Trustee to Cooperate; Release of Mortgage Files. Upon the
payment in full of any Mortgage Loan, the Company will immediately notify the
Trustee (or Custodian, if applicable) by a certification (which certification
shall include a statement to the effect that all amounts received in connection
with such payment which are required to be credited to the
57
Mortgage Loan Payment Record pursuant to Section 3.02 have been so credited) of
a Servicing Officer and shall request delivery to it of the Mortgage File. If a
Buydown Mortgage Loan is the subject of a Principal Prepayment in full during
the related Buydown Period, the related Buydown Funds will be applied or
returned to the Person entitled thereto in accordance with the terms of such
Buydown Mortgage Loan. Upon receipt of such certification and request in form
satisfactory to the Trustee (or Custodian, if applicable), the Trustee (or
Custodian, if applicable) shall promptly, but in any event within five Business
Days, release the related Mortgage File to the Company; provided, that the
Trustee (or Custodian, if applicable) shall not be responsible for any delay in
the release of a Mortgage File resulting from acts beyond its control, including
without limitation, acts of God, strikes, lockouts, riots, acts of war or
terrorism, epidemics, nationalization, governmental regulations imposed after
the fact, fire, communication line failures, computer viruses, power failures,
earthquakes or other disasters. Upon any such payment in full, the Company is
authorized to execute, pursuant to the authorization contained in Section 3.01,
an instrument of satisfaction regarding such Mortgage, which instrument of
satisfaction shall be recorded by the Company if required by applicable law and
be delivered to the Person entitled thereto, it being understood and agreed that
no expenses incurred in connection with such instrument of satisfaction shall be
reimbursed from amounts at the time credited to the Mortgage Loan Payment
Record. From time to time and as appropriate for the servicing or foreclosure of
any Mortgage Loan (including, without limitation, collection under any Primary
Insurance Policy), the Trustee (or Custodian) shall, upon request of the Company
and delivery to the Trustee (and Custodian, if applicable) of a receipt signed
by a Servicing Officer, release the related Mortgage File to the Company. The
Trustee shall, upon request of the Company, execute such documents as shall be
necessary to the prosecution of any such proceedings. Such receipt shall
obligate the Company to return the Mortgage File to the Trustee (or Custodian)
when the need therefor by the Company no longer exists unless the Mortgage Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the receipt shall be released by
the Trustee (or Custodian) to the Company.
Section 3.10. Servicing Compensation; Payment of Certain Expenses by the
Company. (a) As compensation for its activities and obligations hereunder, the
Company shall be entitled to withhold and pay to itself out of each payment
received by it on account of interest on each Mortgage Loan (including the
portion of any Buydown Funds applied to the related Buydown Mortgage Loan for
the applicable period) an amount equal to the Servicing Fee. The aggregate of
the Servicing Fees payable to the Company on any Distribution Date shall be
reduced by the amount of any Compensating Interest Payment for such Distribution
Date. Additional servicing compensation in the form of Prepayment Interest
Excess, assumption fees, modification fees, late payment charges, interest
income or gain with respect to amounts deposited in the Certificate Account and
invested by the Company or otherwise shall be retained by the Company, subject
to Section 3.10(b), if applicable. The Company shall be required to pay all
expenses incurred by it in connection with its activities hereunder (including
payment of Trustee fees and all other fees and expenses not expressly stated
hereunder to be for the account of the Certificateholders) and shall not be
entitled to reimbursement therefor except as provided in Sections 3.01, 3.03,
3.04 and 3.08.
(b) The Company may, as a condition to granting any request by a Mortgagor
for any consent, modification, waiver or amendment or any other matter or thing,
the granting of which
58
is in the Company's discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan and is permitted by other
sections of this Agreement, require (to the extent permitted by applicable law)
that such Mortgagor pay to it a reasonable or customary fee in accordance with
the schedule set forth as Exhibit H (which may be amended from time to time by
provision of a revised schedule of such fees to the Trustee, whereupon such
revised schedule shall be deemed to be Exhibit H hereunder) for the additional
services performed in connection with such request, together with any related
costs and expenses incurred by it. Such fees shall be additional servicing
compensation to the Company.
Section 3.11. Reports to the Trustee. Not later than 15 days after each
Distribution Date, the Company shall forward to the Trustee a statement,
certified by a Servicing Officer, setting forth the status of the Mortgage Loan
Payment Record as of the close of business on such Distribution Date and
showing, for the period covered by such statement, the aggregate of credits to
the Mortgage Loan Payment Record for each category of credit specified in
Section 3.02 and each category of debit specified in Section 3.04.
Section 3.12. Annual Statement as to Compliance. The Company will deliver
to the Trustee, on or before March 31 of each year, beginning with March 31,
2001, an Officer's Certificate stating that (a) a review of the activities of
the Company during the preceding calendar year and of its performance under this
Agreement has been made under such Officer's supervision and (b) to the best of
such Officer's knowledge, based on such review, the Company has fulfilled all
its material obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such Officer and the nature and status thereof.
Section 3.13. Annual Independent Public Accountants' Servicing Report. On
or before March 31 of each year, beginning with March 31, 2001, the Company
shall:
(a) furnish to a firm of independent public accountants (which may also
render other services to the Company) a statement substantially to the effect
that the Company has complied in all material respects with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers (the "Minimum Servicing Standards") with respect to the
mortgage loans in the Company's servicing portfolio (which may exclude home
equity loans) or, if there has been material noncompliance with such servicing
standards, containing a description of such noncompliance; and
(b) at its expense cause such firm of independent public accountants to
furnish a report to the Trustee stating its opinion as to the Company's
assertion contained in the statement delivered pursuant to Section 3.13(a),
which opinion shall be based on an examination conducted by such firm in
accordance with the standards established by the American Institute of Certified
Public Accountants, including examining, on a test basis, evidence about the
Company's compliance with the Minimum Servicing Standards. Such opinion shall be
to the effect that the Company has complied in all material respects with the
Minimum Servicing Standards with respect to the mortgage loan portfolio
described in the Company's statement delivered pursuant to Section 3.13(a)
hereof or if there has been material noncompliance with the Minimum Servicing
Standards, shall contain a description of such noncompliance in accordance with
applicable accounting standards. In rendering such report, such firm may rely,
as to matters
59
relating to direct servicing of Mortgage Loans by any primary servicer, upon
comparable reports of independent public accountants with respect to such
primary servicer.
Section 3.14. Access to Certain Documentation and Information Regarding the
Mortgage Loans. To the extent permitted by applicable law, the Company shall
provide to the Trustee, Certificateholders which are regulated insurance
entities and the applicable insurance regulatory agencies thereof,
Certificateholders which are federally insured savings and loan associations,
the Office of Thrift Supervision, the FDIC and the supervisory agents and
examiners thereof access to the documentation regarding the Mortgage Loans
required by applicable regulations of the Office of Thrift Supervision or of
such insurance regulatory agencies, as the case may be, such access being
afforded without charge but only upon reasonable request and during normal
business hours at the offices of the Company. Nothing in this Section 3.14 shall
derogate from the obligation of the Company to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Company to provide access as provided in this Section 3.14 as a result of
such obligation shall not constitute a breach of this Section 3.14.
Section 3.15. Maintenance of Certain Servicing Policies. The Company shall
during the term of its service as servicer maintain in force (i) a policy or
policies of insurance covering errors and omissions in the performance of its
obligations as servicer hereunder and (ii) a fidelity bond in respect of its
officers, employees or agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA for persons
performing servicing for mortgage loans purchased by such association.
Section 3.16. Optional Purchase of Defaulted Mortgage Loans. The Company
shall have the right, but not the obligation, to purchase (i) any Defaulted
Mortgage Loan or (ii) any Mortgage Loan as to which the Company has a right
against the originator or former owner of such Mortgage Loan for breach of a
representation or warranty regarding the characteristics of such Mortgage Loan
made by such originator or former owner, in each case for a price equal to the
Purchase Price therefor. Any such purchase shall be accomplished as provided in
Section 4.04(a) hereof. At the time of any such repurchase by the Company
pursuant to clause (ii) herein, the Company agrees either promptly to (x)
liquidate such Mortgage Loan, to the extent the Company's rights against such
originator or former owner consist for a claim for indemnity or (y) transfer
such Mortgage Loan to such originator or former owner at a price not less than
the Purchase Price of such Mortgage Loan.
ARTICLE IV
PAYMENTS AND STATEMENTS
Section 4.01. Distributions. (a) On each Distribution Date, the Trustee
shall withdraw the Available Funds from the Certificate Account and shall make
distributions to Holders of the Certificates as of the preceding Record Date in
the following order of priority, to the extent of the remaining Available Funds:
(i) to each Class of Senior Certificates (other than any Class of
Principal Only Certificates) and the Class S Certificates, the Accrued
Certificate Interest thereon for
60
such Distribution Date; provided, however, that any shortfall in available
amounts shall be allocated among such Classes in proportion to the amount
of Accrued Certificate Interest that would otherwise be distributable
thereto;
(ii) to each Class of Senior Certificates (other than any Class of
Principal Only Certificates) and the Class S Certificates, any related
Unpaid Class Interest Shortfall for such Distribution Date; provided,
however, that any shortfall in available amounts shall be allocated among
such Classes in proportion to the Unpaid Class Interest Shortfall for each
such Class on such Distribution Date;
(iii) to the Classes of Senior Certificates entitled to distributions
of principal, in reduction of the Class Certificate Principal Balances
thereof, as set forth in the Senior Principal Priorities hereto; provided,
however, that defined terms used in the Senior Principal Priorities shall
have the meanings assigned thereto in Article I hereof;
(iv) to the Class PO Certificates, any Class PO Deferred Amount for
such Distribution Date, up to an amount not to exceed the Junior Optimal
Principal Amount for such Distribution Date, until the Class Certificate
Principal Balance of such Class has been reduced to zero; provided, that
any such amounts distributed to the Class PO Certificates pursuant to this
clause (iv) shall not reduce the Class Certificate Principal Balance
thereof;
(v) to the Class M Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(vi) to the Class M Certificates, any Unpaid Class Interest Shortfall
therefor on such Distribution Date;
(vii) to the Class M Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(viii) to the Class B1 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(ix) to the Class B1 Certificates, any Unpaid Class Interest Shortfall
therefor on such Distribution Date;
(x) to the Class B1 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(xi) to the Class B2 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xii) to the Class B2 Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date;
61
(xiii) to the Class B2 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(xiv) to the Class B3 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xv) to the Class B3 Certificates, any Unpaid Class Interest Shortfall
therefor on such Distribution Date;
(xvi) to the Class B3 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(xvii) to the Class B4 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xviii) to the Class B4 Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date;
(xix) to the Class B4 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date;
(xx) to the Class B5 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xxi) to the Class B5 Certificates, any Unpaid Class Interest
Shortfall therefor on such Distribution Date; and
(xxii) to the Class B5 Certificates, in reduction of the Class
Certificate Principal Balance thereof, such Class's Allocable Share of the
Junior Optimal Principal Amount on such Distribution Date.
Notwithstanding the foregoing, amounts otherwise distributable pursuant to
clauses (vii), (x), (xiii), (xvi), (xix) and (xxii) on any Distribution Date
shall be reduced, in inverse order of priority, by any amount distributed
pursuant to clause (iv) on such date, such that such amount distributed pursuant
to clause (iv) on such date shall be applied first to reduce the amount
distributable pursuant to clause (xxii), and then, to the extent of any excess,
applied second, to reduce the amount distributable pursuant to clause (xix),
third, to reduce the amount distributable pursuant to clause (xvi), fourth, to
reduce the amount distributable pursuant to clause (xiii), fifth, to reduce the
amount distributable pursuant to clause (x) and sixth, to reduce the amount
distributable pursuant to clause (vii).
(b) On each Distribution Date, the Trustee shall distribute to the holder
of the Class R Certificate any remaining Available Funds for such Distribution
Date after application of all amounts described in clause (a) of this Section
4.01, together with any Unanticipated Recoveries received by the Company in the
calendar month preceding the month of such Distribution Date
62
and not distributed on such Distribution Date to the holders of outstanding
Certificates of any other Class pursuant to Section 4.01(f), plus any amounts
distributable to the holder of the Class R Certificate pursuant to Sections
4.01(e) and 4.10(e). Any distributions pursuant to this subsection (b) shall not
reduce the Class Certificate Principal Balance of the Class R Certificate.
(c) If on any Distribution Date the Class Certificate Principal Balances of
the Junior Certificates have each been reduced to zero, the amount distributable
to the Senior Certificates other than the Class PO Certificates pursuant to
Section 4.01(a)(iii) for such Distribution Date and each succeeding Distribution
Date shall be allocated among such Classes of Senior Certificates, pro rata, on
the basis of their respective Class Certificate Principal Balances immediately
prior to such Distribution Date, regardless of the priorities and amounts set
forth in Section 4.01(a)(iii).
(d) If on any Distribution Date (i) the Class Certificate Principal Balance
of the Class M Certificates or any Class of Class B Certificates for which the
related Prepayment Distribution Trigger was satisfied on such Distribution Date
is reduced to zero and (ii) amounts distributable pursuant to clauses (ii), (iv)
and (v) of the Junior Optimal Principal Amount remain undistributed on such
Distribution Date after all amounts otherwise distributable on such date
pursuant to clauses (iv) through (xxii) of Section 4.01(a) have been
distributed, such amounts shall be distributed on such Distribution Date to the
remaining Classes of Junior Certificates in order of priority, such that no such
distribution shall be made to any Class of Junior Certificates while a prior
such Class is outstanding.
(e) (i) On each Distribution Date prior to the Cross-Over Date,
distributions in reduction of the Class Certificate Principal Balances of any
Designated Retail Certificates will be made in accordance with the provisions of
Section 4.10.
With respect to any Class of Designated Retail Certificates, upon the
earliest of (A) the Cross-Over Date, (B) the next Distribution Date after the
Distribution Date on which the principal portion of any Realized Loss is
allocated to such Class of Designated Retail Certificates and (C) the next
Distribution Date after the Distribution Date on which the Class Certificate
Principal Balance of such Class of Designated Retail Certificates has been
reduced to zero, (x) to the extent the balance of funds remaining in the related
Rounding Account is less than $999.99, the balance in such Rounding Account
shall be restored to $999.99 (or, if less, the sum of such remaining balance and
the amount so distributable) from Available Funds otherwise available for
distribution on all outstanding Classes of Certificates and (y) such Rounding
Account shall be cleared and terminated, and the amounts therein shall be
distributed to the Class R Certificates on such date (which distribution shall
not reduce the Class Certificate Principal Balance thereof)
(ii) As provided in Section 4.10(f), notwithstanding any provisions
herein to the contrary, on the earlier to occur of the Cross-Over Date and
the next Distribution Date after the Distribution Date on which the
principal portion of any Realized Loss is allocated to any Class of
Designated Retail Certificates, and on each subsequent Distribution Date,
distributions in reduction of the Class Certificate Principal Balances of
any Class of Designated Retail Certificates shall be made on a pro rata
basis among the outstanding Certificates of the respective Class, based on
the Percentage Interest in each such Class represented by each Certificate.
The Trustee shall notify the Depository prior
63
to the first Distribution Date on which distributions in respect of
principal on any Class of Designated Retail Certificates are to be made on
a pro rata basis in accordance with the preceding sentence. On the earlier
to occur of the Cross-Over Date and the next Distribution Date after the
Distribution Date on which the principal portion of any Realized Loss is
allocated to any Class of Designated Retail Certificates, and on each
subsequent Distribution Date, the Trustee shall not, and the Depository is
not authorized to, make distributions or payments in respect of any Class
of Designated Retail Certificates in accordance with any Principal
Distribution Request or by Random Lot.
(f) In the event that in any calendar month the Company recovers an amount
(an "Unanticipated Recovery") in respect of principal of a Mortgage Loan which
had previously been allocated as a Realized Loss to any Class of Certificates
pursuant to Section 4.03, on the Distribution Date in the next succeeding
calendar month the Trustee shall withdraw from the Certificate Account and
distribute to the holders of each outstanding Class to which such Realized Loss
had previously been allocated its share (determined as described in the
succeeding paragraph) of such Unanticipated Recovery in an amount not to exceed
the amount of such Realized Loss previously allocated to such Class. When the
Class Certificate Principal Balance of a Class of Certificates has been reduced
to zero, the holders of such Class shall not be entitled to any share of an
Unanticipated Recovery, and such Unanticipated Recovery shall be allocated among
all outstanding Classes of Certificates entitled thereto in accordance with the
preceding sentence, subject to the remainder of this subsection (f). In the
event that (i) any Unanticipated Recovery remains undistributed in accordance
with the preceding sentence or (ii) the amount of an Unanticipated Recovery
exceeds the amount of the Realized Loss previously allocated to any outstanding
Classes with respect to the related Mortgage Loan, on the applicable
Distribution Date the Trustee shall distribute to the holders of all outstanding
Classes of the related Certificates to which Realized Losses had previously been
allocated and not reimbursed their pro rata share (determined as described
below) of such excess in an amount not to exceed the aggregate amount of any
Realized Loss previously allocated to such Class with respect to any other
Mortgage Loan that has not been recovered in accordance with this subsection
(f). Any distributions made pursuant to this subsection (f) shall not reduce the
Class Certificate Principal Balance of the related Certificate.
For purposes of the preceding paragraph, the share of an Unanticipated
Recovery allocable to any Class of Certificates with respect to a Mortgage Loan
shall be (i) with respect to the Class PO Certificates, based on the applicable
PO Percentage of the principal portion of the Realized Loss previously allocated
thereto with respect to such Mortgage Loan (or all Mortgage Loans for purposes
of the next to last sentence of the preceding paragraph), and (ii) with respect
to any other Class of Certificates, based on its pro rata share (in proportion
to the Class Certificate Principal Balances thereof with respect to such
Distribution Date) of the applicable Non-PO Percentage of the principal portion
of any such Realized Loss previously allocated with respect to such Mortgage
Loan (or Loans); provided, however, that (i) the share of an Unanticipated
Recovery allocable to a Class PO Certificate with respect to any Mortgage Loan
(or Loans) shall be reduced by the aggregate amount previously distributed to
such Class on account of the applicable Class PO Deferred Amount in respect of
such Mortgage Loan (or Loans) and (ii) the amount by which the distributions to
the Class PO Certificates have been so reduced shall be distributed to the
Classes of Certificates described in clause (ii) of the preceding paragraph in
the same proportion as described in such clause (ii). For purposes of the
preceding
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sentence, any Class PO Deferred Amount distributed to a Class PO Certificate on
previous Distribution Dates shall be deemed to have been allocated in respect of
the Mortgage Loans as to which the applicable PO Percentage of the principal
portion of Realized Losses has previously been allocated to such Class on a pro
rata basis (based on the amount of Realized Losses so allocated).
Section 4.02. Method of Distribution. (a) Except as set forth in Section
4.10 in respect of any Designated Retail Certificates, all distributions with
respect to each Class of Certificates on each Distribution Date shall be made
pro rata among the outstanding Certificates of such Class, based on the
Percentage Interest in such Class represented by each Certificate. Payments to
the Certificateholders on each Distribution Date will be made by the Trustee to
the Certificateholders of record on the related Record Date (other than as
provided in Section 9.01 respecting the final distribution) by check or money
order mailed to a Certificateholder at the address appearing in the Certificate
Register, or upon written request by such Certificateholder to the Trustee made
not later than the applicable Record Date, by wire transfer to a U.S. depository
institution acceptable to the Trustee, or by such other means of payment as such
Certificateholder and the Trustee shall agree.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each Financial
Intermediary for which it acts as agent. Each Financial Intermediary shall be
responsible for disbursing funds to the Certificate Owners that it represents.
Except as otherwise provided in Section 4.10(g), the Depository shall be
responsible for the allocation of the aggregate amount of distributions in
reduction of the Class Certificate Principal Balances of any Class of Designated
Retail Certificates among the Depository Participants in accordance with Section
4.10, and each Depository Participant (and each respective Financial
Intermediary for which such Depository Participant acts as agent) shall be
responsible for the allocation of the amount allocated thereto among the related
Certificate Owners. All such credits and disbursements with respect to a
Book-Entry Certificate are to be made by the Depository and the Depository
Participants in accordance with the provisions of the applicable Certificates.
Neither the Trustee nor the Company shall have any responsibility therefor
except as otherwise provided by applicable law.
(c) The Trustee shall withhold or cause to be withheld such amounts as it
reasonably determines are required by the Code (giving full effect to any
exemptions from withholding and related certifications required to be furnished
by Certificateholders or Certificate Owners and any reductions to withholding by
virtue of any bilateral tax treaties and any applicable certification required
to be furnished by Certificateholders or Certificate Owners with respect
thereto) from distributions to be made to Non-U.S. Persons. If the Trustee
reasonably determines that a more accurate determination of the amount required
to be withheld for a distribution can be made within a reasonable period after
the scheduled date for such distribution, it may hold such distribution in trust
for a holder of a Residual Certificate until such determination can be made. For
the purposes of this paragraph, a "Non-U.S. Person" is (i) an individual other
than a citizen or resident of the United States, (ii) a partnership, corporation
or entity treated as a partnership or corporation for U.S. federal income tax
purposes not formed under the laws of the United States,
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any state thereof or the District of Columbia (unless, in the case of a
partnership, Treasury regulations provide otherwise), (iii) any estate, the
income of which is not subject to U.S. federal income taxation, regardless of
source, and (iv) any trust, other than a trust that a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more U.S. Persons have the authority to control all substantial
decisions of the trust.
Section 4.03. Allocation of Losses. (a) On or prior to each Determination
Date, the Company shall determine the amount of any Realized Loss in respect of
each Mortgage Loan that occurred during the immediately preceding calendar
month.
(b) With respect to any Distribution Date, the principal portion of each
Realized Loss (other than any Excess Loss) shall be allocated as follows:
(i) the applicable PO Percentage of the principal portion of any such
Realized Loss shall be allocated to the Class PO Certificates until the
Class Certificate Principal Balance thereof has been reduced to zero; and
(ii) the applicable Non-PO Percentage of the principal portion of any
such Realized Loss shall be allocated in the following order of priority:
first, to the Class B5 Certificates until the Class Certificate
Principal Balance thereof has been reduced to zero;
second, to the Class B4 Certificates until the Class Certificate
Principal Balance thereof has been reduced to zero;
third, to the Class B3 Certificates until the Class Certificate
Principal Balance thereof has been reduced to zero;
fourth, to the Class B2 Certificates until the Class Certificate
Principal Balance thereof has been reduced to zero;
fifth, to the Class B1 Certificates until the Class Certificate
Principal Balance thereof has been reduced to zero;
sixth, to the Class M Certificates until the Class Certificate
Principal Balance thereof has been reduced to zero; and
seventh, to the Classes of Senior Certificates other than the
Class PO Certificates, pro rata, in accordance with their Class
Certificate Principal Balances; provided, that any such loss allocated
to any Class of Accrual Certificates (and any Accrual Component) shall
be allocated (subject to Section 4.03(d)) on the basis of the lesser
of (x) the Class Certificate Principal Balance (or Component Principal
Balance) thereof immediately prior to the applicable Distribution Date
and (y) the Class Certificate Principal Balance (or Component
Principal Balance) thereof on the Closing Date (as reduced by any
Realized Losses previously allocated thereto).
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(c) With respect to any Distribution Date, the principal portion of any
Excess Loss (other than Excess Bankruptcy Losses attributable to Debt Service
Reductions) shall be allocated as follows: (1) the PO Percentage of any such
loss shall be allocated to the Class PO Certificates, and (2) the Non-PO
Percentage of any such loss shall be allocated to each Class of Certificates
other than the Class PO Certificates, pro rata, based on the respective Class
Certificate Principal Balances thereof; provided, that any such loss allocated
to any Class of Accrual Certificates (and any Accrual Component) shall be
allocated (subject to Section 4.03(d)) on the basis of the lesser of (x) the
Class Certificate Principal Balance (or Component Principal Balance) thereof
immediately prior to the applicable Distribution Date and (y) the Class
Certificate Principal Balance (or Component Principal Balance) thereof on the
Closing Date (as reduced by any Realized Losses previously allocated thereto).
(d) Any Realized Losses allocated to a Class of Certificates pursuant to
Section 4.03(b) or (c) shall be allocated among the Certificates of such Class
in proportion to their respective Certificate Principal Balances. In addition,
any Realized Losses allocated to any Class of Component Certificates on a
Distribution Date shall be allocated in reduction of the Component Principal
Balances of the related Components (other than any Notional Component) in
proportion to their respective Component Principal Balances immediately prior to
such Distribution Date. Any allocation of Realized Losses pursuant to this
paragraph (d) shall be accomplished by reducing the Certificate Principal
Balance (or, in the case of any Component, the Component Principal Balance) of
the related Certificates (or Components) on the related Distribution Date in
accordance with Section 4.03(e).
(e) Realized Losses allocated in accordance with this Section 4.03 shall be
allocated on the Distribution Date in the month following the month in which
such loss was incurred and, in the case of the principal portion thereof, after
giving effect to distributions made on such Distribution Date, except that the
aggregate amount of Realized Losses to be allocated to the Class PO Certificates
on such Distribution Date will be taken into account in determining
distributions in respect of any Class PO Deferred Amount for such date.
(f) On each Distribution Date, the Company shall determine the Subordinate
Certificate Writedown Amount, if any. Any such Subordinate Certificate Writedown
Amount shall effect, without duplication of any other provision in this Section
4.03 that provides for a reduction in the Certificate Principal Balance of the
Subordinate Certificates, a corresponding reduction in the Certificate Principal
Balance of the Subordinate Certificates, which reduction shall occur on such
Distribution Date after giving effect to distributions made on such Distribution
Date.
(g) Notwithstanding the foregoing, no such allocation of any Realized Loss
shall be made on a Distribution Date to a Class of Certificates to the extent
that such allocation would result in the reduction of the aggregate Certificate
Principal Balances of all the Certificates as of such Distribution Date, after
giving effect to all distributions and prior allocations of Realized Losses on
such date, to an amount less than the aggregate Scheduled Principal Balance of
the Mortgage Loans as of the first day of the month of such Distribution Date,
less any Deficient Valuations occurring on or prior to the Bankruptcy Coverage
Termination Date (such limitation, the "Loss Allocation Limitation").
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Section 4.04. Monthly Advances; Purchases of Defaulted Mortgage Loans. (a)
The Company shall be required to make Monthly Advances in the manner and to the
extent provided herein. Prior to the close of business on each Determination
Date, the Company shall determine (i) the amount of the Monthly Advance which it
is required to make on the related Distribution Date and (ii) whether it has
elected to purchase any Defaulted Mortgage Loan or Loans on such Distribution
Date. If the Company so elects to purchase any Defaulted Mortgage Loans or other
Mortgage Loan in accordance with Section 3.16 (or is required to purchase any
Mortgage Loan pursuant to Section 2.02 or 2.03(a)), no Monthly Advance shall be
required with respect thereto for the month in which such purchase occurs. The
Company shall include information as to each of such determinations in the
Servicer's Certificate furnished by it to the Trustee in accordance with Section
4.06 and shall be obligated to transfer to the Certificate Account pursuant to
Section 3.02(d) on or before 11:00 a.m. New York time on the Business Day next
preceding the following Distribution Date in next-day funds the respective
amounts applicable to such determinations appearing in such Servicer's
Certificate. Upon receipt by the Trustee (and Custodian, if applicable) of
written notification signed by a Servicing Officer of any such deposit relating
to the purchase by the Company of such a Mortgage Loan, the Trustee (or
Custodian, as the case may be) shall release to the Company the related Mortgage
File and the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
Company any Mortgage Loan released pursuant hereto.
(b) In the event that the Company transfers or expects to transfer less
than the Available Funds required to be deposited by it pursuant to Section
3.02(d), the Company shall so notify the Trustee no later than 9:00 a.m. on the
Business Day preceding the related Distribution Date, and the amount so
transferred, if any, shall be deemed to have been transferred first pursuant to
clause (i) of the definition of Available Funds, second pursuant to clause (iii)
of the definition of Available Funds, and third pursuant to clause (ii) of the
definition of Available Funds. Such notice shall specify each Mortgage Loan
delinquent as of the preceding Determination Date. In such event, the Trustee
shall make any Monthly Advance required to be made hereunder, in the manner and
to the extent required; provided, the Trustee shall not be so obligated if
prohibited by applicable law.
(c) In the event that the Company is succeeded hereunder as servicer, the
obligation to make Monthly Advances in the manner and to the extent required by
Section 4.04(a) shall be assumed by the successor servicer (subject to Section
7.02).
Section 4.05. Statements to Certificateholders. Each month, at least two
Business Days prior to each Distribution Date, the Company shall deliver to the
Trustee a statement (each, a "Distribution Date Statement") substantially in the
form of Exhibit J hereto. On the first two Distribution Dates immediately
following the Closing Date, the Trustee shall mail to each Certificateholder the
related Distribution Date Statement. Beginning on the second (or on any
succeeding) Distribution Date immediately following the Closing Date, the
Trustee may provide a notice that future Distribution Date Statements shall be
made available on the Trustee's website maintained on the internet; such notice
shall (a) specify the Trustee's website address, and (b) provide for any
Certificateholder to request any future Distribution Date Statement(s) to be
mailed to such requesting Certificateholder. If on the third (or on any
succeeding) Distribution Date immediately following the Closing Date the Trustee
elects to make available such Distribution Date Statements on the Trustee's
website maintained on the internet, on each
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Distribution Date the Trustee shall (y) make such Distribution Date Statements
available on the Trustee's website, and (z) mail the applicable Distribution
Date Statement to any such Certificateholder who so requests or has previously
so requested. In addition, the Trustee shall promptly notify the
Certificateholders of any changes in the internet address of the Trustee's
website. If on any Distribution Date the Trustee is unable to make or otherwise
determines not to make the applicable Distribution Date Statement available on
the Trustee's website, then the Trustee shall mail such Distribution Date
Statement to each Certificateholder on such Distribution Date. Each Distribution
Date Statement shall set forth:
(i) The amount of such distribution to the Certificateholders of each
Class (and in respect of any Component), other than any Notional
Certificates (and any Notional Component), allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
included therein (including, for this purpose, the Scheduled Principal
Balances of all Defaulted Mortgage Loans and Defective Mortgage Loans
purchased pursuant to Section 2.02, 2.03(b) or 3.16, respectively, and any
amounts deposited pursuant to Section 2.03(b) in connection with the
substitution of any Mortgage Loans pursuant to Section 2.02 or 2.03(a), the
proceeds of which purchases or substitutions are being distributed on such
Distribution Date);
(ii) The amount of such distribution to the Certificateholders of each
Class (other than any Class of Principal Only Certificates) allocable to
interest, including any Accrual Amount added to the Class Certificate
Principal Balance or Component Principal Balance of any Class of Accrual
Certificates or any Accrual Components;
(iii) The amount of servicing compensation paid to the Company during
the month preceding the month of distribution in respect of the Mortgage
Loans and such other customary information as the Company deems necessary
or desirable to enable Certificateholders to prepare their tax returns;
(iv) The Pool Scheduled Principal Balance and the aggregate number of
the Mortgage Loans on the preceding Due Date after giving effect to all
distributions allocable to principal made on such Distribution Date;
(v) The Class Certificate Principal Balance (or Notional Principal
Balance) of each Class, the Component Principal Balance of each Component
and the Certificate Principal Balance (or Notional Principal Balance) of a
Single Certificate of each Class after giving effect to (i) all
distributions allocable to principal (or reductions in the Notional
Principal Balance, in the case of the Notional Certificates, or the
addition of any Accrual Amount, in the case of any Class of Accrual
Certificates) made on such Distribution Date and (ii) the allocation of any
Realized Losses and any Subordinate Certificate Writedown Amount for such
Distribution Date;
(vi) The Pay-out Rate applicable to each Class of Certificates;
(vii) The book value and unpaid principal balance of any real estate
acquired on behalf of Certificateholders through foreclosure, or grant of a
deed in lieu of foreclosure
69
or otherwise, of any REO Mortgage Loan, and the number of the related
Mortgage Loans;
(viii) The aggregate Scheduled Principal Balances and number of
Mortgage Loans which, as of the close of business on the last day of the
month preceding the related Distribution Date, were (a) delinquent as to a
total of (x) 30-59 days, (y) 60-89 days and (z) 90 days or more, and (b) in
foreclosure;
(ix) The Scheduled Principal Balance of any Mortgage Loan replaced
pursuant to Section 2.03(b);
(x) The Certificate Interest Rates of any LIBOR Certificates, any COFI
Certificates and the Class S Certificates applicable to the Interest
Accrual Period relating to such Distribution Date and such Class;
(xi) The Senior Percentage and the Junior Percentage for such
Distribution Date;
(xii) The Senior Prepayment Percentage and the Junior Prepayment
Percentage for such Distribution Date; and
(xiii) The amount of such distribution to the Certificateholders of
each Class allocable to Unanticipated Recoveries.
In the case of information furnished pursuant to clauses (i) through (iii)
above, the amounts shall be expressed as a dollar amount per Single Certificate.
In connection with any proposed transfer of a Certificate that is purported
to be made in reliance on Rule 144A under the Securities Act, the Company shall
be responsible for furnishing such information as may be required thereunder to
a proposed transferee. In furtherance of the Company's obligations hereunder,
the Company hereby instructs the Trustee, at the Company's expense and on its
behalf, and the Trustee agrees, to promptly make available to the proposed
transferee, upon request of the holder, (i) all statements furnished to
Certificateholders pursuant to this Section 4.05 on previous Distribution Dates,
(ii) all certificates furnished to the Trustee pursuant to Section 4.06 in prior
months, (iii) Officer's Certificates furnished to the Trustee pursuant to
Section 3.12 for the two years preceding such request, (iv) reports of
independent accountants furnished to the Trustee pursuant to Section 3.13 for
the two years preceding such request and (v) a copy of the Private Placement
Memorandum relating to such Certificate, together with any amendments or
supplements thereto issued by the Company, which may be accompanied by a legend
to the effect that the information contained in the Private Placement Memorandum
and any amendment or supplement thereto is current only as of its date and the
delivery thereof does not create an implication that such information is correct
as of any subsequent date of delivery (it being understood that the Company has
no obligation hereunder to update or supplement the Private Placement Memorandum
unless otherwise required pursuant to Rule 144A(d)(4)) (which copy and legend
shall be furnished to the Trustee by the Company); provided, however, that the
Trustee shall in no event be required to make available such statements or
certificates pursuant to clauses (i) and (ii) above relating to Distribution
Dates occurring more than twenty-four months preceding the month in which such
request was
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received; provided, further, however, that notwithstanding the Trustee's
agreement as aforesaid to provide such materials to a proposed transferee, the
Trustee does not assume, and shall not thereby be deemed to have assumed, any
responsibility for compliance by the Company with Rule 144A (subject to the
Trustee's agreement set forth in the second sentence of this paragraph) and
shall be entitled to include a notice with such statements or certificates to
the effect that such materials have not been prepared or assembled by the
Trustee and that the Trustee assumes no responsibility for the adequacy,
sufficiency or contents thereof. In connection with any such proposed transfer,
the Company shall make available to the proposed holder, at the request of the
related transferor, such additional information, if any, as may be required to
be delivered pursuant to Rule 144A(d)(4).
Section 4.06. Servicer's Certificate. Each month, not later than the second
Business Day next preceding each Distribution Date, the Company shall deliver to
the Trustee a completed Servicer's Certificate.
Section 4.07. Reports of Foreclosures and Abandonments of Mortgaged
Property. The Trustee (or the Company on behalf of the Trustee) shall, in each
year beginning after 2000, make the reports of foreclosures and abandonments of
any Mortgaged Property as required by section 6050J of the Code. In order to
facilitate this reporting process, the Company, on or before January 15th of
each year, shall provide to the Trustee reports relating to each instance
occurring during the previous calendar year in which the Company (i) on behalf
of the Trustee acquires an interest in a Mortgaged Property through foreclosure
or other comparable conversion in full or partial satisfaction of a Mortgage
Loan, or (ii) knows or has reason to know that a Mortgaged Property has been
abandoned. Reports from the Company shall be in form and substance sufficient to
meet the reporting requirements imposed by section 6050J of the Code.
Section 4.08. Reduction of Servicing Fees by Compensating Interest
Payments. The aggregate amount of the Servicing Fees subject to retention by the
Company as servicer in respect of any Distribution Date shall be reduced by the
amount of any Compensating Interest Payment for such Distribution Date.
Section 4.09. Surety Bond. (a) If a Required Surety Payment is payable
pursuant to the Surety Bond with respect to any Pledged Asset Mortgage Loan, the
Company shall so notify the Trustee as soon as reasonably practicable and shall,
on behalf of the Trustee for the benefit of the Certificateholders, promptly
complete the notice in the form of Attachment 1 to the Surety Bond and shall
promptly submit such notice to the Surety as a claim for a Required Surety
Payment.
(b) Upon receipt of a Required Surety Payment from the Surety on behalf of
the Certificateholders, the Company shall promptly credit such amount to the
Mortgage Loan Payment Record.
Section 4.10. Distributions to Holders of Designated Retail Certificates.
(a) Except as provided in subsections (d) and (f) below, on each Distribution
Date on which distributions in reduction of the Class Certificate Principal
Balance of a Class of Designated Retail Certificates are made, such
distributions will be made in the following order of priority:
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(i) first, in respect of any Principal Distribution Request by the
personal representative of a Deceased Holder of such Class of Certificates,
a surviving tenant by the entirety, a surviving joint tenant, a surviving
tenant in common or such other Person empowered to act on behalf of such
Deceased Holder upon his or her death, in an amount up to but not exceeding
$100,000 per request; and
(ii) second, in respect of any Principal Distribution Request by a
Living Holder of such Class of Certificates, in an amount up to but not
exceeding $10,000 per request.
Thereafter, distributions in respect of such Class submitted on behalf of
each Deceased Holder will be made as provided in clause (i) above up to a second
$100,000 per request and distributions in respect of such Class submitted on
behalf of each Living Holder will be made as provided in clause (ii) above up to
a second $10,000 per request. This sequence of priorities will be repeated until
all such requests have been honored to the extent of amounts available for
distribution in reduction of the Class Certificate Principal Balance of such
Class of Designated Retail Certificates.
Principal Distribution Requests presented on behalf of Deceased Holders in
accordance with the provisions of clause (i) above will be accepted in the order
of their receipt by the Depository. Principal Distribution Requests presented in
accordance with the provisions of clause (ii) above will be accepted in the
order of their receipt by the Depository after all requests presented in
accordance with clause (i) have been honored. All Principal Distribution
Requests with respect to any Distribution Date shall be made in accordance with
Section 4.10(c) below and must be received by the Depository no later than the
close of business on the related Record Date. Principal Distribution Requests
that are received by the Depository after the related Record Date and requests,
in either case, for distributions timely received but not accepted with respect
to any Distribution Date, will be treated as Principal Distribution Requests on
the next succeeding Distribution Date, and each succeeding Distribution Date
thereafter, until each such request is accepted or is withdrawn as provided in
Section 4.10(c). Requests on behalf of Deceased Holders that are not so
withdrawn shall retain their order of priority, all in accordance with the
procedures of the Depository and the Trustee. Upon the transfer of beneficial
ownership of any Designated Retail Certificate, any Principal Distribution
Request previously submitted with respect to such Certificate will be deemed to
have been withdrawn only upon the receipt by the Trustee of notification of such
withdrawal using a form required by the Depository.
Principal Distribution Requests for a Class of Designated Retail
Certificates will be applied, in the aggregate, in an amount equal to the
portion of the Available Funds distributable to such Class of Certificates
pursuant to Section 4.01(a), plus any amounts available for distribution from
the related Rounding Account pursuant to Section 4.10(e), provided that the
aggregate distribution in reduction of the Class Certificate Principal Balance
of any Class of Designated Retail Certificates on any Distribution Date shall be
made in an integral multiple of $1,000, subject to Section 4.10(f).
(b) A "Deceased Holder" is a beneficial owner of a Designated Retail
Certificate who was living at the time such interest was acquired and whose
authorized personal representative,
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surviving tenant by the entirety, surviving joint tenant or surviving tenant in
common or other Person empowered to act on behalf of such beneficial owner upon
his or her death, causes to be furnished to the Trustee a certified copy of the
death certificate of such Deceased Holder, evidence of such person's status as
an authorized representative of the Deceased Holder, such as surviving tenant
(whether by the entirety, joint tenancy or tenancy in common), which evidence
shall be satisfactory to the Trustee, and any additional evidence of death
required by and satisfactory to the Trustee and any tax waivers requested by the
Trustee. Designated Retail Certificates beneficially owned by tenants by the
entirety, joint tenants or tenants in common will be considered to be
beneficially owned by a single owner. The death of a tenant by the entirety,
joint tenant or tenant in common will be deemed to be the death of the
beneficial owner, and any Designated Retail Certificates so beneficially owned
will be eligible for priority with respect to distributions in reduction of the
Class Certificate Principal Balance of such Class of Certificates, subject to
the limitations contained in this Section 4.10. Designated Retail Certificates
beneficially owned by a trust will be considered to be beneficially owned by
each beneficiary of the trust to the extent of such beneficiary's beneficial
interest therein, but in no event will a trust's beneficiaries collectively be
deemed to be beneficial owners of a number of individual Designated Retail
Certificates greater than the number of individual Designated Retail
Certificates of which such trust is the beneficial owner. The death of a
beneficiary of a trust will be deemed to be the death of a beneficial owner of
the Designated Retail Certificates beneficially owned by the trust to the extent
of such beneficiary's beneficial interest in such trust. The death of an
individual who was a tenant by the entirety, joint tenant or tenant in common in
a tenancy that is the beneficiary of a trust will be deemed to be the death of
the beneficiary of the trust. The death of a person who, immediately prior to
his or her death, was entitled to substantially all of the beneficial ownership
interest in a Designated Retail Certificate will be deemed to be the death of
the beneficial owner of such Certificate regardless of the registration of
ownership of such Certificate, if such beneficial ownership interest can be
established to the satisfaction of the Trustee. The Trustee's decision regarding
whether a Deceased Holder's beneficial interest is substantial for purposes of
the preceding sentence shall be conclusive and binding. Such beneficial interest
will be deemed to exist in typical cases of street name or nominee ownership,
ownership by a trustee, ownership under the Uniform Gifts to Minors Act and
community property or other joint ownership arrangements between a husband and
wife. Beneficial interests shall include the power to sell, transfer or
otherwise dispose of a Designated Retail Certificate, and the right to receive
the proceeds therefrom, as well as interest and distributions in reduction of
the Certificate Principal Balance of such Certificates payable with respect
thereto. The Trustee shall not be under any duty to determine independently the
occurrence of the death of any beneficial owner. The Trustee may rely entirely
upon documentation delivered to it in establishing the eligibility of any
beneficial owner to receive the priority accorded Deceased Holders in Section
4.10(a). Expenses incurred by the Trustee in an effort to determine the
beneficial ownership interest with respect to any Principal Distribution Request
presented on behalf of a Deceased Holder, including, without limitation,
attorneys fees, shall be paid by the Person presenting such Principal
Distribution Request.
(c) Requests for distributions in reduction of the Certificate Principal
Balance of a Class of Designated Retail Certificate must be made by delivering a
Principal Distribution Request therefor to the Depository Participant or
Financial Intermediary that maintains the account evidencing the beneficial
owner's interest in such Certificate. Such Depository Participant or Financial
Intermediary should in turn make the request of the Depository (or, in
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the case of an Financial Intermediary, such Financial Intermediary should notify
the related Depository Participant of such request, which Depository Participant
should make the request of the Depository) on a form required by the Depository
and provided to the Depository Participant. In the case of a request on behalf
of a Deceased Holder, a certified copy of the death certificate and any
additional appropriate evidence of death and any tax waivers must be forwarded
to the Trustee under separate cover. Any such requests of Deceased Holders that
are incomplete may not be honored by the Trustee and, if not honored, will lose
their priority and must be resubmitted in proper form. Upon receipt of such
Principal Distribution Request, the Depository will date and time stamp such
request and forward such request to the Trustee. Such requests will be honored
on any Distribution Date only to the extent that they are received by the
Depository on or before the Record Date for such Distribution Date. The
Depository may establish such procedures as it deems fair and equitable to
establish the order of receipt of requests for such distributions received by it
on the same day. Principal Distribution Requests delivered to the Depository
after the Record Date for a particular Distribution Date and requests received
in a timely manner but not accepted with respect to a particular Distribution
Date will be treated as Principal Distribution Requests for the next succeeding
Distribution Date and each succeeding Distribution Date thereafter until each
request is accepted or is withdrawn as provided below. In the case of Principal
Distribution Requests on behalf of Living Holders, the Depository will establish
a new order of priority for each Distribution Date. This order will apply both
to previously unsatisfied Principal Distribution Requests and to newly submitted
requests. A Principal Distribution Request submitted on behalf of a Living
Holder who later dies will become entitled to the priority of a newly submitted
request on behalf of a Deceased Holder upon satisfaction of the requirements set
forth above for requests of a Deceased Holder. Such priority will be effective
for each subsequent Distribution Date if the Trustee has received a certified
copy of the death certificate for such Deceased Holder and any additional
appropriate evidence of death and any requested tax waivers by the last business
day of the preceding calendar month. Each Principal Distribution Request
submitted by a beneficial owner of a Designated Retail Certificate will be held
by the Depository until such request has been accepted or has been withdrawn in
writing as provided herein. Neither the Trustee nor the Company shall be liable
for any delay in delivery of Principal Distribution Requests or Withdrawals (as
defined below) of such requests by the Depository, a Depository Participant or
any Financial Intermediary.
In the event that any Principal Distribution Requests are rejected by the
Trustee for failure to comply with the requirements of this Section 4.10, the
Trustee shall return such requests to the appropriate Depository Participant
with a copy to the Depository with an explanation as to the reason for such
rejection.
The Trustee shall maintain a list of those Depository Participants
representing the Certificate Owners of Designated Retail Certificates that have
submitted Principal Distribution Requests, together with the order of receipt
and the amounts of such requests. The Trustee shall notify the Depository and
the appropriate Depository Participants as to which requests should be honored
on each Distribution Date. Requests shall be honored by the Depository in
accordance with the procedures, and subject to the priorities and limitations,
described in this Section 4.10. The exact procedures to be followed by the
Trustee and the Depository for purposes of determining such priorities and
limitations shall be those established from time to time by the
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Trustee or the Depository, as the case may be. The decisions of the Trustee and
the Depository concerning such matters shall be final and binding on all
affected Persons.
Any beneficial owner of a Designated Retail Certificate that has made a
Principal Distribution Request may withdraw its request by so notifying in
writing the Depository Participant or Financial Intermediary that maintains such
beneficial owner's account (each such withdrawal, a "Withdrawal"). The
Depository Participant should forward the Withdrawal to the Depository on a form
required by the Depository. In the event that such account is maintained by a
Financial Intermediary, such Financial Intermediary should notify the related
Depository Participant which in turn should forward the Withdrawal of such
request, on a form required by the Depository, to the Depository. If such
Withdrawal has not been received by the Depository and forwarded to the Trustee
on or before the Record Date for the next Distribution Date, the previously made
Principal Distribution Request will be irrevocable with respect to the making of
distributions in reduction of the Certificate Principal Balance of such
Designated Retail Certificate on such Distribution Date.
(d) To the extent, if any, that amounts available for distribution in
reduction of the Class Certificate Principal Balance of a Class of Designated
Retail Certificates on a Distribution Date pursuant to Section 4.01(a) exceed
the dollar amount of Principal Distribution Requests that have been received in
respect of such Class by the related Record Date, as provided in Section 4.10(c)
above, distributions in reduction of the Class Certificate Principal Balance of
such Class of Certificates will be made by mandatory distributions on a Random
Lot basis, in integral multiples equal to $1,000, in reduction thereof without
regard to whether such Certificate Owners have submitted Principal Distribution
Requests. The Trustee shall notify the Depository of the aggregate amount of the
mandatory distribution by Random Lot in reduction of the Class Certificate
Principal Balance of such Designated Retail Certificates to be made on the next
Distribution Date. The Depository shall then allocate such aggregate amount
among its Depository Participants on a Random Lot basis. Each Depository
Participant and, in turn, each Financial Intermediary, will then select, in
accordance with its own procedures, Designated Retail Certificates of such Class
from among those held in its accounts to receive mandatory distributions in
reduction of the Class Certificate Principal Balance of such Certificates, such
that the total amount so selected is equal to the aggregate amount of such
mandatory distributions allocated to such Depository Participant by the
Depository and to such Financial Intermediary by its related Depository
Participant, as the case may be. Depository Participants and Financial
Intermediaries that hold a Class of Designated Retail Certificates selected for
mandatory distributions in reduction of the Class Certificate Principal Balance
thereof should provide notice of such mandatory distributions to the affected
Certificate Owners.
(e) On the Closing Date, a separate Rounding Account shall be established
with the Trustee for each Class of Designated Retail Certificates and the
Rounding Account Depositor for such Rounding Account shall cause to be initially
deposited the sum of $999.99 in each such Rounding Account. On each Distribution
Date on which a distribution is to be made in reduction of the Class Certificate
Principal Balance of a Class of Designated Retail Certificates pursuant to
Section 4.01(a), funds on deposit in the related Rounding Account shall be, to
the extent needed, withdrawn by the Trustee and applied to round upward to an
integral multiple of $1,000 the aggregate distribution in reduction of the Class
Certificate Principal Balance to be made on such Class of Certificates. Rounding
of such distribution on such Class of Designated Retail
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Certificates shall be accomplished, on the first such Distribution Date, by
withdrawing from the related Rounding Account the amount of funds, if any,
needed to round the amount otherwise available for such distribution in
reduction of the Class Certificate Principal Balance of such Certificates upward
to the next integral multiple of $1,000. On each succeeding Distribution Date on
which distributions in reduction of the Class Certificate Principal Balance of
such Class of Designated Retail Certificates are to be made pursuant to Section
4.01(a), the aggregate amount of such distributions allocable to such
Certificates shall be applied first to repay any funds withdrawn from the
related Rounding Account and not previously repaid, and then the remainder of
such allocable amount, if any, shall be similarly rounded upward to the next
integral multiple of $1,000 and applied as distributions in reduction of the
Class Certificate Principal Balance of the related Class of Certificates; this
process shall continue on succeeding principal Distribution Dates prior to the
earlier to occur of the Cross-Over Date and the next Distribution Date after the
Distribution Date on which the principal portion of any Realized Loss is
allocated to such Class of Designated Retail Certificates until the Class
Certificate Principal Balance of each such Class of Certificates has been
reduced to zero. Each Rounding Account shall be maintained as a non-interest
bearing account; the Rounding Accounts shall not be an asset of the Trust Fund,
but shall be an asset in the REMIC. On the earliest of (1) the Cross-Over Date,
(2) the next Distribution Date after the Distribution Date on which the
principal portion of any Realized Loss is allocated to any Class of Designated
Retail Certificates and (3) the first Distribution Date after the Class
Certificate Principal Balance of any Class of Designated Retail Certificates has
been reduced to zero, any remaining amounts in the related Rounding Account
shall be distributed to the Class R Certificate.
(f) Notwithstanding any provisions herein to the contrary, on each
Distribution Date coinciding with or after the earlier to occur of the
Cross-Over Date and the next Distribution Date after the Distribution Date on
which the principal portion of any Realized Loss is allocated to any Class of
Designated Retail Certificates, all distributions in reduction of the Class
Certificate Principal Balance of any Class of Designated Retail Certificates
will be made among the Holders and Certificate Owners of such Class of
Certificates, pro rata, based on their Certificate Principal Balances, and will
not be made in integral multiples of $1,000 or pursuant to requested
distributions or mandatory distributions by Random Lot.
(g) In the event that Definitive Certificates representing any Class of
Designated Retail Certificates are issued pursuant to Section 5.02(f) (other
than Section 5.02(f)(z)), all requests for distributions or withdrawals of such
requests relating to such Class must be submitted to the Trustee, and the
Trustee shall perform the functions described in Section 4.10(a) through (d)
using its own procedures, which procedures shall, to the extent practicable, be
consistent with the procedures described in Section 4.10(a) through (d). In the
event that Definitive Certificates representing any Class of Designated Retail
Certificates are issued pursuant to Section 5.02(f)(z), all distributions of
principal shall be made pro rata in accordance with Section 4.10(f).
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ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates. (a) The Certificates shall be substantially
in the forms set forth in Exhibit A hereto, as applicable, and shall, on
original issue, be executed by the Trustee, not in its individual capacity but
solely as Trustee, and countersigned and delivered by the Trustee to or upon the
order of the Company as provided in Article II.
(b) The Certificates shall be issued in an aggregate Initial Certificate
Principal Balance of $126,985,699.92. Such aggregate original principal balance
shall be divided among the Classes having the designations, Class Certificate
Principal Balances, Certificate Interest Rates and minimum denominations as
follows:
Initial Class
Certificate Certificate
Principal Interest Minimum
Designation Balance Rate Denominations
----------- ------------- ----------- -------------
Class A $121,925,000.00 7.25% $ 25,000
Class PO 1,885,718.30 0.00% (1)
Class M 1,460,000.00 7.25% 100,000
Class B1 444,000.00 7.25% 100,000
Class B2 381,000.00 7.25% 100,000
Class B3 445,000.00 7.25% (1)
Class B4 254,000.00 7.25% (1)
Class B5 190,881.62 7.25% (1)
Class S (2) (2) (3)
Class R 100.00 7.25% 100
----------
(1) This Class of Certificates will be issued as a single Certificate
evidencing the entire Class Certificate Principal Balance of such Class.
(2) The Class S Certificates are issued with an initial Notional Principal
Balance of $86,188,835.60 and shall bear interest at the Strip Rate.
(3) The Class S Certificates will be issued in minimum denominations of
Notional Principal Balance of $25,000,000.
(c) The Certificates shall be issuable in registered form only. The
Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the minimum dollar denominations
in Certificate Principal Balance or Notional Principal Balance, as applicable,
specified in Section 5.01(b), and integral multiples of $1,000 in excess
thereof. The Non-Book-Entry Certificates other than the Residual Certificate
shall each be issued in the minimum dollar denominations in Certificate
Principal Balance or Notional Principal Balance, as applicable, specified in
Section 5.01(b), and integral multiples of $1,000 in excess thereof (and, if
necessary, in the amount of the remaining Class Certificate Principal Balance or
Notional Principal Balance, as applicable, of each Class, in the case of one
Certificate
77
of such Class). The Residual Certificate shall be issued as a single certificate
evidencing the entire Class Certificate Principal Balance of such Class and
having a Percentage Interest of 100%. If necessary, one Certificate of each
Class of Book-Entry Certificates may evidence an additional amount equal to the
remainder of the Class Certificate Principal Balance of such Class.
(d) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer under its seal, which may be in
facsimile form and be imprinted or otherwise reproduced thereon. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trustee, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless such Certificate shall have been manually countersigned
by the Trustee substantially in the forms set forth in Exhibit A hereto, and
such countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates issued on the Closing Date shall be dated the
Closing Date; all Certificates issued thereafter shall be dated the date of
their countersignature.
(e) The Strip Rate for each Interest Accrual Period shall be determined by
the Company and included in the Servicer's Certificate for the related
Distribution Date.
Section 5.02. Registration of Transfer and Exchange of Certificates. (a)
The Trustee shall cause to be kept at an office or agency in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
New York a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee shall initially serve as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
Subject to Sections 5.02(b) and 5.02(c), upon surrender for registration of
transfer of any Certificate at the Corporate Trust Office, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class in authorized
denominations of a like Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of authorized denominations of a like Class and Percentage
Interest, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange the Trustee
shall execute, countersign and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or
78
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
All Certificates surrendered for registration of transfer and exchange
shall be canceled and subsequently destroyed by the Trustee and a certificate of
destruction shall be delivered by the Trustee to the Company.
(b) No legal or beneficial interest in all or any portion of the Residual
Certificates may be transferred directly or indirectly to (i) a Disqualified
Organization or an agent of a Disqualified Organization (including a broker,
nominee, or middleman) or (ii) an individual, corporation, partnership or other
person unless such transferee (A) is not a Non-U.S. Person or (B) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Trustee with an effective Internal Revenue Service Form 4224 or (C) is a
Non-U.S. Person that has delivered to both the transferor and the Trustee an
opinion of a nationally recognized tax counsel to the effect that the transfer
of a Residual Certificate to it is in accordance with the requirements of the
Code and the regulations promulgated thereunder and that such transfer of a
Residual Certificate will not be disregarded for federal income tax purposes
(any such person who is not covered by clause (A), (B) or (C) above being
referred to herein as a "Non-permitted Foreign Holder"), and any such purported
transfer shall be void and have no effect. The Trustee shall not execute, and
shall not authenticate and deliver, a Residual Certificate in connection with
any transfer thereof unless the transferor shall have provided to the Trustee an
affidavit, substantially in the form attached as Exhibit F hereto, signed by the
transferee, to the effect that the transferee is not such a Disqualified
Organization, an agent (including a broker, nominee, or middleman) for any
entity as to which the transferee has not received a substantially similar
affidavit or a Non-permitted Foreign Holder, which affidavit shall contain the
consent of the transferee to any such amendments of this Agreement as may be
required to further effectuate the foregoing restrictions on transfer of the
Residual Certificates to Disqualified Organizations or Non-permitted Foreign
Holders, and an agreement by the Transferee that it will not transfer a Residual
Certificate without providing to the Trustee an affidavit substantially in the
form attached as Exhibit F hereto and a letter substantially in the form
attached as Exhibit G hereto. Such affidavit shall also contain the statement of
the transferee that (i) it does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to the Residual Certificates and (ii) it understands that it may
incur tax liabilities in excess of cash flows generated by a Residual
Certificate and that it intends to pay taxes associated with holding a Residual
Certificate as they become due.
The affidavit described in the preceding paragraph, if not executed in
connection with the initial issuance of the Residual Certificates, shall be
accompanied by a written statement in the form attached as Exhibit G hereto,
signed by the transferor, to the effect that as of the time of the transfer, the
transferor has (i) no actual knowledge that the transferee is a Disqualified
Organization or Non-permitted Foreign Holder, (ii) no reason to believe that the
transferee has the intention to impede the assessment or collection of any
federal, state or local taxes legally required to be paid with respect to a
Residual Certificate, and (iii) conducted a reasonable investigation and found
that the transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the transferee will not continue to pay
its debts as they become due. The
79
Residual Certificates shall bear a legend referring to the foregoing
restrictions contained in this paragraph and the preceding paragraph.
Upon notice to the Company that any legal or beneficial interest in any
portion of the Residual Certificates has been transferred, directly or
indirectly, to a Disqualified Organization or agent thereof (including a broker,
nominee, or middleman) in contravention of the foregoing restrictions, (i) such
transferee shall be deemed to hold the Residual Certificate in constructive
trust for the last transferor who was not a Disqualified Organization or agent
thereof, and such transferor shall be restored as the owner of such Residual
Certificate as completely as if such transfer had never occurred, provided that
the Company may, but is not required to, recover any distributions made to such
transferee with respect to the Residual Certificate and return such recovery to
the transferor, and (ii) the Company agrees to furnish to the Internal Revenue
Service and to any transferor of the Residual Certificate or such agent (within
60 days of the request therefor by the transferor or agent) such information
necessary to the application of section 860E(e) of the Code as may be required
by the Code, including but not limited to the present value of the total
anticipated excess inclusions with respect to the Residual Certificate (or
portion thereof) for periods after such transfer. At the election of the
Company, the cost to the Company of computing and furnishing such information
may be charged to the transferor or such agent referred to above; however, the
Company shall in no event be excused from furnishing such information.
The restrictions on transfers of the Residual Certificates set forth in the
preceding three paragraphs shall cease to apply to transfers (and the applicable
portions of the legend to the Residual Certificates may be deleted) after
delivery to the Trustee of an Opinion of Counsel to the effect that the
elimination of such restrictions will not cause the REMIC established hereunder
to fail to qualify as a REMIC at any time that the Certificates are outstanding.
No transfer of a Restricted Certificate shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities Act
of 1933, as amended (the "Act"), and any applicable state securities laws, in
each case as evidenced by an Officer's Certificate, or is exempt from the
registration requirements of the Act and any applicable state securities laws.
In the event of such registration, any restrictive legends set forth in the form
of the relevant Restricted Certificate in Exhibit A hereto with respect to the
Act and state securities law restrictions shall be removed by the Trustee upon
request of the Holder thereof and automatically upon exchange or registration of
transfer thereof. As a condition to any transfer that is to be made in reliance
upon an exemption from the Act and such laws of a (i) Class PO or Class S
Certificate or (ii) Restricted Junior Certificate to any person other than a QIB
(as certified by the proposed transferee in the form of assignment attached to
the related Certificate), either (x) the Trustee shall require the transferee to
execute an investment letter in the form substantially as set forth in Exhibit I
hereto or in such other form as may be acceptable to the Trustee, certifying as
to the facts surrounding such transfer, or (y) in lieu of such investment
letter, the Trustee may accept a written Opinion of Counsel (in form and
substance acceptable to the Trustee) that such proposed transfer may be made
pursuant to an exemption from the Act. As an additional condition to any
transfer of a Restricted Certificate, either (i) the transferor and the
transferee shall complete the form of assignment attached to the Certificate
proposed to be transferred, or (ii) the Trustee shall have received the
above-referenced Opinion of Counsel. The holder of any Restricted Certificate
desiring to effect the transfer thereof to a person other than a
80
QIB shall, and hereby agrees to, comply with any applicable conditions set forth
in the preceding two sentences and indemnify the Trustee and the Company against
any liability that may result if the transfer thereof is not so exempt or is not
made in accordance with such federal and state laws. Such agreement to so
indemnify the Trustee and the Company shall survive the termination of this
Agreement. Notwithstanding the foregoing, no Opinion of Counsel or investment
letter shall be required upon the original issuance of (i) the Restricted Junior
Certificates to the Initial Purchaser (as defined in the Private Placement
Memorandum) or its nominee and (ii) the Class PO or Class S Certificates to the
Company or upon any subsequent transfer of any Class PO or Class S Certificate
by the Company, provided that if any Restricted Junior Certificates are, at the
request of the Initial Purchaser, registered in the name of its nominee, the
Initial Purchaser shall be deemed to acknowledge and agree with the Company and
the Trustee that no transfer of a beneficial interest in such Certificates will
be made without registering such Certificates in the name of the transferee,
which shall be a Person other than such nominee. Any opinion or letter required
pursuant to this paragraph shall not be at the expense of the Trust Fund or the
Trustee.
(c) (i) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate (substantially in the form of Exhibit E or such other
form as is acceptable to the Company and the Trustee) from such transferee to
the effect that such transferee (i) is not a Plan or a Person that is using the
assets of a Plan to acquire such ERISA-Restricted Certificate or (ii) in the
case of a Junior Certificate, is an insurance company investing assets of its
general account and the exemptions provided by Section III(a) of Department of
Labor Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12,
1995) (the "Exemptions") apply to the transferee's acquisition and holding of
any ERISA-Restricted Certificate or (B) an opinion of counsel satisfactory to
the Trustee and the Company to the effect that the purchase and holding of such
a Certificate will not constitute or result in the assets of the Trust Fund
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the Trustee
or the Company to any obligation in addition to those undertaken in the
Agreement; provided, however, that the Trustee will not require such certificate
or opinion in the event that, as a result of a change of law or otherwise,
counsel satisfactory to the Trustee has rendered an opinion to the effect that
the purchase and holding of an ERISA-Restricted Certificate by a Plan or a
Person that is purchasing or holding such a Certificate with the assets of a
Plan will not constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code. The preparation and delivery of the certificate and
opinions referred to above shall not be an expense of the Trust Fund, the
Trustee or the Company. Notwithstanding the foregoing, no opinion or certificate
shall be required for the initial issuance of the ERISA-Restricted Certificates
or any subsequent transfer of any Class PO or Class S Certificate by the
Company. Any transferee of a beneficial interest in an ERISA-Restricted
Certificate in the form of a Book-Entry Certificate will be deemed to have made
one of the representations set forth in Exhibit F hereto, unless the Trustee has
received an opinion of counsel referred to in this Section 5.02(c)(i).
Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA-Restricted Certificate to or on behalf of a Plan, without the delivery
to the Trustee and the Company of an opinion of counsel as described above,
shall be void and of no effect.
81
(ii) No transfer of a Residual Certificate shall be made to any Person
unless the Trustee has received a certification (substantially in the form
of paragraph 4 of Exhibit F) from such transferee to the effect that, among
other things, such transferee is not a Plan or a Person that is using the
assets of a Plan to acquire any such Certificate. The preparation and
delivery of such certificate shall not be an expense of the Trust Fund, the
Trustee or the Company.
(d) Subject to Section 8.01(i) hereof, the Trustee may conclusively rely
upon any certificate, affidavit or opinion delivered pursuant to Section 5.02(b)
or (c). Any certificate or affidavit required to be delivered by a transferee
under this Section 5.02 may be executed and delivered in the name of such
transferee by its attorney-in-fact duly authorized in writing in form and
substance satisfactory to the Trustee.
(e) Except as to any additional Certificate of any Class of Book-Entry
Certificates held in physical certificated form pursuant to Section 5.02(g) or
any Restricted Junior Certificate of any Class of Book-Entry Certificates that
is transferred to an entity other than a QIB, the Book-Entry Certificates shall,
subject to Section 5.02(f), at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration thereof may not be
transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Certificates; (iii) ownership
and transfers of registration of the Certificates issued in book-entry form on
the books of the Depository shall be governed by applicable rules established by
the Depository and the rights of Certificate Owners with respect to Book-Entry
Certificates shall be governed by applicable law and agreements between such
Certificate Owners and the Depository, Depository Participants, and indirect
participating firms; (iv) the Depository may collect its usual and customary
fees, charges and expenses from its Depository Participants; (v) the Trustee
shall deal with the Depository, Depository Participants and indirect
participating firms as authorized representatives of the Certificate Owners of
the Certificates issued in book-entry form for all purposes including the making
of payments due on the Book-Entry Certificates and exercising the rights of
Holders under this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; (vi) the Trustee may rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners; (vii) Certificate Owners shall not be entitled to certificates for the
Book-Entry Certificates and (viii) the Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures. Except as provided herein, the Trustee shall
have no duty to monitor or restrict the transfer of Certificates or interests
therein, and shall have no liability for any transfer, including any transfer
made through the book-entry facilities of
82
the Depository or between or among Depository Participants or Certificate
Owners, made in violation of applicable restrictions set forth herein, except in
the event of the failure of the Trustee to perform its duties and fulfill its
obligations under this Agreement.
(f) If (w)(i) the Company or the Depository advises the Trustee in writing
that the Depository is no longer willing, qualified or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or the
Company is unable to locate a qualified successor, (x) the Company at its option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, (y) after the occurrence of an Event of Default,
Certificate Owners representing not less than 51% of the aggregate Voting Rights
allocated to the Book-Entry Certificates together advise the Trustee and the
Depository through the Depository Participants in writing that the continuation
of a book-entry system through the Depository is no longer in the best interests
of the Certificate Owners or (z) the Depository advises the Trustee that it is
unable to make any pro rata distributions required by Sections 4.01(e)(ii) and
4.10(f), the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of such Certificates by the Depository, accompanied by
registration instructions from the Depository for registration, the Trustee
shall issue the Definitive Certificates. Neither the Company nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(g) On or prior to the Closing Date, there shall be delivered to the
Depository (or to State Street Bank and Trust Company acting as custodian for
the Depository pursuant to the Depository's procedures) one certificate for each
Class of Book-Entry Certificates registered in the name of the Depository's
nominee, Cede & Co. The face amount of each such Certificate shall represent
100% of the initial Class Certificate Principal Balance thereof, except for such
amount that does not constitute an acceptable denomination to the Depository. An
additional Certificate of each Class of Book-Entry Certificates may be issued
evidencing such remainder and, if so issued, will be held in physical
certificated form by the Holders thereof. Each Certificate issued in book-entry
form shall bear the following legend:
"Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives
83
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Company, the Certificate Registrar
and the Trustee such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Certificate
Registrar or the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, countersign and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor, Class and Percentage Interest. In connection with the
issuance of any new Certificate under this Section 5.03, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section 5.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Company, the Trustee, the
Certificate Registrar and any agent of the Company, the Trustee or the
Certificate Registrar may treat the person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.01 and for all other purposes whatsoever,
and neither the Company, the Trustee, the Certificate Registrar nor any agent of
the Company, the Trustee or the Certificate Registrar shall be affected by any
notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar will furnish or cause to be furnished to the Company,
within 15 days after receipt by the Certificate Registrar of request therefor
from the Company in writing, a list, in such form as the Company may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date for payment of distributions to Certificateholders. If three
or more Certificateholders (hereinafter referred to as "applicants") apply in
writing to the Trustee, and such application states that the applicants desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, afford such
applicants access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If such list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt. Every Certificateholder, by receiving and holding a Certificate, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06. Representation of Certain Certificateholders. The fiduciary
of any Plan which becomes a Holder of a Certificate, by virtue of its acceptance
of such Certificate, will be deemed to have represented and warranted to the
Trustee and the Company that such Plan is an "accredited investor" as defined in
Rule 501(a)(1) of Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act of 1933.
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Section 5.07. Determination of COFI. (a) If the outstanding Certificates
include any COFI Certificates, then on each COFI Determination Date the Trustee
shall determine the value of COFI on the basis of the most recently available
Information Bulletin referred to in the definition of "COFI". The establishment
of COFI by the Trustee and the Trustee's subsequent calculation of the rates of
interest applicable to the COFI Certificates for each Interest Accrual Period
shall (in the absence of manifest error) be final and binding. During each
Interest Accrual Period, the Certificate Interest Rate for the COFI Certificates
for the current and immediately preceding Interest Accrual Period shall be made
available by the Trustee to Certificate Owners and Certificateholders at the
following telephone number: (000) 000-0000.
(b) The failure by the Federal Home Loan Bank of San Francisco to publish
COFI for a period of 65 calendar days will constitute an "Alternative Rate
Event" for purposes hereof. Upon the occurrence of an Alternative Rate Event,
the Company will calculate the Certificate Interest Rates for the COFI
Certificates for the subsequent Interest Accrual Periods by using, in place of
COFI, (i) the replacement index, if any, published or designated by the Federal
Home Loan Bank of San Francisco or (ii) if no replacement index is so published
or designated, an alternative index to be selected by the Company that has
performed, or that the Company expects to perform, in a manner substantially
similar to COFI. At the time an alternative index is first selected by the
Company, the Company shall determine the average number of basis points, if any,
by which the alternative index differed from COFI for such period as the
Company, in its sole discretion, reasonably determines to reflect fairly the
long-term difference between COFI and the alternative index, and shall adjust
the alternative index by such average. The Company shall select a particular
index as an alternative only if it receives an Opinion of Counsel to the effect
that the selection of such index will not cause any REMIC established hereunder
to fail to qualify as a REMIC for federal income tax purposes. In the absence of
manifest error, the selection of any alternative index as provided by this
Section 5.07(b) shall be final and binding for each subsequent Interest Accrual
Period. Upon the occurrence of an Alternative Rate Event, the Trustee shall have
no responsibility for the determination of any alternative index or the
calculation of the Certificate Interest Rates for the COFI Certificates.
(c) If at any time after the occurrence of an Alternative Rate Event the
Federal Home Loan Bank of San Francisco resumes publication of COFI, the
Certificate Interest Rates for the COFI Certificates for each Interest Accrual
Period commencing thereafter will be calculated by reference to COFI.
Section 5.08. Determination of LIBOR. (a) If the outstanding Certificates
include any LIBOR Certificates, then on each LIBOR Determination Date the
Trustee shall determine LIBOR for the related Interest Accrual Period as such
rate equal to the Interest Settlement Rate. If such rate does not appear on the
Designated Telerate Page as of 11:00 a.m., London time, on the applicable LIBOR
Determination Date:
(i) The Trustee will request the principal London office of each
Reference Bank (as defined in Section 5.08(e)) to provide such bank's
offered quotation (expressed as a percentage per annum) to prime banks in
the London interbank market for one-month U.S. Dollar deposits as of 11:00
a.m., London time, on the applicable LIBOR Determination Date.
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(ii) If on any LIBOR Determination Date, two or more of the Reference
Banks provide such offered quotations, LIBOR for the next Interest Accrual
Period will be the arithmetic mean of such offered quotations (rounding
such arithmetic mean upwards, if necessary, to the nearest whole multiple
of 1/16%). If on any LIBOR Determination Date only one or none of the
Reference Banks provide such offered quotations, LIBOR for the next
Interest Accrual Period will be the rate per annum the Trustee determines
to be the arithmetic mean (rounding such arithmetic mean upwards, if
necessary, to the nearest whole multiple of 1/16%) of the one-month
Eurodollar lending rate that three major banks in New York City selected by
the Trustee are quoting as of approximately 11:00 a.m., New York City time,
on the first day of the applicable Interest Accrual Period.
(iii) If on any LIBOR Determination Date the Trustee is required but
unable to determine LIBOR in the manner provided in subparagraph (ii) of
this Section 5.08(a), LIBOR for the next Interest Accrual Period will be
LIBOR as determined on the previous LIBOR Determination Date, or, in the
case of the first LIBOR Determination Date, the Initial LIBOR Rate.
(b) The establishment of LIBOR by the Trustee and the Trustee's subsequent
calculation of the Certificate Interest Rates applicable to the LIBOR
Certificates for the relevant Interest Accrual Period, in the absence of
manifest error, will be final and binding.
(c) Within five Business Days of the Trustee's calculation of the
Certificate Interest Rates of the LIBOR Certificates, the Trustee shall furnish
to the Company by telecopy (or by such other means as the Trustee and the
Company may agree from time to time) such Certificate Interest Rates.
(d) The Trustee shall provide to Certificateholders who inquire of it by
telephone the Certificate Interest Rates of the LIBOR Certificates for the
current and immediately preceding Interest Accrual Period.
(e) As used herein, "Reference Banks" shall mean no more than four leading
banks engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) whose quotations appear on the display designated "LIBO" on the
Reuters Monitor Money Rates Service (the "Reuters Screen LIBO Page") on the
applicable LIBOR Determination Date and (iii) which have been designated as such
by the Trustee and are able and willing to provide such quotations to the
Trustee on each LIBOR Determination Date. The Reference Banks initially shall
be: Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company
and Bankers Trust Company. If any of the initial Reference Banks should be
removed from the Reuters Screen LIBO Page or in any other way fail to meet the
qualifications of a Reference Bank, or if such page is no longer published, the
Trustee, after consultation with the Company, shall use its best efforts to
designate alternate Reference Banks.
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ARTICLE VI
THE COMPANY
Section 6.01. Liability of the Company. The Company shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Company herein.
Section 6.02. Merger or Consolidation of, or Assumption of the Obligations
of, the Company. Any corporation into which the Company may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Company shall be a party, or any corporation
succeeding to the business of the Company, or any corporation, more than 50% of
the voting stock of which is, directly or indirectly, owned by General Electric
Company, or any limited partnership, the sole general partner of which is either
the Company or a corporation, more than 50% of the voting stock of which is
owned, directly or indirectly, by General Electric Company, which executes an
agreement of assumption to perform every obligation of the Company hereunder,
shall be the successor of the Company hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 6.03. Assignment. The Company may assign its rights and delegate
its duties and obligations as servicer under this Agreement; provided, that (i)
the purchaser or transferee accepting such assignment or delegation is qualified
to service mortgage loans for FNMA or FHLMC, is reasonably satisfactory to the
Trustee and executes and delivers to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such purchaser or transferee of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Company as servicer hereunder from and after the date of such agreement and (ii)
each Rating Agency's rating of any Classes of Certificates in effect immediately
prior to such assignment or delegation would not be qualified, downgraded or
withdrawn as a result thereof. In the case of any such assignment or delegation,
the Company will be released from its obligations as servicer hereunder except
for liabilities and obligations as servicer incurred prior to such assignment or
delegation.
Section 6.04. Limitation on Liability of the Company and Others. Neither
the Company nor any of the directors or officers or employees or agents of the
Company shall be under any liability to the Trust Fund or the Certificateholders
for any action taken or for refraining from the taking of any action by the
Company pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Company or any such person
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties of the
Company or by reason of reckless disregard of obligations and duties of the
Company hereunder. The Company and any director or officer or employee or agent
of the Company may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Company and any director or officer or employee or agent of the
Company shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any legal action relating
to this Agreement or the Certificates, other than any loss, liability or expense
related to any specific Mortgage Loan or Mortgage Loans (except as
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any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Company shall be under no obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expense or liability; provided, however, that the Company may
in its sole discretion undertake any such action which it may deem necessary or
desirable in respect of this Agreement, and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust Fund and the Company shall
be entitled to be reimbursed therefor from amounts credited to the Mortgage Loan
Payment Record as provided by Section 3.04.
Section 6.05. The Company Not to Resign. Subject to the provisions of
Sections 6.02 and 6.03, the Company shall not resign from the obligations and
duties hereby imposed on it except upon determination that the performance of
its duties hereunder is no longer permissible under applicable law. Any such
determination permitting the resignation of the Company shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a successor servicer shall have
assumed the responsibilities and obligations of the Company in accordance with
Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(i) Any failure by the Company to make any payment to the Trustee of
funds pursuant to Section 3.02(d) out of which distributions to
Certificateholders of any Class are required to be made under the terms of
the Certificates and this Agreement which failure continues unremedied for
a period of three Business Days after the date upon which written notice of
such failure shall have been given to the Company by the Trustee or to the
Company and the Trustee by Holders of Certificates of each Class affected
thereby evidencing, as to each such Class, Percentage Interests aggregating
not less than 25%; or
(ii) Failure on the part of the Company duly to observe or perform in
any material respect any other covenants or agreements of the Company set
forth in the Certificates or in this Agreement, which covenants and
agreements (A) materially affect the rights of Certificateholders and (B)
continue unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Company by the Trustee, or to the Company and the Trustee by
the Holders of Certificates of each Class affected thereby evidencing, as
to each such Class, Percentage Interests aggregating not less than 25%; or
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(iii) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Company, or for the winding up or
liquidation of the Company's affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days;
or
(iv) The consent by the Company to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the
Company or of or relating to substantially all of its property; or the
Company shall admit in writing its inability to pay its debts generally as
they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by the Company, either the Trustee, or the Holders of
Certificates of each Class affected thereby evidencing, as to each such Class,
Percentage Interests aggregating not less than 51%, by notice then given in
writing to the Company (and to the Trustee if given by the Certificateholders)
may terminate all of the rights and obligations of the Company as servicer under
this Agreement. On or after the receipt by the Company of such written notice,
all authority and power of the Company under this Agreement, whether with
respect to the Certificates or the Mortgage Loans or otherwise, shall pass to
and be vested in the Trustee pursuant to and under this Section 7.01; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Company, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Mortgage
Loans and related documents, or otherwise, including, without limitation, the
recordation of the assignments of the Mortgage Loans to it. The Company agrees
to cooperate with the Trustee in effecting the termination of the
responsibilities and rights of the Company hereunder, including, without
limitation, the transfer to the Trustee for the administration by it of all cash
amounts that shall at the time be held by the Company and that have been or
should have been credited by it to the Mortgage Loan Payment Record, or that
have been deposited by the Company in the Certificate Account or are thereafter
received by the Company with respect to the Mortgage Loans. In addition to any
other amounts which are then, or, notwithstanding the termination of its
activities as servicer, may become, payable to the Company under this Agreement,
the Company shall be entitled to receive out of any delinquent payment on
account of interest on a Mortgage Loan, due during the period prior to the
notice pursuant to this Section 7.01 which terminates the obligation and rights
of the Company hereunder and received after such notice, that portion of such
payment which it would have been entitled to retain pursuant to Section 3.04(vi)
if such notice had not been given.
Section 7.02. Trustee to Act; Appointment of Successor. (a) On and after
the time the Company receives a notice of termination pursuant to Section 7.01,
the Trustee shall be the successor in all respects to the Company in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall succeed to all the rights of and be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Company in its
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capacity as servicer by the terms and provisions hereof; provided, however, that
the responsibilities and duties of the Company pursuant to Sections 2.02 and
2.03(a) and, if the Trustee is prohibited by law or regulation from making
Monthly Advances, the responsibility to make Monthly Advances pursuant to
Section 4.04, shall not be the responsibilities, duties or obligations of the
Trustee; and provided further, that any failure of the Trustee to perform such
duties and responsibilities that is caused by the Company's failure to cooperate
with the Trustee as required by Section 7.01 shall not be considered a default
by the Trustee hereunder. As compensation therefor, the Trustee shall, except as
provided in Section 7.01, be entitled to such compensation as the Company would
have been entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution approved to service mortgage loans for either FNMA or FHLMC, having
a net worth of not less than $10,000,000, as the successor to the Company
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Company hereunder. Pending appointment of a successor to
the Company pursuant to this Article VII, unless the Trustee is prohibited by
law from so acting, the Trustee shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that no
such compensation shall be in excess of that permitted the Company hereunder.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
(b) Any successor, including the Trustee, to the Company as servicer
pursuant to this Article VII shall during the term of its service as servicer
maintain in force (i) a policy or policies of insurance covering errors and
omissions in the performance of its obligations as servicer hereunder, and (ii)
a fidelity bond in respect of its officers, employees and agents to the same
extent as the Company is so required pursuant to Section 3.15.
Section 7.03. Notification to Certificateholders. Upon any termination or
appointment of a successor to the Company pursuant to this Article VII, the
Trustee shall give prompt written notice thereof to the Certificateholders at
their respective addresses appearing in the Certificate Register.
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee. The Trustee, prior to the occurrence of an
Event of Default and after the curing of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default has occurred
(which has not been cured), the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
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The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee, unless
it shall be proved that the Trustee was negligent in performing its duties
in accordance with the terms of this Agreement;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates of each Class
affected thereby evidencing, as to each such Class, Percentage Interests
aggregating not less than 25%, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The Trustee shall not be charged with knowledge of (A) any
failure by the Company to comply with the obligations of the Company
referred to in clauses (i) and (ii) of Section 7.01, (B) the rating
downgrade referred to in the definition of "Trigger Event" or (C) any
failure by the Company to comply with the obligations of the Company to
record the assignments of Mortgages referred to in Section 2.01 unless a
Responsible Officer of the Trustee at the Corporate Trust Office obtains
actual knowledge of such failures, occurrence or downgrade or the Trustee
receives written notice of such failures, occurrence or downgrade from the
Company or the Holders of Certificates of each Class affected thereby
evidencing, as to each such Class, Percentage Interests aggregating not
less than 25%.
Subject to any obligation of the Trustee to make Monthly Advances as
provided herein, the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of
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the provisions contained in this Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance of, any of
the obligations of the Company under this Agreement, except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Company in accordance with the terms of
this Agreement.
Section 8.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 8.01:
(i) The Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation hereunder or in relation hereto, at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the obligations,
upon the occurrence of an Event of Default (which has not been cured), to
exercise such of the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of his
or her own affairs;
(iv) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(v) Prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
documents, unless requested in writing so to do by Holders of Certificates
of each Class affected thereby evidencing, as to each such Class,
Percentage Interests aggregating not less than 25%; provided, however, that
if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such cost, expense or
liability as a condition to such
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proceeding. The reasonable expense of every such investigation shall be
paid by the Company or, if paid by the Trustee, shall be reimbursed by the
Company upon demand. Nothing in this clause (v) shall derogate from the
obligation of the Company to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors; and
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian. The Trustee shall have no responsibility or
liability hereunder for the acts or omissions of the Custodian.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans. The
recitals contained herein and in the Certificates (other than the signature and
countersignature of the Trustee on the Certificates) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Agreement or of the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) or of any
Mortgage Loan or related document. The Trustee shall not be accountable for the
use or application by the Company of any of the Certificates or of the proceeds
of such Certificates, or for the use or application of any funds paid to the
Company in respect of the Mortgage Loans or deposited in or withdrawn from the
Certificate Account by the Company.
Section 8.04. Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates with the
same rights as it would have if it were not Trustee.
Section 8.05. The Company to Pay Trustee's Fees and Expenses. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties hereunder of
the Trustee, and the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances (including any Monthly
Advances of the Trustee not previously reimbursed thereto pursuant to Section
3.04) incurred or made by the Trustee in accordance with any of the provisions
of this Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith or which is the responsibility of Certificateholders
hereunder. In addition, the Company covenants and agrees to indemnify the
Trustee from, and hold it harmless against, any and all losses, liabilities,
damages, claims or expenses other than those resulting from the negligence or
bad faith of the Trustee. From time to time, the Trustee may request that the
Company debit the Mortgage Loan Payment Record pursuant to Section 3.04 to
reimburse the Trustee for any Monthly Advances and Nonrecoverable Advances.
Section 8.06. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation having its principal office either in the
State of New York or in the same state as that in which the initial Trustee
under this Agreement has its principal office and organized and doing business
under the laws of such State or the United States of America,
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authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Trustee shall not be an affiliate of the
Company. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
Section 8.07. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and having accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the conditions in any of the following clauses (i), (ii) or (iii) shall
occur at any time, the Company may remove the Trustee: (i) the Trustee shall
cease to be eligible in accordance with the provisions of Section 8.06 and shall
fail to resign after written request therefor by the Company; (ii) the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation; or (iii)
the replacement of the Trustee with a successor Trustee will enable the Company
to avoid (and should, based on the information included in the notice referred
to below, result in the avoidance of) a downgrading of the ratings assigned to
the Certificates by the Rating Agencies (whether or not other actions could
avoid such downgrading) and no Event of Default, as provided by Section 7.01
hereof, shall have occurred or be continuing; provided, however, that no action
shall be taken pursuant to this clause (iii) unless reasonable notice shall have
been provided to the Trustee, which notice shall set forth the basis for any
rating downgrade as contemplated by the Rating Agencies and shall also indicate
the manner in which such proposed action is intended to avoid such downgrade. If
it removes the Trustee under the authority of the immediately preceding
sentence, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.08.
Section 8.08. Successor Trustee. Any successor Trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Company
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties
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and obligations of its predecessor hereunder, with like effect as if originally
named as Trustee. The predecessor Trustee shall deliver to the successor Trustee
all Mortgage Files and related documents and statements held by it hereunder;
and the Company and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section
8.08 unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.08, the Company shall mail notice of the succession of such Trustee
hereunder to all holders of Certificates at their addresses as shown in the
Certificate Register. If the Company fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Company.
Section 8.09. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Company and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, of all or any part of the Trust Fund, or separate trustee or separate
trustees of any part of the Trust Fund, and to vest in such Person or Persons,
in such capacity and for the benefit of the Certificateholders, such title to
the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Company and the Trustee may consider necessary or desirable. If the Company
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
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(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Company hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) The Company and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Company.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Compliance with REMIC Provisions; Tax Returns. The Trustee
shall at all times act in such a manner in the performance of its duties
hereunder as shall be necessary to prevent the Trust Fund from failing to
qualify as a REMIC and to prevent the imposition of a tax on the Trust Fund or
the REMIC established hereunder. The Trustee, upon request, will furnish the
Company with all such information within its possession as may be reasonably
required in connection with the preparation of all tax returns of the Trust Fund
and any Reserve Fund, and shall, upon request, execute such returns.
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ARTICLE IX
TERMINATION
Section 9.01. Termination upon Repurchase by the Company or Liquidation of
All Mortgage Loans. Subject to Section 9.02, the respective obligations and
responsibilities of the Company and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments to Certificateholders after
the final Distribution Date and the obligation of the Trustee to send certain
notices as hereinafter set forth) shall terminate upon the last action required
to be taken by the Trustee on the final Distribution Date pursuant to this
Article IX following the earlier of (a) the repurchase by the Company of all
Mortgage Loans and all REO Mortgage Loans remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than any REO Mortgage Loans described in the following clause) as of
the first day of the month in which such purchase price is to be distributed to
Certificateholders plus accrued and unpaid interest thereon at the applicable
Net Mortgage Rate (less any amounts constituting previously unreimbursed Monthly
Advances) to the first day of the month in which such purchase price is to be
distributed to Certificateholders and (y) the appraised value of any REO
Mortgage Loan (less the good faith estimate of the Company of Liquidation
Expenses to be incurred in connection with its disposal thereof), such appraisal
to be conducted by an appraiser mutually agreed upon by the Company and the
Trustee, and (b) the later of the final payment or other liquidation (or any
Monthly Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund or the disposition of all property acquired upon foreclosure or by
deed in lieu of foreclosure of any Mortgage Loan; provided, however, that in no
event shall the Trust Fund created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States of America to the Court of St.
James's, living on the date of this Agreement. The right of the Company to
repurchase all Mortgage Loans pursuant to clause (a) above shall be conditioned
upon the aggregate of the Scheduled Principal Balance of the Outstanding
Mortgage Loans, at the time of any such repurchase, aggregating less than 10
percent of the aggregate of the Scheduled Principal Balance of the Mortgage
Loans as of the Cut-off Date.
Notice of any termination, specifying the Distribution Date upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of such final
distribution specifying (A) the Distribution Date upon which final payment of
the Certificates will be made upon presentation and surrender of the
Certificates at the office of the Trustee therein designated, (B) the amount of
any such final payment and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Trustee therein
specified. The Trustee shall give such notice to the Certificate Registrar at
the time such notice is given to Certificateholders. In the event such notice is
given in connection with the exercise by the Company of its right of repurchase,
the Company shall deposit in the Certificate Account not later than 11:00 a.m.
on the Business Day prior to the final Distribution Date in next-day funds an
amount equal to the price described above. Upon presentation and surrender of
the Certificates, the Trustee shall cause to be distributed to
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Certificateholders an amount equal to the price calculated as above provided,
any such repurchase being in lieu of the distribution otherwise required to be
made on the Distribution Date upon which the repurchase is effected. Upon
certification to the Trustee by a Servicing Officer following such final
deposit, the Trustee (or Custodian, if applicable) shall promptly release to the
Company the Mortgage Files for the repurchased Mortgage Loans.
On the final Distribution Date, the Trustee shall distribute amounts on
deposit in the Certificate Account and, if applicable, in any Rounding Account,
in accordance with the applicable priorities and uses provided by Sections 4.01
and 4.10. Distributions on each Certificate shall be made on the final
Distribution Date in the manner specified in Section 4.02 but only upon
presentation and surrender of the Certificates.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain subject
hereto.
Section 9.02. Additional Termination Requirements. In the event the Company
exercises its purchase option as provided in Section 9.01, the Trust Fund and
the REMIC established hereunder shall be terminated in accordance with the
following additional requirements, unless the Trustee has been supplied with an
Opinion of Counsel to the effect that the failure to comply with the
requirements of this Section 9.02 will not (i) result in the imposition of taxes
on "prohibited transactions" of any such REMIC as defined in section 860F of the
Code, or (ii) cause the Trust Fund to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(i) The notice given by the Trustee under Section 9.01 shall provide
that such notice constitutes the adoption of a plan of complete liquidation
for such REMIC within the meaning of section 860F(a)(4)(A)(i) of the Code
and the Company shall specify the date of such termination in a statement
attached to the final tax return of the REMIC.
(ii) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of the Trust
Fund to the Company for cash in accordance with Section 9.01.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment. This Agreement may be amended from time to time
by the Company and the Trustee, without the consent of any of the
Certificateholders, to cure any ambiguity or mistake, to correct or supplement
any provisions herein or therein which may be defective or inconsistent with any
other provisions herein or in the Prospectus, or to surrender
98
any right or power herein conferred upon the Company, or to add any other
provisions with respect to matters or questions arising under this Agreement,
which shall not be materially inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder. Notwithstanding the foregoing, without the consent of the
Certificateholders, the Trustee and the Company may at any time and from time to
time amend this Agreement to modify, eliminate or add to any of its provisions
to such extent as shall be necessary or appropriate to maintain the
qualification of the Trust Fund as a REMIC under the Code or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund pursuant to the
Code that would be a claim against the Trust Fund at any time prior to the final
redemption of the Certificates, provided that the Trustee has obtained an
opinion of independent counsel (which opinion also shall be addressed to the
Company) to the effect that such action is necessary or appropriate to maintain
such qualification or to avoid or minimize the risk of the imposition of such a
tax.
This Agreement may also be amended from time to time by the Company and the
Trustee with the consent of Holders of Certificates evidencing (i) not less than
66% of the Voting Rights of all the Certificates or (ii) Percentage Interests
aggregating not less than 66% of each Class affected by such amendment, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment shall (a)
reduce in any manner the amount of, or delay the timing of, collections of
payments on the Mortgage Loans or distributions which are required to be made on
any Certificate without the consent of the Holder of such Certificate, (b)
adversely affect in any material respects the interests of the Holders of any
Class of Certificates in any manner other than as described in (a), without the
consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66% of such Class, or (c) reduce the aforesaid
percentages of Certificates of any Class required to consent to any such
amendment, without the consent of the Holders of all Certificates of such Class
then outstanding. For purposes of this paragraph, references to "Holder" or
"Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel to the effect that such amendment will not
subject the Trust Fund to tax or cause the Trust Fund to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any such amendment or consent the Trustee
shall furnish written notification of the substance of such amendment to each
Certificateholder.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
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Section 10.02. Recordation of Agreement. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Company and at its expense on direction by the Trustee, but only upon direction
of the Trustee accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 10.03. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust
Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided in
Section 10.01) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates of each Class affected thereby evidencing, as to each
such Class, Percentage Interests aggregating not less than 25% shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and, subject to the priority of payments pursuant
to Section 4.01 and the allocation of losses pursuant to Section 4.03, for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this
100
Section 10.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 10.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 10.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, return receipt requested, (a) in the
case of the Company, to GE Capital Mortgage Services, Inc., 0 Xxxxxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: General Counsel, (b) in the case of
the Trustee, to State Street Bank and Trust Company, Corporate Trust Department,
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, (c) in the case of Fitch, to
Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Structured Finance Surveillance, and (d) in the case of S&P, Standard and Poor's
Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Surveillance, or, as to each such Person, at
such other address as shall be designated by such Person in a written notice to
each other named Person. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 10.06. Notices to the Rating Agencies. The Company shall deliver
written notice of the following events to each Rating Agency promptly following
the occurrence thereof: material amendment to this Agreement; any Event of
Default; any Trigger Event; change in or termination of the Trustee; removal of
the Company or any successor servicer as servicer; repurchase or replacement of
any Defective Mortgage Loan pursuant to Section 2.03; and final payment to
Certificateholders. In addition, the Company shall deliver copies of the
following documents to each Rating Agency at the time such documents are
required to be delivered pursuant to this Agreement: monthly statements to
Certificateholders pursuant to Section 4.05, annual report of independent
accountants pursuant to Section 3.13 and annual servicer compliance report
pursuant to Section 3.12. Notwithstanding the foregoing, the failure to deliver
such notices or copies shall not constitute an Event of Default under this
Agreement.
Section 10.07. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then to the extent permitted by law such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
101
Section 10.08. Certificates Nonassessable and Fully Paid. It is the
intention of the Trustee that Certificateholders shall not be personally liable
for obligations of the Trust Fund, that the beneficial ownership interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust Fund or for any reason whatsoever, and that Certificates
upon execution, countersignature and delivery thereof by the Trustee are and
shall be deemed fully paid.
* * *
102
IN WITNESS WHEREOF, the Company and the Trustee have caused this Agreement
to be duly executed by their respective officers and their respective seals,
duly attested, to be hereunto affixed, all as of the day and year first above
written.
GE CAPITAL MORTGAGE SERVICES, INC.
By: ___________________________________
Name:
Title:
[SEAL]
Attest:
By: ___________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: ___________________________________
Name:
Title:
[SEAL]
Attest:
By: ___________________________________
Name:
Title:
State of New Jersey )
) ss.:
County of Camden )
On the day of April, 2000 before me, a notary public in and for the State
of New Jersey, personally appeared _______________________, known to me who,
being by me duly sworn, did depose and say that he/she resides at ______________
_________________________________________________________; that he/she is a(n)
_________________________ of GE Capital Mortgage Services, Inc., a corporation
formed under the laws of the State of New Jersey, one of the parties that
executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he/she signed his/her name thereto by like order.
___________________________________
Notary Public
[Notarial Seal]
The Commonwealth of Massachusetts )
) ss.:
County of Suffolk )
On the day of April, 2000 before me, a notary public in and for the
Commonwealth of Massachusetts, personally appeared ____________________, known
to me who, being by me duly sworn, did depose and say that he/she resides at
______________________________________________________________________________;
that he/she is a(n) __________________________________ of State Street Bank and
Trust Company, one of the parties that executed the foregoing instrument; that
he/she knows the seal of said Bank; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of said Bank; and that he/she signed his/her name thereto by order of the Board
of Directors of said Bank.
___________________________________
Notary Public
[Notarial Seal]
EXHIBIT A
FORMS OF CERTIFICATES
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Initial Class A Certificate
Principal Balance:
Class A $121,925,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.25% Balance of this Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date: CUSIP: 36157N FW 9
May 25, 2000
-2-
THIS CERTIFIES THAT ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class A Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
-3-
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all
-4-
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund at a price equal to the sum of (x) 100% of the
unpaid principal balance of each Mortgage Loan (other than a Mortgage Loan
described in clause (y)) plus accrued and unpaid interest thereon at the rate
provided for in the Agreement (less any amounts representing previously
unreimbursed Monthly Advances) and (y) the appraised value of any property
acquired in respect of a Mortgage Loan determined as provided in the Agreement,
and (b) the later of the final payment or other liquidation (or any Monthly
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all property acquired upon foreclosure or by deed in
lieu of foreclosure of any Mortgage Loan. The right of the Company to repurchase
all the Mortgage Loans and property in respect of Mortgage Loans is subject to
the Pool Scheduled Principal Balance at the time of repurchase being less than
10 percent of the Pool Scheduled Principal Balance as of the Cut-off Date. The
Company's exercise of such right will result in early retirement of the
Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated: April 27, 2000
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE SECURITIES ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No. Initial Class PO Certificate
Principal Balance:
Class PO $1,885,718.30
Certificate Interest Initial Certificate Principal
Rate per annum: Balance of this Certificate:
non-interest bearing $
Cut-off Date:
April 1, 2000
First Distribution Date:
May 25, 2000
-2-
THIS CERTIFIES THAT ________________is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class PO Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
-3-
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
Except for certain transfers by the Company as set forth in the Agreement, no
transfer of any Class PO Certificate which is in the form of a Definitive
Certificate shall be made to any Person unless the Trustee has received (i) a
certificate from such transferee to the effect that such transferee is not an
employee benefit plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or a plan subject to Section 4975 of the Internal
Revenue Code of 1986, as amended ("Section 4975") (a "Plan") or a Person that is
using the assets of a Plan to acquire such Certificate or (ii) an opinion of
counsel satisfactory to the Trustee, which opinion shall not be an expense of
the Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
PO Certificate by a Plan or a Person that is purchasing or holding such
Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under ERISA or Section 4975.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class PO Certificate to or on behalf of a Plan, without the delivery to the
Trustee and the Company of an opinion of counsel as described above, shall be
void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's
4
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class of authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated: April 27, 2000
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security
or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
PRINCIPAL WILL NOT BE DISTRIBUTABLE IN RESPECT OF THIS CERTIFICATE. INTEREST IS
CALCULATED ON THIS CERTIFICATE BASED ON THE CLASS S NOTIONAL PRINCIPAL BALANCE,
WHICH, AS OF ANY DISTRIBUTION DATE, IS EQUAL TO THE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE OUTSTANDING NON-DISCOUNT MORTGAGE LOANS AS SET FORTH IN
THE AGREEMENT (AS DEFINED HEREIN). CONSEQUENTLY, THE NOTIONAL PRINCIPAL BALANCE
OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE SECURITIES ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Initial Class S Notional
Principal Balance:
Class S $86,188,835.60
Certificate Interest Initial Notional
Rate per annum: variable Principal Balance of this
Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date:
May 25, 2000
-2-
THIS CERTIFIES THAT ________________is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Notional Principal Balance of this Certificate by the aggregate initial Notional
Principal Balance of all Class S Certificates, both as specified above) in
certain distributions with respect to the Trust Fund, consisting primarily of a
pool (the "Pool") of conventional, fixed rate, one- to four-family mortgage
loans (the "Mortgage Loans"), sold and serviced by GE Capital Mortgage Services,
Inc., a corporation organized and existing under the laws of the State of New
Jersey (the "Company"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of April 1, 2000 (the "Agreement"), between the
Company and State Street Bank and Trust Company, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth herein
below. To the extent not defined herein, the terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
-3-
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
Except for certain transfers by the Company as set forth in the Agreement, no
transfer of any Class S Certificate which is in the form of a Definitive
Certificate shall be made to any Person unless the Trustee has received (i) a
certificate from such transferee to the effect that such transferee is not an
employee benefit plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or a plan subject to Section 4975 of the Internal
Revenue Code of 1986, as amended ("Section 4975") (a "Plan") or a Person that is
using the assets of a Plan to acquire such Certificate or (ii) an opinion of
counsel satisfactory to the Trustee, which opinion shall not be an expense of
the Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class S
Certificate by a Plan or a Person that is purchasing or holding such Certificate
with the assets of a Plan will not constitute or result in a prohibited
transaction under ERISA or Section 4975.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class S Certificate to or on behalf of a Plan, without the delivery to the
Trustee and the Company of an opinion of counsel as described above, shall be
void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's
-4-
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class of authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity
but solely as Trustee
(SEAL)
By:________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated: April 27, 2000
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Initial Class M Certificate
Principal Balance:
Class M $1,460,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.25% Balance of this Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date: CUSIP: 36157N FY 5
May 25, 2000
-2-
THIS CERTIFIES THAT ________________is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class M Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
-3-
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the
-4-
delivery to the Trustee and the Company of an opinion of counsel as described
above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated: April 27, 2000
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security
or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Initial Class B1 Certificate
Principal Balance:
Class B1 $444,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.25% Balance of this Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date: CUSIP: 36157N FZ 2
May 25, 2000
-2-
THIS CERTIFIES THAT ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class B1 Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
-3-
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the
-4-
delivery to the Trustee and the Company of an opinion of counsel as described
above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:__________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated: April 27, 2000
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security
or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Initial Class B2 Certificate
Principal Balance:
Class B2 $381,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.25% Balance of this Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date: CUSIP: 36157N GA 6
May 25, 2000
-2-
THIS CERTIFIES THAT ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class B2 Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
-3-
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the
-4-
delivery to the Trustee and the Company of an opinion of counsel as described
above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:___________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated: April 27, 2000
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security
or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES ("BLUE SKY LAWS"), AND SUCH CERTIFICATE MAY NOT BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT, IN EACH CASE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
ANY APPLICABLE BLUE SKY LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THIS CERTIFICATE.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No. Initial Class B3 Certificate
Principal Balance:
Class B3 $445,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.25% Balance of this Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date: CUSIP: 36158G HY 7
May 25, 2000
-2-
THIS CERTIFIES THAT ______________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class B3 Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
-3-
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the
-4-
delivery to the Trustee and the Company of an opinion of counsel as described
above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:___________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:________________
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security
or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
In connection with any transfer of this Certificate, the undersigned registered
holder hereof confirms that without utilizing any general solicitation or
general advertising:
(Check One) -
|_| (a) This Certificate is being transferred by the
undersigned to a person whom the undersigned reasonably
believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933,
as amended) pursuant to the exemption from registration
under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
|_| (b) This Certificate is being transferred by the
undersigned to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as
amended) and that the undersigned has been advised by
the prospective purchaser that it intends to hold
this Certificate for investment and not for
distribution or resale.
Dated_______________________
_________________________________
(Signature)
If none of the foregoing boxes is checked, the Trustee shall not be obligated to
register this Certificate in the name of any person other than the registered
holder thereof unless and until the conditions to any such transfer of
registration set forth herein, and in the Pooling and Servicing Agreement have
been satisfied.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended)
and acknowledges that it has received such information as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the registered holder is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated_______________________
_________________________________
(Signature)
-8-
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED:
The undersigned represents and warrants that it is an institutional
"accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act of 1933, as amended).
Dated_________________________
__________________________________
(Signature)
-9-
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES ("BLUE SKY LAWS"), AND SUCH CERTIFICATE MAY NOT BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT, IN EACH CASE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
ANY APPLICABLE BLUE SKY LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THIS CERTIFICATE.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No. Initial Class B4 Certificate
Principal Balance:
Class B4 $254,000.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.25% Balance of this Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date: CUSIP: 36158G HZ 4
May 25, 2000
-2-
THIS CERTIFIES THAT _______________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class B4 Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class
-3-
M, Class B1, Class B2, Class B3, Class B4 and Class B5 Certificates before such
losses will be borne by the Holders of the other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the delivery to the Trustee and the Company of an opinion of counsel as
described above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this
-4-
Certificate for registration of transfer at the office or agency maintained by
the Trustee in the city in which the Corporate Trust Office of the Trustee is
located or in the City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee, and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class of authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:________________
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security
or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
In connection with any transfer of this Certificate, the undersigned registered
holder hereof confirms that without utilizing any general solicitation or
general advertising:
(Check One) -
|_| (a) This Certificate is being transferred by the
undersigned to a person whom the undersigned reasonably
believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933,
as amended) pursuant to the exemption from registration
under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
|_| (b) This Certificate is being transferred by the
undersigned to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as
amended) and that the undersigned has been advised by
the prospective purchaser that it intends to hold
this Certificate for investment and not for
distribution or resale.
Dated_______________________
_________________________________
(Signature)
If none of the foregoing boxes is checked, the Trustee shall not be obligated to
register this Certificate in the name of any person other than the registered
holder thereof unless and until the conditions to any such transfer of
registration set forth herein, and in the Pooling and Servicing Agreement have
been satisfied.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended)
and acknowledges that it has received such information as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the registered holder is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated_______________________
_________________________________
(Signature)
-8-
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED:
The undersigned represents and warrants that it is an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act of 1933, as amended).
Dated_______________________
_________________________________
(Signature)
-9-
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES ("BLUE SKY LAWS"), AND SUCH CERTIFICATE MAY NOT BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C) TO AN
INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT, IN EACH CASE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
ANY APPLICABLE BLUE SKY LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THIS CERTIFICATE.
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED HEREIN. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER RESTRICTIONS AS SET
FORTH HEREIN.
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No. Initial Class B5 Certificate
Principal Balance:
Class B5 $190,881.62
Certificate Interest Initial Certificate Principal
Rate per annum: 7.25% Balance of this Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date: CUSIP: 36158G JA 7
May 25, 2000
-2-
THIS CERTIFIES THAT ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class B5 Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class
-3-
M, Class B1, Class B2, Class B3, Class B4 and Class B5 Certificates before such
losses will be borne by the Holders of the other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class M, Class B1, Class B2, Class B3, Class B4 or Class B5
Certificate which is in the form of a Definitive Certificate shall be made to
any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (x) is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended ("Section 4975") (a "Plan") or a Person that is using the
assets of a Plan to acquire such Certificate or (y) is an insurance company
investing assets of its general account and the exemption provided by Section
III(a) of Department of Labor Prohibited Transaction Exemption 95-60, 60 Fed.
Reg. 35925 (July 12, 1995) (the "Exemption") applies to such transferee's
acquisition and holding of such Certificate, or (ii) an opinion of counsel
satisfactory to the Trustee, which opinion shall not be an expense of the
Trustee or the Company, to the effect that the purchase and holding of such
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction provisions
of ERISA or Section 4975 and will not subject the Trustee or the Company to any
obligation in addition to those undertaken in the Agreement; provided, however,
that the Trustee will not require such certificate or opinion in the event that,
as a result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of a Class
M, Class B1, Class B2, Class B3, Class B4 or Class B5 Certificate by a Plan or a
Person that is purchasing or holding such Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or Section
4975.
Any transferee of a beneficial interest in any Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate which is in the form of a Book-Entry
Certificate will be deemed to have made one of the representations set forth in
the paragraph above unless the Trustee and the Company have received an opinion
of counsel referred to in the paragraph above. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class M, Class B1, Class B2,
Class B3, Class B4 or Class B5 Certificate to or on behalf of a Plan, without
the delivery to the Trustee and the Company of an opinion of counsel as
described above, shall be void and of no effect.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this
-4-
Certificate for registration of transfer at the office or agency maintained by
the Trustee in the city in which the Corporate Trust Office of the Trustee is
located or in the City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee, and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class of authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated:________________
-6-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security
or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:___________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-7-
In connection with any transfer of this Certificate, the undersigned registered
holder hereof confirms that without utilizing any general solicitation or
general advertising:
(Check One) -
|_| (a) This Certificate is being transferred by the
undersigned to a person whom the undersigned reasonably
believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933,
as amended) pursuant to the exemption from registration
under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
|_| (b) This Certificate is being transferred by the
undersigned to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as
amended) and that the undersigned has been advised by
the prospective purchaser that it intends to hold
this Certificate for investment and not for
distribution or resale.
Dated_______________________
_________________________________
(Signature)
If none of the foregoing boxes is checked, the Trustee shall not be obligated to
register this Certificate in the name of any person other than the registered
holder thereof unless and until the conditions to any such transfer of
registration set forth herein, and in the Pooling and Servicing Agreement have
been satisfied.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended)
and acknowledges that it has received such information as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the registered holder is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated_______________________
_________________________________
(Signature)
-8-
TO BE COMPLETED BY PURCHASER IF (b) ABOVE IS CHECKED:
The undersigned represents and warrants that it is an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act of 1933, as amended).
Dated_______________________
_________________________________
(Signature)
-9-
PRINCIPAL IN RESPECT OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE
AGREEMENT (AS DEFINED HEREIN). ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE AS SET FORTH HEREON. THIS CERTIFICATE DOES NOT
REPRESENT AN INTEREST IN OR OBLIGATION OF GE CAPITAL MORTGAGE SERVICES, INC. OR
THE TRUSTEE (AS DEFINED HEREIN).
TRANSFER OF THIS CERTIFICATE IS RESTRICTED AS PROVIDED IN SECTION 5.02 OF THE
AGREEMENT.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE,
BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THE AGREEMENT, AND SHALL
BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE
EFFECT THAT IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5) OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION, AND TO HAVE AGREED TO SUCH
AMENDMENTS TO THE AGREEMENT AS MAY BE REQUIRED TO FURTHER EFFECTUATE THE
RESTRICTIONS ON TRANSFERS TO DISQUALIFIED ORGANIZATIONS AND AGENTS THEREOF.
THE HOLDER OF THIS CLASS R CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
IRREVOCABLY APPOINTED THE COMPANY (AS DEFINED HEREIN) AS ITS AGENT AND
ATTORNEY-IN-FACT TO ACT AS "TAX MATTERS PERSON" OF THE REMIC TO PERFORM THE
FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63
OF SUBTITLE F OF THE CODE, WITH RESPECT TO THE TRUST FUND.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY DISQUALIFIED
ORGANIZATION OR NON-PERMITTED FOREIGN HOLDER, AS DEFINED IN THE AGREEMENT OR TO
ANY EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA") OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED ("SECTION 4975") (A "PLAN") OR A PERSON THAT IS
USING THE ASSETS OF A PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT AS DESCRIBED
HEREIN. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN OTHER
RESTRICTIONS AS SET FORTH HEREIN.
-2-
REMIC MORTGAGE PASS-THROUGH CERTIFICATE, SERIES 2000-5
evidencing a beneficial ownership interest in a
trust fund which consists primarily of a pool of
conventional, fixed rate, one- to four-family
mortgage loans sold and serviced by
GE CAPITAL MORTGAGE SERVICES, INC.
No.: Initial Class R Certificate
Principal Balance:
Class R $100.00
Certificate Interest Initial Certificate Principal
Rate per annum: 7.25% Balance of this Certificate:
$
Cut-off Date:
April 1, 2000
First Distribution Date: CUSIP: 36157N FX 7
May 25, 2000
-3-
THIS CERTIFIES THAT ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the initial
Certificate Principal Balance of this Certificate by the aggregate initial
Certificate Principal Balance of all Class R Certificates, both as specified
above) in certain distributions with respect to the Trust Fund, consisting
primarily of a pool (the "Pool") of conventional, fixed rate, one- to
four-family mortgage loans (the "Mortgage Loans"), sold and serviced by GE
Capital Mortgage Services, Inc., a corporation organized and existing under the
laws of the State of New Jersey (the "Company"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2000 (the
"Agreement"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth herein below. To the extent not defined herein, the terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Agreement requires the distribution on the 25th day of each month or, if
such 25th day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing in May 2000, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), of an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the aggregate amount required to be distributed to
Holders of Certificates of the same Class as this Certificate pursuant to the
Agreement.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto at the address appearing in the
Certificate Register or, upon written request by the Certificateholder, by such
other means of payment as such Person and the Trustee shall agree. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made in the applicable manner described above, after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in New York, New York.
This Certificate is one of a duly authorized issue of Certificates designated as
REMIC Mortgage Pass-Through Certificates, Series 2000-5, issued in ten Classes
(Class A, Class R, Class PO, Class S, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5, herein called the "Certificates").
The Certificates are limited in right of payment to certain payments on and
collections in respect of the Mortgage Loans, all as more specifically set forth
in the Agreement. The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Certificate
Account for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
-4-
As provided in the Agreement and with certain exceptions therein provided,
certain losses on the Mortgage Loans resulting from defaults by Mortgagors will
be borne by the Holders of the Class M, Class B1, Class B2, Class B3, Class B4
and Class B5 Certificates before such losses will be borne by the Holders of the
other Classes of the Certificates.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Certificateholders under the Agreement at any time by the
Company and the Trustee with the consent of the Holders of Certificates
evidencing not less than 66% of all the Voting Rights as defined in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
No transfer of any Class R Certificate shall be made to any Person unless the
Trustee has received a certificate from such transferee to the effect that,
among other things, such transferee is not an employee benefit plan subject to
ERISA or a Plan or a Person that is using the assets of a Plan to acquire any
such Class R Certificate.
As provided in the Agreement, and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the city in which
the Corporate Trust Office of the Trustee is located or in the City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee, and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class of authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class of authorized denominations evidencing
the same aggregate Percentage Interest as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Trustee and the Certificate Registrar and any agent of the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all
-5-
purposes, and neither the Trustee, the Certificate Registrar nor any such agent
shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement, and the Trust
Fund created thereby shall terminate upon payment to the Certificateholders, or
provision therefor, in accordance with the Agreement following the earlier of
(a) the repurchase by the Company of all Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal to the sum of (x) 100% of the unpaid principal balance of each Mortgage
Loan (other than a Mortgage Loan described in clause (y)) plus accrued and
unpaid interest thereon at the rate provided for in the Agreement (less any
amounts representing previously unreimbursed Monthly Advances) and (y) the
appraised value of any property acquired in respect of a Mortgage Loan
determined as provided in the Agreement, and (b) the later of the final payment
or other liquidation (or any Monthly Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all property
acquired upon foreclosure or by deed in lieu of foreclosure of any Mortgage
Loan. The right of the Company to repurchase all the Mortgage Loans and property
in respect of Mortgage Loans is subject to the Pool Scheduled Principal Balance
at the time of repurchase being less than 10 percent of the Pool Scheduled
Principal Balance as of the Cut-off Date. The Company's exercise of such right
will result in early retirement of the Certificates.
Unless this Certificate has been countersigned by the Trustee, by manual
signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
-6-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
under its official seal.
STATE STREET BANK AND TRUST
COMPANY, not in its individual
capacity but solely as Trustee
(SEAL)
By:________________________________
Name:
Title:
Countersigned:
By_________________________________
Authorized Signatory of
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Trustee
Dated: April 27, 2000
-7-
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please insert social security
or other identifying number of assignee
(Please print or typewrite name and address
including postal zip code of assignee)
this Certificate evidencing a Percentage Interest in certain distributions with
respect to the Trust Fund and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of said Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate of
like Class and Percentage Interest, to the above named assignee and deliver such
Certificate to the following address:
Dated:_______________________________
_____________________________________
Signature by or on behalf of assignor
_____________________________________
*Signature Guaranteed*
*The signature hereon must be guaranteed by a bank, trust company or broker of
the signatory who is a member of a signature guarantee medallion program.
-8-
EXHIBIT B
PRINCIPAL BALANCE SCHEDULES
None.
EXHIBIT C
MORTGAGE LOANS
Schedule Intentionally Omitted
EXHIBIT D
FORM OF SERVICER'S CERTIFICATE
_____________, ____
(month) (year)
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC Mortgage Pass-Through Certificates,
Series 2000-5
Pursuant to the Pooling and Servicing Agreement dated as of April 1, 2000
(the "Agreement") between GE Capital Mortgage Services, Inc. (the "Company"),
and State Street Bank and Trust Company (the "Trustee"), governing the
Certificates referred to above, the Company hereby certifies to the Trustee:
With respect to the Agreement and as of the Determination Date for this
month:
A. Mortgage Loan Information:
(1) Aggregate Scheduled Monthly Payments:
(a) Principal $________
(b) Interest $________
(c) Total $________
(2) Aggregate Monthly Payments received and
Monthly Advances made this Month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(3) Aggregate Principal Prepayments in part
received and applied in the applicable
Prepayment Period:
(a) Principal $________
(b) Interest $________
(c) Total $________
(4) Aggregate Principal Prepayments in full
received in the applicable Prepayment
Period:
(a) Principal $________
(b) Interest $________
(c) Total $________
(5) Aggregate Insurance Proceeds (including
purchases of Mortgage Loans by primary
mortgage insurers) for prior month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(6) Aggregate Liquidation Proceeds for prior
month:
(a) Principal $________
(b) Interest $________
(c) Total $________
(7) Aggregate Purchase Prices for Defaulted
Mortgage Loans:
(a) Principal $________
(b) Interest $________
(c) Total $________
(8) Aggregate Purchase Prices (and
substitution adjustments) for Defective
Mortgage Loans:
(a) Principal $________
(b) Interest $________
(c) Total $________
(9) Pool Scheduled Principal Balance: $________
(10) Available Funds: $________
(11) Realized Losses for prior month: $________
(12) Aggregate Realized Losses and Debt
Service Reductions:
(a) Deficient Valuations $________
(b) Special Hazard Losses $________
(c) Fraud Losses $________
(d) Excess Bankruptcy Losses $________
(i) Debt Service Reductions $________
(ii) Deficient Valuations $________
(e) Excess Special Hazard Losses $________
(f) Excess Fraud Losses $________
(g) Debt Service Reductions $________
(13) Compensating Interest Payment: $________
D-2
(14) Accrued Certificate Interest, Unpaid
Class Interest Shortfalls and Pay-out
Rate:
Class A $__________ $__________ ____%
Class M $__________ $__________ ____%
Class B1 $__________ $__________ ____%
Class B2 $__________ $__________ ____%
Class B3 $__________ $__________ ____%
Class B4 $__________ $__________ ____%
Class B5 $__________ $__________ ____%
Class R $__________ $__________ ____%
Class S $__________ $__________ ____%
(15) Accrual amount:
N/A
(16) Principal distributable:
Class A $__________
Class PO $__________
Class M $__________
Class B1 $__________
Class B2 $__________
Class B3 $__________
Class B4 $__________
Class B5 $__________
Class R $__________
(17) Additional distributions to the Class R
Certificate pursuant to Section 4.01(b):
Class R $__________
(18) Certificate Interest Rate of:
Class S Certificates _____%
(19) Distributions Allocable to Unanticipated
Recoveries:
Class A $__________
Class PO $__________
Class M $__________
Class B1 $__________
D-3
Class B2 $__________
Class B3 $__________
Class B4 $__________
Class B5 $__________
Class R $__________
B. Other Amounts:
1. Senior Percentage for such Distribution Date: _____%
2. Senior Prepayment Percentage for such
Distribution Date: _____%
3. Junior Percentage for such Distribution Date: _____%
4. Junior Prepayment Percentage for such
Distribution Date: _____%
5. Subordinate Certificate Writedown Amount for
such Distribution Date: $_____________
6. Prepayment Distribution Triggers satisfied:
Yes No
--- --
Class B1 _____ _____
Class B2 _____ _____
Class B3 _____ _____
Class B4 _____ _____
Class B5 _____ _____
7. Servicing Fee: $_____________
Capitalized terms used in this Certificate shall have the same meanings as
in the Agreement.
D-4
EXHIBIT E
FORM OF TRANSFER CERTIFICATE AS TO ERISA MATTERS FOR
DEFINITIVE ERISA-RESTRICTED CERTIFICATES
State Street Bank and Trust Company
Corporate Trust Department
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
[NAME OF OFFICER] ______________________ hereby certifies that:
1. That he [she] is [title of officer] ___________________________________
of [name of Investor] _______________________________________ (the "Investor"),
a __________ ______________________ [description of type of entity] duly
organized and existing under the laws of the [State of ____________] [United
States], on behalf of which he [she] makes this affidavit.
2. The Investor (i) is not, and on ________________ [insert date of
transfer of Certificate to Investor] will not be, and on such date will not be
investing the assets of, an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or a plan subject
to Section 4975 of the Code or (ii) is an insurance company investing assets of
its general account and the exemptions provided by Section III(a) of Department
of Labor Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July
12, 1995) (the "Exemptions") apply to the Investor's acquisition and holding of
any ERISA-Restricted Certificate. All capitalized terms used and not defined in
this certificate shall have the meanings ascribed thereto in the Agreement
referred to in paragraph 3 hereof.
3. The Investor hereby acknowledges that under the terms of the Pooling and
Servicing Agreement (the "Agreement") between State Street Bank and Trust
Company, as Trustee and GE Capital Mortgage Services, Inc., dated as of April 1,
2000, no transfer of any ERISA-Restricted Certificate shall be permitted to be
made to any Person unless the Trustee has received (i) a certificate from such
transferee to the effect that (x) such transferee is not an employee benefit
plan subject to ERISA or a plan subject to Section 4975 of the Code (a "Plan")
or a Person that is using the assets of a Plan to acquire any such Certificate
or (y) such transferee is an insurance company investing assets of its general
account and the Exemptions apply to such transferee's acquisition and holding of
any such Certificate or (ii) an opinion of counsel satisfactory to the Trustee
and the Company to the effect that the purchase and holding of any such
Certificate will not constitute or result in the assets of the Trust Fund
created by the Agreement being deemed to be "plan assets" subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code and will
not subject the Trustee or the Company to any obligation in addition to those
undertaken in the Agreement (provided, however, that the Trustee will not
require such
certificate or opinion in the event that, as a result of change of law or
otherwise, counsel satisfactory to the Trustee has rendered an opinion to the
effect that the purchase and holding of any such Certificate by a Plan or a
Person that is purchasing or holding any such Certificate with the assets of a
Plan will not constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code).
[4. The ERISA-Restricted Certificates shall be registered in the name of
______________________________________________ as nominee for the Investor.]
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] __________________ and its corporate seal to be hereunder attached,
attested by its [Assistant] Secretary, this ____ day of _________, _______.
________________________________________
[name of Investor]
By: ___________________________________
Name:
Title:
The undersigned hereby
acknowledges that it is holding and
will hold the ERISA-Restricted
Certificates at the exclusive
direction of and as nominee of the
Investor named above.
___________________________________
[name of nominee]
By: ______________________________
Name:
Title:
E-2
EXHIBIT F
FORM OF RESIDUAL CERTIFICATE TRANSFEREE AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and says:
1. That he [she] is [title of officer] ________________________ of [name of
Purchaser] _________________________________________ (the "Purchaser"), a
_________________ ____________________ [description of type of entity] duly
organized and existing under the laws of the [State of __________] [United
States], on behalf of which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code") and will not be a "disqualified organization" as of ______________
[insert date of transfer of Residual Certificate to Purchaser], and that the
Purchaser is not acquiring a Residual Certificate (as defined below) for the
account of, or as agent (including a broker, nominee, or other middleman) for,
any person or entity from which it has not received an affidavit substantially
in the form of this affidavit. For these purposes, a "disqualified organization"
means the United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (other than an instrumentality if all of its activities are
subject to tax and a majority of its board of directors is not selected by such
governmental entity), any cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as described in Code
Section 1381(a)(2)(C), or any organization (other than a farmers' cooperative
described in Code Section 521) that is exempt from federal income tax unless
such organization is subject to the tax on unrelated business income imposed by
Code Section 511. As used herein, "Residual Certificate" means any Certificate
designated as a "Class R Certificate" of GE Capital Mortgage Services, Inc.'s
REMIC Mortgage Pass-Through Certificates, Series 2000-5.
4. That the Purchaser is not, and on _____________ [insert date of transfer
of Residual Certificate to Purchaser] will not be, and is not and on such date
will not be investing the assets of, an employee benefit plan subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a plan
subject to Code Section 4975 or a person or entity that is using the assets of
any employee benefit plan or other plan to acquire a Residual Certificate.
5. That the Purchaser hereby acknowledges that under the terms of the
Pooling and Servicing Agreement (the "Agreement") between State Street Bank and
Trust Company, as Trustee, and GE Capital Mortgage Services, Inc., dated as of
April 1, 2000, no transfer of the Residual Certificates shall be permitted to be
made to any person unless the Trustee has received a certificate from such
transferee to the effect that such transferee is not an employee benefit plan
subject to ERISA or a plan subject to Section 4975 of the Code and is not using
the assets of any employee benefit plan or other plan to acquire Residual
Certificates.
6. That the Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to such Residual Certificate.
7. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3 or paragraph 9 hereof are not satisfied or
that the Purchaser has reason to believe does not satisfy the requirements set
forth in paragraph 6 hereof, and (ii) without obtaining from the prospective
Purchaser an affidavit substantially in this form and providing to the Trustee a
written statement substantially in the form of Exhibit G to the Agreement.
8. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated with
holding such Residual Certificate as they become due.
9. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Trustee with an effective Internal Revenue Service Form 4224 or successor
form at the time and in the manner required by the Code or (iii) is a Non-U.S.
Person that has delivered to both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the transfer of such
Residual Certificate to it is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax purposes. "Non-U.S.
Person" means an individual, corporation, partnership or other person other than
(i) a citizen or resident of the United States; (ii) a corporation (or entity
treated as a corporation for tax purposes) created or organized in the United
States or under the laws of the United States or of any state thereof,
including, for this purpose, the District of Columbia; (iii) a partnership (or
entity treated as a partnership for tax purposes) organized in the United States
or under the laws of the United States or of any state thereof, including, for
this purpose, the District of Columbia (unless provided otherwise by future
Treasury regulations); (iv) an estate whose income is includible in gross income
for United States income tax purposes regardless of its source; or (v) a trust,
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last clause
of the preceding sentence, to the extent provided in Treasury regulations,
certain trusts in existence on August 20, 1996, and treated as U.S. Persons
prior to such date, may elect to continue to be U.S. Persons.
F-2
10. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of any Residual Certificate to such a "disqualified organization," an
agent thereof, or a person that does not satisfy the requirements of paragraph 7
and paragraph 10 hereof.
11. That the Purchaser consents to the designation of the Company as its
agent to act as "tax matters person" of the Trust Fund, pursuant to the Pooling
and Servicing Agreement.
F-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, _____.
___________________________________
[name of Purchaser]
By: ______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, _____.
NOTARY PUBLIC
______________________________
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, _____.
F-4
EXHIBIT G
[LETTER FROM TRANSFEROR OF RESIDUAL CERTIFICATE]
__________________
Date
State Street Bank and Trust Company
Corporate Trust Department
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: GE Capital Mortgage Services, Inc.
REMIC Mortgage Pass-Through
Certificates, Series 2000-5_____
Ladies and Gentlemen:
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate. In addition, the Transferor has conducted a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
___________________________________
Name:
Title:
EXHIBIT H
ADDITIONAL SERVICER COMPENSATION
QUALIFIED ADMINISTRATIVE EXPENSES
(Conventional, Non-Conforming Loans)
Assumption Fees $550 - $800
Late Charges Per Loan Documents
Appraisal/Inspection Fees Reasonable and Customary Charges
Partial Release Fees $300
Easements $150
Insufficient Funds Charges $15
Document Requests (copies of loan file
documents, additional pay-off quotations,
amortization schedules, payment histories) $0
Modification Fees Reasonable and Customary Charges
EXHIBIT I
FORM OF INVESTMENT LETTER FOR
DEFINITIVE RESTRICTED CERTIFICATES
__________________
Date
State Street Bank and Trust Company
Corporate Trust Department
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: GE Capital Mortgage Services, Inc.
REMIC Mortgage Pass Through
Certificates, Series 2000-5_____
Ladies and Gentlemen:
1. The undersigned, a [title of officer] _______________ of [name of
Investor] _________________________________________ (the "Investor"), a
______________ ___________________ [description of type of entity] duly
organized and existing under the laws of the [State of __________________]
[United States], hereby certifies as follows:
2. The Investor hereby acknowledges that under the terms of the Pooling and
Servicing Agreement between State Street Bank and Trust Company, as Trustee, and
GE Capital Mortgage Services, Inc. (the "Company"), dated as of April 1, 2000
(the "Agreement"), no transfer of a Restricted Certificate may be made unless
such transfer is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and any applicable state securities
laws, or is made in accordance with the Securities Act and such laws.
3. The Investor understands that (a) the Restricted Certificates have not
been and will not be registered or qualified under the Securities Act, or the
securities laws of any state, (b) neither the Company nor the Trustee is
required, and neither intends, to so register or qualify the Restricted
Certificates, (c) the Restricted Certificates cannot be resold unless (i) they
are registered and qualified under the Securities Act and the applicable state
securities laws or (ii) such sale is exempt from the requirements of the
Securities Act, (d) the Agreement contains restrictions regarding the transfer
of the Restricted Certificates and (e) the Restricted Certificates will bear a
legend to the foregoing effect.
4. The Investor is acquiring the Restricted Certificates for its own
account for investment only and not with a view to or for sale or other transfer
in connection with any distribution of the Restricted Certificates in any manner
that would violate the Securities Act or any applicable state securities laws.
5. The Investor (a) is a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters, and in
particular in such matters related to securities similar to the Restricted
Certificates, such that it is capable of evaluating the merits and risks of
investment in the Restricted Certificates, (b) is able to bear the economic
risks of such an investment and (c) is an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) promulgated pursuant to the
Securities Act.
6. The Investor will not authorize nor has it authorized any person to (a)
offer, pledge, sell, dispose of or otherwise transfer any Restricted
Certificate, any interest in any Restricted Certificate or any other similar
security to any person in any manner, (b) solicit any offer to buy or to accept
a pledge, disposition or other transfer of any Restricted Certificate, any
interest in any Restricted Certificate or any other similar security from any
person in any manner, (c) otherwise approach or negotiate with respect to any
Restricted Certificate, any interest in any Restricted Certificate or any other
similar security with any person in any manner, (d) make any general
solicitation by means of general advertising or in any other manner, or (e) take
any other action that would constitute a distribution of any Restricted
Certificate under the Securities Act, that would render the disposition of any
Restricted Certificate a violation of Section 5 of the Securities Act or any
state securities law, or that could require registration or qualification
pursuant thereto. Neither the Investor nor anyone acting on its behalf has
offered the Restricted Certificates for sale or made any general solicitation by
means of general advertising or in any other manner with respect to the
Restricted Certificates. The Investor will not sell or otherwise transfer any of
the Restricted Certificates, except in compliance with the provisions of the
Agreement.
7. If an Investor in a Restricted Certificate sells or otherwise transfers
any such Certificate to a transferee other than a "qualified institutional
buyer" under Rule 144A of the Securities Act, such Investor will obtain (a) from
any subsequent purchaser the same certifications, representations, warranties
and covenants contained in the foregoing paragraphs and in this paragraph or (b)
an opinion of counsel in form and substance satisfactory to the Trustee pursuant
to the Agreement.
8. The Investor hereby indemnifies the Trustee and the Company against any
liability that may result if the Investor's transfer of a Restricted Certificate
(or any portion thereof) is not exempt from the registration requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws. Such indemnification of the Trustee
and the Company shall survive the termination of the Agreement.
[9. The Restricted Certificates shall be registered in the name of
_____________________________ as nominee for the Investor.]
I-2
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] _____________ this _____ day of __________, _____.
___________________________________
[name of Investor]
By: ______________________________
Name:
Title:
The undersigned hereby
acknowledges that it is holding and
will hold the Restricted
Certificates at the exclusive
direction of and as nominee of the
Investor named above.
___________________________________
[name of nominee]
By: ______________________________
Name:
Title:
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EXHIBIT J
FORM OF DISTRIBUTION DATE STATEMENT
_____________, ____
(month) (year)
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC Mortgage Pass-Through Certificates,
Series 2000-5
Pursuant to the Pooling and Servicing Agreement dated as of April 1, 2000
(the "Agreement") between GE Capital Mortgage Services, Inc. (the "Company"),
and State Street Bank and Trust Company (the "Trustee"), governing the
Certificates referred to above, the Company hereby certifies to the Trustee:
With respect to the Agreement and as of the Determination Date for this
month:
The amounts below are for a Single Certificate of $1,000:
(1) Amount of distribution allocable to principal:
Class A $__________
Class PO $__________
Class M $__________
Class B1 $__________
Class B2 $__________
Class B3 $__________
Class B4 $__________
Class B5 $__________
Class R $__________
(2) Aggregate principal prepayments included in distribution:
Class A $__________
Class PO $__________
Class M $__________
Class B1 $__________
Class B2 $__________
Class B3 $__________
Class B4 $__________
Class B5 $__________
Class R $__________
(3) Amount of distribution allocable to interest; Pay-out Rate:
Class A $__________ ____%
Class M $__________ ____%
Class B1 $__________ ____%
Class B2 $__________ ____%
Class B3 $__________ ____%
Class B4 $__________ ____%
Class B5 $__________ ____%
Class R $__________ ____%
Class S $__________ ____%
(4) Accrual Amount:
N/A
(5) Amount of distribution allocable to Unanticipated Recoveries:
Class A $__________ ____%
Class PO $__________ ____%
Class M $__________ ____%
Class B1 $__________ ____%
Class B2 $__________ ____%
Class B3 $__________ ____%
Class B4 $__________ ____%
Class B5 $__________ ____%
Class R $__________ ____%
(6) Servicing Compensation: $__________
The amounts below are for the aggregate of all Certificates:
(7) Pool Scheduled Principal Balance;
number of Mortgage Loans: $__________ __________
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(8) Class Certificate Principal Balance
(or Notional Principal Balance) of
each Class; Certificate Principal
Balance (or Notional Principal
Balance) of Single Certificate of
each Class:
Single
Certificate
Class Balance Balance
----- ------- -----------
Class A $__________ $__________
Class PO $__________ $__________
Class M $__________ $__________
Class B1 $__________ $__________
Class B2 $__________ $__________
Class B3 $__________ $__________
Class B4 $__________ $__________
Class B5 $__________ $__________
Class R $__________ $__________
Class S $__________ $__________
(9) Book value of real estate acquired
on behalf of Certificateholders;
number of related Mortgage Loans: $__________ __________
(10) Aggregate Scheduled Principal
Balance and number of delinquent
Mortgage Loans:
30-59 days delinquent $__________ __________
60-89 days delinquent $__________ __________
90 or more days delinquent $__________ __________
In foreclosure $__________ __________
(11) Aggregate Scheduled Principal
Balance and number of replaced
Mortgage Loans: $__________ __________
(12) Certificate Interest Rate of:
Class S Certificate: ____%
(13) Senior Percentage for such
Distribution Date: ____%
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(14) Senior Prepayment Percentage for
such Distribution Date: ____%
(15) Junior Percentage for such
Distribution Date: ____%
(16) Junior Prepayment Percentage for
such Distribution Date: ____%
Capitalized terms used in this Statement shall have the same meanings as in
the Agreement.
J-4
EXHIBIT K
FORM OF SPECIAL SERVICING
AND COLLATERAL FUND AGREEMENT
This SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT (the "Agreement") is
made and entered into as of ____________________, ______, between GE Capital
Mortgage Services, Inc. (the "Company") and _____________________________ (the
"Purchaser").
PRELIMINARY STATEMENT
___________________________ or an affiliate thereof is the holder of the
entire interest in REMIC Mortgage Pass-Through Certificates, Series _____-__,
Class B_ (the "Class B_ Certificates"). The Class B_ Certificates were issued
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of ________ 1, _____ between the Company (in its capacity
as servicer thereunder, the "Servicer") and State Street Bank and Trust Company
as Trustee.
____________________________ or an affiliate thereof intends to resell all
of the Class B_ Certificates directly to the Purchaser on or promptly after the
date hereof.
In connection with such sale, the parties hereto have agreed that the
Company, as Servicer, will engage in certain special servicing procedures
relating to foreclosures for the benefit of the Purchaser, and that the
Purchaser will deposit funds in a collateral fund to cover any losses
attributable to such procedures as well as all advances and costs in connection
therewith, as set forth herein.
[The parties hereto have further agreed that the Purchaser will have no
rights, and the Company will have no obligations under this Agreement until the
Class Certificate Principal Balance of the REMIC Mortgage Pass-Through
Certificates, Series _____-__, Class B5 (the "Class B5 Certificates") has been
reduced to zero, and any Special Servicing and Collateral Fund Agreement in
respect of such Class between the Company and the Purchaser has been
terminated.]
In consideration of the mutual agreements herein contained, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
agree that the following provisions shall become effective and shall be binding
on and enforceable by the Company and the Purchaser upon the acquisition by the
Purchaser of the Class B_ Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday of (ii) a day
on which banking institutions in New York City or Boston, Massachusetts are
required or authorized by law or executive order to be closed.
Collateral Fund: The fund established and maintained pursuant to Section
3.01 hereof.
Collateral Fund Permitted Investments: Either (i) obligations of, or
obligations fully guaranteed as to principal and interest by, the United States,
or any agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States, (ii) repurchase agreements on
obligations specified in clause (i) provided that the unsecured obligations of
the party agreeing to repurchase such obligations are at the time rated by each
Rating Agency in the highest long-term rating category, (iii) federal funds,
certificates of deposit, time deposits and banker's acceptances of any U.S.
depository institution or trust company incorporated under the laws of the
United States or any state provided that the debt obligations of such depository
institution or trust company at the date of acquisition thereof have been rated
by each Rating Agency in the highest long-term rating category, (iv) commercial
paper of any corporation incorporated under the laws of the United States or any
state thereof which on the date of acquisition has the highest short term rating
of each Rating Agency, and (v) other obligations or securities that are
acceptable to each Rating Agency as a Collateral Fund Permitted Investment
hereunder and will not, as evidenced in writing, result in a reduction or
withdrawal in the then current rating of the Certificates and, for each of the
preceding clauses, the maturity thereof shall be not later than the earlier to
occur of (A) 30 days from the date of the related investment and (B) the
Business Day preceding the next succeeding Distribution Date.
Commencement of Foreclosure: The first official action required under local
law in order to commence foreclosure proceedings or to schedule a trustee's sale
under a deed of trust, including (i) in the case of a mortgage, any filing or
service of process necessary to commence an action to foreclose, or (ii) in the
case of a deed of trust, the posting, publishing, filing or delivery of a notice
of sale, but not including in either case (x) any notice of default, notice of
intent to foreclose or sell or any other action prerequisite to the actions
specified in (i) or (ii) above and, upon the consent of the Purchaser which will
be deemed given unless expressly withheld within two Business Days of
notification, (y) the acceptance of a deed-in-lieu of foreclosure (whether in
connection with a sale of the related property or otherwise) or (z) initiation
and completion of a short pay-off.
Current Appraisal: With respect to any Mortgage Loan as to which the
Purchaser has made an Election to Delay Foreclosure, an appraisal of the related
Mortgaged Property
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obtained by the Purchaser as nearly contemporaneously as practicable to the time
of the Purchaser's election, prepared based on the Company's customary
requirements for such appraisals.
Election to Delay Foreclosure: Any election by the Purchaser to delay the
Commencement of Foreclosure, made in accordance with Section 2.02(b).
Election to Foreclose: Any election by the Purchaser to proceed with the
Commencement of Foreclosure, made in accordance with Section 2.03(a).
Required Collateral Fund Balance: As of any date of determination, an
amount equal to the aggregate of all amounts previously required to be deposited
in the Collateral Fund pursuant to Section 2.02(d) (after adjustments for all
withdrawals and deposits prior to such date pursuant to Section 2.02(e)) and
Section 2.03(b) (after adjustment for all withdrawals and deposits prior to such
date pursuant to Section 2.03(c)) and Section 3.02, reduced by all withdrawals
therefrom prior to such date pursuant to Section 2.02(g) and Section 2.03(d).
Section 1.02. Definitions Incorporated by Reference. All capitalized terms
not otherwise defined in this Agreement shall have the meanings assigned in the
Pooling and Servicing Agreement.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
the Company as Servicer shall provide to the Purchaser the following notices and
reports:
(i) Within five Business Days after each Distribution Date (or
included in or with the monthly statements to Certificateholders pursuant
to the Pooling and Servicing Agreement), the Company, as Servicer, shall
provide to the Purchaser a report, using the same methodology and
calculations in its standard servicing reports, indicating for the Trust
Fund the number of Mortgage Loans that are (A) thirty days, (B) sixty days,
(C) ninety days or more delinquent or (D) in foreclosure, and indicating
for each such Mortgage Loan the loan number and outstanding principal
balance.
(ii) Prior to the Commencement of Foreclosure in connection with any
Mortgage Loan, the Company shall provide the Purchaser with a notice (sent
by facsimile transmission) of such proposed and imminent foreclosure,
stating the loan number and the aggregate amount owing under the Mortgage
Loan. Such notice may be provided to the Purchaser in the form of a copy of
a referral letter from the Company to an attorney
K-3
requesting the institution of foreclosure or a copy of a request to
foreclose received by the Company from the related primary servicer which
has been approved by the Company.
(b) If requested by the Purchaser, the Company shall make its servicing
personnel available (during their normal business hours) to respond to
reasonable inquiries, in writing by facsimile transmission, by the Purchaser in
connection with any Mortgage Loan identified in a report under subsection (a)(i)
or (a)(ii) which has been given to the Purchaser, provided, that (1) the Company
shall only be required to provide information that is readily accessible to its
servicing personnel and is non-confidential and (2) the Company shall respond
within five Business Days orally or in writing by facsimile transmission.
(c) In addition to the foregoing, the Company shall provide to the
Purchaser such information as the Purchaser may reasonably request concerning
each Mortgage Loan that is at least sixty days delinquent and each Mortgage Loan
which has become real estate owned, through the final liquidation thereof,
provided, that the Company shall only be required to provide information that is
readily accessible to its servicing personnel and is non-confidential.
Section 2.02. Purchaser's Election to Delay Foreclosure Proceedings.
(a) The Purchaser shall be deemed to direct the Company that in the event
that the Company does not receive written notice of the Purchaser's election
pursuant to subsection (b) below within 24 hours (exclusive of any intervening
non-Business Days) of transmission of the notice provided by the Company under
Section 2.01(a)(ii) subject to extension as set forth in Section 2.02(b), the
Company may proceed with the Commencement of Foreclosure in respect of such
Mortgage Loan in accordance with its normal foreclosure policies without further
notice to the Purchaser. Any foreclosure that has been initiated may be
discontinued (i) without notice to the Purchaser if the Mortgage Loan has been
brought current or if a refinancing or prepayment occurs with respect to the
Mortgage Loan (including by means of a short payoff approved by the Company) or
(ii) with notice to the Purchaser if the Company has reached the terms of a
forbearance agreement with the borrower. In such latter case the Company may
complete such forbearance agreement unless instructed otherwise by the Purchaser
within two Business Days of notification.
(b) In connection with any Mortgage Loan with respect to which a notice
under Section 2.01(a)(ii) has been given to the Purchaser, the Purchaser may
elect to instruct the Company to delay the Commencement of Foreclosure until
such time as the Purchaser determines that the Company may proceed with the
Commencement of Foreclosure. Such election must be evidenced by written notice
received within 24 hours (exclusive of any intervening non-Business Days) of
transmission of the notice provided by the Company under Section 2.01(a)(ii).
The Purchaser shall send a copy of such notice of election to each Rating Agency
as soon as practicable thereafter. Such 24-hour period shall be extended for no
longer than an additional four Business Days after the receipt of the
information if the Purchaser requests additional information related to such
foreclosure within such 24-hour period; provided, however, that the Purchaser
will have at least one Business Day to make such election following its receipt
of any requested additional information. Any such additional information shall
(i) not
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be confidential in nature and (ii) be obtainable by the Company from existing
reports, certificates or statements or otherwise be readily accessible to its
servicing personnel. The Purchaser agrees that it has no right to deal with the
mortgagor. However, if the Company's normal foreclosure policies include
acceptance of a deed-in-lieu of foreclosure or short payoff, the Purchaser will
be notified and given two Business Days to respond.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the Purchaser shall obtain a Current Appraisal as
soon as practicable, and shall provide the Company with a copy of such Current
Appraisal.
(d) Within two Business Days of making any Election to Delay Foreclosure,
the Purchaser shall remit by wire transfer to the Trustee, for deposit in the
Collateral Fund, an amount, as calculated by the Company, equal to the sum of
(i) 125% of the greater of the Scheduled Principal Balance of the Mortgage Loan
and the value shown in the Current Appraisal referred to in subsection (c) above
(or, if such Current Appraisal has not yet been obtained, the Company's estimate
thereof, in which case the required deposit under this subsection shall be
adjusted upon obtaining such Current Appraisal), and (ii) three months' interest
on the Mortgage Loan at the applicable Mortgage Rate. If any Election to Delay
Foreclosure extends for a period in excess of three months (such excess period
being referred to herein as the "Excess Period"), the Purchaser shall remit by
wire transfer in advance to the Trustee for deposit in the Collateral Fund the
amount of each additional month's interest, as calculated by the Company, equal
to interest on the Mortgage Loan at the applicable Mortgage Rate for the Excess
Period. The terms of this Agreement will no longer apply to the servicing of any
Mortgage Loan upon the failure of the Purchaser to deposit the above amounts
relating to the Mortgage Loan within two Business Days of (i) the Election to
Delay Foreclosure or (ii) the beginning of the related Excess Period, as the
case may be.
(e) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the Company or the Trustee may withdraw from the
Collateral Fund from time to time amounts necessary to reimburse the Company for
all related Monthly Advances and Liquidation Expenses thereafter made by the
Company as Servicer in accordance with the Pooling and Servicing Agreement. To
the extent that the amount of any such Liquidation Expense is determined by the
Company based on estimated costs, and the actual costs are subsequently
determined to be higher, the Company or the Trustee may withdraw the additional
amount from the Collateral Fund to reimburse the Company. In the event that the
Mortgage Loan is brought current by the mortgagor, the amounts so withdrawn from
the Collateral Fund shall be redeposited therein as and to the extent that
reimbursement therefor from amounts paid by the mortgagor is not prohibited
pursuant to the Pooling and Servicing Agreement as of the date hereof. Except as
provided in the preceding sentence, amounts withdrawn from the Collateral Fund
to cover Monthly Advances and Liquidation Expenses shall not be redeposited
therein or otherwise reimbursed to the Purchaser. If and when any such Mortgage
Loan is brought current by thE mortgagor, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
previous withdrawals and
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deposits pursuant to this subsection and after reimbursement to the Servicer for
all related Monthly Advances) shall be released to the Purchaser.
(f) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure, the Company shall continue to service the
Mortgage Loan in accordance with its customary procedures (other than the delay
in Commencement of Foreclosure as provided herein). If and when, following such
election, the Purchaser shall notify the Company that it believes that it is
appropriate to do so, the Company shall proceed with the Commencement of
Foreclosure; provided that, in any event, if the Mortgage Loan is not brought
current by the mortgagor by the time the loan becomes 6 months delinquent, the
Purchaser's election shall no longer be effective, unless the Purchaser shall
have purchased the related Mortgage Loan promptly following (and in any event
not later than the third Business Day after) the end of such 6-month period in
the manner provided in the following two sentences, and the Company shall be
entitled to proceed with the Commencement of Foreclosure. Any purchase of such
Mortgage Loan by the Purchaser pursuant to the preceding sentence shall be at a
purchase price equal to the unpaid principal balance of the Mortgage Loan plus
accrued interest at the Mortgage Rate from the date last paid by the mortgagor.
Such purchase price shall be deposited by the Purchaser into the Collateral Fund
in immediately available funds on the Business Day which is the date of purchase
and the Purchaser shall instruct the Trustee (with notice to the Company) to
withdraw such amount therefrom on such Business Day and remit the same to the
Trust Fund for application as Liquidation Proceeds pursuant to the Pooling and
Servicing Agreement. Following such withdrawal, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
previous withdrawals and deposits pursuant to this Agreement and after
reimbursement to the Servicer for all related Monthly Advances) shall be
released to the Purchaser.
(g) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Delay Foreclosure and as to which
the Company proceeded with the Commencement of Foreclosure in accordance with
subsection (f) above, the Company shall calculate the amount, if any, by which
the value shown on the Current Appraisal obtained under subsection (c) exceeds
the actual sales price obtained for the related Mortgaged Property (net of
Liquidation Expenses and unreimbursed Monthly Advances related to the extended
foreclosure period), and the Company or the Trustee shall withdraw the amount of
such excess from the Collateral Fund and shall remit the same to the Trust Fund
for application as additional Liquidation Proceeds pursuant to the Pooling and
Servicing Agreement. After making such withdrawal, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
withdrawals and deposits pursuant to subsection (e) and after reimbursement to
the Servicer for all related Monthly Advances) shall be released to the
Purchaser.
Section 2.03. Purchaser's Election to Commence Foreclosure Proceedings.
(a) In connection with any Mortgage Loan identified in a report under
Section 2.01(a)(i)(B), the Purchaser may elect to instruct the Company to
proceed with the
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Commencement of Foreclosure as soon as practicable. Such election must be
evidenced by written notice received by the Company by 5:00 p.m., New York City
time, on the third Business Day following the delivery of such report under
Section 2.01(a)(i).
(b) Within two Business Days of making any Election to Foreclose, the
Purchaser shall remit to the Trustee, for deposit in the Collateral Fund, an
amount, as calculated by the Company, equal to 125% of the current Scheduled
Principal Balance of the Mortgage Loan and three months' interest on the
Mortgage Loan at the applicable Mortgage Rate. If and when any such Mortgage
Loan is brought current by the mortgagor, all amounts in the Collateral Fund in
respect of such Mortgage Loan (after adjustment for all withdrawals and deposits
pursuant to subsection (c) below) shall be released to the Purchaser. The terms
of this Agreement will no longer apply to the servicing of any Mortgage Loan
upon the failure of the Purchaser to deposit the above amounts relating to the
Mortgage Loan within two Business Days of the Election to Foreclose.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Foreclose, the Company shall continue to service the Mortgage Loan
in accordance with its customary procedures. In connection therewith, the
Company shall have the same rights to make withdrawals for Monthly Advances and
Liquidation Expenses from the Collateral Fund as are provided under Section
2.02(e), and the Company shall make reimbursements thereto to the limited extent
provided under such subsection. The Company shall not be required to proceed
with the Commencement of Foreclosure if (i) the same is stayed as a result of
the mortgagor's bankruptcy or is otherwise barred by applicable law, or to the
extent that all legal conditions precedent thereto have not yet been complied
with, or (ii) the Company believes there is a breach of representations or
warranties by the Company, which may result in a repurchase or substitution of
such Mortgage Loan, or (iii) the Company has or expects to have the right under
the Pooling and Servicing Agreement to purchase the defaulted Mortgage Loan and
intends to exercise such right or (iv) the Company reasonably believes the
Mortgaged Property may be contaminated with or affected by hazardous wastes or
hazardous substances (and the Company supplies the Purchaser with information
supporting such belief) or (v) the same is prohibited by or is otherwise
inconsistent with the provisions of the Pooling and Servicing Agreement. Any
foreclosure that has been initiated may be discontinued (i) without notice to
the Purchaser if the Mortgage Loan has been brought current or if a refinancing
or prepayment occurs with respect to the Mortgage Loan (including by means of a
short payoff approved by the Purchaser) or (ii) with notice to the Purchaser if
the Company has reached the terms of a forbearance agreement unless instructed
otherwise by the Purchaser within two Business Days of notification.
(d) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Foreclose and as to which the
Company proceeded with the Commencement of Foreclosure in accordance with
subsection (c) above, the Company shall calculate the amount, if any, by which
the Scheduled Principal Balance of the Mortgage Loan at the time of liquidation
(plus all unreimbursed Monthly Advances and Liquidation Expenses in connection
therewith other than those previously paid from the Collateral Fund) exceeds the
actual sales price obtained for the related Mortgaged Property, and the Company
or the Trustee
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shall withdraw the amount of such excess from the Collateral Fund and shall
remit the same to the Trust Fund for application as additional Liquidation
Proceeds pursuant to the Pooling and Servicing Agreement. After making such
withdrawal, all amounts remaining in the Collateral Fund (after adjustment for
all withdrawals and deposits pursuant to subsection (c) above and after
reimbursement to the Servicer for all related Monthly Advances) in respect of
such Mortgage Loan shall be released to the Purchaser.
Section 2.04. Termination.
(a) With respect to all Mortgage Loans included in the Trust Fund, the
Purchaser's right to make any Election to Delay Foreclosure or any Election to
Foreclose and the Company's obligations under Section 2.01 shall terminate on
the earliest to occur of the following: (i) at such time as the Class
Certificate Principal Balance of the Class B_ Certificates has been reduced to
zero, (ii) if the greater of (x) 43% (or such lower or higher percentage that
represents the Company's actual loss experience with respect to the Mortgage
Loans) of the aggregate principal balance of all Mortgage Loans that are in
foreclosure or are more than 90 days delinquent on a contractual basis and the
aggregate book value of REO properties or (y) the aggregate amount that the
Company estimates through its normal servicing practices will be required to be
withdrawn from the Collateral Fund with respect to Mortgage Loans as to which
the Purchaser has made an Election to Delay Foreclosure or an Election to
Foreclose exceeds (z) the then-current Class Certificate Principal Balance of
the Class B_ Certificates, or (iii) upon any transfer by the Purchaser of any
interest (other than the minority interest therein, but only if the transferee
provides written acknowledgment to the Company of the Purchaser's right
hereunder and that such transferee will have no rights hereunder) in the Class
B_ Certificates [or in the Class B5 Certificates] (whether or not such transfer
is registered under the Pooling and Servicing Agreement), including any such
transfer in connection with a termination of the Trust Fund. Unless earlier
terminated as set forth herein, this Agreement and the respective rights,
obligations and responsibilities of the Purchaser and the Company hereunder
shall terminate immediately upon (x) the later to occur of (i) the final
liquidation of the last Mortgage Loan as to which the Purchaser made any
Election to Delay Foreclosure or any Election to Foreclose and the withdrawal of
all remaining amounts in the Collateral Fund as provided herein and (ii) ten
(10) Business Days' notice or (y) the occurrence of any event that results in
the Purchaser becoming an "affiliate" of the Trustee within the meaning of the
Prohibited Transaction Exemption (as defined in the Pooling and Servicing
Agreement).
(b) The Purchaser's rights pursuant to Section 2.02 or 2.03 of this
Agreement shall terminate with respect to a Mortgage Loan as to which the
Purchaser has exercised its rights under Section 2.02 or 2.03 hereof, upon
Purchaser's failure to deposit any amounts required pursuant to Section 2.02(d)
or 2.03(b) after one Business Day's notice of such failure.
Section 2.05. Notification. The Purchaser shall promptly notify the Trustee
and the Company if such Purchaser becomes aware of any discussions, plans or
events that might lead to such Person's becoming an "affiliate" (within the
meaning of the Prohibited Transaction
K-8
Exemption) of the Trustee, provided that the contents of any such notification
shall be kept confidential by the parties to this Agreement.
ARTICLE III
COLLATERAL FUND; SECURITY INTEREST
Section 3.01. Collateral Fund. Upon payment by the Purchaser of the initial
amount required to be deposited in the Collateral Fund pursuant to Article II,
the Company shall request the Trustee to establish and maintain with the Trustee
a segregated account entitled "REMIC Mortgage Pass-Through Certificates 20__-__
Collateral Fund, for the benefit of GE Capital Mortgage Services, Inc. and State
Street Bank and Trust Company on behalf of Certificateholders, as secured
parties" (the "Collateral Fund"). Amounts held in the Collateral Fund shall
continue to be the property of the Purchaser, subject to the first priority
security interest granted hereunder for the benefit of such secured parties,
until withdrawn from the Collateral Fund pursuant to the Section 2.02 or 2.03
hereof.
Upon the termination of this Agreement and the liquidation of all Mortgage
Loans as to which the Purchaser has made any Election to Delay Foreclosure or
any Election to Foreclose pursuant to Section 2.04 hereof, the Company shall
distribute to the Purchaser all amounts remaining in the Collateral Fund
together with any investment earnings thereon (after giving effect to all
withdrawals therefrom permitted under this Agreement).
The Purchaser shall not take or direct the Company or the Trustee to take
any action contrary to any provision of the Pooling and Servicing Agreement. In
no event shall the Purchaser (i) take or cause the Trustee or the Company to
take any action that could cause any REMIC established under the Pooling and
Servicing Agreement to fail to qualify as a REMIC or cause the imposition on any
such REMIC of any "prohibited transaction" or "prohibited contribution" taxes or
(ii) cause the Trustee or the Company to fail to take any action necessary to
maintain the status of any such REMIC as a REMIC. The Purchaser acknowledges
that the Collateral Fund is an "outside reserve fund" within the meaning of the
REMIC Provisions and that the Purchaser will be the beneficial owner thereof,
and will be taxable on all income or gain with respect thereto.
Section 3.02. Collateral Fund Permitted Investments. The Company shall, at
the written direction of the Purchaser, direct the Trustee to invest the funds
in the Collateral Fund in the name of the Trustee in Collateral Fund Permitted
Investments. Such direction shall not be changed more frequently then quarterly.
In the absence of any direction, the Company shall direct the Trustee select
such investments in accordance with the definition of Collateral Fund Permitted
Investments in its discretion.
All income and gain realized from any investment as well as any interest
earned on deposits in the Collateral Fund (net of any losses on such
investments) and any payments of principal made in respect of any Collateral
Fund Permitted Investment shall be deposited in the Collateral Fund upon
receipt. All costs and realized losses associated with the purchase and sale
K-9
of Collateral Fund Permitted Investments shall be borne by the Purchaser and the
amount of net realized losses shall be promptly deposited by the Purchaser in
the Collateral Fund. The Company shall periodically (but not more frequently
than monthly) direct the Trustee to distribute to the Purchaser upon request an
amount of cash, to the extent cash is available therefor in the Collateral Fund,
equal to the amount by which the balance of the Collateral Fund, after giving
effect to all other distributions to be made from the Collateral Fund on such
date, exceeds the Required Collateral Fund Balance. Any amounts so distributed
shall be released from the lien and security interest of this Agreement.
Section 3.03. Grant of Security Interest. In order to secure the
obligations of the Purchaser hereunder to the Company and the Trustee for the
benefit of Certificateholders (other than its obligations under Section 4.10),
the Purchaser hereby grants to the Company and to the Trustee for the benefit of
the Certificateholders a security interest in and lien on all of the Purchaser's
right, title and interest, whether now owned or hereafter acquired, in and to:
(1) the Collateral Fund, (2) all amounts deposited in the Collateral Fund and
Collateral Fund Permitted Investments in which such amounts are invested (and
the distributions and proceeds of such investments) and (3) all cash and
non-cash proceeds of any of the foregoing, including proceeds of the voluntary
or involuntary conversion thereof (all of the foregoing collectively, the
"Collateral").
The Purchaser acknowledges the lien on and security interest in the
Collateral for the benefit of the Company and the Trustee on behalf of the
Certificateholders. The Purchaser shall take all actions requested by the
Company or the Trustee as may be reasonably necessary to perfect the security
interest created under this Agreement in the Collateral and cause it to be prior
to all other security interests and liens, including the execution and delivery
to the Company or at its direction the Trustee for filing of appropriate
financing statements in accordance with applicable law.
Section 3.04. Collateral Shortfalls. In the event that amounts on deposit
in the Collateral Fund at any time are insufficient to cover any withdrawals
therefrom that the Company or the Trustee is then entitled to make hereunder,
the Purchaser shall be obligated to pay such amounts to the Company or the
Trustee immediately upon demand. Such obligation shall constitute a general
corporate obligation of the Purchaser. The failure to pay such amounts within
two Business Days of such demand (except for amounts to cover interest on a
Mortgage Loan pursuant to Sections 2.02(d) and 2.03(b)), shall cause an
immediate termination of the Purchaser's right to make any Election to Delay
Foreclosure or Election to Foreclose and the Company's obligations under this
Agreement with respect to all Mortgage Loans to which such insufficiencies
relate, without the necessity of any further notice or demand on the part of the
Company.
K-10
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Amendment. This Agreement may be amended from time to time by
the Company and the Purchaser by written agreement signed by the Company and the
Purchaser provided that no such amendment shall have a material adverse effect
on the holders of other Classes of Certificates.
Section 4.02. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 4.03. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 4.04. Notices. All demands, notices and direction hereunder shall
be in writing or by telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company, with respect to notices pursuant to
Sections 2.02 and 2.03 hereto,
GE Capital Mortgage Services, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxx Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with respect to all other notices pursuant to this Agreement,
GE Capital Mortgage Services, Inc.
Three Executive Campus
Cherry Hill, New Jersey 08002
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as may hereafter be furnished in writing by the Company,
or
K-11
(b) in the case of the Purchaser, with respect to notices pursuant to
Section 2.01,
________________________________
________________________________
________________________________
Attention: ____________________
Telephone: ____________________
Facsimile: ____________________
with respect to all other notices pursuant to this Agreement,
________________________________
________________________________
________________________________
Attention: ____________________
Telephone: ____________________
Facsimile: ____________________
or such other address as may hereafter be furnished in writing by the Purchaser,
or
(c) in the case of the Trustee,
State Street Bank and Trust Company
Corporate Trust Department
8th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 4.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever, including regulatory, held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement.
Section 4.06. Successor and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and the
respective successors and assigns of the parties hereto; provided, however, that
the rights under this Agreement cannot be assigned by the Purchaser without the
consent of the Company.
Section 4.07. Article and Section Headings. The article and section
headings herein are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
K-12
Section 4.08. Third Party Beneficiaries. The Trustee on behalf of
Certificateholders is the intended third party beneficiary of this Agreement.
Section 4.09. Confidentiality. The Purchaser agrees that all information
supplied by or on behalf of the Company pursuant to Section 2.01 or 2.02,
including individual account information, is the property of the Company and the
Purchaser agrees to use such information solely for the purposes set forth in
this Agreement and to hold such information confidential and not to disclose
such information.
Section 4.10. Indemnification. The Purchaser agrees to indemnify and hold
harmless the Company against any and all losses, claims, damages or liabilities
to which it may be subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
actions taken by the Company in accordance with the provisions of this Agreement
and which actions conflict or are alleged to conflict with the Company's
obligations under the Pooling and Servicing Agreement. The Purchaser hereby
agrees to reimburse the Company on demand for the reasonable legal or other
expenses incurred by it in connection with investigating or defending any such
loss, claim, damage, liability or action.
[Section 4.11. Delayed Effectiveness. The Purchaser agrees that,
notwithstanding any other provision of this Agreement, the Purchaser shall have
no rights hereunder, and the Company shall have no obligations hereunder, until
the Class Certificate Principal Balance of the Class B5 Certificates has been
reduced to zero and any Special Servicing and Collateral Fund Agreement between
the Company and the Purchaser relating to such Class B5 Certificates has been
terminated.]
K-13
IN WITNESS WHEREOF, the Company and the Purchaser have caused their names
to be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
GE CAPITAL MORTGAGE SERVICES, INC.
By: ______________________________
Name:
Title:
[PURCHASER]
By: ______________________________
Name:
Title:
Acknowledged and agreed to:
STATE STREET BANK AND TRUST COMPANY
By: ______________________________
Name:
Title:
K-14
EXHIBIT L
FORM OF LOST NOTE AFFIDAVIT AND AGREEMENT
I, _________________________________________, being duly sworn, do hereby
state under oath that:
1. I am a duly elected ______________________ of GE Capital Mortgage
Services, Inc. (the "Company") and am duly authorized to make this affidavit.
2. This affidavit is being delivered in connection with the transfer of the
Mortgage Loan described in Paragraph 3 hereof by the Company pursuant to the
Pooling and Servicing Agreement dated as of [date] between the Company, Seller
and Servicer, and State Street Bank and Trust Company, Trustee, relating to the
Company's REMIC Mortgage Pass-Through Certificates, Series [____] ("Agreement").
Such Mortgage Loan constitutes a Designated Loan.
3. The Company is the payee under the following described Mortgage Note
("Mortgage Note") which evidences the obligation of the borrower(s) to repay the
Mortgage Loan:
Loan Number: _____________________________________
Mortgage Note Date:_______________________________
Borrower(s): _____________________________________
Original Payee (if not the Company): _____________
Original Amount:__________________________________
Mortgage Rate: ___________________________________
Address of Mortgaged Property: ___________________
__________________________________________________
4. The Company is the lawful owner of the Mortgage Note and has not
cancelled, altered, assigned or hypothecated the Mortgage Note.
5. A thorough and diligent search for the executed original Mortgage Note
was undertaken and was unsuccessful.
6. Attached hereto is a true and correct copy of the Mortgage Note.
7. The Mortgage Note has not been endorsed by the Company in any manner
inconsistent with its transfer of the Mortgage Loan under the Agreement.
8. Without limiting the generality of the rights and remedies of the
Trustee contained in the Agreement, the Company hereby confirms and agrees that
in the event the inability to produce the executed original Mortgage Note
results in a breach of the representations and warranties appearing in Agreement
subsections 2.03(a)(ii) (the validity and enforceability of the lien created by
the Mortgage Loan) or (x) (no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage), the Company shall repurchase the Mortgage Loan at
the Purchase Price and otherwise in accordance with Section 2.03(b) of the
Agreement. In addition, the Company covenants and agrees to indemnify the
Trustee and the Trust Fund from and hold them harmless against any and all
losses, liabilities, damages, claims or expenses (other than those resulting
from negligence or bad faith of the Trustee) arising from the Company's failure
to have delivered the Mortgage Note to the Trustee, including without limitation
any such losses, liabilities, damages, claims or expenses arising from any
action to enforce the indebtedness evidenced by the Mortgage Note or any claim
by any third party who is the holder of such indebtedness by virtue of
possession of the Mortgage Note.
9. In the event that the Company locates the executed original Mortgage
Note, it shall promptly provide the Mortgage Note to the Trustee.
10. Capitalized terms not otherwise defined herein shall have the meanings
given them in the Agreement.
Date: __________________
________________________________________
(signature)
________________________________________
(print name)
________________________________________
(print title)
L-2
State of New Jersey )
) ss:
)
On this ____________________day of ___________________, _____, before me
appeared ____________________________, to me personally known, who acknowledged
the execution of the foregoing and who, having been duly sworn states that
he/she is a/the ______________________________of GE Capital Mortgage Services,
Inc., that any representations therein contained are true, that this Lost Note
Affidavit was signed and sealed on behalf of GE Capital Mortgage Services, Inc.
and that this Lost Note Affidavit is the free act and deed of GE Capital
Mortgage Services, Inc.
___________________________________
Notary Public
[Notarial Seal]
L-3
EXHIBIT M
SCHEDULE OF DESIGNATED LOANS
None
EXHIBIT N
SCHEDULE OF PLEDGED ASSET MORTGAGE LOANS
None
EXHIBIT O
SENIOR PRINCIPAL PRIORITIES
Amounts allocated to the senior certifcates (other than the Class PO
Certifcates) will be distributed sequentially as follows:
(a) to the Class R Certificates, until the Class Certificate Principal
Balance thereof has been reduced to zero; and
(b) to the Class A Certificates, until the Class Certificate Principal
Balance thereof has been reduced to zero.
The Class PO Certificates will receive the Class PO Principal Distribution
Amount for such Distribution Date.
EXHIBIT P
SCHEDULE OF CASHSAVER MORTGAGE LOANS
None
