EXHIBIT 4.1
EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES INC., as Master Servicer,
XXXXX FARGO BANK MINNESOTA, N.A.,
as Securities Administrator
and
FIRST UNION NATIONAL BANK,
as Trustee
---------------------------
TRUST AGREEMENT
Dated as of January 1, 2001
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STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-1
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Table of Contents
Page
Article I
DEFINITIONS
Section 1.01. Definitions.................................................7
Section 1.02. Calculations Respecting Mortgage Loans. ...................41
Article II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. ...........................................41
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund. .............................45
Section 2.03. Representations and Warranties of the Depositor. ..........46
Section 2.04. Discovery of Breach. ......................................48
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans. ...48
Section 2.06. Grant Clause. .............................................50
Article III
THE CERTIFICATES
Section 3.01. The Certificates. .........................................50
Section 3.02. Registration. .............................................51
Section 3.03. Transfer and Exchange of Certificates. ....................51
Section 3.04. Cancellation of Certificates. .............................54
Section 3.05. Replacement of Certificates. ..............................54
Section 3.06. Persons Deemed Owners. ....................................55
Section 3.07. Temporary Certificates. ...................................55
Section 3.08. Appointment of Paying Agent. ..............................55
Section 3.09. Book-Entry Certificates. ..................................55
Article IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. .......................................57
Section 4.02. Application of Funds in the Collection Account. ...........59
Section 4.03. Reports to Certificateholders. ............................60
Section 4.04. Certificate Account. ......................................63
Section 4.05. Determination of LIBOR. ...................................64
Section 4.06. The Class 1-A5 Reserve Fund. ..............................66
Section 4.07. Securities Administrator Account...........................66
Article V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. ..................................68
Section 5.02. Distributions from the Certificate Account. ...............68
Section 5.03. Allocation of Realized Losses. ............................75
Section 5.04. Advances by Master Servicer and Trustee. ..................77
Section 5.05. Compensating Interest Payments. ...........................78
Section 5.06. Distributions of Principal on Redemption Certificates......78
Section 5.07. The Class 1-A5 Certificate Insurance Policy. ..............83
Article VI
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee and Securities Administrator. ...........85
Section 6.02. Certain Matters Affecting the Trustee and the
Securities Administrator. .................................88
Section 6.03. Trustee and Securities Administrator Not Liable
for Certificates. .........................................89
Section 6.04. Trustee and the Securities Administrator May
Own Certificates. .........................................90
Section 6.05. Eligibility Requirements for Trustee and
Securities Administrator...................................90
Section 6.06. Resignation and Removal of Trustee and Securities
Administrator..............................................90
Section 6.07. Successor Trustee and Successor Securities Administrator...91
Section 6.08. Merger or Consolidation of Trustee or Securities
Administrator..............................................92
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian...92
Section 6.10. Authenticating Agents......................................94
Section 6.11. Indemnification of Trustee and Securities Administrator....94
Section 6.12. Fees and Expenses of Securities Administrator,
Custodian and Trustee......................................95
Section 6.13. Collection of Monies.......................................95
Section 6.14. Events of Default; Trustee To Act; Appointment
of Successor...............................................96
Section 6.15. Additional Remedies of Trustee Upon Event of Default.......99
Section 6.16. Waiver of Defaults.........................................99
Section 6.17. Notification to Holders...................................100
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default...................................100
Section 6.19. Action Upon Certain Failures of the Master Servicer
and Upon Event of Default.................................100
Section 6.20. Preparation of Tax Returns and Other Reports..............100
Article VII
PURCHASE AND TERMINATION OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or
Liquidation of All Mortgage Loans.........................102
Section 7.02. Procedure Upon Termination of Trust Fund..................102
Section 7.03. Additional Trust Fund Termination Requirements............103
Article VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders...........................104
Section 8.02. Access to List of Holders.................................104
Section 8.03. Acts of Holders of Certificates...........................105
Article IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer.............................106
Section 9.02. Master Servicer Fidelity Bond and Master Servicer
Errors and Omissions Insurance Policy.....................106
Section 9.03. Master Servicer's Financial Statements and Related
Information...............................................107
Section 9.04. Power to Act; Procedures..................................107
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations..........109
Section 9.06. Collection of Taxes, Assessments and Similar Items........109
Section 9.07. Termination of Servicing Agreements; Successor Servicers..110
Section 9.08. Master Servicer Liable for Enforcement....................110
Section 9.09. No Contractual Relationship Between Servicers and
Trustee or Depositor......................................111
Section 9.10. Assumption of Servicing Agreement by Trustee..............111
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements..............111
Section 9.12. Release of Mortgage Files.................................112
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee...........................113
Section 9.14. Representations and Warranties of the Master Servicer.....114
Section 9.15. Closing Certificate and Opinion...........................116
Section 9.16. Standard Hazard and Flood Insurance Policies..............116
Section 9.17. Presentment of Claims and Collection of Proceeds..........117
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies....117
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents....................................118
Section 9.20. Realization Upon Defaulted Mortgage Loans.................118
Section 9.21. Compensation to the Master Servicer.......................118
Section 9.22. REO Property..............................................119
Section 9.23. [Omitted].................................................119
Section 9.24. Reports to the Trustee....................................119
Section 9.25. Annual Officer's Certificate as to Compliance.............120
Section 9.26. Annual Independent Accountants' Servicing Report..........120
Section 9.27. Merger or Consolidation...................................121
Section 9.28. Resignation of Master Servicer............................121
Section 9.29. Assignment or Delegation of Duties by the Master
Servicer..................................................121
Section 9.30. Limitation on Liability of the Master Servicer
and Others................................................122
Section 9.31. Indemnification; Third-Party Claims.......................122
Article X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration......................................123
Section 10.02. Prohibited Transactions and Activities....................125
Section 10.03. Indemnification with Respect to Certain Taxes and
Loss of REMIC Status......................................125
Section 10.04. REO Property..............................................126
Article XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment...................126
Section 11.02. Entire Agreement..........................................127
Section 11.03. Amendment.................................................127
Section 11.04. Voting Rights.............................................128
Section 11.05. Provision of Information..................................128
Section 11.06. Governing Law.............................................129
Section 11.07. Notices...................................................129
Section 11.08. Severability of Provisions................................129
Section 11.09. Indulgences; No Waivers...................................129
Section 11.10. Headings Not To Affect Interpretation.....................129
Section 11.11. Benefits of Agreement.....................................130
Section 11.12. Special Notices to the Rating Agencies....................130
Section 11.13. Counterparts..............................................131
Section 11.14. Transfer of Servicing.....................................131
Section 11.15. Matters Relating to the Class 1-A5 Certificate
Insurance Policy..........................................132
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Trustee Initial Certification
Exhibit B-2 Form of Trustee Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreements
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited
Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreement
Exhibit L Insurance Agreement
Exhibit M Class 1-A5 Certificate Insurance Policy
Mortgage Loan Schedules
Schedule A All Mortgage Loans (by Mortgage Pool)
Schedule B Mortgage Loans with Retained Interest
Schedule C Reserved
Schedule D Pool 1 AX Loans
Schedule E Reserved
Schedule F Pool 3 AX Loans
This TRUST AGREEMENT, dated as of January 1, 2001 (the "Agreement"),
is by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware
corporation, as depositor (the "Depositor"), AURORA LOAN SERVICES INC., as
master servicer (the "Master Servicer"), XXXXX FARGO BANK MINNESOTA, N.A., a
national banking association, as securities administrator (the "Securities
Administrator") and First Union National Bank, a national banking association,
as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from Xxxxxx Capital, A
Division of Xxxxxx Brothers Holdings Inc. (the "Seller") and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by it to the Trustee for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Trust Fund, as consideration
for its transfer to the Trust Fund of the Mortgage Loans and the other
property constituting the Trust Fund. The Depositor has duly authorized the
execution and delivery of this Agreement to provide for the conveyance to the
Trustee of the Mortgage Loans and the other property constituting the Trust
Fund. All covenants and agreements made by the Depositor, the Master Servicer,
the Securities Administrator and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates and the Class
1-A5 Certificate Insurer. The Depositor, the Master Servicer and the
Securities Administrator are entering into this Agreement, and the Trustee is
accepting the Trust Fund created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be
treated for federal income tax purposes as comprising two real estate mortgage
investment conduits (each a "REMIC" or, in the alternative, the Lower Tier
REMIC and the Upper Tier REMIC, respectively). Each Certificate, other than
the Class R Certificate, represents ownership of one or more regular interests
in the Upper Tier REMIC for purposes of the REMIC Provisions. The Class R
Certificate represents ownership of the sole class of residual interest in the
Lower Tier REMIC and the Upper Tier REMIC for purposes of the REMIC
Provisions. The Upper Tier REMIC shall hold as assets the several classes of
uncertificated Lower Tier Interests, other than the Class LT-R, set out below.
Each such Lower Tier Interest, other than the Class LT-R, Interest, is hereby
designated as a regular interest in the Lower Tier REMIC. The Lower Tier REMIC
shall hold as assets all property of the Trust Fund other than the Lower Tier
Interests, the Class 1-A5 Reserve Fund, and the Class 1-A5 Rounding Account.
The following table specifies the class designation, interest rate,
and principal amount for each class of Lower Tier Interests.
Initial Class
Principal
Lower Tier Class Lower Tier (or Notional) Corresponding Class
Designation Interest Rate Amount of Certificates
----------- ------------- ------ ---------------
Class LT1-A1 7.15% $120,452,000 Class 1-A1
(1) Class 1-A4
Class LT1-A2 7.15% $75,000,000 Class 1-A2
Class LT-1A3 7.15% $25,000,000 Class 1-A3
(1) Class 1-A4
Class LT1-A5 7.15% $20,000,000 Class 1-A5
(2) Class 1-A6
Class LT1-A7 7.15% $10,000,000 Class 1-A7
Class LT1-A8 7.15% $39,500,000 Class 1-A8
(3) Class 1-A9
Class LT1-AX (4) (4) Class 1-AX
Class LT1-AP 0.00% $16,253 Class 1-AP
Class LT1-Q 7.15% $100 Class R
Class LT2-A1 6.50% $30,000,000 Class 2-A1
Class LT2-A2 8.50% $60,000,000 Class 2-A2
(5) Class 2-A3
Class LT2-A4 7.50% $6,082,000 Class 2-A4
(6) Class 2-A5
Class L2-A6 6.50% $30,000,000 Class 2-A6
Class LT3-A 7.00% $72,395,000 Class 3-A
Class LT3-AX (7) (7) Class 3-AX
Class LT3-AP 0.00% $542,621 Class 3-AP
Class LT-B1 (8) $11,767,000 Class B1
Class LT-B2 (8) $6,538,000 Class B2
Class LT-B3 (8) $3,922,000 Class B3
Class LT-B4 (8) $6,014,000 Class B4
Class LT-B5 (8) $2,876,000 Class B5
Class LT-B6 (8) $2,880,253 Class B6
Class LT-R (9) (9) Class R
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(1) The Class 1-A4 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on
the Class LT1-A1 and Class LT1-A3 Interests. Specifically, for each
Accrual Period the Class 1-A4 Certificates are entitled to interest
accruals on the Class LT1-A1 Interest at a rate of 0.40% and to
interest accruals on the Class LT1-A3 Interest at a rate of 0.05%.
(2) The Class 1-A6 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on
the Class LT1-A5 Interest. Specifically, for each Accrual Period the
Class 1-A6 Certificates are entitled to interest accruals on the
Class LT1-A5 Interest at a rate of 0.35%.
(3) The Class 1-A9 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on
the Class LT1-A8 Interest. Specifically, for each Accrual Period the
Class 1-A9 Certificates are entitled to interest accruals on the
Class LT1-A8 Interest at a rate of 0.30%.
(4) The Class LT1-AX Interest is entitled to receive on each Distribution
Date a specified portion of the interest payable on the Pool 1 AX
Loans. Specifically, for each Accrual Period the Class LT1-AX Interest
is entitled to interest accruals on the Pool 1 AX Loans at a rate
equal to the difference between the weighted average of the Net
Mortgage Rates of the Pool 1 AX Loans and 7.15%. The Class LT1-AX
Interest does not have a principal balance.
(5) The Class 2-A3 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on
the Class LT2-A2 Interest. Specifically, for each Accrual Period the
Class 2-A3 Certificates are entitled to interest accruals on the
Class LT2-A2 Interest at a rate equal to the difference between 8.00%
and LIBOR, subject to a minimum rate of 0.00%.
(6) The Class 2-A5 Certificates are entitled to receive on each
Distribution Date a specified portion of the Interest payable on
the Class LT2-A4 Interest. Specifically, for each Accrual Period the
Class 2-A5 Certificates are entitled to interest accruals on the
Class LT2-A4 Interest at a rate of 0.50%.
(7) The Class LT3-AX Interest is entitled to receive on each Distribution
Date a specified portion of the interest payable on the Pool 3 AX
Loans. Specifically, for each Accrual Period the Class LT3-AX Interest
is entitled to interest accruals on the Pool 3 AX Loans at a rate
equal to the difference between the weighted average of the Net
Mortgage Rates of the Pool 3 AX Loan and 7.00%. The Class LT3-AX
Interest does not have a principal balance.
(8) The interest rate with respect to any Distribution Date (and related
Accrual Period) for the Class LT-B1, Class LT-B2, Class LT-B3, Class
LT-B4, Class LT-B5 and Class LT-B6 is a per annum rate equal to the
Average Rate.
(9) The Class LT-R Interest is the sole class of residual interest in the
Lower Tier REMIC. It does not have an interest rate or a principal
balance.
On each Distribution Date, interest is payable on each Lower Tier
Regular Interest at the rate described above. On each Distribution Date
principal is payable on each Class of Lower Tier Interests in the same manner
and in the same amount as principal is payable on the Corresponding Class of
Certificates. Realized Losses and Net Prepayment Interest Shortfalls for any
Distribution Date shall be allocated among the classes of Lower Tier Interests
in the same manner that such items are allocated among the Corresponding
Classes of Certificates.
As used herein each Certificate Group is "related" to the Mortgage
Pool having the identical numerical designation, and each Senior Certificate
is "related" to the Mortgage Pool and Certificate Group having the identical
numerical designation.
When reference is made herein to the "ranking" of a Certificate, the
highest ranking Certificate is the Certificate with the lowest numerical
designation and the lowest ranking Certificate is the Certificate with the
highest numerical designation.
The following table specifies the Class designation, Certificate
Interest Rate, initial Class Principal (or Notional) Amount and minimum
denomination (by dollar amount or Percentage Interest) for each Class of
Certificates constituting the interests in the Trust Fund created hereunder.
Minimum
Initial Class Denomination
Principal or Minimum
Certificate (or Notional) Percentage
Class Designation Interest Rate Amount Interest
----------------- ------------- ------- --------
Class 1-A1 6.75% $120,452,000 $25,000
Class 1-A2 7.15% $75,000000 $25,000
Class 1-A3 7.10% $25,000,000 $25,000
Class 1-A4 7.15% (1) $1,000,000
Class 1-A5 6.75% $20,000,000 $1,000
Class 1-A6 7.15% (2) $450,000
Class 1-A7 7.15% $10,000,000 $25,000
Class 1-A8 6.85% 39,500,000 $25,000
Class 1-A9 7.15% (3) $300,000
Class 1-AP 0.00% $16,253 100%
Class 1-AX 7.15% (4) 100%
Class 2-A1 6.50% $30,000,000 $25,000
Class 2-A2 (5) $60,000,000 $25,000
Class 2-A3 (6) (7) $2,500,000
Class 2-A4 7.00% $6,082,000 $1,000
Class 2-A5 7.50% (8) 100%
Class 2-A6 6.50% $30,000,000 $25,000
Class 3-A 7.00% $72,395,000 $25,000
Class 3-AP 0.00% $542,621 100%
Class 3-AX 7.00% (9) 100%
Class B1 (10) $11,767,000 $100,000
Class B2 (10) $6,538,000 $100,000
Class B3 (10) $3,922,000 $100,000
Class B4 (10) $6,014,000 $250,000
Class B5 (10) $2,876,000 $250,000
Class B6 (10) $2,880,253 $250,000
Class R 7.15% $100 $100
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(1) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 1-A4 Certificates will
equal the sum of (1) the product of (a) 5.5944055944% and (b) the Class
Principal Amount of the Class 1-A1 Certificates immediately before such
Distribution Date and (2) the product of (b) 0.6993006993% and (b) the
Class Principal Amount of the Class 1-A3 Certificates immediately
preceding such Distribution Date.
(2) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 1-A6 Certificates will
equal the product of (i) 4.8951048951% and (ii) the Class Principal
Amount of the Class 1-A5 Certificates immediately preceding such
Distribution Date.
(3) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) for the Class 1-A9 Certificates will
equal the product of (i) 4.1958041958% and (ii) the Class Principal
Amount of the Class 1-A8 Certificates immediately before such
Distribution Date.
(4) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 1-AX Certificates will
equal the product of (i) a fraction, the numerator of which is the
weighted average of the Net Mortgage Rates of the Pool 1 AX Loans at the
beginning of the related Due Period less 7.15%, and the denominator of
which is 7.15% and (ii) the total Scheduled Principal Balance of the Pool
1 AX Loans as of the first day of the related Accrual Period.
(5) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for the Class 2-A2 Certificates is
the per annum rate equal to the lesser of (i) LIBOR plus 0.50% and (ii)
8.50%, subject to a minimum rate of 0.50%.
(6) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for the Class 2-A3 Certificates is
the per annum rate equal to 8.00% minus LIBOR, subject to a minimum rate
of 0.00%.
(7) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 2-A3 Certificates will
equal the Class Principal Amount of the Class 2-A2 Certificates
immediately preceding such Distribution Date.
(8) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 2-A5 Certificates will
equal the product of (i) 6.0000000000% and (ii) the Class Principal
Amount of the Class 2-A4 Certificates immediately preceding such
Distribution Date.
(9) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 3-AX Certificates will
equal the product of (i) a fraction, the numerator of which is the
weighted average of the Net Mortgage Rates of the Pool 3 AX Loans at the
beginning of the related Due Period less 7.00%, and the denominator of
which is 7.00% and (ii) the total Scheduled Principal Balance of the Pool
3 AX Loans as of the first day of the related Accrual Period.
(10) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for each of the Class B1, Class B2,
Class B3, Class B4, Class B5 and Class B6 Certificates will equal the
Average Rate for such Distribution Date.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $522,985,228.
For purposes hereof, each of the three pools of mortgage loans
constitute a fully separate and distinct sub-trust.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
hereby agree as follows:
Article I
DEFINITIONS
Section 1.01. Definitions. | The following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or master service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, to the extent applicable to the
Trustee or the Master Servicer or (y) as provided in the applicable Servicing
Agreement, to the extent applicable to the related Servicer.
Accountant: A person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accretion Directed Certificate: None.
Accretion Termination Date: None.
Accrual Amount: As to any Class of Accrual Certificates and each
Distribution Date through the Credit Support Depletion Date, the sum of (x)
any amount of Accrued Certificate Interest allocable to such Class pursuant to
Section 5.02(a)(ii) on such Distribution Date and (y) any Interest Shortfall
allocable to such Class pursuant to Section 5.02(a)(iii) on such Distribution
Date. As to any Class of Accrual Certificates and each Distribution Date after
the Credit Support Depletion Date, zero.
Accrual Certificate: None.
Accrual Component: None.
Accrual Period: With respect to any Distribution Date and any Class
of Certificates (other than any Class of Principal Only Certificates and any
Class 2-A2 and Class 2-A3 Certificates), the one-month period beginning
immediately following the end of the preceding Accrual Period (or from the
Cut-off Date, in the case of the first Accrual Period) and ending on the last
day of the month immediately preceding the month in which such Distribution
Date occurs. With respect to any Distribution Date and any Class 2-A2 and
Class 2-A3 Certificates, the period beginning on the Distribution Date in the
calendar month preceding the month in which the related Distribution Date
occurs (or from the January 25, 2001, in the case of the first Accrual Period)
and ending on the day immediately preceding the related Distribution Date.
Accrued Certificate Interest: As to any Class of Certificates (other
than any Principal Only Certificates) and any Distribution Date, the product
of the Certificate Interest Rate for such Class of Certificates and the Class
Principal Amount (or Class Notional Amount) of such Class of Certificates
immediately preceding such Distribution Date, as reduced by such Class's share
of the interest portion of (i) any Excess Losses for such Distribution Date
and (ii) any Relief Act Reduction, in each case allocable among the Senior
Certificates of the related Certificate Group pro rata based on the Accrued
Certificate Interest otherwise distributable thereto, and allocable to the
Subordinate Certificates pro rata based on interest accrued on their
respective Apportioned Principal Balances. Interest shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
Act: As defined in Section 3.03(c).
Additional Collateral: None.
Advance: An advance of the aggregate of payments of principal and
interest (net of the applicable Servicing Fee) on one or more Mortgage Loans
that were due on the Due Date in the related Due Period and not received as of
the close of business on the related Determination Date, required to be made
by or on behalf of the Master Servicer and the related Servicer (or by the
Trustee) pursuant to Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Class 1-A5 Certificate Insurance Premium: As to any
Distribution Date, the sum of (a) the Class 1-A5 Certificate Insurance Premium
for such Distribution Date and (b) the amount of any Class 1-A5 Certificate
Insurance Premium that was not distributed to the Class 1-A5 Certificate
Insurer on any prior Distribution Date.
Aggregate Principal Balance: The aggregate of the Scheduled
Principal Balances for all Mortgage Loans at any date of determination.
Aggregate Subordinate Percentage: With respect to any Distribution
Date, the sum of the Class Principal Amounts of the Subordinate Certificates
immediately prior to such date divided by the sum of the Non-AP Pool Balances
for all Mortgage Pools for the immediately preceding Distribution Date.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
AP Percentage: As to any Discount Mortgage Loan in Pool 1 and Pool
3, the percentage equivalent of a fraction, the numerator of which is the
applicable Designated Rate minus the Net Mortgage Rate of such Discount
Mortgage Loan and the denominator of which is the applicable Designated Rate.
As to any Non-Discount Mortgage Loan in Pool 1 and Pool 3, 0%. As to any
Mortgage Loan in Pool 2, 0%.
AP Principal Distribution Amount: For any Distribution Date and for
each of Pool 1 and Pool 3, the sum of the following amounts:
(i) the applicable AP Percentage of the principal portion of
each Scheduled Payment (without giving effect to any Debt Servuce
Reduction occurring prior to the Bankruptcy Coverage Termination
Date) on each Mortgage Loan in the related Mortgage Pool due during the
related Due Period;
(ii) the applicable AP Percentage of each of the following amounts:
(1) each Principal Prepayment collected on a Mortgage Loan in the related
Mortgage Pool during the applicable Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net Liquidation
Proceeds (other than with respect to any Mortgage Loan in the related
Mortgage Pool that was finally liquidated during the applicable
Prepayment Period), representing or allocable to recoveries of principal
of such Mortgage Loan in the related Mortgage Pool received during the
applicable Prepayment Period and (3) the principal portion of all
proceeds of the purchase of any Mortgage Loan in the related Mortgage
Pool (or, in the case of a permitted substitution, amounts representing a
principal adjustment) actually received by the Trustee with respect to
the applicable Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to
principal of any Mortgage Loan in the related Mortgage Pool that was
finally liquidated during the related Prepayment Period, the applicable
AP Percentage of the related net Liquidation Proceeds allocable to
principal; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Apportioned Principal Balance: As to any Class of Subordinate
Certificates and any Distribution Date, the Class Principal Amount of such
Class immediately prior to such Distribution Date multiplied by a fraction,
the numerator of which is the applicable Group Subordinate Amount for such
date and the denominator of which is the sum of the Group Subordinate Amounts
for all Mortgage Pools for such date.
Appraised Value: With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
the Trustee shall not be responsible for determining whether any such
assignment is in recordable form.
Aurora: Aurora Loan Services Inc. or its successor in interest, in
its capacity as a Servicer.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
Available Distribution Amount: As to each Mortgage Pool and on any
Distribution Date, the sum of the following amounts:
(i) the total amount of all cash received by the Master Servicer
through the Remittance Date applicable to each Servicer and deposited by
the Master Servicer by the Master Servicer Remittance Date for such
Distribution Date on the Mortgage Loans of such Mortgage Pool (including
proceeds of any Insurance Policy and any other credit support relating to
such Mortgage Loans), plus all Advances made by the Master Servicer or
any Servicer (or the Trustee in its capacity as successor Master
Servicer) for such Distribution Date, any Compensating Interest Payment
for such date and Mortgage Pool and any amounts paid by any Servicer in
respect of Prepayment Interest Shortfalls in respect of the related
Mortgage Loans for such date, but not including:
(A) all amounts distributed pursuant to Section 5.02 on prior
Distribution Dates;
(B) all Scheduled Payments of principal and interest collected
but due on a date subsequent to the related Due Period;
(C) all Principal Prepayments received or identified by
the applicable Servicer after the applicable Prepayment Period
(together with any interest payments received with such prepayments
to the extent that they represent the payment of interest accrued on
the related Mortgage Loans for the period subsequent to the
applicable Prepayment Period);
(D) any other unscheduled collection, including Net
Liquidation Proceeds and Insurance Proceeds, received
by the Master Servicer after the applicable Prepayment Period;
(E) all fees and amounts due or reimbursable to
reimbursable to the Master Servicer, the Trustee, the Securities
Administrator, the Custodian or any Servicer pursuant to the terms
of this Agreement, the Custodial Agreement or the applicable
Servicing Agreement;
(F) any Prepayment Penalty Amounts; and
(G) such portion of each payment in respect of interest
representing Retained Interest; and
(ii) any other payment made by the Master Servicer, any Servicer,
the Seller, the Depositor, or any other Person with respect to such
Distribution Date (including the Purchase Price with respect to any
Mortgage Loan purchased by the Seller, the Depositor or any other
Person).
Average Rate: For each Distribution Date, an annual rate equal to
the weighted average of the Designated Rates applicable to each of the
Mortgage Pools, weighted on the basis of the Group Subordinate Amount for each
Mortgage Pool.
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the United States
Bankruptcy Code of 1986, as amended, or any other similar state laws.
Bankruptcy Coverage Termination Date: As to any Mortgage Pool, the
Distribution Date on which the Bankruptcy Loss Limit has been reduced to zero
(or less than zero).
Bankruptcy Loss Limit: As of the Cut-off Date, $177,317, which
amount shall be reduced from time to time by the amount of Bankruptcy Losses
allocated to the Certificates.
Bankruptcy Losses: With respect to the Mortgage Loans in the related
Mortgage Pool, losses that are incurred as a result of Deficient Valuations
and any reduction, in a bankruptcy proceeding, of the amount of the Scheduled
Payment on a Mortgage Loan other than as a result of a Deficient Valuation.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
Trustee to the effect that any proposed transfer will not (i) cause the assets
of the Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor or the Trustee.
Blanket Mortgage: The mortgage or mortgages encumbering a
Cooperative Property.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, the following Classes of
Certificates constitute Book-Entry Certificates: the Class 1-A1, Class 1-A2,
Class 1-A3, Class 1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class
1-A9, Class 1-AX, Class 1-AP, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4,
Class 2-A5, Class 2-A6, Class 3-A, Class 3-AX, Class 3-AP, Class B1, Class B2,
Class B3, Class B4, Class B5 and Class B6.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in Colorado, North Carolina, Minnesota,
Maryland, New York, New York or, if other than New York, the city in which the
Class 1-A5 Certificate Insurer is located, the city in which the Corporate
Trust Office of the Trustee is located, or (iii) with respect to any
Remittance Date or any Servicer reporting date, the States specified in the
definition of "Business Day" in the applicable Servicing Agreement, are
authorized or obligated by law or executive order to be closed.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
accordance with the provisions of Section 4.04.
Certificate Group: The Group 1 Certificates, Group 2 Certificates or
Group 3 Certificates, as applicable.
Certificate Interest Rate: With respect to each Class of
Certificates, the applicable per annum rate specified or determined as
provided in the Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate other
than a Notional Certificate, at the time of determination, the maximum
specified dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the initial principal amount
set forth on the face of such Certificate (plus, in the case of any Negative
Amortization Certificate, any Deferred Interest allocated thereto on previous
Distribution Dates, and plus, in the case of any Accrual Certificate, its
Percentage Interest of any related Accrual Amount for each previous
Distribution Date), less the amount of all principal distributions previously
made with respect to such Certificate, all Realized Losses allocated to such
Certificate, and, in the case of a Subordinate Certificate, any Subordinate
Certificate Writedown Amount allocated to such Certificates. For purposes of
Article V hereof, unless specifically provided to the contrary, Certificate
Principal Amounts shall be determined as of the close of business of the
immediately preceding Distribution Date, after giving effect to all
distributions made on such date. Notional Certificates are issued without
Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
"Holder."
Class: All Certificates bearing the same class designation, and, in
the case of each Lower Tier REMIC, all Lower Tier Interests bearing the same
designation.
Class 1-A5 Certificate Insurance Policy: The Certificate Guaranty
Insurance Policy No. 34302 dated the Closing Date including any endorsements
thereto issued by the Class 1-A5 Certificate Insurer to the Trustee for the
benefit of the Holders of the Class 1-A5 Certificates, a copy of which is
attached as Exhibit M hereto.
Class 1-A5 Certificate Insurance Premium: With respect to any
Distribution Date and with respect to the Class 1-A5 Certificate Insurance
Policy, an amount equal to 1/12th of the product of (a) the Class Principal
Amount of the Class 1-A5 Certificates as of such Distribution Date (prior to
giving effect to any distribution thereon on such Distribution Date) and (b)
the Class 1-A5 Premium Percentage.
Class 1-A5 Certificate Insurer: MBIA Insurance Corporation, or any
successor thereto, as issuer of the Class 1-A5 Certificate Insurance Policy.
Class 1-A5 Certificate Insurer Default: The occurrence and
continuance of any of the following events:
(a) the Class 1-A5 Certificate Insurer shall have failed to
make a payment required to be made under the Class 1-A5 Certificate Insurance
Policy in accordance with its terms;
(b) the Class 1-A5 Certificate Insurer shall have (i) filed a
petition or commenced a case or proceeding under any provision or chapter of
the United States Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) made a general assignment for the benefit of its
creditors, or (iii) had an order for relief entered against it under the
United States Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the Office of the
Commissioner of Insurance of the State of New York or other competent
regulatory authority shall have entered a final and nonappealable order,
judgment or decree (i) appointing a custodian, trustee, agent or receiver for
the Class 1-A5 Certificate Insurer or for all or any material portion of its
property or (ii) authorizing the taking of possession by a custodian, trustee,
agent or receiver of the Class 1-A5 Certificate Insurer (or the taking of
possession of all or any material portion of the property of the Class 1-A5
Certificate Insurer).
Class 1-A5 Guaranteed Distributions: (a) With respect to any
Distribution Date, (i) the Accrued Certificate Interest for the Class 1-A5
Certificates for such Distribution Date, including the amount of any Net
Prepayment Interest Shortfalls relating to prepayments and any Relief Act
Reductions allocable to the Class 1-A5 Certificates on such Distribution Date
that are not covered by the Class 1-A5 Reserve Fund and (ii) the amount of any
Realized Loss allocated to the Class 1-A5 Certificates on such Distribution
Date and (b) for the Final Scheduled Distribution Date, the Class Principal
Amount of the Class 1-A5 Certificates to the extent unpaid on the Final
Scheduled Distribution Date.
Class 1-A5 Policy Payments Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 5.07(c) in the name
of the Trustee for the benefit of the Class 1-A5 Certificateholders and
designated, "First Union National Bank, Class 1-A5 Policy Payments Account in
trust for registered holders of Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2001-1, Class 1-A5." Funds in the
Class 1-A5 Policy Payments Account shall be held in trust for the benefit of
the Class 1-A5 Certificateholders for the uses and purposes set forth in this
Agreement.
Class 1-A5 Premium Percentage: The meaning assigned to such term in
the Insurance Agreement.
Class 1-A5 Reserve Fund: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 with a depository
institution in the name of the Trustee for the benefit of the Class 1-A5
Certificateholders and designated "First Union National Bank, Class 1-A5
Reserve Fund in trust for registered holders of Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 2001-1, Class 1-A5."
The Class 1-A5 Reserve Fund shall not be a part of any REMIC and, for all
federal and state income tax purposes, shall be beneficially owned by Xxxxxx
Brothers Inc.
Class 1-A5 Rounding Account: The separate Eligible Account
established and maintained by the Trustee pursuant to Section 5.06(e) in the
name of the Trustee for the benefit of the Class 1-A5 Certificateholders and
designated "First Union National Bank, Class 1-A5 Rounding Account in trust
for registered holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2001-1, Class 1-A5." Funds in the Rounding
Account shall be held in trust for the benefit of the Class 1-A5
Certificateholders for the uses and purposes set forth in this Agreement. The
Class 1-A5 Rounding Account shall not be a part of any REMIC and, for all
federal and state income tax purposes, shall be beneficially owned by Xxxxxx
Brothers Inc.
Class A Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class
1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class 1-A9, Class 1-AX,
Class 1-AP, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class
2-A6, Class 3-A, Class 3-AP or Class 3-AX Certificate.
Class AP Certificate: Any Class 1-AP or Class 3-AP Certificate.
Class AP Deferred Amount: As to any Distribution Date on or prior to
the Credit Support Depletion Date and, with respect to each Class of Class AP
Certificates, (i) the aggregate of the applicable AP Percentage of the
principal portion of each Realized Loss (other than any Excess Loss) for such
Distribution Date on a Discount Mortgage Loan in the related Mortgage Pool;
and (ii) all such amounts previously allocated thereto and not distributed to
such Class as a Class AP Deferred Amount.
Class B Certificate: Any Class B1, Class B2, Class B3, Class B4,
Class B5 or Class B6 Certificate.
Class LT-R Interest: The sole residual interest in the Lower Tier
REMIC.
Class Notional Amount: With respect to each Class of Notional
Certificates, the applicable class notional amount calculated as provided in
the Preliminary Statement hereto.
Class Percentage: With respect to each Class of Subordinate
Certificates, for each Distribution Date, the percentage obtained by dividing
the Class Principal Amount of such Class immediately prior to such
Distribution Date by the sum of the Class Principal Amounts of all
Certificates, immediately prior to such date.
Class Principal Amount: With respect to each Class of Certificates
other than any Class of Notional Certificates, the aggregate of the
Certificate Principal Amounts of all Certificates of such Class at the date of
determination. With respect to each Class of Notional Certificates, zero.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: January 30, 2001.
Code: The Internal Revenue Code of 1986, as amended, and as it may
be further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: A separate account established and maintained by
the Master Servicer pursuant to Section 4.01.
Compensating Interest Payment: With respect to each Mortgage Pool
and any Distribution Date, an amount equal to the excess of (x) the aggregate
of any Prepayment Interest Shortfalls with respect to such Mortgage Pool and
such Distribution Date over (y) the aggregate of any amounts required to be
paid by any Servicer in respect of such shortfalls but not paid; provided that
the aggregate Compensating Interest Payment to be paid by the Master Servicer
for any Distribution Date shall not exceed the Master Servicing Fee that would
be payable to the Master Servicer without giving effect to any Compensating
Interest Payment.
Component: None.
Component Certificate: None.
Component Interest Rate: None.
Component Notional Amount: Not applicable.
Component Principal Amount: Not applicable.
Component Writedown Amount: Not applicable.
Control: The meaning specified in Section 8-106 of the UCC.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Veterans Administration.
Converted Mortgage Loan: None.
Convertible Mortgage Loan: None.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares
and a Proprietary Lease.
Cooperative Loan Documents: As to any Cooperative Loan, (i) the
Cooperative Shares, together with a stock power in blank; (ii) the original
executed Security Agreement and the assignment of the Security Agreement
endorsed in blank; (iii) the original executed Proprietary Lease and the
assignment of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and the assignment of the Recognition Agreement
(or a blanket assignment of all Recognition Agreements) endorsed in blank; (v)
the executed UCC-1 financing statement with evidence of recording thereon,
which has been filed in all places required to perfect the security interest
in the Cooperative Shares and the Proprietary Lease; and (vi) executed UCC-3
financing statements (or copies thereof) or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, that includes the allocation of individual
dwelling units to the holders of the Cooperative Shares of the Cooperative
Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at First Union
National Bank, 000 Xxxxx Xxxxx Xxxxxx, 00xx xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: Corporate Trust Group.
Corresponding Class: With respect to any class of Lower Tier
Interests, the Class of Certificates so designated in the Preliminary
Statement hereto. With respect to any Class of Certificates, the class or
classes of Lower Tier Interests so designated in the Preliminary Statement
hereto.
Corresponding Component: None.
Credit Score: With respect to any Mortgage Loan, a numerical
assessment of default risk with respect to the Mortgagor under such Mortgage
Loan, determined on the basis of a methodology developed by Fair, Xxxxx & Co.,
Inc.
Credit Support Depletion Date: The Distribution Date on which,
giving effect to all distributions on such date, the aggregate Certificate
Principal Amount of the Subordinate Certificates is reduced to zero.
Credit Support Percentage: As to any Class of Subordinate
Certificates and any Distribution Date, the sum of the Class Percentages of
all Classes of Certificates that rank lower in priority than such Class.
Custodial Agreement: Each custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto.
Cut-off Date: January 1, 2001.
Cut-off Date Aggregate Principal Balance: With respect to the
Mortgage Loans in the Trust Fund on the Closing Date, the Aggregate Principal
Balance for all such Mortgage Loans as of the Cut-off Date.
DCR: Duff & Xxxxxx Credit Rating Co., or any successor in interest.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction of the Scheduled Payment that the related Mortgagor is obligated to
pay on any Due Date as a result of any proceeding under Bankruptcy law or any
similar proceeding.
Deceased Holder: With respect to a Holder of a Redemption
Certificate, as defined in Section 5.06(b).
Deferred Interest: With respect to any Class of Negative
Amortization Certificates and any Distribution Date, the lesser of (x) the
applicable Interest Distribution Amount for such date (without giving effect
to any Deferred Interest) and (y) the aggregate Mortgage Loan Negative
Amortization, if any, for the related Due Period.
Deficiency Amount: The meaning assigned to such term in the Class
1-A5 Certificate Insurance Policy.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under such Mortgage Loan, which
valuation results from a proceeding under Bankruptcy law or any similar
proceeding.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Deposit Date: With respect to each Distribution Date, the Business
Day immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Designated Rate: With respect to Pool 1, 7.15% per annum; with
respect to Pool 2, 7.50% per annum; and with respect to Pool 3, 7.00% per
annum.
Determination Date: With respect to each Distribution Date, the day
of the latest Remittance Date immediately preceding such Distribution Date.
Discount Mortgage Loan: With respect to Pool 1, any Mortgage Loan
with a Net Mortgage Rate less than 7.15% per annum and with respect to Pool 3,
any Mortgage Loan with a Net Mortgage Rate less than 7.00% per annum.
Disqualified Organization: Either (i) the United States, (ii) any
state or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative
described in section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax imposed
by section 511 of the Code, (vii) any organization described in section
1381(a)(2)(C) of the Code, (viii) any "electing large partnership" described
in section 775 of the Code, or (ix) any other entity designated as a
Disqualified Organization by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month, or, if such 25th day
is not a Business Day, the next succeeding Business Day
commencing in February 2001.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short term debt or deposit
obligations of such holding company or depository institution, as the case may
be) have been rated by each Rating Agency in its highest short-term rating
category, or (iii) a segregated trust account or accounts (which shall be a
"special deposit account") maintained with the Trustee or any other federal or
state chartered depository institution or trust company, acting in its
fiduciary capacity, in a manner acceptable to the Trustee and the Rating
Agencies. Eligible Accounts may bear interest.
Eligible Investments: Any one or more of the following obligations
or securities:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the
United States of America or any agency or instrumentality of the
United States of America the obligations of which are backed by the
full faith and credit of the United States of America ("Direct
Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any state
thereof and subject to supervision and examination by federal or
state banking authorities, so long as at the time of investment or
the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC,
if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which have a credit rating
from each Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest short-term credit ratings of each Rating Agency;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the Aggregate Principal
Balance and the aggregate principal amount of all Eligible
Investments in the Certificate Account; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating
Agency;
(v) commercial paper (including both non
interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than
180 days after the date of issuance thereof) rated by each Rating
Agency in its highest short-term ratings;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments on
obligations of the United States of America or its agencies or
instrumentalities (which obligations are backed by the full faith and
credit of the United States of America) held by a custodian in
safekeeping on behalf of the holders of such receipts; and
(viii) any other demand, money market fund, common trust
fund or time deposit or obligation, or interest-bearing or other
security or investment (including those managed or advised by the
Securities Administrator or an Affiliate thereof), (A) rated in the
highest rating category by each Rating Agency or (B) that would not
adversely affect the then current rating by either Rating Agency of
any of the Certificates (in the case of the Class 1-A5 Certificates,
determined without regard to the Class 1-A5 Certificate Insurance
Policy). Such investments in this subsection (viii) may include money
market mutual funds or common trust funds, including any other fund
for which First Union National Bank (the "Bank"), the Trustee, the
Securities Administrator, the Master Servicer or an affiliate thereof
serves as an investment advisor, administrator, shareholder servicing
agent, and/or custodian or subcustodian, notwithstanding that (x) the
Bank, the Securities Administrator, the Master Servicer or an
affiliate thereof charges and collects fees and expenses from such
funds for services rendered, (y) the Bank, the Securities
Administrator, the Master Servicer or an affiliate thereof charges
and collects fees and expenses for services rendered pursuant to this
Agreement, and (z) services performed for such funds and pursuant to
this Agreement may converge at any time. The Trustee specifically
authorizes the Bank or an affiliate thereof to charge and collect
from the Trustee such fees as are collected from all investors in
such funds for services rendered to such funds (but not to exceed
investment earnings thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: Any Class R, Class B4, Class B5 or
Class B6 Certificate; any Certificate with a rating below the lowest
applicable rating permitted under the Underwriter's Exemption.
Escrow Account: Any account established and maintained by the
applicable Servicer pursuant to the applicable Servicing Agreement.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14(a).
Excess Loss: Any Bankruptcy Loss, or portion thereof, in excess of
the then-applicable Bankruptcy Loss Limit, any Fraud Loss, or portion thereof,
in excess of the then-applicable Fraud Loss Limit, and any Special Hazard
Loss, or portion thereof, in excess of the then-applicable Special Hazard Loss
Limit.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: For each Class of Group 1
Certificates, February 25, 2031; for each Class of Group 2 Certificates,
January 25, 2031; for each Class of Group 3 Certificates, February 25, 2016;
and for each Class of Subordinate Certificates, February 25, 2031.
Financial Asset: The meaning specified in Section 8-102(a)(9) of the
UCC.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loss: Any Realized Loss on a Liquidated Mortgage Loan sustained
by reason of a default arising from fraud, dishonesty or misrepresentation in
connection with the related Mortgage Loan, as reported by the Servicer to the
Master Servicer.
Fraud Loss Limit: With respect to any Distribution Date (x) prior to
the first anniversary of the Cut-off Date, $10,459,705, less the aggregate of
Fraud Losses since the Cut-off Date, and (y) from the first to the fourth
anniversary of the Cut-off Date, an amount equal to (1) the lesser of (a) the
Fraud Loss Limit as of the most recent anniversary of the Cut-off Date and (b)
1% of the aggregate principal balance of all the Mortgage Loans as of the most
recent anniversary of the Cut-off Date less (2) the aggregate of Fraud Losses
since the most recent anniversary of the Cut-off Date. On or after the fifth
anniversary of the Cut-off Date, the Fraud Loss Limit shall be zero.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class
1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class 1-A9, Class 1-AP,
Class 1-AX or Class R Certificate.
Group 1 NAS Percentage: As to any Distribution Date, the lesser of
(i) 100% and (ii) the percentage equivalent of the fraction, the numerator of
which is equal to the sum of (a) the sum of the Class Principal Amounts of the
Class 1-A7 and Class 1-A8 Certificates immediately prior to such date and (b)
$23,600,000, and the denominator of which is equal to the Group 1 Non-AP Pool
Balance for the immediately preceding Distribution Date.
Group 1 NAS Prepayment Shift Percentage: As to any Distribution Date
occurring during the five years beginning on the first Distribution Date, 0%.
As to any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date, the following percentage for each applicable
Distribution Date: for any Distribution Date in the first year after such
fifth anniversary, 30%; for any Distribution Date in the second year
thereafter, 40%; for any Distribution Date in the third year thereafter, 60%;
for any Distribution Date in the fourth year thereafter, 80%; and for any
subsequent Distribution Date, 100%.
Group 1 NAS Priority Amount: As to any Distribution Date, an amount
equal to the lesser of (i) the sum of (x) the product of the Group 1 NAS
Percentage for such date, the Group 1 NAS Scheduled Principal Percentage for
such date and the Group 1 Scheduled Principal Amount for such date and (y) the
product of the Group 1 NAS Percentage for such date, the Group 1 NAS
Prepayment Shift Percentage for such date and the Group 1 Unscheduled
Principal Amount for such date, and (ii) the sum of the Class Principal Amount
of the Class 1-A7 and Class 1-A8 Certificates immediately prior to such date.
Notwithstanding the foregoing, (1) on and after the Credit Support Depletion
Date the Class 1-A7 and Class 1-A8 Certificates will be entitled to their
proportionate share of all scheduled and unscheduled payments of principal
from Group 1, and (2) on the date on which the Class Principal Amounts of all
of the Group 1 Senior Certificates (other than the Class 1-A7 and Class 1-A8
Certificates) have been reduced to zero, the Group 1 NAS Priority Amount will
be increased by any remaining Group 1 Senior Principal Distribution Amount on
such Distribution Date, and thereafter the Group 1 NAS Priority Amount will
equal the Group 1 Senior Principal Distribution Amount.
Group 1 NAS Scheduled Principal Percentage: As to any Distribution
Date occurring during the five years beginning on the first Distribution Date,
0%. As to any Distribution Date occurring on or after the fifth anniversary of
the first Distribution Date, 100%.
Group 1 Scheduled Principal Amount: With respect to any Distribution
Date, the amount described in clause (i) (without application of the related
Senior Percentage) of the definition of Senior Principal Distribution Amount
for Group 1.
Group 1 Unscheduled Principal Amount: With respect to any
Distribution Date, the sum of the amounts described in clauses (ii) and (iii)
(without application of the related Senior Prepayment Percentage) of the
definition of Senior Principal Distribution Amount hereunder for Group 1.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class 2-A1, Class 2-A2, Class 2-A3, Class
2-A4, Class 2-A5, or Class 2-A6 Certificate.
Group 3: All of the Group 3 Certificates.
Group 3 Certificate: Any Class 3-A, Class 3-AP or Class 3-AX
Certificate.
Group Subordinate Amount: As to any Mortgage Pool and any
Distribution Date, the excess of the Non-AP Pool Balance of such Mortgage Pool
for the immediately preceding Distribution Date over the sum of the aggregate
of the Certificate Principal Amounts of the Non-AP Senior Certificates of the
related Certificate Group immediately prior to the related Distribution Date.
Holder or Certificateholder: The registered owner of any Certificate
as recorded on the books of the Certificate Registrar except that, solely for
the purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the
Trustee, the Master Servicer, any Servicer or any Affiliate thereof shall be
deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Trustee shall be protected in relying upon any such
consent, only Certificates which a Responsible Officer of the Trustee knows to
be so owned shall be disregarded. The Trustee may request and conclusively
rely on certifications by the Depositor, the Master Servicer and any Servicer
in determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer or such Servicer.
Individual Redemption Certificate: A Redemption Certificate with a
$1,000 Certificate Principal Amount.
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Initial LIBOR Rate: 5.72%.
Insurance Agreement: The Insurance Agreement dated as of January 1,
2001, among the Depositor, the Seller, the Trustee and the Class 1-A5
Certificate Insurer, a copy of which is attached as Exhibit L hereto.
Insurance Policy: Any Primary Mortgage Insurance Policy and any
standard hazard insurance policy, flood insurance policy, earthquake insurance
policy or title insurance policy relating to the Mortgage Loans or the
Mortgaged Properties, to be in effect as of the Closing Date or thereafter
during the term of this Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property, (iii) required to be
paid over to the Mortgagor pursuant to law or the related Mortgage Note or
(iv) to be applied toward payment of any Retained Interest.
Insured Payment: The meaning assigned to such term in the Class 1-A5
Certificate Insurance Policy.
Interest Distribution Amount: Not applicable.
Interest Shortfall: With respect to any Class of Certificates (other
than a Principal Only Certificate) and any Distribution Date, any Accrued
Certificate Interest not distributed (or added to principal) with respect to
any previous Distribution Date, other than any Net Prepayment Interest
Shortfalls.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: The Distribution Date in February
2034.
Xxxxxx Capital: Xxxxxx Capital, A Division of Xxxxxx Brothers
Holdings Inc., or any successor in interest.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR
Rate. With respect to each subsequent Accrual Period, the per annum rate
determined pursuant to Section 4.05 on the basis of London interbank offered
rate quotations for one-month Eurodollar deposits, as such quotations may
appear on the display designated as page "LIUS01M" on the Bloomberg Financial
Markets Commodities News (or such other page as may replace such page on that
service for the purpose of displaying London interbank offered quotations of
major banks).
LIBOR Certificate: Any Class 2-A2 or Class 2-A3 Certificate.
LIBOR Component: None.
LIBOR Determination Date: The second London Business Day immediately
preceding the commencement of each Accrual Period with respect to any LIBOR
Certificates other than the first such Accrual Period.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Master Servicer or the applicable Servicer has determined that all amounts
that it expects to recover on behalf of the Trust Fund from or on account of
such Mortgage Loan have been recovered.
Liquidation Expenses: Expenses that are incurred by the Master
Servicer or a Servicer in connection with the liquidation of any defaulted
Mortgage Loan and are not recoverable under the applicable Primary Mortgage
Insurance Policy, including, without limitation, foreclosure and
rehabilitation expenses, legal expenses and unreimbursed amounts expended
pursuant to Sections 9.06, 9.16 or 9.22.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, including any
amounts remaining in the related Escrow Account.
Living Holder: Any Holder of a Redemption Certificate other than a
Deceased Holder.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of
the principal balance of such Mortgage Loan at origination, or such other date
as is specified, to the Original Value thereof.
London Business Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England and New York City.
Lower Tier Interest: Any one of the classes of lower tier interests
described in the Preliminary Statement hereto.
Lower Tier Interest Rate: As to each Lower Tier Interest, the
applicable interest rate, if any, as described in the Preliminary Statement
hereto.
Lower Tier REMIC: One of the two separate REMICs as described in the
Preliminary Statement hereto.
Maintenance: With respect to any Cooperative Unit, the rent or fee
paid by the Mortgagor to the Cooperative Corporation pursuant to the
Proprietary Lease.
Master Servicer: Aurora Loan Services Inc., or any successor in
interest, or if any successor master servicer shall be appointed as herein
provided, then such successor master servicer.
Master Servicer Remittance Date: No later than 2:00 p.m. eastern time
two Business Days after each Remittance Date.
Master Servicing Fee: As to any Distribution Date, all income and
gain realized from the investment of funds in the Collection Account during
the period from and including the Master Servicer Remittance Date in the
calendar month immediately preceding the month in which such Distribution Date
occurs, to but excluding the Master Servicer Remittance Date relating to such
Distribution Date.
Master Servicing Fee Rate: Not applicable.
Material Defect: As defined in Section 2.02(c) hereof.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
Corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related
Mortgage, or an Assignment of Mortgage, has been or will be recorded in the
name of MERS, as agent for the holder from time to time of the Mortgage Note.
Moody's: Xxxxx'x Investors Service, Inc., or any successor in
interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Trustee or a Custodian pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage or a manufactured housing contract
conveyed, transferred, sold, assigned to or deposited with the Trustee
pursuant to Section 2.01 or Section 2.05, including without limitation, each
Mortgage Loan listed on the Mortgage Loan Schedule, as amended from time to
time.
Mortgage Loan Sale Agreement: The agreement, dated as of January 1,
2001, for the sale of the Mortgage Loans by Xxxxxx Capital to the Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Any of Pool 1, Pool 2 or Pool 3.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: Either of (x) the fee simple interest in real
property, together with improvements thereto including any exterior
improvements to be completed within 120 days of disbursement of the related
Mortgage Loan proceeds, or (y) in the case of a Cooperative Loan, the related
Cooperative Shares and Proprietary Lease, securing the indebtedness of the
Mortgagor under the related Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization Certificate: None.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds net of unreimbursed expenses incurred
in connection with liquidation or foreclosure and unreimbursed Advances,
Servicing Advances, Servicing Fees and Retained Interest, if any, received and
retained in connection with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage
Rate thereof reduced by the sum of the applicable Servicing Fee Rate, the
applicable Retained Interest Rate, if any, and, if applicable, the premium
rate on any lender-provided mortgage insurance.
Net Prepayment Interest Shortfall: With respect to each Mortgage Pool
and any Distribution Date, the excess, if any, of any Prepayment Interest
Shortfalls with respect to the Mortgage Loans in such Mortgage Pool for such
date over the sum of any amounts paid by the Servicers with respect to such
shortfalls and any amount that is required to be paid by the Master Servicer
in respect of such shortfalls pursuant to this Agreement.
Non-AP Percentage: As to any Discount Mortgage Loan in Pool 1 and
Pool 3, the percentage equivalent of the fraction, the numerator of which is
the Net Mortgage Rate of such Discount Mortgage Loan and the denominator of
which is the applicable Designated Rate. As to any Non-Discount Mortgage Loan
in Pool 1 and Pool 3, 100%. As to any Mortgage Loan in Pool 2, 100%.
Non-AP Pool Balance: As to each of Pool 1 or Pool 3 and any
Distribution Date, the sum of the applicable Non-AP Percentage of the
Scheduled Principal Balance of each Mortgage Loan included in such Mortgage
Pool. As to Pool 2 and any Distribution Date, the aggregate Scheduled
Principal Balance of each Mortgage Loan included in such Mortgage Pool.
Non-AP Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3,
Class 1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class 1-A9, Class
1-AX, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2-A6,
Class 3-A, Class 3-AX or Class R Certificate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: With respect to Pool 1, any Mortgage Loan
with a Net Mortgage Rate equal to or greater than 7.15% per annum; with
respect to Pool 3, any Mortgage Loan with a Net Mortgage Rate equal to or
greater than 7.00% per annum.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than (i) a citizen or resident of
the United States; (ii) a corporation (or entity treated as a corporation for
tax purposes) created or organized in the United States or under the laws of
the United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a partnership
for tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; or (v) a trust, if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last
clause of the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
U.S. Persons prior to such date, may elect to continue to be U.S. Persons.
Notice of Nonpayment: The notice to be delivered by the Trustee to
the Class 1-A5 Certificate Insurer with respect to any Distribution Date
pursuant to Section 5.07(a), which shall be in the form attached to the Class
1-A5 Certificate Insurance Policy.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class 1-A4, Class 1-A6, Class 1-A9, Class
1-AX, Class 2-A3, Class 2-A5 or Class 3-AX Certificate.
Notional Component: None.
Offering Document: Either of the private placement memorandum dated
January 26, 2001 relating to the Class B4, Class B5 and Class B6 Certificates,
or the Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee, and who may be in-house or
outside counsel to the Depositor, the Master Servicer or a Servicer but which
must be Independent outside counsel with respect to any such opinion of
counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the taxation, or the federal income tax status,
of each REMIC. For purpose of Section 2.01(c)(i), the Opinion of Counsel
referred to therein may take the form of a memorandum of law or other
acceptable assurance.
Original Credit Support Percentage: With respect to each Class of
Subordinate Certificates, the Credit Support Percentage for such Class of
Certificates on the Closing Date.
Original Group Subordinate Amount: As to any Mortgage Pool, the Group
Subordinate Amount for such Mortgage Pool on the Closing Date.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate and the related
Class, such Certificate's percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any Certificate other than a
Notional Certificate, the Percentage Interest evidenced thereby shall equal
the initial Certificate Principal Amount thereof divided by the initial Class
Principal Amount of all Certificates of the same Class. With respect to any
Notional Certificate, the Percentage Interest evidenced thereby shall be as
specified on the face thereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: Xxxxxx Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. 2510.3-101.
Pool 1: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 1.
Pool 1 AX Loan: Any Non-Discount Mortgage Loan in Pool 1 excluding
any Retained Interest Mortgage Loan (each listed on Schedule D hereto).
Pool 1 Mortgage Loan: Any Mortgage Loan in Pool 1.
Pool 2: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 2.
Pool 2 Mortgage Loan: Any Mortgage Loan in Pool 2.
Pool 3: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 3.
Pool 3 AX Loan: Any Non-Discount Mortgage Loan in Pool 3 excluding
any Retained Interest Mortgage Loan (each listed on Schedule F hereto).
Pool 3 Mortgage Loan: Any Mortgage Loan in Pool 3.
Pool PMI Policy: Not applicable.
Preference Amount: The meaning assigned to such term in the Class
1-A5 Certificate Insurance Policy.
Prepayment Interest Shortfall: With respect to any Distribution Date
and any Principal Prepayment in part or in full, the difference between (i)
one full month's interest at the applicable Mortgage Rate (giving effect to
any applicable Relief Act Reduction), as reduced by the applicable Servicing
Fee Rate and the applicable Retained Interest Rate, if any, on the outstanding
principal balance of such Mortgage Loan immediately prior to such prepayment
and (ii) the amount of interest actually received with respect to such
Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty Amounts: With respect to any Distribution Date,
all premiums or charges paid by the obligors under the Mortgage Notes due to
Principal Prepayments collected by the Servicers during the immediately
preceding Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if
any, on an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Amount Schedules: Not applicable.
Principal Only Certificate: Any Class 1-AP or Class 3-AP Certificate.
Principal Prepayment: Any Mortgagor payment of principal (other than
a Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the applicable Servicing
Agreement.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated January 26, 2001,
together with the accompanying prospectus dated January 26, 2001, relating to
each Class of Certificates other than the Class B4, Class B5 and Class B6
Certificates.
Purchase Price: With respect to the repurchase of a Mortgage Loan
pursuant to this Agreement, an amount equal to the sum of (a) 100% of the
unpaid principal balance of such Mortgage Loan, (b) accrued interest thereon
at the Mortgage Rate, from the date as to which interest was last paid to (but
not including) the Due Date immediately preceding the related Distribution
Date and (c) any unreimbursed Servicing Advances with respect to such Mortgage
Loan. The Class 1-A5 Certificate Insurer shall be reimbursed from the Purchase
Price for any unpaid Reimbursement Amount due to the Class 1-A5 Certificate
Insurer with respect to such repurchased Mortgage Loan. The Master Servicer or
the applicable Servicer (or the Trustee, if applicable) shall be reimbursed
from the Purchase Price for any Mortgage Loan or related REO Property for any
Advances made with respect to such Mortgage Loan that are reimbursable to the
Master Servicer or such Servicer under this Agreement or the related Servicing
Agreement, as well as any unreimbursed Servicing Advances and accrued and
unpaid Master Servicing Fees or Servicing Fees, as applicable.
QIB: As defined in Section 3.03(c).
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Collection Account or the
Certificate Account and insuring a minimum, fixed or floating rate of return
on investments of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency in one of its
two highest rating categories or, if such insurance company has no long-term
debt, whose claims paying ability is rated by each Rating Agency in one of its
two highest rating categories, and whose short-term debt is rated by each
Rating Agency in its highest rating category;
(b) provide that the Trustee may exercise all of the rights under
such contract or surety bond without the necessity of taking any action by any
other Person;
(c) provide that if at any time the then current credit
standing of the obligor under such guaranteed investment contract is such that
continued investment pursuant to such contract of funds would result in a
downgrading of any rating of the Certificates (which in the case of the Class
1-A5 Certificates is determined without regard to the Class 1-A5 Certificate
Insurance Policy), the Trustee shall terminate such contract without penalty
and be entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided under
such contract to the date of delivery of such funds to the Trustee;
(d) provide that the Trustee's interest therein shall be transferable
to any successor trustee hereunder; and
(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Collection Account or the Certificate
Account, as the case may be, not later than the Business Day prior to any
Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the related Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided and whose claims paying
ability is rated by each Rating Agency in its highest rating category or whose
selection as an insurer will not adversely affect the rating of the
Certificates (which in the case of the Class 1-A5 Certificates is determined
without regard to the Class 1-A5 Certificate Insurance Policy).
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan, provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together
with interest thereon at the applicable Mortgage Rate net of the Master
Servicing Fee and the applicable Servicing Fee from the date as to which
interest was last paid through the end of the Due Period in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Trustee for deposit into the Certificate Account, and shall be treated as
a Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not lower than
the Net Mortgage Rate of the related Deleted Mortgage Loan and (in the case of
Pool 1 and Pool 3) will be a Discount Mortgage Loan if the Deleted Mortgage
Loan was a Discount Mortgage Loan or a Non-Discount Mortgage Loan if the
Deleted Mortgage Loan was a Non-Discount Mortgage Loan; (iii) has a remaining
stated term to maturity not longer than, and not more than one year shorter
than, the remaining term to stated maturity of the related Deleted Mortgage
Loan; (iv) (A) has a Loan-to-Value Ratio as of the date of such substitution
of not greater than 80%, provided, however, that if the related Deleted
Mortgage Loan has a Loan-to-Value Ratio of greater than 80%, then the
Loan-to-Value Ratio of such substitute Mortgage Loan may be greater than 80%
but shall not be greater than the Loan-to-Value Ratio of the related Deleted
Mortgage Loan and (B) the addition of such substitute Mortgage Loan does not
increase the weighted average Loan-to-Value Ratio of the related Mortgage Pool
by more than 5%; (v) will comply with all of the representations and
warranties relating to Mortgage Loans set forth herein, as of the date as of
which such substitution occurs; (vi) is not a Cooperative Loan unless the
related Deleted Mortgage Loan was a Cooperative Loan; (vii) if applicable, has
the same index as and a margin not less than that of the related Deleted
Mortgage Loan; (viii) has not been delinquent for a period of more than 30
days more than once in the twelve months immediately preceding such date of
substitution; (ix) is covered by a Primary Mortgage Insurance Policy if the
related Deleted Mortgage Loan is so covered, and the Loan-to-Value Ratio of
such Mortgage Loan is greater than 80%; and (x) has a Credit Score not greater
than 20 points lower than the Credit Score of the related Deleted Mortgage
Loan, provided, however, that if the Deleted Mortgage Loan does not have a
Credit Score, then such substitute Mortgage Loan shall have a Credit Score
equal to or greater than 700. In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one mortgage
loan is substituted for one or more Deleted Mortgage Loans, then (a) the
Scheduled Principal Balance referred to in clause (i) above shall be
determined such that the aggregate Scheduled Principal Balance of all such
substitute Mortgage Loans shall not exceed the aggregate Scheduled Principal
Balance of all Deleted Mortgage Loans and (b) each of (1) the rate referred to
in clause (ii) above, (2) the remaining term to stated maturity referred to in
clause (iii) above, (3) the Loan-to-Value Ratio referred to in clause (iv)
above and (4) the Credit Score referred to in clause (x) above shall be
determined on a weighted average basis, provided that the final scheduled
maturity date of any Qualifying Substitute Mortgage Loan shall not exceed the
Final Scheduled Distribution Date of any Class of Certificates. Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall
certify such qualification in writing to the Trustee.
Rating Agency: Each of S&P and Xxxxx'x.
Realized Loss: (a) with respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, plus (ii) interest at the applicable Net Mortgage
Rate from the date as to which interest was last paid up to the last day of
the month of such liquidation, minus (iii) Liquidation Proceeds received, net
of amounts that are reimbursable to the Master Servicer or the applicable
Servicer with respect to such Mortgage Loan (other than Advances of principal
and interest) including expenses of liquidation, and (b) with respect to each
Mortgage Loan that has become the subject of a Deficient Valuation, the
difference between the unpaid principal balance of such Mortgage Loan
immediately prior to such Deficient Valuation and the unpaid principal balance
of such Mortgage Loan as reduced by the Deficient Valuation. In determining
whether a Realized Loss on a Liquidated Mortgage Loan is a Realized Loss of
interest or principal, Liquidation Proceeds shall be allocated, first, to
payment of expenses related to such Liquidated Mortgage Loan (including
payment of any Retained Interest), then to accrued unpaid interest and finally
to reduce the principal balance of the Mortgage Loan.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the related Cooperative Corporation and the originator of
such Mortgage Loan to establish the rights of such originator in the related
Cooperative Property.
Record Date: With respect to any Distribution Date and each Class of
Certificates other than any Class 2-A2 and Class 2-A3 Certificates, the close
of business on the last Business Day of the month immediately preceding the
month in which such Distribution Date occurs with respect to any Distribution
Date and any Class 2-A2 and Class 2-A3 Certificates, the day immediately
preceding the related Distribution Date.
Redemption Certificate: Any Class 1-A5 Certificate.
Reference Banks: As defined in Section 4.05.
Reimbursement Amount: As defined in Section 5.02(a)(vi).
Relevant UCC: The Uniform Commercial Code as in effect in the
applicable jurisdiction.
Relief Act Reduction: With respect to any Mortgage Loan as to which
there has been a reduction in the amount of interest collectible thereon as a
result of application of the Solders' and Sailors' Civil Relief Act of 1940,
as amended, any amount by which interest collectible on such Mortgage Loan for
the Due Date in the related Due Period is less than interest accrued thereon
for the applicable one-month period at the Mortgage Rate without giving effect
to such reduction.
REMIC: Each of the Lower Tier REMIC and the Upper Tier REMIC, as
described in the Preliminary Statement hereto.
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 86OG of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the foregoing may be
in effect from time to time.
Remittance Date: The day in each month on which each Servicer is
required to remit payments to the account maintained by the Master Servicer,
as specified in the related Servicing Agreement, which is the 18th day of each
month (or if such 18th day is not a Business Day, the next succeeding Business
Day).
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Reserve Interest Rate: As defined in Section 4.05.
Residual Certificate: Any Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department and having direct responsibility for the administration of this
Agreement.
Restricted Certificate: Any Class B4, Class B5 or Class B6
Certificate.
Retained Interest: Interest in respect of each Retained Interest
Mortgage Loan, retained in each case by the Retained Interest Holder at the
Retained Interest Rate.
Retained Interest Mortgage Loan: Each Mortgage Loan listed on
Schedule B hereto.
Retained Interest Holder: Xxxxxx Capital or any successor in interest
by assignment or otherwise.
Retained Interest Rate: With respect to each Retained Interest
Mortgage Loan, the excess of the Mortgage Rate of such Mortgage Loan over the
applicable Trust Rate.
Rounding Account: The Class 1-A5 Rounding Account.
S&P: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor in interest.
Scheduled Amount: Not applicable.
Scheduled Certificate: None.
Scheduled Component: None.
Scheduled Payment: Each scheduled payment of principal and interest
(or of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan, as reduced (except where otherwise specified herein) by the amount of
any related Debt Service Reduction (excluding all amounts of principal and
interest that were due on or before the Cut-off Date whenever received) and,
in the case of an REO Property, an amount equivalent to the Scheduled Payment
that would have been due on the related Mortgage Loan if such Mortgage Loan
had remained in existence. In the case of any bi-weekly payment Mortgage Loan,
all payments due on such Mortgage Loan during any Due Period shall be deemed
collectively to constitute the Scheduled Payment due on such Mortgage Loan in
such Due Period.
Scheduled Principal Amount: As to any Distribution Date and each
Mortgage Pool, an amount equal to the amount described in clause (i)(b) of the
definition of Senior Principal Distribution Amount.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as
of any Distribution Date, the principal balance of such Mortgage Loan at the
close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or before
the Due Date in the related Due Period, whether or not received from the
Mortgagor or advanced by the applicable Servicer or the Master Servicer, and
all amounts allocable to unscheduled principal payments (including Principal
Prepayments, Net Liquidation Proceeds, Insurance Proceeds and condemnation
proceeds, in each case to the extent identified and applied prior to or during
the applicable Prepayment Period) and (ii) any REO Property as of any
Distribution Date, the Scheduled Principal Balance of the related Mortgage
Loan on the Due Date immediately preceding the date of acquisition of such REO
Property by or on behalf of the Trustee (reduced by any amount applied as a
reduction of principal on the Mortgage Loan). With respect to any Mortgage
Loan as of the Cut-off Date, as specified in the Mortgage Loan Schedule.
Securities Administrator: Xxxxx Fargo Bank Minnesota, N. A., not in
its individual capacity but solely as Securities Administrator, or any
successor in interest, or if any successor Securities Administrator shall be
appointed as herein provided, then such successor Securities Administrator.
Securities Administrator Account: A separate account established
pursuant to Section 4.07.
Securities Administrator Fee: As to any Distribution Date, all income
and gain realized from the investment of funds (i) in the Securities
Administrator Account during the period from and including the Master Servicer
Remittance Date in the calendar month immediately preceding the month in which
such Distribution Date occurs, to but excluding the Master Servicer Remittance
Date relating to such Distribution Date and (ii) in the Certificate Account
during the period from and including the Deposit Date in the calendar month
immediately preceding the month in which such Distribution Date occurs, to but
excluding the Deposit Date relating to such Distribution Date.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Cooperative Shares and the
originator of the related Mortgage Note that defines the terms of the security
interest in such Cooperative Shares and the related Proprietary Lease.
Security Entitlement: The meaning specified in Section 8-102(a)(17)
of the UCC.
Seller: Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc.,
or any successor in interest.
Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class
1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class 1-A9, Class 1-AX,
Class 1-AP, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class
2-A6, Class 3-A, Class 3-AX, Class 3-AP or Class R Certificate.
Senior Percentage: With respect to each Mortgage Pool and any
Distribution Date, the percentage equivalent of the fraction, the numerator of
which is the aggregate of the Certificate Principal Amounts of the Class 1-A1,
Class 1-A2, Class 1-A3, Class 1-A5, Class 1-A7, Class 1-A8 and Class R
Certificates, in the case of Pool 1, the Class 2-A1, Class 2-A2, Class 2-A4
and Class 2-A6 Certificates, in the case of Pool 2, and the Class 3-A
Certificates, in the case of Pool 3, immediately prior to such Distribution
Date and the denominator of which is the related Non-AP Pool Balance for the
immediately preceding Distribution Date.
Senior Prepayment Percentage: With respect to each Mortgage Pool and
any Distribution Date occurring during the five years beginning on the first
Distribution Date, 100%. With respect to each Mortgage Pool and for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date, the related Senior Percentage plus the following percentage
of the related Subordinate Percentage for such Distribution Date: for any
Distribution Date in the first year thereafter, 70%; for any Distribution Date
in the second year thereafter, 60%; for any Distribution Date in the third
year thereafter, 40%; for any Distribution Date in the fourth year thereafter,
20%; and for any subsequent Distribution Date, 0%; provided, however, that if
on any of the foregoing Distribution Dates the Senior Percentage for any
Mortgage Pool exceeds the initial Senior Percentage for such Mortgage Pool,
the Senior Prepayment Percentage for any Mortgage Pool for such Distribution
Date shall once again equal 100% for such Distribution Date.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage for any Mortgage Pool below the level in effect for the most recent
prior period set forth in the paragraph above shall be effective on any
Distribution Date if, as of the first Distribution Date as to which any such
decrease applies, (i) the average outstanding principal balance on such
Distribution Date and for the preceding five Distribution Dates of all
Mortgage Loans in such Mortgage Pool that were delinquent 60 days or more
(including for this purpose any Mortgage Loans in foreclosure and the
Scheduled Payments that would have been due on Mortgage Loans with respect to
which the related Mortgaged Property has been acquired by the Trust Fund if
the related Mortgage Loan had remained in existence) is greater than or equal
to 50% of the applicable Group Subordinate Amount immediately prior to such
Distribution Date or (ii) cumulative Realized Losses with respect to the
Mortgage Loans in any Mortgage Pool exceed (a) with respect to the
Distribution Date on the fifth anniversary of the first Distribution Date, 30%
of the related Original Group Subordinate Amount, (b) with respect to the
Distribution Date on the sixth anniversary of the first Distribution Date, 35%
of the related Original Group Subordinate Amount, (c) with respect to the
Distribution Date on the seventh anniversary of the first Distribution Date,
40% of the related Original Group Subordinate Amount, (d) with respect to the
Distribution Date on the eighth anniversary of the first Distribution Date,
45% of the related Original Group Subordinate Amount, and (e) with respect to
the Distribution Date on the ninth anniversary of the first Distribution Date
or thereafter, 50% of the related Original Group Subordinate Amount. After the
Class Principal Amount of each Class of Senior Certificates in any Certificate
Group has been reduced to zero, the Senior Prepayment Percentage for the
related Mortgage Pool shall be 0%.
Senior Principal Distribution Amount: For each Certificate Group and
any Distribution Date, the sum of the following amounts:
(i) the product of (1) the related Senior Percentage
for such date and (2) the principal portion (multiplied by the
applicable Non-AP Percentage) of each Scheduled Payment (without
giving effect to any Debt Service Reduction occurring prior to the
Bankruptcy Coverage Termination Date), on each Mortgage Loan in the
related Mortgage Pool due during the related Due Period;
(ii) the product of (a) the related Senior Prepayment
Percentage for such date and (b) each of the following amounts
(multiplied by the applicable Non-AP Percentage): (1) each Principal
Prepayment on the Mortgage Loans in the related Mortgage Pool
collected during the related Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan in
the related Mortgage Pool that was finally liquidated during the
related Prepayment Period) representing or allocable to recoveries of
principal received during the related Prepayment Period, and (3) the
principal portion of all proceeds of the purchase of any Mortgage
Loan in the related Mortgage Pool (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually
received by the Trustee during the related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable
to principal of any Mortgage Loan in the related Mortgage Pool that
was finally liquidated during the related Prepayment Period, the
lesser of (a) the related net Liquidation Proceeds allocable to
principal (multiplied by the applicable Non-AP Percentage) and (b)
the product of the related Senior Prepayment Percentage for such date
and the Scheduled Principal Balance (multiplied by the applicable
Non-AP Percentage) of such related Mortgage Loan at the time of
liquidation; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
If on any Distribution Date the Class Principal Amount of each Class of Senior
Certificates (other than any Class AP Certificates) in any Certificate Group
has been reduced to zero, the Senior Principal Distribution Amount for such
Certificate Group for such date (following such reduction) and each subsequent
Distribution Date shall be zero.
Servicer: Any Servicer that has entered into any of the Servicing
Agreements attached as Exhibit E hereto, or any successors in interest.
Initially, the Servicers are Aurora Loan Services Inc., Chase Manhattan
Mortgage Corporation, GreenPoint Mortgage Funding, Inc., IndyMac Bank, F.S.B.,
CFS Bank, Ohio Savings Bank and First Horizon Home Loan Corporation.
Servicing Advances: Expenditures incurred by the Servicer in
connection with the liquidation or foreclosure of a Mortgage Loan which are
eligible for reimbursement under the Servicing Agreement.
Servicing Agreement: Each Servicing Agreement between a Servicer, the
Seller and the Trustee, dated as of January 1, 2001, attached hereto in
Exhibit E, and any other servicing agreement entered into between a successor
servicer and the Seller or the Trustee pursuant to the terms hereof.
Servicing Fee: The Servicing Fee specified in the applicable
Servicing Agreement.
Servicing Fee Rate: With respect to any Servicer, as specified in the
applicable Servicing Agreement.
Servicing Officer: Any officer of the Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished by
the Master Servicer to the Trustee, as such list may from time to time be
amended.
Special Hazard Loss: With respect to the Mortgage Loans, (x) any
Realized Loss arising out of any direct physical loss or damage to a Mortgaged
Property which is caused by or results from any cause, exclusive of any loss
covered by a hazard policy or a flood insurance policy required to be
maintained in respect of such Mortgaged Property and any loss caused by or
resulting from (i) normal wear and tear, (ii) conversion or other dishonest
act on the part of the Trustee, the Master Servicer, any Servicer or any of
their agents or employees, or (iii) errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or a part thereof
ensues, or (y) any Realized Loss arising from or related to the presence or
suspected presence of hazardous wastes, or hazardous substances on a Mortgaged
Property unless such loss is covered by a hazard policy or flood insurance
policy required to be maintained in respect of such Mortgaged Property, in any
case, as reported by any Servicer to the Master Servicer.
Special Hazard Loss Limit: As of the Cut-off Date, $7,400,169, which
amount shall be reduced from time to time to an amount equal on any
Distribution Date to the lesser of (a) the greatest of (i) 1% of the aggregate
of the Scheduled Principal Balances of the Mortgage Loans; (ii) twice the
Scheduled Principal Balance of the Mortgage Loan having the highest Scheduled
Principal Balance, and (iii) the aggregate Scheduled Principal Balances of the
Mortgage Loans secured by Mortgaged Properties located in the single
California postal zip code area having the highest aggregate Scheduled
Principal Balance of Mortgage Loans of any such postal zip code area and (b)
the Special Hazard Loss Limit as of the Closing Date less the amount, if any,
of Special Hazard Losses incurred with respect to Mortgage Loans since the
Closing Date.
Specified Rating: Not applicable.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Subordinate Certificate: Any Class B Certificate.
Subordinate Certificate Writedown Amount: As to any Distribution
Date, the amount by which (i) the sum of the Class Principal Amounts of all
the Certificates (after giving effect to the distribution of principal and the
application of Realized Losses in reduction of the Certificate Principal
Amounts of the Certificates on such Distribution Date) exceeds (ii) the
aggregate Scheduled Principal Balance of the Mortgage Loans for such
Distribution Date.
Subordinate Class Percentage: With respect to any Distribution Date
and any Class of Subordinate Certificates, the percentage obtained by dividing
the Class Principal Amount of such Class immediately prior to such
Distribution Date by the aggregate Certificate Principal Amount of all
Subordinate Certificates immediately prior to such Distribution Date.
Subordinate Component Percentage: Not applicable.
Subordinate Percentage: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior
Percentage for such Distribution Date.
Subordinate Prepayment Percentage: With respect to each Mortgage Pool
and any Distribution Date, the difference between 100% and the related Senior
Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: For each Certificate Group
and any Distribution Date, the sum of the following:
(i) the product of (1) the related Subordinate
Percentage for such date and (2) the principal portion (multiplied by
the applicable Non-AP Percentage) of each Scheduled Payment (without
giving effect to any Debt Service Reduction occurring prior to the
applicable Bankruptcy Coverage Termination Date) on each Mortgage
Loan in the related Mortgage Pool due during the related Due Period;
(ii) the product of (a) the related Subordinate
Prepayment Percentage for such date and (b) each of the following
amounts (multiplied by the applicable Non-AP Percentage): (1) each
Principal Prepayment on the Mortgage Loans in the related Mortgage
Pool collected during the related Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan in
the related Mortgage Pool that was finally liquidated during the
related Prepayment Period) representing or allocable to recoveries of
principal received during the related Prepayment Period, and (3) the
principal portion of all proceeds of the purchase of any Mortgage
Loan in the related Mortgage Pool (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually
received by the Trustee during the related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable
to principal of any Mortgage Loan in the related Mortgage Pool that
was finally liquidated during the related Prepayment Period, the
related net Liquidation Proceeds allocable to principal (multiplied
by the applicable Non-AP Percentage) less any related amount paid
pursuant to subsection (iii) of the definition of Senior Principal
Distribution Amount for the related Certificate Group; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
TAC Amount: Not applicable.
TAC Certificate: None.
TAC Component: None.
Tax Matters Person: The "tax matters person" as specified in the
REMIC Provisions.
Termination Price: As defined in Section 7.01 hereof.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: Each seller of Mortgage Loans to Xxxxxx Capital pursuant
to a Transfer Agreement.
Trust Fund: The corpus of the trust created pursuant to this
Agreement, consisting of the Mortgage Loans (other than any Retained
Interest), the assignment of the Depositor's rights under the Mortgage Loan
Sale Agreement, such amounts as shall from time to time be held in the
Collection Account, the Certificate Account, any Escrow Account, the
Securities Administrator Account, the Insurance Policies, any REO Property,
the Class 1-A5 Certificate Insurance Policy, the Class 1-A5 Reserve Fund, the
Class 1-A5 Rounding Account, the Class 1-A5 Policy Payments Account and the
other items referred to in, and conveyed to the Trustee under, Section
2.01(a).
Trust Rate: With respect to each Mortgage Loan, the sum of (i) the
related Designated Rate, (ii) the applicable Servicing Fee Rate, and (iii) the
premium rate on any lender-provided mortgage insurance.
Trustee: First Union National Bank, not in its individual capacity
but solely as Trustee, or any successor in interest, or if any successor
trustee or any co-trustee shall be appointed as herein provided, then such
successor trustee and such co-trustee, as the case may be.
UCC: The Uniform Commercial Code as adopted in the State of New York.
Undercollateralization Distribution: As defined in Section
5.02(f)(ii).
Undercollateralized Group: With respect to any Distribution Date, the
Non-AP Senior Certificates of any Certificate Group as to which the aggregate
Certificate Principal Amount thereof, after giving effect to distributions
pursuant to Sections 5.02(a) and (b) on such date is greater than the Non-AP
Pool Balance of the related Mortgage Pool for such Distribution Date.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58, 65
Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Upper Tier REMIC: One of the two separate REMICs as described in the
Preliminary Statement hereto.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement
until the Class Notional Amount of each Class of Notional Certificates has
been reduced to zero, 95% of all Voting Interests shall be allocated to the
Certificates other than the Notional Certificates and 5% of all Voting
Interests shall be allocated to the Notional Certificates. After the Class
Notional Amount of each Class of Notional Certificate has been reduced to
zero, 100% of all Voting Interests shall be allocated to the remaining Classes
of Certificates. Voting Interests allocated to the Notional Certificates shall
be allocated among the Classes of such Certificates (and among the
Certificates of each such Class) in proportion to their Class Notional Amounts
(or Notional Amounts). Voting Interests shall be allocated among the other
Classes of Certificates (and among the Certificates of each such Class) in
proportion to their Class Principal Amounts (or Certificate Principal
Amounts); provided, however, that on and after the date, if any, on which the
Class 1-A5 Certificate Insurer has paid a claim under the Class 1-A5
Certificate Insurance Policy in respect of the Class 1-A5 Certificates, the
Class 1-A5 Certificate Insurer shall be entitled to exercise all consent,
voting and related rights of such class.
Section 1.02. Calculations Respecting Mortgage Loans. |Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan in the Trust Fund shall be made based upon current information as to the
terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans and payments to be made to the Securities
Administrator as supplied to the Securities Administrator by the Master
Servicer. The Securities Administrator shall not be required to recompute,
verify or recalculate the information supplied to it by the Master Servicer.
Article II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. (a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, subject to Sections
2.02, 2.04, 2.05 and 2.06, in trust, all the right, title and interest of the
Depositor in and to the Mortgage Loans. Such conveyance includes, without
limitation, the right to all distributions of principal and interest received
on or with respect to the Mortgage Loans on and after the Cut-off Date (other
than payments of principal and interest due on or before such date) and all
such payments due after such date but received prior to such date and intended
by the related Mortgagors to be applied after such date, together with all of
the Depositor's right, title and interest in and to the Collection Account and
all amounts from time to time credited to and the proceeds of the Collection
Account, the Securities Administrator Account and all amounts from time to
time credited to and the proceeds of the Securities Administrator Account, the
Certificate Account and all amounts from time to time credited to and the
proceeds of the Certificate Account, any Escrow Account established pursuant
to Section 9.06 hereof and all amounts from time to time credited to and the
proceeds of any such Escrow Account, any REO Property and the proceeds
thereof, the Depositor's rights under any Insurance Policies related to the
Mortgage Loans, and the Depositor's security interest in any collateral
pledged to secure the Mortgage Loans, including the Mortgaged Properties and
any Additional Collateral, and any proceeds of the foregoing, to have and to
hold, in trust; and the Trustee declares that, subject to the review provided
for in Section 2.02, it has received and shall hold the Trust Fund, as
trustee, in trust, for the benefit and use of the Holders of the Certificates
and for the purposes and subject to the terms and conditions set forth in this
Agreement, and, concurrently with such receipt, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, in exchange
for the Trust Fund, Certificates in the authorized denominations evidencing
the entire ownership of the Trust Fund. In addition, the Depositor has caused
the Class 1-A5 Certificate Insurer to deliver the Class 1-A5 Certificate
Insurance Policy for the benefit of the Class 1-A5 Certificateholders and has
made an initial deposit to the Class 1-A5 Reserve Fund of $15,000.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale Agreement, including all rights of the Seller
under the Servicing Agreements to the extent assigned under the Mortgage Loan
Sale Agreement. The Trustee hereby accepts such assignment, and shall be
entitled to exercise all rights of the Depositor under the Mortgage Loan Sale
Agreement as if, for such purpose, it were the Depositor. The foregoing sale,
transfer, assignment, set-over, deposit and conveyance does not and is not
intended to result in creation or assumption by the Trustee of any obligation
of the Depositor, the Seller, or any other Person in connection with the
Mortgage Loans or any other agreement or instrument relating thereto except as
specifically set forth herein.
(b) In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, or cause to be delivered to and
deposited with, the Trustee, and/or any custodian acting on the Trustee's
behalf, if applicable, the following documents or instruments with respect to
each Mortgage Loan (each a "Mortgage File") so transferred and assigned:
(i) with respect to each Mortgage Loan, the
original Mortgage Note endorsed without recourse in proper form to
the order of the Trustee, as shown in Exhibit B-4, or in blank (in
each case, with all necessary intervening endorsements as
applicable);
(ii) the original of any guarantee executed in connection with
the Mortgage Note, assigned to the Trustee;
(iii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original recorded Mortgage with evidence of
recording indicated thereon. If, in connection with any Mortgage
Loan, the Depositor cannot deliver the Mortgage with evidence of
recording thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost,
the Depositor shall deliver or cause to be delivered to the Trustee
(or its custodian), in the case of a delay due to recording, a true
copy of such Mortgage, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying
that the copy of such Mortgage delivered to the Trustee (or its
custodian) is a true copy and that the original of such Mortgage has
been forwarded to the public recording office, or, in the case of a
Mortgage that has been lost, a copy thereof (certified as provided
for under the laws of the appropriate jurisdiction) and a written
Opinion of Counsel acceptable to the Trustee and the Depositor that
an original recorded Mortgage is not required to enforce the
Trustee's interest in the Mortgage Loan;
(iv) the original of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loans, or,
as to any assumption, modification or substitution agreement which
cannot be delivered on or prior to the Closing Date because of a
delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for
recordation, a photocopy of such assumption, modification or
substitution agreement, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying
that the copy of such assumption, modification or substitution
agreement delivered to the Trustee (or its custodian) is a true copy
and that the original of such agreement has been forwarded to the
public recording office;
(v) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each
Mortgage Loan;
(vi) if applicable, such original intervening assignments
of the Mortgage, notice of transfer or equivalent instrument (each,
an "Intervening Assignment"), as may be necessary to show a complete
chain of assignment from the originator, or, in the case of an
Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Trustee that such original Intervening
Assignment is not required to enforce the Trustee's interest in the
Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or
certificate, if private mortgage guaranty insurance is required;
(viii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original mortgagee title insurance policy or
attorney's opinion of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage
or equivalent executed in connection with the Mortgage or as to any
security agreement, chattel mortgage or their equivalent that cannot
be delivered on or prior to the Closing Date because of a delay
caused by the public recording office where such document has been
delivered for recordation, a photocopy of such document, pending
delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
security agreement, chattel mortgage or their equivalent delivered
to the Trustee (or its custodian) is a true copy and that the
original of such document has been forwarded to the public recording
office;
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents;
(xi) in connection with any pledge of Additional
Collateral, the original additional collateral pledge and security
agreement executed in connection therewith, assigned to the Trustee;
and
(xii) with respect to any manufactured housing
contract, any related manufactured housing sales contract,
installment loan agreement or participation interest.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) (i) Assignments of Mortgage with respect to each Non-MERS
Mortgage Loan other than a Cooperative Loan shall be recorded; provided,
however, that such Assignments need not be recorded if, in the Opinion of
Counsel (which must be from Independent counsel) acceptable to the Trustee and
the Rating Agencies, recording in such states is not required to protect the
Trustee's interest in the related Non-MERS Mortgage Loans. Subject to the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than 3 months thereafter except to the extent delays are caused by
the applicable recording office), the Trustee, at the expense of the Depositor
and with the cooperation of applicable Servicer, shall cause to be properly
recorded by such Servicer in each public recording office where the related
Mortgages are recorded each Assignment of Mortgage referred to in subsection
(b)(v) above with respect to a Non-MERS Mortgage Loan. With respect to each
Cooperative Loan, the Trustee, at the expense of the Depositor and with the
cooperation of applicable Servicer, shall cause such Servicer to take such
actions as are necessary under applicable law in order to perfect the interest
of the Trustee in the related Mortgaged Property.
(ii) With respect to each MERS Mortgage Loan, the
Trustee, at the expense of the Depositor and at the direction and
with the cooperation of the applicable Servicer, shall cause to be
taken such actions as are necessary to cause the Trustee to be
clearly identified as the owner of each such Mortgage Loan on the
records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee, or to the applicable Custodian on behalf of the
Trustee, under clause (b)(viii) above and is not so delivered, the Depositor
will provide a copy of such Title Insurance Policy to the Trustee, or to the
applicable Custodian on behalf of the Trustee, as promptly as practicable
after the execution and delivery hereof, but in any case within 180 days of
the Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer's Certificate which
shall include a statement to the effect that all amounts received in
connection with such prepayment that are required to be deposited in the
applicable Collection Account pursuant to Section 4.01 have been so deposited.
All original documents that are not delivered to the Trustee or the applicable
Custodian on behalf of the Trustee shall be held by the Master Servicer or the
applicable Servicer in trust for the benefit of the Trustee and the
Certificateholders.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund. |(a) The Trustee, by execution and delivery
hereof, acknowledges receipt of the Mortgage Files pertaining to the Mortgage
Loans listed on the Mortgage Loan Schedule, subject to review thereof by the
Trustee, or by the applicable Custodian on behalf of the Trustee, under this
Section 2.02. The Trustee, or the applicable Custodian on behalf of the
Trustee, will execute and deliver to the Trustee, the Depositor and the Master
Servicer on the Closing Date an Initial Certification in the form annexed
hereto as Exhibit B-1 (or in the form annexed to the applicable Custodial
Agreement as Exhibit B-1, as applicable).
(b) Within 45 days after the Closing Date, the applicable Custodian
will, on behalf of the Trustee and for the benefit of Holders of the
Certificates, review each Mortgage File to ascertain that all required
documents set forth in Section 2.01 have been received and appear on their
face to contain the requisite signatures by or on behalf of the respective
parties thereto, and shall deliver to the Trustee, the Depositor and the
Master Servicer an Interim Certification in the form annexed hereto as Exhibit
B-2 (or in the form annexed to the applicable Custodial Agreement as Exhibit
B-2, as applicable) to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan prepaid in full or any
Mortgage Loan specifically identified in such certification as not covered by
such certification), (i) all of the applicable documents specified in Section
2.01(b) are in its possession and (ii) such documents have been reviewed by it
and appear to relate to such Mortgage Loan. The Trustee, or the applicable
Custodian on behalf of the Trustee, shall make sure that the documents are
executed and endorsed, but shall be under no duty or obligation to inspect,
review or examine any such documents, instruments, certificates or other
papers to determine that the same are valid, binding, legally effective,
properly endorsed, genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded or are in recordable form or
that they are other than what they purport to be on their face. Neither the
Trustee nor any Custodian shall have any responsibility for verifying the
genuineness or the legal effectiveness of or authority for any signatures of
or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (b) above
the Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear
regular on its face (i.e., is mutilated, damaged, defaced, torn or otherwise
physically altered) or appears to be unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule (each, a "Material Defect"), the
Trustee, or the applicable Custodian on behalf of the Trustee, shall promptly
identify the Mortgage Loan to which such Material Defect relates in the
Interim Certificate delivered to the Depositor or the Master Servicer (and to
the Trustee). Within 90 days of its receipt of such notice, the Depositor
shall be required to cure such Material Defect (and, in such event, the
Depositor shall provide the Trustee with an Officer's Certificate confirming
that such cure has been effected). If the Depositor does not so cure such
Material Defect, it shall, if a loss has been incurred with respect to such
Mortgage Loan that would, if such Mortgage Loan were not purchased from the
Trust Fund, constitute a Realized Loss, and such loss is attributable to the
failure of the Depositor to cure such Material Defect, repurchase the related
Mortgage Loan from the Trust Fund at the Purchase Price. A loss shall be
deemed to be attributable to the failure of the Depositor to cure a Material
Defect if, as determined by the Depositor, upon mutual agreement with the
Trustee acting in good faith, absent such Material Defect, such loss would not
have been incurred. Within the two year period following the Closing Date, the
Depositor may, in lieu of repurchasing a Mortgage Loan pursuant to this
Section 2.02, substitute for such Mortgage Loan a Qualifying Substitute
Mortgage Loan subject to the provisions of Section 2.05. The failure of the
Trustee or the applicable Custodian to give the notice contemplated herein
within 45 days after the Closing Date shall not affect or relieve the
Depositor of its obligation to repurchase any Mortgage Loan pursuant to this
Section 2.02 or any other Section of this Agreement requiring the repurchase
of Mortgage Loans from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Trustee, the Depositor and the
Master Servicer a Final Certification substantially in the form annexed hereto
as Exhibit B-3 (or in the form annexed to the applicable Custodial Agreement
as Exhibit B-3, as applicable) evidencing the completeness of the Mortgage
Files in its possession or control, with any exceptions noted thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, the Certificateholders or the Class
1-A5 Certificate Insurer of any unsatisfied duty, claim or other liability on
any Mortgage Loan or to any Mortgagor.
(f) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and deliver the respective
certifications thereof as provided in this Section 2.02.
Section 2.03. Representations and Warranties of the Depositor. |(a)
The Depositor hereby represents and warrants to the Trustee, for the benefit
of Certificateholders, to the Class 1-A5 Certificate Insurer, to the
Securities Administrator and to the Master Servicer, as of the Closing Date or
such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry
on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant
hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on
the part of the Depositor; neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result
in a breach of, or constitute a default under, any of the provisions of
any law, governmental rule, regulation, judgment, decree or order binding
on the Depositor or its properties or the certificate of incorporation or
bylaws of the Depositor;
(iii) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, the Securities Administrator and the Master Servicer,
constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms except as such enforceability may
be subject to (A) applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement; and
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of record
and holder of each Mortgage Loan, and the Depositor had good and
marketable title thereto, and had full right to transfer and sell each
Mortgage Loan to the Trustee free and clear, subject only to (1) liens of
current real property taxes and assessments not yet due and payable and,
if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage acceptable to mortgage
lending institutions in the area in which the related Mortgaged Property
is located and specifically referred to in the lender's Title Insurance
Policy or attorney's opinion of title and abstract of title delivered to
the originator of such Mortgage Loan, and (3) such other matters to which
like properties are commonly subject which do not, individually or in the
aggregate, materially interfere with the benefits of the security
intended to be provided by the Mortgage, of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest,
and had full right and authority, subject to no interest or participation
of, or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to this Agreement.
(b) The representations and warranties of each Transferor with
respect to the related Mortgage Loans in the applicable Transfer Agreement,
which have been assigned to the Trustee hereunder, were made as of the date
specified in the applicable Transfer Agreement (or underlying agreement, if
such Transfer Agreement is in the form of an assignment of a prior agreement).
To the extent that any fact, condition or event with respect to a Mortgage
Loan constitutes a breach of both (i) a representation or warranty of the
applicable Transferor under the applicable Transfer Agreement and (ii) a
representation or warranty of Xxxxxx Capital under the Mortgage Loan Sale
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right to enforce the obligations of the applicable
Transferor under any applicable representation or warranty made by it. The
Trustee acknowledges that Xxxxxx Capital shall have no obligation or liability
with respect to any breach of a representation or warranty made by it with
respect to the Mortgage Loans if the fact, condition or event constituting
such breach also constitutes a breach of a representation or warranty made by
the applicable Transferor in the applicable Transfer Agreement, without regard
to whether such Transferor fulfills its contractual obligations in respect of
such representation or warranty. The Trustee further acknowledges that the
Depositor shall have no obligation or liability with respect to any breach of
any representation or warranty with respect to the Mortgage Loans (except as
set forth in Section 2.03(a)(vi)) under any circumstances.
Section 2.04. Discovery of Breach. |It is understood and agreed that
the representations and warranties (i) set forth in Section 2.03, (ii) of
Xxxxxx Capital set forth in the Mortgage Loan Sale Agreement and assigned to
the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned
by Xxxxxx Capital to the Depositor pursuant to the Mortgage Loan Sale
Agreement and assigned to the Trustee by the Depositor hereunder shall each
survive delivery of the Mortgage Files and the Assignment of Mortgage of each
Mortgage Loan to the Trustee and shall continue throughout the term of this
Agreement. Upon discovery by either the Depositor, the Securities
Administrator, the Master Servicer, the Trustee or the Class 1-A5 Certificate
Insurer of a breach of any of such representations and warranties that
adversely and materially affects the value of the related Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties. Within 90 days of the discovery of a breach of any representation or
warranty given to the Trustee and the Class 1-A5 Certificate Insurer by the
Depositor, any Transferor or Xxxxxx Capital and assigned to the Trustee, the
Depositor, such Transferor or Xxxxxx Capital, as applicable, shall either (a)
cure such breach in all material respects, (b) repurchase such Mortgage Loan
or any property acquired in respect thereof from the Trustee at the Purchase
Price or (c) within the two year period following the Closing Date, substitute
a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan. In the
event of discovery of a breach of any representation and warranty of any
Transferor assigned to the Trustee, the Trustee shall enforce its rights under
the applicable Transfer Agreement and the Mortgage Loan Sale Agreement for the
benefit of Certificateholders. As provided in the Mortgage Loan Sale
Agreement, if any Transferor substitutes for a Mortgage Loan for which there
is a breach of any representations and warranties in the related Transfer
Agreement which adversely and materially affects the value of such Mortgage
Loan and such substitute mortgage loan is not a Qualifying Substitute Mortgage
Loan, under the terms of the Mortgage Loan Sale Agreement, Xxxxxx Capital
will, in exchange for such Substitute Mortgage Loan, (i) provide the
applicable Purchase Price for the affected Mortgage Loan or (ii) within two
years of the Closing Date, substitute such affected Mortgage Loan with a
Qualifying Substitute Mortgage Loan.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.
|(a) With respect to any Mortgage Loan repurchased by the Depositor pursuant
to this Agreement, by Xxxxxx Capital pursuant to the Mortgage Loan Sale
Agreement or by any Transferor pursuant to the applicable Transfer Agreement,
the principal portion of the funds received by the Trustee in respect of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
shall be deposited in the Collection Account. The Trustee, upon receipt of the
full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt
of the Mortgage File for a Qualifying Substitute Mortgage Loan substituted for
a Deleted Mortgage Loan (and any applicable Substitution Amount), shall
release or cause to be released and reassign to the Depositor, Xxxxxx Capital
or the applicable Transferor, as applicable, the related Mortgage File for the
Deleted Mortgage Loan and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation or
warranty, as shall be necessary to vest in such party or its designee or
assignee title to any Deleted Mortgage Loan released pursuant hereto, free and
clear of all security interests, liens and other encumbrances created by this
Agreement, which instruments shall be prepared by the Trustee (or its
custodian), and the Trustee shall have no further responsibility with respect
to the Mortgage File relating to such Deleted Mortgage Loan. The Seller
indemnifies and holds the Trust Fund, the Trustee, the Depositor and each
Certificateholder harmless against any and all taxes, claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgements, and any other costs, fees and expenses that the Trust Fund, the
Trustee, the Depositor and any Certificateholder may sustain in connection
with any actions of the Seller relating to a repurchase of a Mortgage Loan
other than in compliance with the terms of this Section 2.05 and the Mortgage
Loan Sale and Assignment Agreement, to the extent that any such action causes
(i) any federal or state tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on "prohibited transactions" under
Section 860F(a)(l) of the Code or on "contributions after the startup date"
under Section 860G(d)(l) of the Code, or (ii) the REMIC to fail to qualify as
a REMIC at any time that any Certificate is outstanding.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor or Xxxxxx Capital, as applicable, must deliver to the
Trustee (or its custodian) the Mortgage File for the Qualifying Substitute
Mortgage Loan containing the documents set forth in Section 2.01(b) along with
a written certification certifying as to the delivery of such Mortgage File
and containing the granting language set forth in Section 2.01(a); and (ii)
the Depositor will be deemed to have made, with respect to such Qualified
Substitute Mortgage Loan, each of the representations and warranties made by
it with respect to the related Deleted Mortgage Loan. As soon as practicable
after the delivery of any Qualifying Substitute Mortgage Loan hereunder, the
Trustee, at the expense of the Depositor and at the direction and with the
cooperation of the applicable Servicer, shall (i) with respect to a Qualifying
Substitute Mortgage Loan that is a Non-MERS Mortgage Loan, cause the
Assignment of Mortgage to be recorded by such Servicer if required pursuant to
Section 2.01(c)(i), or (ii) with respect to a Qualifying Substitute Mortgage
Loan that is a MERS Mortgage Loan, cause to be taken such actions as are
necessary to cause the Trustee to be clearly identified as the owner of each
such Mortgage Loan on the records of MERS if required pursuant to Section
2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to
the additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to make
the substitution) that, under current law, such substitution will not (A)
affect adversely the status of any REMIC established hereunder as a REMIC, or
of the related "regular interests" as "regular interests" in any such REMIC,
or (B) cause any such REMIC to engage in a "prohibited transaction" or
prohibited contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause. (a) It is intended that the conveyance of
the Depositor's right, title and interest in and to property constituting the
Trust Fund pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Depositor hereby
grants to the Trustee for the benefit of the Holders of the Certificates and
the Class 1-A5 Certificate Insurer a first priority security interest in all
of the Depositor's right, title and interest in, to and under, whether now
owned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting the Trust Fund to secure payment of the Certificates;
and (3) this Agreement shall constitute a security agreement under applicable
law. If such conveyance is deemed to be in respect of a loan and the Trust
created by this Agreement terminates prior to the satisfaction of the claims
of any Person holding any Certificate, the security interest created hereby
shall continue in full force and effect and the Trustee shall be deemed to be
the collateral agent for the benefit of such Person, and all proceeds shall be
distributed as herein provided.
(b) The Trustee shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the other property described above, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. The
Depositor will, at its own expense, make all initial filings on or about the
Closing Date and shall forward a copy of such filing or filings to the
Trustee. Without limiting the generality of the foregoing, the Trustee shall
prepare and forward for filing, or shall cause to be forwarded for filing, at
the expense of the Depositor, all filings necessary to maintain the
effectiveness of any original filings necessary under the relevant UCC to
perfect the Trustee's security interest in or lien on the Mortgage Loans,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of the Seller, the
Depositor or the Trustee, (2) any change of location of the place of business
or the chief executive office of the Seller or the Depositor, (3) any transfer
of any interest of the Seller or the Depositor in any Mortgage Loan or (4) any
change under the relevant UCC or other applicable laws.
Article III
THE CERTIFICATES
Section 3.01. The Certificates. |(a) The Certificates shall be
issuable in registered form only and shall be securities governed by Article 8
of the New York Uniform Commercial Code. The Book-Entry Certificates will be
evidenced by one or more certificates, beneficial ownership of which will be
held in the dollar denominations in Certificate Principal Amount or Notional
Principal Amount, as applicable, or in the Percentage Interests, specified
herein. Each Class of Book-Entry Certificates shall be issued in the minimum
denominations in Certificate Principal Amount (or Notional Amount) or
Percentage Interest specified in the Preliminary Statement hereto and in
integral multiples of $1 or 5% (in the case of Certificates issued in
Percentage Interests) in excess thereof. Each Class of Non-Book Entry
Certificates other than the Residual Certificate shall be issued in
definitive, fully registered form in the minimum denominations in Certificate
Principal Amount (or Notional Amount) specified in the Preliminary Statement
hereto and in integral multiples of $1 in excess thereof. The Residual
Certificate shall be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100% of
the Percentage Interest of such Class. The Certificates may be issued in the
form of typewritten certificates. One Certificate of each Class of
Certificates other than any Class of Residual Certificates may be issued in
any denomination in excess of the minimum denomination.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of
the Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02. Registration. |The Trustee is hereby appointed, and
hereby accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may appoint
a bank or trust company to act as Certificate Registrar. A registration book
shall be maintained for the Certificates collectively. The Certificate
Registrar may resign or be discharged or removed and a new successor may be
appointed in accordance with the procedures and requirements set forth in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. |(a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor
or the Placement Agent, an affiliate (as defined in Rule 405 under the
0000 Xxx) of the Depositor or the Placement Agent or (y) being made to a
"qualified institutional buyer" (a "QIB") as defined in Rule 144A under
the Securities Act of 1933, as amended (the "Act") by a transferor that
has provided the Trustee with a certificate in the form of Exhibit F
hereto; and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the Act
by a transferor who furnishes to the Trustee a letter of the transferee
substantially in the form of Exhibit G hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H (or Exhibit
D-1 in the case of the Class R Certificate) hereto from such transferee or (B)
an Opinion of Counsel satisfactory to the Trustee and the Depositor to the
effect that the purchase and holding of such a Certificate will not constitute
or result in the assets of the Trust Fund being deemed to be "plan assets"
subject to the prohibited transactions provisions of ERISA or Section 4975 of
the Code and will not subject the Trustee or the Depositor to any obligation
in addition to those undertaken in the Agreement; provided, however, that the
Trustee will not require such certificate or opinion in the event that, as a
result of a change of law or otherwise, counsel satisfactory to the Trustee
has rendered an opinion to the effect that the purchase and holding of an
ERISA-Restricted Certificate by a Plan or a Person that is purchasing or
holding such a Certificate with the assets of a Plan will not constitute or
result in a prohibited transaction under ERISA or Section 4975 of the Code.
Each Transferee of an ERISA-Restricted Certificate that is a Book-Entry
Certificate shall be deemed to have made the representations set forth in
Exhibit H. The preparation and delivery of the certificate and opinions
referred to above shall not be an expense of the Trust Fund, the Trustee or
the Depositor. Notwithstanding the foregoing, no opinion or certificate shall
be required for the initial issuance of the ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Trustee with an effective Internal
Revenue Service Form 4224 or successor form at the time and in the manner
required by the Code (any such person who is not covered by clause (A) or (B)
above is referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale
or other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto
as Exhibit D-1 representing and warranting, among other things, that such
transferee is neither a Disqualified Organization, an agent or nominee acting
on behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder
(any such transferee, a "Permitted Transferee") and the proposed transferor
shall deliver to the Trustee an affidavit in substantially the form attached
hereto as Exhibit D-2. In addition, the Trustee may (but shall have no
obligation to) require, prior to and as a condition of any such transfer, the
delivery by the proposed transferee of an Opinion of Counsel, addressed to the
Depositor and the Trustee satisfactory in form and substance to the Depositor,
that such proposed transferee or, if the proposed transferee is an agent or
nominee, the proposed beneficial owner, is not a Disqualified Organization,
agent or nominee thereof, or Non-permitted Foreign Holder. Notwithstanding the
registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-permitted Foreign Holder, such registration shall
be deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Trustee shall not be under any liability to any person for any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder or for
the maturity of any payments due on such Residual Certificate to the Holder
thereof or for taking any other action with respect to such Holder under the
provisions of the Agreement, so long as the transfer was effected in
accordance with this Section 3.03(f), unless the Trustee shall have actual
knowledge at the time of such transfer or the time of such payment or other
action that the transferee is a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder. The Trustee shall be entitled to
recover from any Holder of a Residual Certificate that was a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder at the
time it became a Holder or any subsequent time it became a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder, all
payments made on such Residual Certificate at and after either such times (and
all costs and expenses, including but not limited to attorneys' fees, incurred
in connection therewith). Any payment (not including any such costs and
expenses) so recovered by the Trustee shall be paid and delivered to the last
preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of transfer of a Residual Certificate that
is in fact not permitted by this Section 3.03(f), for making any payment due
on such Certificate to the registered Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered upon receipt of the affidavit described in
the preceding paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
Section 3.04. Cancellation of Certificates. |Any Certificate
surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. |If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Depositor and any Authenticating Agent that such
destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or the Authenticating Agent)
connected therewith. Any replacement Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. |Subject to the provisions of
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Master Servicer, the Trustee, the Certificate Registrar and any agent of any
of them may treat the Person in whose name any Certificate is registered upon
the books of the Certificate Registrar as the owner of such Certificate for
the purpose of receiving distributions pursuant to Sections 5.01 and 5.02 and
for all other purposes whatsoever, and neither the Depositor, the Master
Servicer, the Trustee, the Certificate Registrar nor any agent of any of them
shall be affected by notice to the contrary.
Section 3.07. Temporary Certificates. |(a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. |The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to the Certificateholders. All funds remitted by the
Trustee to any such Paying Agent for the purpose of making distributions shall
be paid to Certificateholders on each Distribution Date and any amounts not so
paid shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the Paying
Agent on or before the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates. |(a) Each Class of Book-Entry
Certificates, upon original issuance, shall be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Depositor. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full force
and effect;
(ii) the Depositor, the Securities Administrator, the Master
Servicer, the Paying Agent, the Registrar and the Trustee may deal
with the Clearing Agency for all purposes (including the making of
distributions on the Book-Entry Certificates) as the authorized
representatives of the Certificate Owners and the Clearing Agency
shall be responsible for crediting the amount of such distributions
to the accounts of such Persons entitled thereto, in accordance with
the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions
of this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Certificates are
issued pursuant to Section 3.09(c), the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on
the Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer's Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Transferor nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable, with respect to such
Definitive Certificates and the Trustee shall recognize the holders of the
Definitive Certificates as Certificateholders hereunder.
Article IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. |(a) On the Closing Date, the
Master Servicer shall open and shall thereafter maintain a segregated account
held in trust (the "Collection Account"), entitled "Aurora Loan Services Inc.,
as Master Servicer, in trust for the benefit of the Holders of Structured
Asset Securities Corporation Mortgage Pass-Through Certificates, Series
2001-1." The Collection Account shall relate solely to the Certificates issued
by the Trust Fund hereunder, and funds in such Collection Account shall not be
commingled with any other monies.
(b) The Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the Master
Servicer shall establish a new Collection Account that is an Eligible Account
within 30 days and transfer all funds on deposit in such existing Collection
Account into such new Collection Account.
(c) The Master Servicer shall give to the Trustee prior written
notice of the name and address of the depository institution at which the
Collection Account is maintained and the account number of such Collection
Account. On each Master Servicer Remittance Date, the entire amount on deposit
in the Collection Account (subject to permitted withdrawals set forth in
Section 4.02), excluding such amounts not included in the Available
Distribution Amount for such Distribution Date pursuant to clauses (a) through
(g) of paragraph (i) of the definition thereof, shall be remitted to the
Securities Administrator for deposit into the Securities Administrator Account
by wire transfer in immediately available funds. The Master Servicer, at its
option, may choose to make daily remittances from the Collection Account to
the Securities Administrator for deposit into the Securities Administrator
Account.
(d) The Master Servicer shall deposit or cause to be deposited into
the Collection Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the Master Servicer on or before the
Closing Date. Thereafter, the Master Servicer shall deposit or cause to be
deposited in the Collection Account on the applicable Remittance Date the
following amounts received or payments made by it (other than in respect of
principal of and interest on the Mortgage Loans due on or before the Cut-Off
Date):
(i) all payments on account of principal, including Principal
Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
(other than payments due prior to the Cut-off Date), net of the
applicable Servicing Fee and Master Servicing Fee with respect to
each such Mortgage Loan, but only to the extent of the amount
permitted to be withdrawn or withheld from the Collection Account in
accordance with Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with respect to
a Mortgage Loan not otherwise specified in this paragraph (d),
including all Net Liquidation Proceeds with respect to the Mortgage
Loans and REO Property, and all amounts received in connection with
the operation of any REO Property, net of any unpaid Servicing Fees
and Master Servicing Fees with respect to such Mortgage Loans, but
only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections
5.04 and 9.21; provided that if a Servicer is also the Retained
Interest Holder with respect to any Mortgage Loan, payments on
account of interest on the Mortgage Loans as to which such Servicer
is the Retained Interest Holder may also be made net of the related
Retained Interest with respect to each such Mortgage Loan.
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or any Servicer
pursuant to Section 5.04 or the applicable Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan purchased by any Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments (selected by and at the written direction of the Master Servicer)
which shall mature not later than the earlier of (a) the Master Servicer
Remittance Date (except that if such Eligible Investment is an obligation of
the Trustee or the Paying Agent, if other than the Trustee, and such
Collection Account is maintained with the Trustee or the Paying Agent, if
other than the Trustee, then such Eligible Investment shall mature not later
than such applicable Distribution Date) or (b) the day on which the funds in
such Collection Account are required to be remitted to the Securities
Administrator for deposit into the Securities Administrator Account, and any
such Eligible Investment shall not be sold or disposed of prior to its
maturity. All such Eligible Investments shall be made in the name of the
Trustee (in its capacity as such) or its nominee. All income and gain realized
from any such investment shall be for the benefit of the Master Servicer and
shall be subject to its withdrawal on order from time to time, subject to
Section 5.05, and shall not be part of the Trust Fund. The amount of any
losses incurred in respect of any such investments shall be deposited in such
Collection Account by the Master Servicer out of its own funds, without any
right of reimbursement therefor, immediately as realized. The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges or assumption fees need not be deposited by the
Master Servicer in the Collection Account and may be retained by the Master
Servicer or the applicable Servicer as additional servicing compensation. If
the Master Servicer deposits in the Collection Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such
Collection Account. In the event the Master Servicer does not provide written
direction to the Trustee pursuant to this Section, all funds on deposit in the
Collection Account shall remain uninvested.
Section 4.02. Application of Funds in the Collection Account. |The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to reimburse itself or any Servicer for Advances made by it
or by such Servicer pursuant to Section 5.04 or the applicable
Servicing Agreement; the Master Servicer's right to reimburse itself
pursuant to this subclause (i) is limited to amounts received on or
in respect of particular Mortgage Loans (including, for this
purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related
Mortgage) which represent late recoveries (net of the applicable
Servicing Fee and the Master Servicing Fee) of payments of principal
or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master
Servicer's or Servicer's right thereto shall be prior to the rights
of the Certificateholders;
(ii) to reimburse itself or any Servicer for any Servicing
Advances made by it or by such Servicer that it determines in good
faith will not be recoverable from amounts representing late
recoveries of payments of principal or interest respecting the
particular Mortgage Loan as to which such Servicing Advance was made
or from Liquidation Proceeds or Insurance Proceeds with respect to
such Mortgage Loan, it being understood, in the case of any such
reimbursement, that such Master Servicer's or Servicer's right
thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse itself or any Servicer from Liquidation
Proceeds for Liquidation Expenses and for amounts expended by it
pursuant to Sections 9.20 and 9.22(a) or the applicable Servicing
Agreement in good faith in connection with the restoration of
damaged property and, to the extent that Liquidation Proceeds after
such reimbursement exceed the unpaid principal balance of the
related Mortgage Loan, together with accrued and unpaid interest
thereon at the applicable Mortgage Rate less the applicable
Servicing Fee and the Master Servicing Fee for such Mortgage Loan to
the Due Date next succeeding the date of its receipt of such
Liquidation Proceeds, to pay to itself out of such excess the amount
of any unpaid assumption fees, late payment charges or other
Mortgagor charges on the related Mortgage Loan and to retain any
excess remaining thereafter as additional servicing compensation, it
being understood, in the case of any such reimbursement or payment,
that such Master Servicer's or Servicer's right thereto shall be
prior to the rights of the Certificateholders;
(iv) to reimburse itself or any Servicer for expenses incurred
by and recoverable by or reimbursable to it or such Servicer
pursuant to Section 9.04, 9.06, 9.16 or 9.22(a) or pursuant to the
applicable Servicing Agreement, and to reimburse itself for any
expenses reimbursable to it pursuant to Section 10.01(c);
(v) to pay to the applicable Person, with respect to each
Mortgage Loan or REO Property acquired in respect thereof that has
been repurchased by such Person pursuant to this Agreement, all
amounts received thereon and not distributed on the date on which
the related repurchase was effected;
(vi) subject to Section 5.05, to pay to itself income earned on
the investment of funds deposited in the Collection Account;
(vii) to make payments to the Securities Administrator for
deposit into the Securities Administrator Account in the amounts and
in the manner provided for in Section 4.04;
(viii) to make distributions of the Retained Interest to the
Retained Interest Holder on each Distribution Date (other than any
Retained Interest not deposited into the Collection Account in
accordance with Section 4.01(d)(iii));
(ix) to make payment to itself, the Trustee, Securities
Administrator and others pursuant to any provision of this
Agreement;
(x) to withdraw funds deposited in error in the Collection
Account;
(xi) to clear and terminate any Collection Account pursuant to
Section 7.02;
(xii) to reimburse a successor Master Servicer (solely in its
capacity as successor Master Servicer), for any fee or advance
occasioned by a termination of the Master Servicer, and the
assumption of such duties by the Trustee or a successor Master
Servicer appointed by the Trustee pursuant to Section 6.14, in each
case to the extent not reimbursed by the terminated Master Servicer,
it being understood, in the case of any such reimbursement or
payment, that the right of the Master Servicer or the Trustee
thereto shall be prior to the rights of the Certificateholders; and
(xiii) to reimburse any Servicer for such amounts as are due
thereto under the applicable Servicing Agreement and have not been
retained by or paid to such Servicer to the extent provided in such
Servicing Agreement.
If provided in the related Servicing Agreement, each Servicer shall
be entitled to retain as additional servicing compensation any Prepayment
Penalty Amounts.
In connection with withdrawals pursuant to subclauses (i), (iii),
(iv) and (vi) above, the Master Servicer's or Servicer's entitlement thereto
is limited to collections or other recoveries on the related Mortgage Loan.
The Master Servicer shall therefore keep and maintain a separate accounting
for each Mortgage Loan it master services for the purpose of justifying any
withdrawal from the Collection Account it maintains pursuant to such subclause
(i), (iii), (iv) and (vi).
Section 4.03. Reports to Certificateholders. |(a) On each
Distribution Date, the Securities Administrator shall have prepared (based
solely on information provided by the Master Servicer) and shall make
available to the Trustee, each Certificateholder and the Class 1-A5
Certificate Insurer a written report setting forth the following information,
by Mortgage Pool and Certificate Group (on the basis of Mortgage Loan level
information obtained from the Servicers):
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates,
other than any Class of Notional Certificates, allocable to
principal on the Mortgage Loans, including Liquidation Proceeds and
Insurance Proceeds, stating separately the amount attributable to
scheduled principal payments and unscheduled payments in the nature
of principal in each Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates,
other than any Class of Principal Only Certificates, allocable to
interest, including any Accrual Amount added to the Class Principal
Amount of any Class of Accrual Certificates;
(iii) the amount, if any, of any distribution to the Holders of
a Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be
made by or on behalf of the Master Servicer or any Servicer (or the
Trustee) with respect to such Distribution Date, (B) the aggregate
amount of such Advances actually made, and (C) the amount, if any,
by which (A) above exceeds (B) above;
(v) the Aggregate Principal Balance of the Mortgage Loans and
the Non-AP Pool Balance of each Mortgage Pool for such Distribution
Date, after giving effect to payments allocated to principal
reported under clause (i) above;
(vi) the Class Principal Amount (or Class Notional Amount) of
each Class of Certificates, to the extent applicable, as of such
Distribution Date after giving effect to payments allocated to
principal reported under clause (i) above (and to the addition of
any Accrual Amount in the case of any Class of Accrual
Certificates), separately identifying any reduction of any of the
foregoing Certificate Principal Amounts due to Realized Losses:
(vii) any Realized Losses realized with respect to the Mortgage
Loans (x) in the applicable Prepayment Period and (y) in the
aggregate since the Cut-off Date, stating separately the amount of
Special Hazard Losses, Fraud Losses and Bankruptcy Losses and the
aggregate amount of such Realized Losses, and the remaining Special
Hazard Loss Amount, Fraud Loss Amount and Bankruptcy Loss Amount;
(viii) the amount of the Master Servicing Fees, Servicing Fees
and Securities Administrator Fee paid during the Due Period to which
such distribution relates;
(ix) the number and aggregate Scheduled Principal Balance of
Mortgage Loans, as reported to the Securities Administrator by the
Master Servicer, (a) remaining outstanding (b) delinquent one month,
(c) delinquent two months, (d) delinquent three or more months, and
(e) as to which foreclosure proceedings have been commenced as of
the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(x) the deemed principal balance of each REO Property as of the
close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(xi) the aggregate principal balance of all Mortgage Loans that
have become REO Property and the number of such Mortgage Loans as of
the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(xii) with respect to substitution of Mortgage Loans in the
preceding calendar month, the Scheduled Principal Balance of each
Deleted Mortgage Loan, and of each Qualifying Substitute Mortgage
Loan;
(xiii) the aggregate outstanding Interest Shortfalls and Net
Prepayment Interest Shortfalls, if any, for each Class of
Certificates, after giving effect to the distribution made on such
Distribution Date;
(xiv) the Certificate Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates;
(xv) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest
which Certificateholders would have received if there were
sufficient available amounts in the Certificate Account and the
amounts actually distributed);
(xvi) any Insured Payments made in respect of Class 1-A5
Guaranteed Distributions paid under the Class 1-A5 Certificate
Insurance Policy; and
(xvii) any amounts withdrawn from the Class 1-A5 Reserve Fund
pursuant to Section 4.06 for that Distribution Date.
In the case of information furnished pursuant to subclauses (i), (ii)
and (vii) above, the amounts shall be expressed as a dollar amount per $1,000
of original principal amount of Certificates.
The Securities Administrator also shall make available to the Trustee
and the Class 1-A5 Certificate Insurer any other "loan-level" information for
any Mortgage Loans that are delinquent three or more months and any REO
Property held by the Trust that is reported by the Master Servicer to the
Trustee.
The foregoing information and reports shall be prepared and
determined by the Securities Administrator based solely on Mortgage Loan data
provided to the Securities Administrator by the Master Servicer (in a format
agreed to by the Securities Administrator, the Trustee and the Master
Servicer) no later than 12:00 p.m. (noon) Eastern Standard Time four Business
Days prior to the Distribution Date. In preparing or furnishing the Mortgage
Loan data to the Trustee, the Master Servicer shall be entitled to rely
conclusively on the accuracy of the information or data regarding the Mortgage
Loans and the related REO Property that has been provided to the Master
Servicer by each Servicer, and the Master Servicer shall not be obligated to
verify, recompute, reconcile or recalculate any such information or data.
On each Distribution Date, the Securities Administrator shall also
provide or make available to the Depositor a copy of the above-described
written report, to the following address: Mortgage Finance Group, Xxxxxx
Brothers Inc., Three World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Xxxxxx X. Xxxxx, or to such other address as the
Depositor may designate.
(b) Upon the reasonable advance written request of any
Certificateholder that is a savings and loan, bank or insurance company, which
request, if received by the Trustee, will be promptly forwarded to the Master
Servicer, the Master Servicer shall provide, or cause to be provided, (or, to
the extent that such information or documentation is not required to be
provided by a Servicer under the applicable Servicing Agreement, shall use
reasonable efforts to obtain such information and documentation from such
Servicer, and provide) to such Certificateholder such reports and access to
information and documentation regarding the Mortgage Loans as such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to investment in the Certificates;
provided, however, that the Master Servicer shall be entitled to be reimbursed
by such Certificateholder for such Master Servicer's actual expenses incurred
in providing such reports and access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Securities
Administrator shall have prepared and the Trustee shall make available to each
Person who at any time during the calendar year was a Certificateholder of
record, and make available to Certificate Owners (identified as such by the
Clearing Agency) in accordance with applicable regulations, a report
summarizing the items provided to Certificateholders pursuant to Section
4.03(a) on an annual basis as may be required to enable such Holders to
prepare their federal income tax returns. Such information shall include the
amount of original issue discount accrued on each Class of Certificates and
information regarding the expenses of the Trust Fund. The Master Servicer
shall provide the Securities Administrator with such information as is
necessary for the Securities Administrator to prepare such reports.
Section 4.04. Certificate Account. |(a) The Trustee shall establish
and maintain in its name, as trustee, a trust account (the "Certificate
Account"), to be held in trust for the benefit of the Certificateholders and
the Class 1-A5 Certificate Insurer until disbursed pursuant to the terms of
this Agreement. The Certificate Account shall be an Eligible Account. If the
existing Certificate Account ceases to be an Eligible Account, the Trustee
shall establish a new Certificate Account that is an Eligible Account within
20 Business Days and transfer all funds on deposit in such existing
Certificate Account into such new Certificate Account. The Certificate Account
shall relate solely to the Certificates issued hereunder and funds in the
Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies
of the Trustee held under this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate
Account on the day on which, or, if such day is not a Business Day, the
Business Day immediately following the day on which, any monies are remitted
by the Securities Administrator to the Trustee all such amounts. The Trustee
shall make withdrawals from the Certificate Account only for the following
purposes:
(i) to withdraw amounts deposited in the Certificate Account in
error;
(ii) to pay the Securities Administrator any investment income
earned with respect to funds in the Certificate Account invested in
Eligible Investments as set forth in subsection (c) below, and to
make payments to itself and others pursuant to any provision of this
Agreement;
(iii) to make payments of the Master Servicing Fee (to the
extent not already withheld or withdrawn from the Collection Account
by the Master Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders and the
Class 1-A5 Certificate Insurer pursuant to Article V; and
(v) to clear and terminate the Certificate Account pursuant to
Section 7.02.
(c) The Trustee may invest, or cause to be invested, funds held in
the Certificate Account, which funds, if invested, shall be invested in
Eligible Investments (which may be obligations of the Trustee described in
paragraph (viii) of the definition thereof). All such investments must be
payable on demand or mature no later than the next Distribution Date, and
shall not be sold or disposed of prior to their maturity. All such Eligible
Investments will be made in the name of the Trustee (in its capacity as such)
or its nominee. All income and gain realized from any such investment shall be
compensation for the Securities Administrator and shall be subject to its
withdrawal on order from time to time. The amount of any losses incurred in
respect of any such investments shall be paid by the Securities Administrator
for deposit in the Certificate Account out of its own funds, without any right
of reimbursement therefor, immediately as realized. Funds held in the
Certificate Account that are not invested shall be held in cash.
Section 4.05. Determination of LIBOR. |(a) If the outstanding
Certificates include any LIBOR Certificates or consist of any LIBOR
Components, then on each LIBOR Determination Date the Securities Administrator
shall determine LIBOR on the basis of the offered LIBOR quotations of the
Reference Banks as of 11:00 a.m. London time on such LIBOR Determination Date
as follows:
(i) If on any LIBOR Determination Date two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Accrual Period will be the arithmetic mean of such offered
quotations (rounding such arithmetic mean if necessary to the
nearest five decimal places;
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Accrual Period will be whichever is the higher of (x) LIBOR as
determined on the previous LIBOR Determination Date or (y) the
Reserve Interest Rate. The "Reserve Interest Rate" will be either
(A) the rate per annum which the Securities Administrator determines
to be the arithmetic mean (rounding such arithmetic mean if
necessary to the nearest five decimal places) of the one-month
Eurodollar lending rates that New York City banks selected by the
Depositor are quoting, on the relevant LIBOR Determination Date, to
the principal London offices of at least two leading banks in the
London interbank market or (B) in the event that the Securities
Administrator can determine no such arithmetic mean, the lowest
one-month Eurodollar lending rate that the New York City banks
selected by the Depositor are quoting on such LIBOR Determination
Date to leading European banks; and
(iii) If on any LIBOR Determination Date the Securities
Administrator is required but is unable to determine the Reserve
Interest Rate in the manner provided in paragraph (ii) above, LIBOR
for the next Accrual Period will be LIBOR as determined on the
previous LIBOR Determination Date or, in the case of the first LIBOR
Determination Date, the Initial LIBOR Rate.
(b) The establishment of LIBOR by the Securities Administrator and
the Securities Administrator's subsequent calculation of the Certificate
Interest Rate or Component Interest Rate (or Rates) applicable to the LIBOR
Certificates and LIBOR Components for the relevant Accrual Period, in the
absence of manifest error, will be final and binding. In all cases, the
Securities Administrator may conclusively rely on quotations of LIBOR for the
Reference Banks as such quotations appear on the display designated "LIUS01M"
on the Bloomberg Financial Markets Commodities News.
(c) As used herein, "Reference Banks" shall mean four leading banks
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) whose quotations appear on the "Bloomberg Screen LIUS01M Index
Page" (as described in the definition of LIBOR) on the applicable LIBOR
Determination Date and (iii) which have been designated as such by the
Depositor and are able and willing to provide such quotations to the Depositor
on each LIBOR Determination Date. The Reference Banks initially shall be:
Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company and
Bankers Trust Company. If any of the initial Reference Banks should be removed
from the Bloomberg Screen LIUS01M Index Page or in any other way fail to meet
the qualifications of a Reference Bank, the Depositor shall use its best
efforts to designate alternate Reference Banks.
(d) If (i) with respect to any LIBOR Determination Date LIBOR is
determined pursuant to clause (a)(iii) of this Section and (ii) on the next
succeeding LIBOR Determination Date LIBOR would, without giving effect to this
paragraph (d), be determined pursuant to such clause (a)(iii), then the
Depositor shall select an alternative interest rate index over which the
Depositor has no control that is used for determining Eurodollar lending rates
and is calculated and published (or otherwise made available) by an
independent third party, and such alternative interest rate index shall
constitute LIBOR for all purposes hereof.
Section 4.06. The Class 1-A5 Reserve Fund. |(a) The Trustee shall
establish and maintain the Class 1-A5 Reserve Fund, which shall be an Eligible
Account into which there shall have been deposited the amount of $15,000 on
the Closing Date. No additional funds will be deposited in the Class 1-A5
Reserve Fund after the Closing Date. All funds deposited in the Class 1-A5
Reserve Fund, other than investment earnings thereon which shall be released
by the Trustee to Xxxxxx Brothers Inc. from time to time by written order,
shall be held in trust for the benefit of the Holders of the Class 1-A5
Certificates until withdrawn in accordance with Section 5.02(d). The amount of
any losses incurred in respect of any such investments shall be paid by Xxxxxx
Capital for deposit in the Class 1-A5 Reserve Fund out of its own funds,
without any right of reimbursement therefor, immediately as realized. The
Class 1-A5 Reserve Fund shall be an "outside reserve fund" under the REMIC
Provisions. Xxxxxx Brothers Inc. shall be the beneficial owner of the Class
1-A5 Reserve Fund for federal and state income tax purposes. The Trustee, upon
the instructions of the Depositor, may invest, or cause to be invested, funds
in the Class 1-A5 Reserve Fund in Eligible Investments (which may be the
obligation of the Trustee).
(b) The Trustee shall from time to time make withdrawals from the
Class 1-A5 Reserve Fund on behalf of the Trust Fund for the following
purposes:
(i) prior to each Distribution Date, to withdraw from the Class
1-A5 Reserve Fund an amount equal to the lesser of (a) any Net
Prepayment Interest Shortfalls and any Relief Act Reductions for
Pool 1 allocable to the Class 1-A5 Certificates for the related
Distribution Date, and (b) the amount on deposit in the Class 1-A5
Reserve Fund, and remit such amount to the Certificate Account for
distribution to the Class 1-A5 Certificateholders on such
Distribution Date; and
(ii) on the earlier of (a) the Distribution Date on which the
Class Principal Amount of the Class 1-A5 Certificates is reduced to
zero and (b) the termination of this Agreement pursuant to Section
7.01, to clear and terminate the Class 1-A5 Reserve Fund and to pay
all amounts on deposit therein to Xxxxxx Brothers Inc. at the
address supplied by it to the Trustee for such purpose.
Section 4.07. Securities Administrator Account. | (a) On the Closing
Date, the Securities Administrator shall open and shall thereafter maintain an
account to be held in trust (the "Securities Administrator Account"), entitled
"Xxxxx Fargo Bank Minnesota, N.A., as Securities Administrator, in trust for
the benefit of the Holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2001-1." The Securities Administrator
Account shall relate solely to the Certificates issued by the Trust Fund
hereunder, and funds in such Securities Administrator Account shall not be
commingled with any other monies.
(b) The Securities Administrator Account shall be an Eligible
Account. If an existing Securities Administrator Account ceases to be an
Eligible Account, the Securities Administrator shall establish a new
Securities Administrator Account that is an Eligible Account within 20
Business Days of notice thereof to the Securities Administrator, and shall
transfer all funds on deposit in such existing Securities Administrator
Account into such new Securities Administrator Account.
(c) The Securities Administrator shall make withdrawals from the
Securities Administrator Account only for the following purposes:
(i) to withdraw amounts deposited in the Securities
Administrator Account in error;
(ii) to make payments of the Securities Administrator Fee to
itself and, to the extent agreed between the Securities
Administrator and the Trustee, to the Trustee and to reimburse the
Securities Administrator or the Trustee for any amounts reimbursable
under the terms of this Agreement;
(iii) to make payments to the Trustee for deposit into the
Certificate Account pursuant to Section 4.07(d); and
(iv) to clear and terminate the Securities Administrator
Account pursuant to Section 7.02.
(d) The Securities Administrator shall give to the Trustee prior
written notice of the name and address of the depository institution at which
the Securities Administrator Account is maintained and the account number of
such Securities Administrator Account. On each Deposit Date, the entire amount
on deposit in the Securities Administrator Account (less any amounts withdrawn
pursuant to Sections 4.07(c)(i) and (ii)), shall be remitted to the Trustee
for deposit into the Certificate Account by wire transfer in immediately
available funds. The Securities Administrator, at its option, may choose to
make daily remittances from the Securities Administrator Account to the
Trustee for deposit into the Certificate Account.
(e) The Securities Administrator shall cause to be deposited into the
Securities Administrator Account on the Master Servicer Remittance Date, any
monies remitted by the Master Servicer to the Securities Administrator on such
date pursuant to the terms of this Agreement.
(f) The Securities Administrator may invest, or cause to be invested,
funds held in the Securities Administrator Account, which funds, if invested,
shall be invested in Eligible Investments (which may be obligations of the
Securities Administrator). All such investments must mature not later than the
Deposit Date, and shall not be sold or disposed of prior to its maturity. All
such Eligible Investments shall be made in the name of the Trustee (in its
capacity as such) or its nominee. All income and gain realized from any such
investment shall be for the benefit of the Securities Administrator and shall
be subject to its withdrawal on order from time to time, and shall not be part
of the Trust Fund. The amount of any losses incurred in respect of any such
investments shall be deposited in such Securities Administrator Account by the
Securities Administrator out of its own funds, without any right of
reimbursement therefor, immediately as realized. The foregoing requirements
for deposit in the Securities Administrator Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Securities Administrator Account need not
be deposited by the Securities Administrator in the Securities Administrator
Account and may be retained by the Securities Administrator as compensation.
If the Securities Administrator deposits in the Securities Administrator
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Securities Administrator Account. Funds held in
the Securities Administrator Account that are not invested shall be held in
cash.
Article V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. |(a) Subject to Section 7.01
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least three Business Days prior to the related
Distribution Date to any Certificateholder owning an aggregate initial
Certificate Principal Amount of at least $2,500,000, or, in the case of the
Notional Certificates and Principal Only Certificates, a Percentage Interest
of more than 25%, by wire transfer in immediately available funds to an
account specified in the request and at the expense of such Certificateholder;
provided, however, that the final distribution in respect of any Certificate
shall be made only upon presentation and surrender of such Certificate at the
Corporate Trust Office. Wire transfers will be made at the expense of the
Holder requesting such wire transfer by deducting a wire transfer fee from the
related distribution. Notwithstanding such final payment of principal of any
of the Certificates, each Residual Certificate will remain outstanding until
the termination of each REMIC and the payment in full of all other amounts due
with respect to the Residual Certificate and at such time such final payment
in retirement of any Residual Certificate will be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office of the Trustee
or at the office of the New York Presenting Agent. If any payment required to
be made on the Certificates is to be made on a day that is not a Business Day,
then such payment will be made on the next succeeding Business Day. Payments
to the Class 1-A5 Certificate Insurer shall in all cases be made by wire
transfer of immediately available funds.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Certificate Principal Amounts (or
initial Notional Amounts), except for amounts redeemed in respect of the
Redemption Certificate pursuant to Sections 5.06(a) and (d).
Section 5.02. Distributions from the Certificate Account. |(a) On
each Distribution Date, the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Available
Distribution Amount with respect to each Mortgage Pool, and shall distribute
such amount to the Class 1-A5 Certificate Insurer, and to the Holders of
record of each Class of Certificates, in the following order of priority based
on the report of the Securities Administrator:
(i) from the Available Distribution Amount for Pool 1, to the
Class 1-A5 Certificate Insurer, the Aggregate Class 1-A5 Certificate
Insurance Premium;
(ii) from the Available Distribution Amount for each Mortgage
Pool, to each Class of Senior Certificates in the related
Certificate Group (other than any Class of Principal Only
Certificates), the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class's allocable share of any
Net Prepayment Interest Shortfalls for the related Mortgage Pool for
such Distribution Date; provided, however, that any shortfall in
available amounts for each Mortgage Pool shall be allocated among
the Classes of the related Certificate Group in proportion to the
amount of Accrued Certificate Interest (as so reduced) that would
otherwise be distributable thereon;
(iii) from the Available Distribution Amount for each Mortgage
Pool, to each Class of Senior Certificates in the related
Certificate Group (other than any Class of Principal Only
Certificates), any related Interest Shortfall for such Distribution
Date; provided, however, that any shortfall in available amounts for
each Mortgage Pool shall be allocated among the Classes of the
related Certificate Group in proportion to the Interest Shortfall
for each such Class on such Distribution Date;
(iv) from the remaining Available Distribution Amount for each
Mortgage Pool, to the Senior Certificates of the related Certificate
Group (other than any Class of Notional Certificates), as follows:
(A) to the Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A5,
Class 1-A7, Class 1-A8, Class 1-AP and Class R Certificates,
from the Available Distribution Amount for Pool 1 for such
Distribution Date, in reduction of their respective Class
Principal Amounts, concurrently, as follows:
(1) to the Class 1-A1, Class 1-A2, Class 1-A3, Class
1-A5, Class 1-A7, Class 1-A8, and Class R Certificates,
the Senior Principal Distribution Amount for Pool 1 for
such Distribution Date, in the following order of
priority:
(a) to the Class R Certificate, until the Class
Principal Amount thereof has been reduced to zero;
(b) if the Distribution Date occurs on or after
the Distribution Date in February 2004, to the Class
1-A5 Certificates, an amount on each Distribution
Date up to $20,000 for each Distribution Date, until
their Class Principal Amount has been reduced to zero;
(c) pro rata, to the Class 1-A7 and Class 1-A8
Certificates, the lesser of (i) the Group 1 NAS
Priority Amount for such Distribution Date and
(ii) 98.6% of the remaining Senior Principal
Distribution Amount for Pool 1 for such Distribution
Date, until the Class Principal Amount thereof has
been reduced to zero;
(d) to the Class 1-A1, Class 1-A2 and Class 1-A3
Certificates, until a total of $1,775,000 has been
distributed under this clause (iv)(A)(1)(d) for such
Distribution Date, concurrently, as follows:
(I) 90.00% of the amount distributable
pursuant to clause (iv)(A)(1)(d) to the Class
1-A1 Certificates, until the Class Principal
Amount there has been reduced to zero; and:
(II) 10.00% of the amount distributable
pursuant to clause (iv)(A)(1)(d), pro rata, to
the Class 1-A2 and Class 1-A3 Certificates,
until the Class Principal Amount thereof has
been reduced to zero;
(e) pro rata, to the Class 1-A2 and Class 1-A3
Certificates, until the Class Principal Amount of
eacg such Class has been reduced to zero; and
(f) sequentially, to the Class 1-A1 and Class
1-45 Certificates, in that order, until their Class
Principal Amount has been reduced to zero; and
(2) to the Class 1-AP Certificates, the AP Principal
Distribution Amount for Pool 1, until the Class Principal
Amount thereof has been reduced to zero;
(B) to the Class 2-A1, Class 2-A2, Class 2-A4 and Class
2-A6 Certificates, from the Senior Principal Distribution
Amount for Pool 2 for such Distribution Date, in reduction of
their respective Class Principal Amounts, in the following
order of priority:
(1) pro rata, to the Class 2-A1, Class 2-A2 and Class
2-A6 Certificates, until the Class Principal Amount of
each Class has been reduced to zero; and
(2) to the Class 2-A4 Certificates, until their Class
Principal Amount has been reduced to zero;
(C) to the Class 3-A and Class 3-AP Certificates, from the
Available Distribution Amount for Pool 3 for such Distribution
Date, in reduction of their respective Class Principal Amounts,
concurrently, as follows:
(1) to the Class 3-A Certificates, the Senior
Principal Distribution Amount for Pool 3 for such
Distribution Date, until the Class Principal Amount
thereof has been reduced to zero; and
(2) to the Class 3-AP Certificates, the AP
Distribution Amount for Pool 3 for such Distribution Date,
until the Class Principal Amount thereof has been reduced
to zero;
(v) to the Class 1-AP and Class 3-AP Certificates, to the
extent of the remaining Available Distribution Amount for all three
Pools, the Class AP Deferred Amount for such Class and Distribution
Date, until the Class Principal Amount thereof has been reduced to
zero; provided, however, that (A) distributions pursuant to this
priority shall not exceed the aggregate Subordinate Principal
Distribution Amount for all three Mortgage Pools for such date; (B)
such amounts will not reduce the Class Principal Amounts of such
Classes; and (C) in the event the aggregate Subordinate Principal
Distribution Amount for all Mortgage Pools is insufficient to fully
pay the Class AP Deferred Amount for the Class 1-AP and Class 3-AP
Certificates, such amount shall be distributed pro rata to such
Classes on the basis of their respective Class AP Deferred Amounts;
(vi) from the Available Distribution Amount for Pool 1, to the
Class 1-A5 Certificate Insurer, any unreimbursed Insured Payments,
plus all amounts due to the Class 1-A5 Certificate Insurer under the
Insurance Agreement, together with interest thereon at the rate
specified in the Insurance Agreement (collectively, the
"Reimbursement Amounts"); and
(vii) from the remaining Available Distribution Amount for all
Mortgage Pools, subject to the prior distribution of amounts
pursuant to Section 5.02(f) in the case of clauses (C), (F), (I),
(L), (O) and (R) below, to the Subordinated Certificates, in the
following order of priority:
(A) to the Class B1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(B) to the Class B1 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(C) to the Class B1 Certificates, in reduction of the
Class Principal Amount thereof, such Class's Subordinate Class
Percentage of each Subordinate Principal Distribution Amount
for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero;
(D) to the Class B2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(E) to the Class B2 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(F) to the Class B2 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Class Principal Amount thereof has
been reduced to zero;
(G) to the Class B3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(H) to the Class B3 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(I) to the Class B3 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Class Principal Amount thereof has
been reduced to zero;
(J) to the Class B4 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(K) to the Class B4 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(L) to the Class B4 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Certificate Principal Balance
thereof has been reduced to zero;
(M) to the Class B5 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(N) to the Class B5 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(O) to the Class B5 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Class Principal Balance thereof has
been reduced to zero;
(P) to the Class B6 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(Q) to the Class B6 Certificates, any Interest Shortfall
for such Class on such Distribution Date; and
(R) to the Class B6 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Certificate Principal Balance
thereof has been reduced to zero.
(b) Net Prepayment Interest Shortfalls for each Mortgage Pool
shall be allocated among the Certificates of the related Certificate Group
(other than any related Principal Only Certificates) pro rata based on (i) in
the case of the related Non-AP Senior Certificates, the Accrued Certificate
Interest otherwise distributable thereon, and (ii) in the case of the
Subordinate Certificates, interest accrued on the related Apportioned
Principal Balances.
(c) (i) If on any Distribution Date the Credit Support
Percentage for the Class B1 Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Class B2, Class B3, Class B4, Class B5 or Class
B6 Certificates on such Distribution Date. (ii) If on any Distribution Date
the Credit Support Percentage for the Class B2 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B3, Class B4, Class
B5 or Class B6 Certificates on such Distribution Date. (iii) If on any
Distribution Date the Credit Support Percentage for the Class B3 Certificates
is less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the Class
B4, Class B5 or Class B6 Certificates on such Distribution Date. (iv) If on
any Distribution Date the Credit Support Percentage for the Class B4
Certificates is less than the Original Credit Support Percentage for such
Class, then, notwithstanding anything to the contrary in Section 5.02(a), no
distribution of amounts described in clauses (ii) and (iii) of the definition
of Subordinate Principal Distribution Amount will be made in respect of the
Class B5 or Class B6 Certificates on such Distribution Date. (v) If on any
Distribution Date the Credit Support Percentage for the Class B5 Certificates
is less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the Class
B6 Certificates on such Distribution Date.
Any amount not distributed in respect of any Class on any
Distribution Date pursuant to the immediately preceding paragraph will be
allocated among the remaining Subordinate Classes in proportion to their
respective Certificate Principal Amounts.
(d) On each Distribution Date, the Trustee shall distribute the
amount withdrawn from the Class 1-A5 Reserve Fund with respect to such
Distribution Date pursuant to Section 4.06, to the extent of funds on deposit
in the Class 1-A5 Reserve Fund, and shall apply such funds to distributions on
the Class 1-A5 Certificates, as interest thereon, in the amount of (i) any Net
Prepayment Interest Shortfalls for Pool 1 allocable to the Class 1-A5
Certificates on such Distribution Date and (ii) any Relief Act Reductions
allocable to the Class 1-A5 Certificates on such Distribution Date.
(e) On each Distribution Date, the Trustee shall distribute to the
Holder of the Class R Certificate any amounts remaining in the Upper Tier
REMIC for such Distribution Date after application of all amounts described in
paragraph (a) of this Section 5.02. Any distributions pursuant to this
paragraph (e) shall not reduce the Class Principal Amount of the Class R
Certificate.
(f) (i) On each Distribution Date prior to the Credit Support
Depletion Date but after the date on which the aggregate Certificate Principal
Amount of the Non-AP Senior Certificates of any Certificate Group has been
reduced to zero, amounts otherwise distributable as principal on each Class of
Subordinate Certificates pursuant to Section 5.02(a)(vii), in reverse order of
priority, in respect of such Class's Subordinate Class Percentage of the
Subordinate Principal Distribution Amount for the Mortgage Pool relating to
such retired Certificates, shall be distributed as principal to the Non-AP
Senior Certificates (other than any Notional Certificates) remaining
outstanding pursuant to Section 5.02(a)(iv), until the Class Principal Amounts
thereof have been reduced to zero, provided that on such Distribution Date (a)
the Aggregate Subordinate Percentage for such Distribution Date is less than
200% of the Aggregate Subordinate Percentage as of the Cut-off Date or (b) the
average outstanding principal balance of the Mortgage Loans in any Mortgage
Pool that are delinquent 60 days or more for the last six months as a
percentage of the related Group Subordinate Amount is greater than or equal to
50%.
(A) On each Distribution Date on which the aggregate
Certificate Principal Amount of the Non-AP Senior Certificates
of any two Certificate Groups has been reduced to zero, any
amounts distributable pursuant to this Section 5.02(f)(i) will
be allocated, as to each applicable Class of Subordinate
Certificates, in proportion to such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for
the Mortgage Pool relating to each such retired Certificate
Group.
(B) On each Distribution Date on which the Non-AP Senior
Certificates of two Certificate Groups remain outstanding, any
amounts distributable pursuant to this Section 5.02(f)(i) will
be distributed in proportion to the aggregate Certificate
Principal Amounts of such Certificates of each such Certificate
Group.
(ii) (A) On any Distribution Date on which any Certificate
Group constitutes an Undercollateralized Group, all amounts
otherwise distributable as principal on the Subordinate
Certificates, in reverse order of priority (other than amounts
necessary to pay Class AP Deferred Amounts or unpaid Interest
Shortfalls) (or, following the Credit Support Depletion Date, such
other amounts described in the immediately following sentence), will
be distributed as principal to the Non-AP Senior Certificates (other
than any Notional Certificates) of such Undercollateralized Group
pursuant to Section 5.02(iv), until the aggregate Certificate
Principal Amount of such Non-AP Senior Certificates equals the
Non-AP Pool Balance of the related Mortgage Pool (such distribution,
an "Undercollateralization Distribution"). In the event that any
Certificate Group constitutes an Undercollateralized Group on any
Distribution Date following the Credit Support Depletion Date,
Undercollateralization Distributions will be made from any Available
Distribution Amount for the Mortgage Pool not related to an
Undercollateralized Group remaining after all required amounts have
been distributed to the Non-AP Senior Certificates of such other
Certificate Group. In addition, the amount of any unpaid Interest
Shortfalls with respect to an Undercollateralized Group on any
Distribution Date (including any Interest Shortfalls for such
Distribution Date) will be distributed to the Non-AP Senior
Certificates of such Undercollateralized Group prior to the payment
of any Undercollateralization Distributions from amounts otherwise
distributable as principal on the Subordinate Certificates, in
reverse order of priority (or, following the Credit Support
Depletion Date, as provided in the preceding sentence).
(B) If on any Distribution Date two Certificate Groups are
Undercollateralized Groups and one Certificate Group is not an
Undercollateralized Group, the distributions described in
paragraph (ii)(A) above will be made in proportion to the
amount by which the aggregate Certificate Principal Amount of
the Non-AP Senior Certificates, after giving effect to
distributions pursuant to Sections 5.02(a) and (b) on such
Distribution Date, of each Undercollateralized Group exceeds
the Non-AP Pool Balance of the related Mortgage Pool for such
Distribution Date.
Section 5.03. Allocation of Realized Losses. |(a) On any Distribution
Date, (x) the applicable AP Percentage of the principal portion of each
Realized Loss (other than any Excess Loss) in respect of a Mortgage Loan in
each Mortgage Pool will be allocated to the related Class of Principal Only
Certificates until the Class Principal Amount thereof has been reduced to
zero; and (y) the applicable Non-AP Percentage of the principal portion of
each Realized Loss (other than any Excess Loss) in respect of a Mortgage Loan
shall be allocated in the following order of priority:
first, to the Class B6 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
fourth, to the Class B3 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
fifth, to the Class B2 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
sixth, to the Class B1 Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
seventh, to the Classes of Senior Certificates of the
related Certificated Group, pro rata, in accordance with their
Class Principal Amounts; provided, that any such loss allocated
to any Class of Accrual Certificates shall be allocated
(subject to Section 5.03(c)) on the basis of the lesser of (x)
the Class Principal Amount thereof immediately prior to the
applicable Distribution Date and (y) the Class Principal Amount
thereof on the Closing Date (as reduced by any Realized Losses
previously allocated thereto).
(b) With respect to any Distribution Date, the applicable Non-AP
Percentage of the principal portion of any Excess Loss in respect of a
Mortgage Loan shall be allocated, pro rata, to the Subordinate Certificates
(without regard to which Mortgage Pool experienced the loss) and the Group 1
Certificates, Group 2 Certificates and Group 3 Certificates (without regard to
whether the Realized Loss was realized by Pool 1, Pool 2 or Pool 3) and on the
basis of the Apportioned Principal Balances of the Classes of Subordinate
Certificates and Class Principal Amounts of the Senior Certificates; provided,
that any such loss allocated to any Class of Accrual Certificates (and any
Accrual Component) shall be allocated (subject to Section 5.03(c)) on the
basis of the lesser of (x) the Class Principal Amount thereof immediately
prior to the applicable Distribution Date and (y) the Class Principal Amount
thereof on the Closing Date (as reduced by any Realized Losses previously
allocated thereto). The applicable AP Percentage of the principal portion of
an Excess Loss in a Mortgage Pool will be applied to the related Class of
Principal Only Certificates until the Class Principal Amount thereof has been
reduced to zero.
(c) Any Realized Losses allocated to a Class of Certificates pursuant
to Section 5.03(a) or (b) shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Principal Amounts. Any
allocation of Realized Losses pursuant to this paragraph (c) shall be
accomplished by reducing the Certificate Principal Amount of the related
Certificates on the related Distribution Date in accordance with Section
5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03
shall be allocated on the Distribution Date in the month following the month
in which such loss was incurred and, in the case of the principal portion
thereof, after giving effect to distributions made on such Distribution Date,
except that the aggregate amount of Realized Losses to be allocated to the
Principal Only Certificates on such Distribution Date will be taken into
account in determining distributions in respect of any related Class AP
Deferred Amount for such date.
(e) On each Distribution Date, the Subordinate Certificate Writedown
Amount for such date shall effect a corresponding reduction in the Certificate
Principal Amount of the lowest ranking Class of outstanding Subordinate
Certificates, which reduction shall occur on such Distribution Date after
giving effect to distributions made on such Distribution Date.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, each outstanding Class
to which any portion of such Realized Loss had previously been allocated shall
be entitled to receive, on the Distribution Date in the month following the
month in which such recovery is received, its pro rata share (based on the
Class Principal Amount thereof) of such recovery, up to the amount of the
portion of such Realized Loss previously allocated to such Class. In the event
that the total amount of such recovery exceeds the amount of Realized Loss
allocated to the outstanding Classes in accordance with the preceding
provisions, each outstanding Class of Certificates shall be entitled to
receive its pro rata share of the amount of such excess, up to the amount of
any unrecovered Realized Loss previously allocated to such Class. Any such
recovery allocated to a Class of Certificates shall not further reduce the
Certificate Principal Amount of such Certificate. Any such amounts not
otherwise allocated to any Class of Certificates, pursuant to this subsection
shall be treated as Principal Prepayments for purposes of this Agreement.
Section 5.04. Advances by Master Servicer and Trustee. |(a) Advances
shall be made in respect of each Master Servicer Remittance Date as provided
herein. If, on any Determination Date, the Master Servicer determines that any
Scheduled Payments due during the related Due Period (other than Balloon
Payments) have not been received, the Master Servicer shall, or cause the
applicable Servicer to, advance such amount, less an amount, if any, to be set
forth in an Officer's Certificate to be delivered to the Trustee on such
Determination Date, which if advanced the Master Servicer or the applicable
Servicer has determined would not be recoverable from amounts received with
respect to such Mortgage Loan, including late payments, Liquidation Proceeds,
Insurance Proceeds or otherwise. If the Master Servicer determines that an
Advance is required, it shall on the Master Servicer Remittance Date
immediately following such Determination Date either (i) remit to the
Securities Administrator from its own funds (or funds advanced by the
applicable Servicer) for deposit in the Securities Administrator Account
immediately available funds in an amount equal to such Advance, (ii) cause to
be made an appropriate entry in the records of the Collection Account that
funds in such account being held for future distribution or withdrawal have
been, as permitted by this Section 5.04, used by the Master Servicer to make
such Advance, and remit such immediately available funds to the Securities
Administrator for deposit in the Securities Administrator Account or (iii)
make Advances in the form of any combination of clauses (i) and (ii)
aggregating the amount of such Advance. Any funds being held in the Collection
Account for future distribution to Certificateholders and so used shall be
replaced by the Master Servicer from its own funds by remittance to the
Securities Administrator for deposit in the Securities Administrator Account
on or before any future Master Servicer Remittance Date to the extent that
funds in the Securities Administrator Account on such Master Servicer
Remittance Date shall be less than payments to Certificateholders required to
be made on the related Distribution Date. The Master Servicer and each
Servicer shall be entitled to be reimbursed from the Collection Account for
all Advances made by it as provided in Section 4.02.
(b) In the event that the Master Servicer fails for any reason to
make an Advance required to be made pursuant to this Section 5.04 on or before
the Master Servicer Remittance Date, the Trustee, as successor Master Servicer
pursuant to Section 6.14, shall, on or before the related Distribution Date,
deposit in the Certificate Account an amount equal to the excess of (a)
Advances required to be made by the Master Servicer or any Servicer that would
have been deposited in such Certificate Account over (b) the amount of any
Advance made by the Master Servicer or any Servicer with respect to such
Distribution Date; provided, however, that the Trustee shall be required to
make such Advance only if it is not prohibited by law from doing so and it has
determined that such Advance would be recoverable from amounts to be received
with respect to such Mortgage Loan, including late payments, Liquidation
Proceeds, Insurance Proceeds, or otherwise. The Trustee shall be entitled to
be reimbursed from the Certificate Account for Advances made by it pursuant to
this Section 5.04 as if it were the Master Servicer.
Section 5.05. Compensating Interest Payments. |The amount of the
Master Servicing Fee payable to the Master Servicer in respect of any
Distribution Date shall be reduced by the amount of any Compensating Interest
Payment for such Distribution Date, but only to the extent such Compensating
Interest Payment is not actually made by a Servicer on the applicable
Remittance Date. Such amount shall not be treated as an Advance and shall not
be reimbursable to the Master Servicer.
Section 5.06. Distributions of Principal on Redemption Certificates.
| (a) Except as provided in subclauses (d) and (f) below, on each Distribution
Date on which distributions in reduction of the Class Principal Amount of a
Class of Redemption Certificates are made, such distributions will be made in
the following order of priority:
(i) any request by the personal representative of a Deceased Holder
or by a surviving tenant by the entirety, by a surviving joint tenant or
by a surviving tenant in common or other Person empowered to act on
behalf of such Deceased Holder upon his or her death, in an amount up to
but not exceeding $100,000 per request; and
(ii) any request by a Living Holder, in an amount up to but not
exceeding $10,000 per request.
Thereafter, distributions will be made as provided in clauses (i) and
(ii) above up to a second $100,000 and $10,000 per request, respectively. This
sequence of priorities will be repeated for each request for principal
distributions made by the Certificate Owners of a Class of Redemption
Certificates until all such requests have been honored.
Requests for distributions in reduction of the Certificate Principal
Amounts of Redemption Certificates presented on behalf of Deceased Holders in
accordance with the provisions of clause (i) above will be accepted in the
order of their receipt by the Clearing Agency. Requests for distributions in
reduction of the Certificate Principal Amounts of Redemption Certificates
presented in accordance with the provisions of clause (ii) above will be
accepted in the order of priority established by the random lot procedures of
the Clearing Agency after all requests with respect to such Class presented in
accordance with clause (i) have been honored. All requests for distributions
in reduction of the Class Principal Amount of a Class of Redemption
Certificates with respect to any Distribution Date shall be made in accordance
with Section 5.06(c) below and must be received by the Clearing Agency and
forwarded to, and received by, the Trustee no later than the close of business
on the related Record Date. Requests for distributions that are received by
the Clearing Agency and forwarded to the Trustee after the related Record Date
and requests, in either case, for distributions timely received but not
accepted with respect to any Distribution Date, will be treated as requests
for distributions in reduction of the Class Principal Amount of the applicable
Class of Redemption Certificates on the next succeeding Distribution Date, and
each succeeding Distribution Date thereafter, until each such request is
accepted or is withdrawn as provided in Section 5.06(c). Such requests as are
not so withdrawn shall retain their order of priority without the need for any
further action on the part of the appropriate Certificate Owner of the related
Redemption Certificate, all in accordance with the procedures of the Clearing
Agency and the Trustee. Upon the transfer of beneficial ownership of any
Redemption Certificate, any distribution request previously submitted with
respect to such Certificate will be deemed to have been withdrawn only upon
the receipt by the Trustee of notification of such withdrawal using a form
required by the Clearing Agency.
Distributions in reduction of the Certificate Principal Amounts of
Redemption Certificates will be applied, in the aggregate, to such
Certificates in an amount equal to the portion of the Available Distribution
Amount distributable to the Redemption Certificates pursuant to Section
5.02(a)(iv), plus any amounts available for distribution from the applicable
Rounding Account pursuant to Section 5.06(e), provided that the aggregate
distribution in reduction of the Class Principal Amount of any Class of
Redemption Certificates on any Distribution Date is made in an integral
multiple of $1,000.
(b) A "Deceased Holder" is a Certificate Owner of a Redemption
Certificate who was living at the time such interest was acquired and whose
authorized personal representative, surviving tenant by the entirety,
surviving joint tenant or surviving tenant in common or other Person empowered
to act on behalf of such Certificate Owner upon his or her death, causes to be
furnished to the Trustee a certified copy of the death certificate of such
Certificate Owner and any additional evidence of death required by and
satisfactory to the Trustee and any tax waivers requested by the Trustee.
Redemption Certificates beneficially owned by tenants by the entirety, joint
tenants or tenants in common will be considered to be beneficially owned by a
single owner. The death of a tenant by the entirety, joint tenant or tenant in
common will be deemed to be the death of the Certificate Owner, and any
Redemption Certificates so beneficially owned will be eligible for priority
with respect to distributions in reduction of the Class Principal Amount of
such Class of Redemption Certificates, subject to the limitations stated
above. Redemption Certificates beneficially owned by a trust will be
considered to be beneficially owned by each beneficiary of the trust to the
extent of such beneficiary's beneficial interest therein, but in no event will
a trust's beneficiaries collectively be deemed to be Certificate Owners of a
number of Individual Redemption Certificates greater than the number of
Individual Redemption Certificates of which such trust is the beneficial
owner. The death of a beneficiary of a trust will be deemed to be the death of
a Certificate Owner of the Redemption Certificates beneficially owned by the
trust to the extent of such beneficiary's beneficial interest in such trust.
The death of an individual who was a tenant by the entirety, joint tenant or
tenant in common in a tenancy that is the beneficiary of a trust will be
deemed to be the death of the beneficiary of the trust. The death of a person
who, during his or her lifetime, was entitled to substantially all of the
beneficial ownership interests in Redemption Certificates will be deemed to be
the death of the Certificate Owner of such Redemption Certificates regardless
of the registration of ownership of such Redemption Certificates, if such
beneficial interest can be established to the satisfaction of the Trustee.
Such beneficial interest will be deemed to exist in typical cases of street
name or nominee ownership, ownership by a trustee, ownership under the Uniform
Gifts to Minors Act and community property or other joint ownership
arrangements between a husband and wife. Beneficial interests shall include
the power to sell, transfer or otherwise dispose of a Redemption Certificate
and the right to receive the proceeds therefrom, as well as interest and
distributions in reduction of the Certificate Principal Amounts of the
Redemption Certificates payable with respect thereto. The Trustee shall not be
under any duty to determine independently (a) the occurrence of the death of
any deceased Certificate Owner or (b) whether an individual is the personal
representative of a Deceased Holder, or the surviving tenant by the entirety,
or the surviving joint tenant, or the surviving tenant in common, or is
otherwise the Person empowered to act on behalf of such Deceased Holder (a
"Representative"). The Trustee shall be entitled to rely on a certificate
executed by the Representative indicating the nature of such Representative's
authority on behalf of the Deceased Holder. The Trustee may rely entirely upon
documentation delivered to it pursuant to this Section 5.06 in establishing
the eligibility of any Certificate Owner to receive the priority accorded
Deceased Holders in this Section 5.06(b), and shall have no liability if it
makes such determination in accordance with such documentation.
(c) Requests for distributions in reduction of the Certificate
Principal Amount of a Redemption Certificate must be made by delivering a
written request therefor to the Clearing Agency Participant or Financial
Intermediary that maintains the account evidencing the Certificate Owner's
interest in such Redemption Certificate. Such Clearing Agency Participant or
Financial Intermediary should in turn make the request of the Clearing Agency
(or, in the case of an Financial Intermediary, such Financial Intermediary
should notify the related Clearing Agency Participant of such request, which
Clearing Agency Participant should make the request of the Clearing Agency) on
a form required by the Clearing Agency and provided to the Clearing Agency
Participant. Upon receipt of such request, the Clearing Agency will date and
time stamp such request and forward such request to the Trustee. The Clearing
Agency may establish such procedures as it deems fair and equitable to
establish the order of receipt of requests for such distributions received by
it on the same day. The Trustee shall not be liable for any delay in delivery
of requests for distributions or withdrawals of such requests by the Clearing
Agency, a Clearing Agency Participant or any Financial Intermediary.
In the event that any requests for distributions in reduction of
the Certificate Principal Amount of Redemption Certificates are rejected by the
the Trustee for failure to comply with the requirements of this Section 5.06,
the Trustee shall return such requests to the appropriate Clearing Agency
Participant with a copy to the Clearing Agency with an explanation as to the
reason for such rejection.
The Trustee shall maintain a list of those Clearing Agency
Participants representing the Certificate Owners of Redemption Certificates
that have submitted requests for distributions in reduction of the Certificate
Principal Amount of such Redemption Certificates, together with the order of
receipt and the amounts of such requests. The Trustee shall notify the
Clearing Agency, the Securities Administrator and the appropriate Clearing
Agency Participants as to which requests should be honored on each
Distribution Date. Requests shall be honored by the Clearing Agency in
accordance with the procedures, and subject to the priorities and limitations,
described in this Section 5.06. The exact procedures to be followed by the
Trustee and the Clearing Agency for purposes of determining such priorities
and limitations shall be those established from time to time by the Trustee or
the Clearing Agency, as the case may be. The decisions of the Trustee and the
Clearing Agency concerning such matters shall be final and binding on all
affected Persons.
Payments in reduction of the Certificate Principal Amounts of
Redemption Certificates shall be made on the applicable Distribution Date and
the Certificate Principal Amounts as to which such payments are made shall
cease to bear interest after the last day of the month preceding the month in
which such Distribution Date occurs.
Any Certificate Owner of a Redemption Certificate that has
requested a distribution may withdraw its request by so notifying in writing
the Clearing Agency Participant or Financial Intermediary that maintains such
Certificate Owner's account. In the event that such account is maintained by a
Financial Intermediary, such Financial Intermediary should notify the related
Clearing Agency Participant which in turn should forward the withdrawal of
such request, on a form required by the Clearing Agency, to the Trustee which
will notify the Securities Administrator of such request. If such notice of
withdrawal of a request for distribution has not been received by the Clearing
Agency and forwarded to the Trustee on or before the Record Date for the next
Distribution Date, the previously made request for distribution will be
irrevocable with respect to the making of distributions in reduction of the
Certificate Principal Amount of such Redemption Certificate on such
Distribution Date.
(d) To the extent, if any, that amounts available for distribution
in reduction of the Class Principal Amount of any Class of Redemption
Certificates on a Distribution Date exceed the dollar amount of requests for
distributions with respect to such Class that have been received by the
related Record Date, as provided in Section 5.06(c) above, distributions in
reduction of the Class Principal Amount of such Class of Redemption
Certificates will be made by mandatory distributions in reduction thereof. The
Trustee shall notify the Clearing Agency and the Securities Administrator of
the aggregate amount of the mandatory distribution in reduction of the Class
Principal Amount of such Class of Redemption Certificates to be made on the
next Distribution Date. The Clearing Agency shall then allocate such aggregate
amount among its Clearing Agency Participants on a random lot basis. Each
Clearing Agency Participant and, in turn, each Financial Intermediary, will
then select, in accordance with its own procedures, Individual Redemption
Certificates from among those held in its accounts to receive mandatory
distributions in reduction of the Class Principal Amount of such Class of
Redemption Certificates, such that the total amount so selected is equal to
the aggregate amount of such mandatory distributions allocated to such
Clearing Agency Participant by the Clearing Agency and to such Financial
Intermediary by its related Clearing Agency Participant, as the case may be.
Clearing Agency Participants and Financial Intermediaries that hold Redemption
Certificates selected for mandatory distributions in reduction of the Class
Principal Amount thereof should provide notice of such mandatory distributions
to the affected Certificate Owners.
(e) On the Closing Date, a Rounding Account shall be established with
the Trustee for each Class of Redemption Certificates, and Xxxxxx Brothers
Inc. shall cause to be initially deposited the sum of $999.99 in each Rounding
Account. On each Distribution Date on which a distribution is made in
reduction of the Class Principal Amount of a Class of Redemption Certificates,
funds on deposit in the applicable Rounding Account shall be, to the extent
needed, withdrawn by the Trustee and applied to round upward to an integral
multiple of $1,000 the aggregate distribution in reduction of the Class
Principal Amount to be made on such Redemption Certificates. Rounding of such
distribution on such Redemption Certificates shall be accomplished, on the
first such Distribution Date, by withdrawing from the applicable Rounding
Account the amount of funds, if any, needed to round the amount otherwise
available for such distribution in reduction of the Class Principal Amount of
such Class of Redemption Certificates upward to the next integral multiple of
$1,000. On each succeeding Distribution Date on which distributions in
reduction of the Class Principal Amount of such Class of Redemption
Certificates are to be made, the aggregate amount of such distributions
allocable to such Class of Redemption Certificates shall be applied first to
repay any funds withdrawn from the applicable Rounding Account and not
previously repaid, and then the remainder of such allocable amount, if any,
shall be similarly rounded upward and applied as distributions in reduction of
the Class Principal Amount of such Class of Redemption Certificates; this
process shall continue on succeeding Distribution Dates until the Class
Principal Amount of such Class of Redemption Certificates has been reduced to
zero. Each Rounding Account shall be an "outside reserve fund" under the REMIC
Provisions that is beneficially owned for all federal income tax purposes by
Xxxxxx Brothers Inc. Xxxxxx Brothers Inc. will report all income, gain,
deduction or loss with respect thereto. The Trustee, upon the written
instructions of the Depositor, may invest, or cause to be invested funds in
and Rounding Account in Eligible Investments (which may be obligations of the
Trustee). The Trustee shall distribute interest earnings, if any, on amounts
held in any Rounding Account as such interest is earned pursuant to written
instructions from Xxxxxx Brothers Inc. to the Trustee. In no event shall the
Trustee be liable for investment losses resulting from investment of funds in
the Rounding Accounts made in accordance with the instructions of the
Depositor.
Notwithstanding anything herein to the contrary, on the Distribution
Date on which distributions in reduction of the Class Principal Amount of any
Class of Redemption Certificates will reduce the Class Principal Amount
thereof to zero or in the event that distributions in reduction of the Class
Principal Amount of such Class of Redemption Certificates are made in
accordance with the provisions set forth in Section 5.06(f), an amount equal
to the difference between $999.99 and the sum then held in the applicable
Rounding Account shall be paid from the Available Distribution Amount for such
Distribution Date to such Rounding Account. Any funds then on deposit in such
Rounding Account shall be distributed to Xxxxxx Brothers Inc.
(f) Notwithstanding any provisions herein to the contrary, on each
Distribution Date following the first Distribution Date on or after the Credit
Support Depletion Date, all distributions in reduction of the Class Principal
Amount of any Class of Redemption Certificates will be made among the Holders
of such Class of Certificates, pro rata, based on their Certificate Principal
Amounts, and will not be made in integral multiples of $1,000 or pursuant to
requested distributions or mandatory distributions by random lot.
(g) In the event that Definitive Certificates representing any Class
of Redemption Certificates are issued pursuant to Section 3.09(c), all
requests for distributions or withdrawals of such requests relating to such
Class must be submitted to the Trustee, and the Trustee shall perform the
functions described in Section 5.06(a) through (c) using its own procedures,
which procedures shall, to the extent practicable, be consistent with the
procedures described in Section 5.06(a) through (c).
Section 5.07. The Class 1-A5 Certificate Insurance Policy. |(a) If,
on the second Business Day before any Distribution Date, the Securities
Administrator determines that an Insured Payment is required to be made by the
Class 1-A5 Certificate Insurer on such Distribution Date, the Securities
Administrator shall determine the amount of any such Insured Payment and shall
give written notice to the Trustee and the Trustee shall give notice to the
Class 1-A5 Certificate Insurer by completing a Notice of Nonpayment in the
form of Exhibit A to the Class 1-A5 Certificate Insurance Policy and
submitting such Notice of Nonpayment by 12:00 noon, New York City time on such
second Business Day as a claim for an Insured Payment. The Trustee's
responsibility for delivering a Notice of Nonpayment to the Class 1-A5
Certificate Insurer, as provided in the preceding sentence, is limited to the
availability, timeliness and accuracy of the information provided by the
Master Servicer.
(b) In the event the Trustee receives a certified copy of an order of
the appropriate court that any scheduled payment of principal or interest on a
Class 1-A5 Certificate has been voided in whole or in part as a preference
payment under applicable bankruptcy law, the Trustee shall promptly notify in
writing the Securities Administrator and the Class 1-A5 Certificate Insurer,
as appropriate, and the Fiscal Agent, if any, and the Trustee shall comply
with the provisions of the Class 1-A5 Certificate Insurance Policy to obtain
payment by the Class 1-A5 Certificate Insurer of such voided scheduled
payment. In addition, the Trustee shall mail notice to all Holders of the
Class 1-A5 Certificates so affected that, in the event that any such Holder's
scheduled payment is so recovered, such Holder will be entitled to payment
pursuant to the terms of the Class 1-A5 Certificate Insurance Policy, a copy
of which shall be made available to such Holders by the Trustee. The Trustee
shall furnish to the Class 1-A5 Certificate Insurer and the appropriate Fiscal
Agent, if any, its records listing the payments on the affected Class 1-A5
Certificates, if any, that have been made by the Trustee and subsequently
recovered from the affected Holders, and the dates on which such payments were
made by the Trustee.
(c) At the time of the execution hereof, and for the purposes hereof,
the Trustee shall establish a separate special purpose trust account in the
name of the Trustee for the benefit of Holders of the Class 1-A5 Certificates
(the "Class 1-A5 Policy Payments Account") over which the Trustee shall have
exclusive control and sole right of withdrawal. The Class 1-A5 Policy Payments
Account shall be an Eligible Account. The Trustee shall deposit any amount
paid under the Class 1-A5 Certificate Insurance Policy into the Class 1-A5
Policy Payments Account and distribute such amount only for the purposes of
making payments to Holders of the Class 1-A5 Certificates in respect of the
Class 1-A5 Guaranteed Distributions (or other amounts payable pursuant to
paragraph (b) above on the Class 1-A5 Certificates by the Class 1-A5
Certificate Insurer pursuant to the Class 1-A5 Certificate Insurance Policy)
for which the related claim was made under the Class 1-A5 Policy. Such amounts
shall be allocated by the Trustee to Holders of Class 1-A5 Certificates
affected by such shortfalls in the same manner as principal and interest
distributions are to be allocated with respect to such Certificates pursuant
to Section 5.02. It shall not be necessary for such payments to be made by
checks or wire transfers separate from the checks or wire transfers used to
make regular payments hereunder with funds withdrawn from the Certificate
Account. However, any payments made on the Class 1-A5 Certificates from funds
in the Class 1-A5 Policy Payments Account shall be noted as provided in
subsection (e) below. Funds held in the Class 1-A5 Policy Payments Account
shall not be invested by the Trustee.
(d) Any funds received from the Class 1-A5 Certificate Insurer for
deposit into the Class 1-A5 Policy Payments Account pursuant to the Class 1-A5
Certificate Insurance Policy in respect of a Distribution Date or otherwise as
a result of any claim under such Class 1-A5 Certificate Insurance Policy shall
be applied by the Trustee directly to the payment in full (i) of the Insured
Payments due on such Distribution Date on the Class 1-A5 Certificates, or (ii)
of other amounts to which payments under the Class 1-A5 Certificate Insurance
Policy are to be applied. Funds received by the Trustee as a result of any
claim under the Class 1-A5 Certificate Insurance Policy shall be used solely
for payment to the Holders of the Class 1-A5 Certificates and may not be
applied for any other purpose, including, without limitation, satisfaction of
any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds
remaining in the Class 1-A5 Policy Payments Account on the first Business Day
after each Distribution Date shall be remitted promptly to the Class 1-A5
Certificate Insurer pursuant to the written instruction of the Class 1-A5
Certificate Insurer.
(e) Each of the Trustee and the Securities Administrator shall keep
complete and accurate records in respect of (i) all funds remitted to the
Trustee by the Class 1-A5 Certificate Insurer and deposited into the Class
1-A5 Policy Payments Account and (ii) the allocation of such funds to (A)
payments of interest on and principal in respect of any Class 1-A5
Certificates, (B) Realized Losses allocated to the Class 1-A5 Certificates,
(C) Net Prepayment Interest Shortfalls and Relief Act Reductions allocated to
the Class 1-A5 Certificates, and (D) payments in respect of Preference
Amounts. The Class 1-A5 Certificate Insurer shall have the right to inspect
such records at reasonable times during normal business hours upon three
Business Days' prior notice to the Trustee. Any Insured Payments disbursed by
the Trustee and the Securities Administrator from proceeds of the Class 1-A5
Certificate Insurance Policy shall be considered payment by the Class 1-A5
Certificate Insurer and not by the Trust Fund with respect to the Class 1-A5
Certificates and the Class 1-A5 Certificates Insurer will be entitled to
receive the related Reimbursement Amount pursuant to Section 5.02(a)(vi).
(f) The Trustee acknowledges, and each Holder of a Class 1-A5
Certificate by its acceptance of such Class 1-A5 Certificate agrees, that,
without the need for any further action on the part of the Class 1-A5
Certificate Insurer or the Trustee, to the extent the Class 1-A5 Certificate
Insurer makes Insured Payments, directly or indirectly, on account of
principal of or interest on any Class 1-A5 Certificates, the Class 1-A5
Certificate Insurer will be fully subrogated to the rights of the Holders of
such Class 1-A5 Certificates to receive the related Reimbursement Amount
pursuant to Section 5.02(a)(vi). The Class 1-A5 Certificateholders, by
acceptance of the Class 1-A5 Certificates, assign their rights as Holders of
the Class 1-A5 Certificates to the extent of the Class 1-A5 Certificate
Insurer's interest with respect to amounts paid under the Class 1-A5
Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such
subrogation and, further agrees to execute such instruments and to take such
actions as, in the sole judgment of the Class 1-A5 Certificate Insurer are
necessary to evidence such subrogation and, subject to the priority of payment
provisions of this Agreement, to perfect the rights of the Class 1-A5
Certificate Insurer to receive any moneys paid or payable in respect of the
Class 1-A5 Certificates under this Agreement or otherwise. Anything herein to
the contrary notwithstanding, solely for purposes of determining the Class
1-A5 Certificate Insurer's rights as subrogee for payments distributable
pursuant to Section 5.02, any payment with respect to distributions to the
Class 1-A5 Certificates that is made with funds received pursuant to the terms
of the Class 1-A5 Certificate Insurance Policy shall not be considered payment
of the Class 1-A5 Certificates from the Trust Fund and shall not result in the
distribution or the provision for the distribution in reduction of the Class
Principal Amount of the Class 1-A5 Certificates or Accrued Certificate
Interest thereon, within the meaning of Article V.
(g) Upon its becoming aware of the occurrence of an Event of Default,
the Trustee shall promptly notify the Class 1-A5 Certificate Insurer of such
Event of Default.
(h) The Trustee shall promptly notify the Securities Administrator
and the Class 1-A5 Certificate Insurer of either of the following as to which
it has actual knowledge: (A) the commencement of any proceeding by or against
the Depositor commenced under the United States bankruptcy code or any other
applicable bankruptcy, insolvency, receivership, rehabilitation or similar law
(an "Insolvency Proceeding") and (B) the making of any claim in connection
with any Insolvency Proceeding seeking the avoidance as a preferential
transfer (a "Preference Claim") of any distribution made with respect to the
Class 1-A5 Certificates. Each Holder of a Class 1-A5 Certificate, by its
purchase of Class 1-A5 Certificates, and the Trustee hereby agree that the
Class 1-A5 Certificate Insurer (so long as no the Class 1-A5 Certificate
Insurer Default exists) may at any time during the continuation of any
proceeding relating to a Preference Claim direct all matters relating to such
Preference Claim, including, without limitation, (i) the direction of any
appeal of any order relating to any Preference Claim and (ii) the posting of
any surety, supersedeas or performance bond pending any such appeal. In
addition and without limitation of the foregoing, the Class 1-A5 Certificate
Insurer shall be subrogated to the rights of the Trustee and each Holder of a
Class 1-A5 Certificate in the conduct of any Preference Claim, including,
without limitation, all rights of any party to an adversary proceeding action
with respect to any court order issued in connection with any such Preference
Claim.
(i) The Trustee shall surrender the Class 1-A5 Certificate Insurance
Policy to the Class 1-A5 Certificate Insurer for cancellation upon the
termination of the Trust Fund pursuant to Section 7.01 hereof.
Article VI
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR;
EVENTS OF DEFAULT
Section 6.01. Duties of Trustee and Securities Administrator. |(a)
The Trustee, except during the continuance of an Event of Default (of which a
Responsible Officer of the Trustee shall have actual knowledge), and the
Securities Administrator undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. Any permissive right
of the Trustee or the Securities Administrator provided for in this Agreement
shall not be construed as a duty of the Trustee or the Securities
Administrator. If an Event of Default (of which a Responsible Officer of the
Trustee shall have actual knowledge) has occurred and has not otherwise been
cured or waived, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs unless the Trustee
is acting as Master Servicer, in which case it shall use the same degree of
care and skill as the Master Servicer hereunder.
(b) Each of the Trustee and the Securities Administrator, upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee or the
Securities Administrator which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that neither the Trustee nor the Securities Administrator shall be responsible
for the accuracy or content of any such resolution, certificate, statement,
opinion, report, document, order or other instrument furnished by the Master
Servicer, to the Trustee or the Securities Administrator, as applicable,
pursuant to this Agreement, and neither the Trustee nor the Securities
Administrator shall be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant
to this Agreement.
(c) Neither the Trustee nor the Securities Administrator shall have
any liability arising out of or in connection with this Agreement, except for
its negligence or willful misconduct. No provision of this Agreement shall be
construed to relieve the Trustee or the Securities Administrator from
liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) Neither the Trustee nor the Securities Administrator shall
be personally liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the
consent or direction of Holders of Certificates as provided in
Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Master Servicer (i) to remit funds
(or to make Advances) or (ii) to furnish information to the Trustee
when required to do so) unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Holders of
the Certificates and this Agreement;
(iii) For all purposes under this Agreement, the Securities
Administrator shall not be deemed to have notice of any Event of
Default (other than resulting from a failure by the Master Servicer
to furnish information to the Securities Administrator when required
to do so) unless a Responsible Officer of the Securities
Administrator has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the
Securities Administrator at the address provided in Section 11.07,
and such notice references the Holders of the Certificates and this
Agreement; and
(iv) No provision of this Agreement shall require the Trustee
or the Securities Administrator to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it, and none of the
provisions contained in this Agreement shall in any event require
the Trustee or the Securities Administrator to perform, or be
responsible for the manner of performance of, any of the obligations
of the Master Servicer under this Agreement except, with respect to
the Trustee, during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and
privileges of, the Master Servicer in accordance with the terms of
this Agreement.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer upon receipt any such complaint, claim, demand, notice or other
document (i) which is delivered to the Corporate Trust Office of the Trustee,
(ii) of which a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee to make a determination
that the real property to which such document relates is a Mortgaged Property.
(e) Neither the Trustee nor the Securities Administrator shall be
personally liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of
Certificateholders of any Class holding Certificates which evidence, as to
such Class, Percentage Interests aggregating not less than 25% as to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or the Securities Administrator, as applicable, or exercising any
trust or power conferred upon the Trustee or the Securities Administrator, as
applicable, under this Agreement.
(f) The Trustee shall not be held liable by reason of any
insufficiency in any account (including without limitation the Collection
Account and the Securities Administrator Account) held by or on behalf of the
Trustee resulting from any investment loss on any Eligible Investment included
therein (except to the extent that the Trustee is the obligor and has
defaulted thereon).
(g) Except as otherwise provided herein, neither the Securities
Administrator nor the Trustee shall have any duty (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any re-recording, re-filing or re-depositing of any thereof,
(B) to see to any insurance, (C) to see to the payment or discharge of any
tax, assessment, or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Collection Account or the
Certificate Account, or (D) to confirm or verify the contents of any reports
or certificates of the Master Servicer delivered to the Trustee pursuant to
this Agreement believed by the Trustee or the Securities Administrator , as
applicable, to be genuine and to have been signed or presented by the proper
party or parties.
(h) Neither the Securities Administrator nor the Trustee shall be
liable in its individual capacity for an error of judgment made in good faith
by a Responsible Officer or other officers of the Trustee or the Securities
Administrator, as applicable, unless it shall be proved that the Trustee or
the Securities Administrator, as applicable, was negligent in ascertaining the
pertinent facts.
(i) Notwithstanding anything in this Agreement to the contrary,
neither the Securities Administrator nor the Trustee shall be liable for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits), even if the Trustee or the
Securities Administrator, as applicable, has been advised of the likelihood of
such loss or damage and regardless of the form of action.
(j) Neither the Securities Administrator nor the Trustee shall be
responsible for the acts or omissions of the other, it being understood that
this Agreement shall not be construed to render them agents of one another.
Section 6.02. Certain Matters Affecting the Trustee and the
Securities Administrator. |Except as otherwise provided in Section 6.01:
(i) Each of the Trustee and the Securities Administrator may
request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate
of auditors, Opinion of Counsel or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) Each of the Trustee and the Securities Administrator may
consult with counsel and any advice of its counsel or Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) Neither the Trustee nor the Securities Administrator
shall be personally liable for any action taken, suffered or omitted
by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by
this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, neither the Trustee nor the Securities Administrator
shall be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document (provided the same appears regular on its
face), unless requested in writing to do so by Holders of at least a
majority in Class Principal Amount (or Class Notional Amount) of
each Class of Certificates; provided, however, that, if the payment
within a reasonable time to the Trustee or the Securities
Administrator, as applicable, 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 or the Securities Administrator, as
applicable, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee or the
Securities Administrator, as applicable, may require reasonable
indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable
expense thereof shall be paid by the Holders requesting such
investigation;
(v) Each of the Trustee and the Securities Administrator may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians, or
attorneys, which agents, custodians or attorneys shall have any and
all of the rights, powers, duties and obligations of the Trustee and
the Securities Administrator conferred on them by such appointment
provided that each of the Trustee and the Securities Administrator
shall continue to be responsible for its duties and obligations
hereunder to the extent provided herein, and provided further that
neither the Trustee nor the Securities Administrator shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by the Trustee or the
Securities Administrator, as applicable;
(vi) Neither the Trustee nor the Securities Administrator shall
be under any obligation to exercise any of the trusts or powers
vested in it by this Agreement or to institute, conduct or defend
any litigation hereunder or in relation hereto, in each case at the
request, order or direction of any of the Certificateholders
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee or the
Securities Administrator, as applicable, reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
(vii) The right of the Trustee and the Securities Administrator
to perform any discretionary act enumerated in this Agreement shall
not be construed as a duty, and neither the Trustee nor the
Securities Administrator shall be answerable for other than its
negligence or willful misconduct in the performance of such act; and
(viii) Neither the Trustee nor the Securities Administrator
shall be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder.
Section 6.03. Trustee and Securities Administrator Not Liable for
Certificates. |The Trustee and the Securities Administrator make no
representations as to the validity or sufficiency of this Agreement, the Class
1-A5 Certificate Insurance Policy or of the Certificates (other than the
certificate of authentication on the Certificates) or of any Mortgage Loan, or
related document save that the Trustee and the Securities Administrator
represent that, assuming due execution and delivery by the other parties
hereto, this Agreement has been duly authorized, executed and delivered by it
and constitutes its valid and binding obligation, enforceable against it in
accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law. The Trustee and the Securities Administrator
shall not be accountable for the use or application by the Depositor of funds
paid to the Depositor in consideration of the assignment of the Mortgage Loans
to the Trust Fund by the Depositor or for the use or application of any funds
deposited into the Collection Account, the Certificate Account, any Escrow
Account or any other fund or account maintained with respect to the
Certificates. The Trustee and the Securities Administrator shall not be
responsible for the legality or validity of this Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates
issued or intended to be issued hereunder. Except as otherwise provided
herein, the Trustee and the Securities Administrator shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
Section 6.04. Trustee and the Securities Administrator May Own
Certificates. |The Trustee, the Securities Administrator and any Affiliate or
agent of the Trustee or Securities Administrator in its individual or any
other capacity may become the owner or pledgee of Certificates and may
transact banking and trust with the other parties hereto with the same rights
it would have if it were not Trustee, Securities Administrator or such agent.
Section 6.05. Eligibility Requirements for Trustee and Securities
Administrator. | Each of the Trustee and the Securities Administrator
hereunder shall at all times be (i) an institution insured by the FDIC and
(ii) a corporation or national banking association, organized and doing
business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or national banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time either the
Trustee or the Securities Administrator shall cease to be eligible in
accordance with provisions of this Section, the Trustee or the Securities
Administrator, as applicable, shall resign immediately in the manner and with
the effect specified in Section 6.06.
Section 6.06. Resignation and Removal of Trustee and Securities
Administrator. | (a) Each of the Trustee and the Securities Administrator may
at any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Trustee or the Securities Administrator, as
applicable, the Depositor and the Master Servicer. Upon receiving such notice
of resignation, the Depositor will promptly appoint a successor trustee or
successor Securities Administrator, as applicable, by written instrument, one
copy of which instrument shall be delivered to the resigning Trustee or
resigning Securities Administrator, as applicable, one copy to the successor
trustee or successor Securities Administrator, as applicable, one copy to the
Master Servicer and one copy to the Class 1-A5 Certificate Insurer. If no
successor trustee or successor Securities Administrator, as applicable, shall
have been so appointed and shall have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Trustee or
resigning Securities Administrator, as applicable, may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) either the Trustee or the Securities
Administrator shall cease to be eligible in accordance with the provisions of
Section 6.05 and shall fail to resign after written request therefor by the
Depositor, (ii) the Trustee or the Securities Administrator shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or the Securities Administrator or of either of their
property shall be appointed, or any public officer shall take charge or
control of the Trustee or the Securities Administrator or of either of their
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii) a tax is imposed or threatened with respect to the Trust
Fund by any state in which the Trustee or the Trust Fund held by the Trustee
is located, or (iv) the continued use of the Trustee or the Securities
Administrator would result in a downgrading of the rating by the Rating
Agencies of any Class of Certificates with a rating (in the case of the Class
1-A5 Certificates, determined without regard to the Class 1-A5 Certificate
Insurance Policy), then the Depositor shall remove the Trustee or the
Securities Administrator, as applicable, and appoint a successor trustee or
successor Securities Administrator, as applicable, by written instrument, one
copy of which instrument shall be delivered to the Trustee or Securities
Administrator, as applicable, so removed, one copy to the successor trustee or
the successor Securities Administrator, as applicable, one copy to the Class
1-A5 Certificate Insurer and one copy to the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee, the Securities Administrator, the
Depositor and the Class 1-A5 Certificate Insurer remove the Trustee or the
Securities Administrator by such written instrument, signed by such Holders or
their attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee or Securities
Administrator, as applicable, so removed, one copy to the Class 1-A5
Certificate Insurer and one copy to the Master Servicer; the Depositor shall
thereupon use its best efforts to appoint a mutually acceptable successor
trustee or successor Securities Administrator, as applicable, in accordance
with this Section.
(d) Any resignation or removal of the Trustee or Securities
Administrator and appointment of a successor trustee or successor Securities
Administrator pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee or the
successor Securities Administrator, as applicable, as provided in Section
6.07.
Section 6.07. Successor Trustee and Successor Securities
Administrator. | (a) Any successor trustee or successor Securities
Administrator appointed as provided in Section 6.06 shall execute, acknowledge
and deliver to the Depositor, the Master Servicer and to its predecessor
trustee or predecessor Securities Administrator, as applicable, an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee or predecessor Securities Administrator, as
applicable, shall become effective and such successor trustee or successor
Securities Administrator, as applicable, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee or securities administrator, as applicable, herein. The
predecessor trustee or predecessor Securities Administrator, as applicable,
shall deliver to the successor trustee (or assign to the Trustee its interest
under each Custodial Agreement, to the extent permitted thereunder) or
Securities Administrator, as applicable, all Mortgage Files and documents and
statements related to each Mortgage Files held by it hereunder, and shall duly
assign, transfer, deliver and pay over to the successor trustee the entire
Trust Fund, together with all necessary instruments of transfer and assignment
or other documents properly executed necessary to effect such transfer and
such of the record or copies thereof maintained by the predecessor trustee in
the administration hereof as may be requested by the successor trustee and
shall thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Master Servicer and the predecessor trustee or
predecessor Securities Administrator, as applicable, shall execute and deliver
such other instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee or
Securities Administrator, as applicable all such rights, powers, duties and
obligations.
(b) No successor trustee or securities administrator, as applicable,
shall accept appointment as provided in this Section unless at the time of
such appointment such successor trustee or securities administrator, as
applicable, shall be eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee or
successor Securities Administrator, as applicable, as provided in this
Section, the Master Servicer shall mail notice of the succession of such
trustee or securities administrator, as applicable, hereunder to the Class
1-A5 Certificate Insurer and to all Holders of Certificates at their addresses
as shown in the Certificate Register and to the Rating Agencies. The expenses
of such mailing shall be borne by the Master Servicer.
Section 6.08. Merger or Consolidation of Trustee or Securities
Administrator. | Any Person into which the Trustee or Securities Administrator
may be merged or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Trustee or
Securities Administrator shall be a party, or any Persons succeeding to the
business of the Trustee or the Securities Administrator, shall be the
successor to the Trustee or the Securities Administrator hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding, provided
that such Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian. | (a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Amount (or Class Notional Amount) of each Class of
Certificates shall each have the power from time to time to appoint one or
more Persons to act either as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan
outside the state where the Trustee has its principal place of business where
such separate trustee or co-trustee is necessary or advisable (or the Trustee
has been advised by the Master Servicer that such separate trustee or
co-trustee is necessary or advisable) under the laws of any state in which a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders and shall have such powers, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The obligation of the Trustee to make Advances pursuant
to Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys
shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee,
co-trustee, or custodian jointly, except to the extent that under
any law of any jurisdiction in which any particular act or acts are
to be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations, including the holding of title to the Trust Fund or
any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing more than
50% of the Aggregate Voting Interests of the Certificates may at any
time accept the resignation of or remove any separate trustee,
co-trustee or custodian, so appointed by it or them, if such
resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. The Trustee shall
not be responsible for any action or inaction of any separate trustee,
co-trustee or custodian. If any separate trustee, co-trustee or custodian
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10. Authenticating Agents. | (a) The Trustee may appoint
one or more Authenticating Agents which shall be authorized to act on behalf
of the Trustee in authenticating Certificates. Wherever reference is made in
this Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall have
responsibility or liability for any action taken by it as such at the
direction of the Trustee. Any Authenticating Agent shall be entitled to
reasonable compensation for its services and, if paid by the Trustee, it shall
be a reimbursable expense pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee and Securities
Administrator. | The Trustee and the Securities Administrator and their
respective directors, officers, employees and agents shall be entitled to
indemnification from the Trust Fund for any loss, liability or expense
incurred in connection with any legal proceeding and incurred without
negligence or willful misconduct on their part, arising out of, or in
connection with, the acceptance or administration of the trusts created
hereunder or in connection with the performance of their duties hereunder,
including any applicable fees and expenses payable pursuant to Section 6.12
and the costs and expenses of defending themselves against any claim in
connection with the exercise or performance of any of their powers or duties
hereunder, provided that:
(i) with respect to any such claim, the Trustee or the
Securities Administrator, as applicable, shall have given the
Depositor, the Master Servicer and the Holders written notice
thereof promptly after the Trustee or the Securities Administrator,
as applicable, shall have knowledge thereof; provided that failure
to so notify shall not relieve the Trust Fund of the obligation to
indemnify the Trustee or the Securities Administrator;
(ii) while maintaining control over its own defense, the
Trustee or the Securities Administrator, as applicable, shall
cooperate and consult fully with the Depositor in preparing such
defense; and
(iii) notwithstanding anything to the contrary in this Section
6.11, the Trust Fund shall not be liable for settlement of any such
claim by the Trustee or the Securities Administrator, as applicable,
entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee or the Securities
Administrator, as applicable, and shall be construed to include, but not be
limited to any loss, liability or expense under any environmental law.
Section 6.12. Fees and Expenses of Securities Administrator,
Custodian and Trustee. | The Securities Administrator shall be entitled to (a)
the Securities Administrator Fee, and is authorized to instruct the Trustee in
writing to pay to the Securities Administrator the amount of income or gain
earned from the investment of funds in the Securities Administrator Account
and the Certificate Account, and (b) all reasonable expenses, disbursements
and advancements incurred or made by the Securities Administrator in
accordance with this Agreement (including fees and expenses of its counsel and
all persons not regularly in its employment), except any such expenses arising
from its negligence, bad faith or willful misconduct. The Trustee and the
Custodian shall be compensated as separately agreed with the Securities
Administrator and the Master Servicer.
Section 6.13. Collection of Monies. | Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold
all such money and property received by it as part of the Trust Fund and shall
distribute it as provided in this Agreement. If the Trustee shall not have
timely received amounts to be remitted with respect to the Mortgage Loans from
the Master Servicer, the Trustee shall request the Master Servicer to make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amount, it may withdraw such
request.
Section 6.14. Events of Default; Trustee To Act; Appointment of
Successor. | (a) The occurrence of any one or more of the following events
shall constitute an "Event of Default":
(i) Any failure by the Master Servicer to furnish the
Securities Administrator the Mortgage Loan data sufficient to
prepare the reports described in Section 4.03(a) which continues
unremedied for a period of one Business Day after the date upon
which written notice of such failure shall have been given to such
Master Servicer by the Trustee or the Securities Administrator or to
such Master Servicer, the Securities Administrator and the Trustee
by the Holders of not less than 25% of the Class Principal Amount
(or Class Notional Amount) of each Class of Certificates affected
thereby; or
(ii) Any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the
covenants or agreements on the part of such Master Servicer
contained in this Agreement which continues unremedied for a period
of 30 days (or 15 days, in the case of a failure to maintain any
Insurance Policy required to be maintained pursuant to this
Agreement) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to such
Master Servicer by the Trustee or the Securities Administrator, or
to such Master Servicer, the Securities Administrator and the
Trustee by the Holders of not less than 25% of the Class Principal
Amount (or Class Notional Amount) of each Class of Certificates
affected thereby; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer, and such decree or order shall
have remained in force undischarged or unstayed for a period of 60
days or any Rating Agency reduces or withdraws or threatens to
reduce or withdraw the rating of the Certificates because of the
financial condition or loan servicing capability of such Master
Servicer; or
(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to such
Master Servicer or of or relating to all or substantially all of its
property; or
(v) The Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose
of all or substantially all of its assets, or consolidate with or
merge into another entity or shall permit another entity to
consolidate or merge into it, such that the resulting entity does
not meet the criteria for a successor servicer as specified in
Section 9.27 hereof; or
(vii) If a representation or warranty set forth in Section 9.14
hereof shall prove to be incorrect as of the time made in any
respect that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have
been eliminated or cured within 60 days after the date on which
written notice of such incorrect representation or warranty shall
have been given to the Master Servicer by the Trustee or the
Securities Administrator, or to the Master Servicer, the Securities
Administrator and the Trustee by the Holders of not less than 25% of
the Aggregate Certificate Principal Amount of each Class of
Certificates; or
(viii) A sale or pledge of the any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master
Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the
Trustee and Certificateholders holding more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of
Certificates;
(ix) Any Servicer at any time is not either an FNMA- or FHLMC-
approved Seller/Servicer, and the Master Servicer has not terminated
the rights and obligations of such Servicer under the applicable
Servicing Agreement and replaced such Servicer with an FNMA- or
FHLMC-approved servicer within 30 days of the absence of such
approval; or
(x) Any failure of the Master Servicer to remit to the Trustee
any payment required to be made to the Trustee for the benefit of
Certificateholders under the terms of this Agreement, including any
Advance, on any Master Servicer Remittance Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates, terminate all of the
rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof. If an Event of Default described in
clause (x) of this Section 6.14 shall occur, then, in each and every case,
subject to applicable law, the Trustee, by notice in writing to the Master
Servicer, shall promptly terminate all of the rights and obligations of the
Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer, and only in its
capacity as Master Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under the terms of this Agreement; and the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the defaulting
Master Servicer as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage Loans
and related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting
Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying Mortgagors of the assignment of the
master servicing function and providing the Trustee or its designee all
documents and records in electronic or other form reasonably requested by it
to enable the Trustee or its designee to assume the defaulting Master
Servicer's functions hereunder and the transfer to the Trustee for
administration by it of all amounts which shall at the time be or should have
been deposited by the defaulting Master Servicer in the Collection Account
maintained by such defaulting Master Servicer and any other account or fund
maintained with respect to the Certificates or thereafter received with
respect to the Mortgage Loans. The Master Servicer being terminated shall bear
all costs of a master servicing transfer, including but not limited to those
of the Trustee reasonably allocable to specific employees and overhead, legal
fees and expenses, accounting and financial consulting fees and expenses, and
costs of amending the Agreement, if necessary.
Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 4.02(i), (ii), (iii), (iv), (v), (vi),
(vii), (ix) and (xi) to the extent such reimbursement relates to the period
prior to such Master Servicer's termination.
If any Event of Default shall occur, the Trustee, upon becoming aware
of the occurrence thereof through the proper execution of its duties under
this Agreement, shall promptly notify the Securities Administrator, the Class
1-A5 Certificate Insurer and the Rating Agencies of the nature and extent of
such Event of Default. The Trustee or the Securities Administrator shall
immediately give written notice to the Master Servicer upon such Master
Servicer's failure to remit funds on the Master Servicer Remittance Date.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.29, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no responsibility for any act or omission of the Master Servicer
prior to the issuance of any notice of termination and shall have no liability
relating to the representations and warranties of the Master Servicer set
forth in Section 9.14. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability herein granted to the
Master Servicer. As compensation therefor, the Trustee shall be entitled to
receive all compensation payable to the Master Servicer under this Agreement,
including the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer as are set
forth in this Agreement, as the successor to such Master Servicer in the
assumption of all of the responsibilities, duties or liabilities of a master
servicer, like the Master Servicer. Any entity designated by the Trustee as a
successor master servicer may be an Affiliate of the Trustee; provided,
however, that, unless such Affiliate meets the net worth requirements and
other standards set forth herein for a successor master servicer, the Trustee,
in its individual capacity shall agree, at the time of such designation, to be
and remain liable to the Trust Fund for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess
of that permitted to the Master Servicer hereunder. The Trustee and such
successor shall take such actions, consistent with this Agreement, as shall be
necessary to effectuate any such succession and may make other arrangements
with respect to the servicing to be conducted hereunder which are not
inconsistent herewith. The Master Servicer shall cooperate with the Trustee
and any successor master servicer in effecting the termination of the Master
Servicer's responsibilities and rights hereunder including, without
limitation, notifying Mortgagors of the assignment of the master servicing
functions and providing the Trustee and successor master servicer, as
applicable, all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor master servicer,
as applicable, all amounts which shall at the time be or should have been
deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Master Servicer to
deliver, or any delay in delivering, cash, documents or records to it, (ii)
the failure of the Master Servicer to cooperate as required by this Agreement,
(iii) the failure of the Master Servicer to deliver the Mortgage Loan data to
the Securities Administrator as required by this Agreement or (iv)
restrictions imposed by any regulatory authority having jurisdiction over the
Master Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default. |
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
and the Class 1-A5 Certificate Insurer (including the institution and
prosecution of all judicial, administrative and other proceedings and the
filings of proofs of claim and debt in connection therewith). Except as
otherwise expressly provided in this Agreement, no remedy provided for by this
Agreement shall be exclusive of any other remedy, and each and every remedy
shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Default.
Section 6.16. Waiver of Defaults. | 35% or more of the Aggregate
Voting Interests of Certificateholders may waive any default or Event of
Default by the Master Servicer in the performance of its obligations
hereunder, except that a default in the making of any required deposit to the
Certificate Account that would result in a failure of the Trustee to make any
required payment of principal of or interest on the Certificates may only be
waived with the consent of 100% of the affected Certificateholders. Upon any
such waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.17. Notification to Holders. | Upon termination of the
Master Servicer or appointment of a successor to the Master Servicer, in each
case as provided herein, the Trustee shall promptly mail notice thereof by
first class mail to the Securities Administrator, the Class 1-A5 Certificate
Insurer and the Certificateholders at their respective addresses appearing on
the Certificate Register. The Trustee shall also, within 45 days after the
occurrence of any Event of Default known to the Trustee, give written notice
thereof to the Securities Administrator and Certificateholders, unless such
Event of Default shall have been cured or waived prior to the issuance of such
notice and within such 45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default. | Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; provided, however, that the Trustee shall be under no obligation to
pursue any such remedy, or to exercise any of the trusts or powers vested in
it by this Agreement (including, without limitation, (i) the conducting or
defending of any administrative action or litigation hereunder or in relation
hereto and (ii) the terminating of the Master Servicer or any successor master
servicer from its rights and duties as master servicer hereunder) at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the cost, expenses and liabilities which may be incurred
therein or thereby; and, provided further, that, subject to the provisions of
Section 8.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee, in accordance with an Opinion of Counsel, determines
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith determines that the action or proceeding so directed
would involve it in personal liability or be unjustly prejudicial to the
non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event of Default. | In the event that the Trustee shall have actual
knowledge of any action or inaction of the Master Servicer that would become
an Event of Default upon the Master Servicer's failure to remedy the same
after notice, the Trustee shall give notice thereof to the Master Servicer.
For all purposes of this Agreement, in the absence of actual knowledge by a
Responsible Officer of the Trustee, the Trustee shall not be deemed to have
knowledge of any failure of the Master Servicer or any other Event of Default
unless notified in writing by the Depositor, the Securities Administrator, the
Master Servicer or a Certificateholder.
Section 6.20. Preparation of Tax Returns and Other Reports. | (a) The
Securities Administrator shall prepare or cause to be prepared on behalf of
the Trust Fund, based upon information calculated in accordance with this
Agreement pursuant to instructions given by the Depositor, and the Securities
Administrator shall file, federal tax returns. If the Trustee requests in
writing that a state tax return or other return is required, then, at the sole
expense of the Trustee, the Securities Administrator shall prepare and file
such state income tax returns and such other returns as may be required by
applicable law relating to the Trust Fund, and, if required by state law, and
shall file any other documents to the extent required by applicable state tax
law (to the extent such documents are in the Securities Administrator's
possession). The Securities Administrator shall forward copies to the
Depositor of all such returns and Form 1099 supplemental tax information and
such other information within the control of the Securities Administrator as
the Depositor may reasonably request in writing, and shall forward to the
Trustee for distribution to each Certificateholder such forms and furnish such
information within the control of the Securities Administrator as are required
by the Code and the REMIC Provisions to be furnished to them, and will prepare
and disseminate to the Trustee for distribution to Certificateholders Form
1099 (supplemental tax information) (or otherwise furnish information within
the control of the Securities Administrator and the Trustee) to the extent
required by applicable law. The Master Servicer will indemnify the Securities
Administrator and the Trustee for any liability of or assessment against the
Securities Administrator or the Trustee, as applicable, resulting from any
error in any of such tax or information returns directly resulting from errors
in the information provided by such Master Servicer.
(b) The Securities Administrator shall prepare and file with the
Internal Revenue Service ("IRS"), on behalf of each of the Lower Tier REMIC
and the Upper Tier REMIC, an application on IRS Form SS-4. The Securities
Administrator, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned for each REMIC, shall promptly forward copies
of such notices to the Master Servicer, the Trustee and the Depositor. The
Securities Administrator will file an IRS Form 8811.
(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K. Thereafter, within 15 days after each Distribution
Date, the Securities Administrator shall, in accordance with industry
standards, file with the Securities and Exchange Commission (the "Commission")
via the Electronic Data Gathering and Retrieval System (XXXXX), a Form 8-K
with a copy of the statement to the Certificateholders for such Distribution
Date as an exhibit thereto. Prior to January 30, 2002, the Securities
Administrator shall, in accordance with industry standards, file a Form 15
Suspension Notification with respect to the Trust Fund, if applicable. Prior
to March 30, 2002, the Securities Administrator shall file a Form 10-K, in
substance conforming to industry standards, with respect to the Trust Fund.
The Depositor hereby grants to the Securities Administrator a limited power of
attorney to execute and file each such document on behalf of the Depositor.
Such power of attorney shall continue until either the earlier of (i) receipt
by the Securities Administrator from the Depositor of written termination of
such power of attorney and (ii) the termination of the Trust Fund. The
Depositor agrees to promptly furnish to the Securities Administrator, from
time to time upon request, such further information, reports, and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Securities Administrator reasonably deems appropriate to prepare and
file all necessary reports with the Commission. The Securities Administrator
shall have no responsibility to file any items other than those specified in
this section.
Article VII
PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or
Liquidation of All Mortgage Loans. | (a) The respective obligations and
responsibilities of the Trustee, the Securities Administrator and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in Section 7.02, the obligation of
the Master Servicer to make a final remittance to the Securities Administrator
for deposit into the Securities Administrator Account pursuant to Section
4.01, the obligation of the Securities Administrator to make a final
remittance to the Trustee for deposit into the Certificate Account pursuant to
Section 4.07 and the obligations of the Master Servicer to the Trustee
pursuant to Sections 9.10 and 9.14), shall terminate on the earlier of (i) the
final payment or other liquidation of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the sale of the
property held by the Trust Fund in accordance with Section 7.01(b); provided,
however, that in no event shall the Trust Fund created hereby continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. James's, living on the date hereof. Any termination of the
Trust Fund shall be carried out in such a manner so that the termination of
each REMIC included therein shall qualify as a "qualified liquidation" under
the REMIC Provisions.
(b) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans is less than 10%
of the Cut-off Date Aggregate Principal Balance, the Depositor may, upon
written direction to the Trustee with a copy to the Securities Administrator,
cause (i) the Trustee to sell (or arrange for the sale of) the assets of the
Trust Fund and (ii) the Trust Fund to adopt a plan of complete liquidation
pursuant to Section 7.03(a)(i) hereof to sell all of its property. The
property of the Trust Fund shall be sold at a price (the "Termination Price")
equal to: (i) 100% of the unpaid principal balance of each Mortgage Loan on
the day of such purchase plus interest accrued thereon at the applicable
Mortgage Rate with respect to any Mortgage Loan to the Due Date in the Due
Period immediately preceding the related Distribution Date to the date of such
repurchase, (ii) the fair market value of any REO Property and any other
property held by any REMIC, such fair market value to be determined by an
appraiser or appraisers appointed by the Master Servicer with the consent of
the Trustee, (iii) any unreimbursed Servicing Advances with respect to each
Mortgage Loan, and (iv) any Reimbursement Amounts due to the Class 1-A5
Certificate Insurer.
Section 7.02. Procedure Upon Termination of Trust Fund. | (a) Notice
of any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
(x) no later than five Business Days after the Trustee has received notice
from the Depositor of its intent to exercise its right to cause the
termination of the Trust Fund pursuant to Section 7.01(b) or (y) upon the
final payment or other liquidation of the last Mortgage Loan or REO Property
in the Trust Fund. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates of all amounts required to be
distributed to Certificateholders pursuant to Section 5.02 will be made upon
presentation and surrender of the Certificates at the Corporate Trust Office,
and (B) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distribution being made only upon presentation and surrender
of the Certificates at the office or agency of the Trustee therein specified.
The Trustee shall give such notice to the Securities Administrator, the Master
Servicer and the Certificate Registrar at the time such notice is given to
Holders of the Certificates. Upon any such termination, the duties of the
Certificate Registrar with respect to the Certificates shall terminate and the
Trustee shall terminate, or request the Master Servicer to terminate, the
Collection Account it maintains, the Certificate Account and any other account
or fund maintained with respect to the Certificates, subject to the Trustee's
obligation hereunder to hold all amounts payable to Certificateholders in
trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to
a Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with this Section.
(c) Any reasonable expenses incurred by the Trustee and the
Securities Administrator in connection with any termination or liquidation of
the Trust Fund shall be reimbursed from proceeds received from the liquidation
of the Trust Fund.
Section 7.03. Additional Trust Fund Termination Requirements. | (a)
Any termination of the Trust Fund shall be effected in accordance with the
following additional requirements, unless the Trustee seeks (at the request of
the Master Servicer), and subsequently receives, an Opinion of Counsel (at the
expense of the Master Servicer), addressed to the Trustee to the effect that
the failure of the Trust Fund to comply with the requirements of this Section
7.03 will not (i) result in the imposition of taxes on any REMIC under the
REMIC Provisions or (ii) cause any REMIC established hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) The Trustee shall sell all of the assets of the Trust Fund
for cash and, within 90 days of such sale, shall distribute the
proceeds of such sale to the Certificateholders in complete
liquidation of the Trust Fund, the Lower Tier REMIC and the Upper
Tier REMIC; and
(ii) The Trustee shall attach a statement to the final Federal
income tax return for each of the Lower Tier REMIC and the Upper
Tier REMIC stating that pursuant to Treasury Regulation ss.
1.860F-1, the first day of the 90-day liquidation period for each
such REMIC was the date on which the Trustee sold the assets of the
Trust Fund.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take the action described in paragraph
(a) above and (ii) agrees to take such other action as may be necessary to
facilitate liquidation of each REMIC created under this Agreement, which
authorization shall be binding upon all successor Residual Certificateholders.
Article VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. | (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of this Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote or in any manner otherwise control the Master
Servicer or the operation and management of the Trust Fund, or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 25% of the
Class Principal Amount (or Class Notional Amount) of Certificates of each
Class shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
cost, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for sixty days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding and no direction inconsistent with such written request has been
given such Trustee during such sixty-day period by such Certificateholders; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing of any provision of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement, except in
the manner herein provided and for the benefit of all Certificateholders. For
the protection and enforcement of the provisions of this Section, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 8.02. Access to List of Holders. | (a) If the Trustee is not
acting as Certificate Registrar, the Certificate Registrar will furnish or
cause to be furnished to the Trustee, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants reasonable
access during the normal business hours of the Trustee to the most recent list
of Certificateholders held by the Trustee or shall, as an alternative, send,
at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Securities Administrator, the Master Servicer, the Certificate Registrar and
the Trustee that neither the Depositor, the Securities Administrator, the
Master Servicer, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section 8.03. Acts of Holders of Certificates. | (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee, the Securities
Administrator, and, where expressly required herein, to the Master Servicer.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agents shall be sufficient for any purpose of
this Agreement and conclusive in favor of the Trustee, the Securities
Administrator, and Master Servicer, if made in the manner provided in this
Section. Each of the Trustee, the Securities Administrator, and the Master
Servicer shall promptly notify the others of receipt of any such instrument by
it, and shall promptly forward a copy of such instrument to the others.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Securities Administrator,
the Master Servicer, nor the Depositor shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
Article IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer. | The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Aurora Loan Services Inc., as Master Servicer. For and on behalf of
the Depositor, the Trustee and the Certificateholders, the Master Servicer
shall master service the Mortgage Loans in accordance with the provisions of
this Agreement and the provisions of the applicable Servicing Agreement.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer
Errors and Omissions Insurance Policy. | (a) The Master Servicer, at its
expense, shall maintain in effect a Fidelity Bond and an Errors and Omissions
Insurance Policy, affording coverage with respect to all directors, officers,
employees and other Persons acting on such Master Servicer's behalf, and
covering errors and omissions in the performance of the Master Servicer's
obligations hereunder. The Errors and Omissions Insurance Policy and the
Fidelity Bond shall be in such form and amount that would meet the
requirements of FNMA or FHLMC if it were the purchaser of the Mortgage Loans.
The Master Servicer shall (i) require each Servicer to maintain an Errors and
Omissions Insurance Policy and a Fidelity Bond in accordance with the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer to
provide to the Master Servicer certificates evidencing that such policy and
bond is in effect and to furnish to the Master Servicer any notice of
cancellation, non-renewal or modification of the policy or bond received by
it, as and to the extent provided in the applicable Servicing Agreement, and
(iii) furnish copies of the certificates and notices referred to in clause
(ii) to the Trustee upon its request. The Fidelity Bond and Errors and
Omissions Insurance Policy may be obtained and maintained in blanket form.
(b) The Master Servicer shall promptly report to the Trustee any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to the
Trustee, on request, certificates evidencing that such bond and insurance
policy are in full force and effect. The Master Servicer shall promptly report
to the Trustee all cases of embezzlement or fraud, if such events involve
funds relating to the Mortgage Loans. The total losses, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed in
such reports together with the amount of such losses covered by insurance. If
a bond or insurance claim report is filed with any of such bonding companies
or insurers, the Master Servicer shall promptly furnish a copy of such report
to the Trustee. Any amounts relating to the Mortgage Loans collected by the
Master Servicer under any such bond or policy shall be promptly remitted by
the Master Servicer to the Trustee for deposit into the Certificate Account.
Any amounts relating to the Mortgage Loans collected by any Servicer under any
such bond or policy shall be remitted to the Master Servicer to the extent
provided in the applicable Servicing Agreement.
Section 9.03. Master Servicer's Financial Statements and Related
Information. | For each year this Agreement is in effect, the Master Servicer
shall submit to the Trustee, each Rating Agency and the Depositor a copy of
its annual unaudited financial statements on or prior to August 31 of each
year. Such financial statements shall include a balance sheet, income
statement, statement of retained earnings, statement of additional paid-in
capital, statement of changes in financial position and all related notes and
schedules and shall be in comparative form, certified by a nationally
recognized firm of Independent Accountants to the effect that such statements
were examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding year.
Section 9.04. Power to Act; Procedures. | (a) The Master Servicer
shall master service the Mortgage Loans and shall have full power and
authority, subject to the REMIC Provisions and the provisions of Article X
hereof, and each Servicer shall have full power and authority (to the extent
provided in the applicable Servicing Agreement) to do any and all things that
it may deem necessary or desirable in connection with the servicing and
administration of the Mortgage Loans, including but not limited to the power
and authority (i) to execute and deliver, on behalf of the Certificateholders
and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and applicable Servicing Agreement, as applicable; provided
that the Master Servicer shall not take, or knowingly permit any Servicer to
take, any action that is inconsistent with or prejudices the interests of the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer further is authorized and empowered by the
Trustee, on behalf of the Certificateholders and the Trustee, in its own name
or in the name of any Servicer, when the Master Servicer or a Servicer, as the
case may be, believes it is appropriate in its best judgment to register any
Mortgage Loan with MERS, or cause the removal from the registration of any
Mortgage Loan on the MERS system, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns. The Master Servicer shall represent
and protect the interests of the Trust Fund in the same manner as it protects
its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan and shall not make or
knowingly permit any Servicer to make any modification, waiver or amendment of
any term of any Mortgage Loan that would cause the Trust Fund to fail to
qualify as a REMIC or result in the imposition of any tax under Section
860F(a) or Section 860G(d) of the Code. Without limiting the generality of the
foregoing, the Master Servicer in its own name or in the name of a Servicer,
and each Servicer, to the extent such authority is delegated to such Servicer
by the Master Servicer under the applicable Servicing Agreement, is hereby
authorized and empowered by the Trustee when the Master Servicer or applicable
Servicer, as the case may be, believes it appropriate in its best judgment and
in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, to execute and deliver, on behalf of itself and the
Certificateholders, the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. The Trustee shall furnish the Master
Servicer, upon request, with any powers of attorney empowering the Master
Servicer or any Servicer to execute and deliver instruments of satisfaction or
cancellation, or of partial or full release or discharge, and to foreclose
upon or otherwise liquidate Mortgaged Property, and to appeal, prosecute or
defend in any court action relating to the Mortgage Loans or the Mortgaged
Property, in accordance with the applicable Servicing Agreement and this
Agreement, and the Trustee shall execute and deliver such other documents, as
the Master Servicer may request, necessary or appropriate to enable the Master
Servicer to master service and administer the Mortgage Loans and carry out its
duties hereunder, in each case in accordance with Accepted Servicing Practices
(and the Trustee shall have no liability for misuse of any such powers of
attorney by the Master Servicer or any Servicer). If the Master Servicer or
the Trustee has been advised that it is likely that the laws of the state in
which action is to be taken prohibit such action if taken in the name of the
Trustee or that the Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, then
upon request of the Trustee, the Master Servicer shall join with the Trustee
in the appointment of a co-trustee pursuant to Section 6.09 hereof. In the
performance of its duties hereunder, the Master Servicer shall be an
independent contractor and shall not, except in those instances where it is
taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
(b) In master servicing and administering the Mortgage Loans, the
Master Servicer shall employ procedures, and shall cause each Servicer to
employ procedures (including, but not limited to, collection procedures),
consistent with the applicable Servicing Agreement. Consistent with the
foregoing, the Master Servicer may, and may permit any Servicer to, in its
discretion (i) waive any late payment charge or any prepayment charge or
penalty interest in connection with the prepayment of a Mortgage Loan and (ii)
extend the due dates for payments due on a Mortgage Note for a period not
greater than 120 days; provided, however, that the maturity of any Mortgage
Loan shall not be extended past the date on which the final payment is due on
the latest maturing Mortgage Loan as of the Cut-off Date. In the event of any
extension described in clause (ii) above, the Master Servicer shall make or
cause to be made Advances on the related Mortgage Loan in accordance with the
provisions of Section 5.04 on the basis of the amortization schedule of such
Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master
Servicer shall not, unless default by the related Mortgagor is, in the
reasonable judgment of the Master Servicer or the related Servicer, imminent,
make or knowingly permit such Servicer to make any modification, waiver or
amendment of any material term of any Mortgage Loan (including but not limited
to the interest rate, the principal balance, the amortization schedule, or any
other term affecting the amount or timing of payments on the Mortgage Loan or
the collateral therefor) unless the Master Servicer or the related Servicer
shall have provided or caused to be provided to the Trustee an Opinion of
Counsel (at the expense of the party seeking the modification) in writing to
the effect that such modification, waiver or amendment would not be treated as
giving rise to a new debt instrument for federal income tax purposes and would
not adversely affect the status of the REMIC.
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations. | (a) Each Servicing
Agreement requires the applicable Servicer to service the Mortgage Loans in
accordance with the provisions thereof. References in this Agreement to
actions taken or to be taken by the Master Servicer include such actions taken
or to be taken by a Servicer pursuant to a Servicing Agreement. Any fees,
costs and expenses and other amounts payable to such Servicers shall be
deducted from amounts remitted to the Master Servicer by the applicable
Servicer and shall not be an obligation of the Trust, the Trustee or the
Master Servicer.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall use its reasonable best efforts to
enforce the obligations of each Servicer under the related Servicing Agreement
and shall, upon its obtaining actual knowledge of the failure of a Servicer to
perform its obligations in accordance with the related Servicing Agreement, to
the extent that the non-performance of any such obligations would have a
material adverse effect on a Mortgage Loan, the Trust Fund or
Certificateholders (determined in the case of the Class 1-A5 Certificates
without regard to the Class 1-A5 Certificate Insurance Policy), terminate the
rights and obligations of such Servicer thereunder to the extent and in the
manner permitted by the related Servicing Agreement and either act as servicer
of the related Mortgage Loans or enter into a Servicing Agreement with a
successor Servicer. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Servicing Agreements and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor initially only (i) from a general recovery
resulting from such enforcement only to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loans or (ii) from
a specific recovery of costs, expenses or attorneys' fees against the party
against whom such enforcement is directed, and then, to the extent that such
amounts are insufficient to reimburse the Master Servicer for the costs of
such enforcement, (iii) from the Collection Account.
Section 9.06. Collection of Taxes, Assessments and Similar Items. |
(a) To the extent provided in the applicable Servicing Agreement, the Master
Servicer shall cause each Servicer to establish and maintain one or more
custodial accounts at a depository institution (which may be a depository
institution with which the Master Servicer or any Servicer establishes
accounts in the ordinary course of its servicing activities), the accounts of
which are insured to the maximum extent permitted by the FDIC (each, an
"Escrow Account") and shall deposit therein any collections of amounts
received with respect to amounts due for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums or any comparable items for the
account of the Mortgagors. Withdrawals from any Escrow Account may be made (to
the extent amounts have been escrowed for such purpose) only in accordance
with the applicable Servicing Agreement. Each Servicer shall be entitled to
all investment income not required to be paid to Mortgagors on any Escrow
Account maintained by such Servicer. The Master Servicer shall make (or cause
to be made) to the extent provided in the applicable Servicing Agreement
advances to the extent necessary in order to effect timely payment of taxes,
water rates, assessments, Standard Hazard Insurance Policy premiums or
comparable items in connection with the related Mortgage Loan (to the extent
that the Mortgagor is required, but fails, to pay such items), provided that
it has determined that the funds so advanced are recoverable from escrow
payments, reimbursement pursuant to Section 4.02(v) or otherwise.
(b) Costs incurred by the Master Servicer or by Servicers in
effecting the timely payment of taxes and assessments on the properties
subject to the Mortgage Loans may be added to the amount owing under the
related Mortgage Note where the terms of the Mortgage Note so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders. Such costs, to the extent that they are unanticipated,
extraordinary costs, and not ordinary or routine costs shall be recoverable by
the Master Servicer pursuant to Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor
Servicers. | (a) The Master Servicer shall be entitled to terminate the rights
and obligations of any Servicer under the applicable Servicing Agreement in
accordance with the terms and conditions of such Servicing Agreement and
without any limitation by virtue of this Agreement; provided, however, that in
the event of termination of any Servicing Agreement by the Master Servicer or
the related Servicer, the Master Servicer shall either act as Servicer of the
related Mortgage Loans, or enter into a Servicing Agreement with a successor
Servicer.
(b) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces. The Master Servicer shall use reasonable efforts to have the
successor Servicer assume liability for the representations and warranties
made by the terminated Servicer in respect of the related Mortgage Loans, and
in the event of any such assumption by the successor Servicer, the Trustee or
the Master Servicer, as applicable, may, in the exercise of its business
judgment, release the terminated Servicer from liability for such
representations and warranties.
Section 9.08. Master Servicer Liable for Enforcement. |
Notwithstanding any Servicing Agreement, the Master Servicer shall remain
obligated and liable to the Trustee and the Certificateholders in accordance
with the provisions of this Agreement, to the extent of its obligations
hereunder, without diminution of such obligation or liability by virtue of
such Servicing Agreements or arrangements. The Master Servicer shall use
commercially reasonable efforts to ensure that the Mortgage Loans are serviced
in accordance with the provisions of this Agreement and shall use commercially
reasonable efforts to enforce the provisions of each Servicing Agreement for
the benefit of the Certificateholders. The Master Servicer shall be entitled
to enter into any agreement with the Servicers for indemnification of the
Master Servicer and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification. Except as expressly set forth herein,
the Master Servicer shall have no liability for the acts or omissions of any
Servicer in the performance by such Servicer of its obligations under the
related Servicing Agreement.
Section 9.09. No Contractual Relationship Between Servicers and
Trustee or Depositor. | Any Servicing Agreement that may be entered into and
any other transactions or services relating to the Mortgage Loans involving a
Servicer in its capacity as such and not as an originator shall be deemed to
be between such Servicer, the Seller and the Master Servicer, and except to
the extent expressly provided therein the Trustee, the Securities
Administrator and the Depositor shall not be deemed parties thereto and shall
have no claims, rights, obligations, duties or liabilities with respect to
such Servicer except as set forth in Section 9.10 hereof.
Section 9.10. Assumption of Servicing Agreement by Trustee. | (a) In
the event the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default under this Agreement),
the Trustee shall thereupon assume all of the rights and obligations of such
Master Servicer hereunder and under each Servicing Agreement entered into with
respect to the Mortgage Loans. The Trustee, its designee or any successor
master servicer appointed by the Trustee shall be deemed to have assumed all
of the Master Servicer's interest herein and therein to the same extent as if
such Servicing Agreement had been assigned to the assuming party, except that
the Master Servicer shall not thereby be relieved of any liability or
obligations of the Master Servicer under such Servicing Agreement accruing
prior to its replacement as Master Servicer, and shall be liable to the
Trustee, and hereby agrees to indemnify and hold harmless the Trustee from and
against all costs, damages, expenses and liabilities (including reasonable
attorneys' fees) incurred by the Trustee as a result of such liability or
obligations of the Master Servicer and in connection with the Trustee's
assumption (but not its performance, except to the extent that costs or
liability of the Trustee are created or increased as a result of negligent or
wrongful acts or omissions of the Master Servicer prior to its replacement as
Master Servicer) of the Master Servicer's obligations, duties or
responsibilities thereunder; provided that the Master Servicer shall not
indemnify or hold harmless the Trustee against negligent or willful misconduct
of the Trustee.
(b) The Master Servicer that has been terminated shall, upon request
of the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to each Servicing Agreement
and the related Mortgage Loans and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of each Servicing Agreement to the assuming party.
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements. | (a) To
the extent provided in the applicable Servicing Agreement, to the extent
Mortgage Loans contain enforceable due-on-sale clauses, and to the extent that
the Master Servicer has knowledge of the conveyance of a Mortgaged Property,
the Master Servicer shall use its reasonable best efforts to cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
(b) The Master Servicer or the related Servicer, as the case may be,
shall be entitled to approve a request from a Mortgagor for the granting of an
easement thereon in favor of another Person or any alteration or demolition of
the related Mortgaged Property if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of the
related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be materially adversely
affected thereby. Any fee collected by the Master Servicer or the related
Servicer for processing such a request will be retained by the Master Servicer
or such Servicer as additional servicing compensation.
Section 9.12. Release of Mortgage Files. | (a) Upon (i) becoming
aware of the payment in full of any Mortgage Loan, (ii) the receipt by the
Master Servicer of a notification that payment in full has been or will be
escrowed in a manner customary for such purposes, or (iii) in the case of a
Mortgage Loan as to which the related Mortgaged Property is located in
California, receipt by the Master Servicer of notification from the Servicer
that the Servicer reasonably expects that payment in full will be received
promptly, the Master Servicer will, or will cause the applicable Servicer to,
promptly notify the Trustee (or the applicable Custodian) by a certification
(which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment that are required
to be deposited in the Collection Account maintained by the Master Servicer
pursuant to Section 4.01 have been or will be so deposited) of a Servicing
Officer and shall request the Trustee or the applicable Custodian, to deliver
to the applicable Servicer the related Mortgage File. In lieu of sending a
hard copy certification of a Servicing Officer, the Master Servicer may, or
may cause the Servicer to, deliver the request for release in a mutually
agreeable electronic format. To the extent that such a request, on its face,
originates from a Servicing Officer, no signature shall be required. Upon
receipt of such certification and request, the Trustee or the applicable
Custodian, shall promptly release the related Mortgage File to the applicable
Servicer and neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File. The Master Servicer is
authorized, and each Servicer, to the extent such authority is delegated to
such Servicer by the Master Servicer under the applicable Servicing Agreement,
is authorized, to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as
the case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that
no expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of, or other legal proceedings relating to, any Mortgage Loan and
in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such pleadings, request for trustee's
sale or other documents as shall be prepared and furnished to the Trustee by
the Master Servicer, or by a Servicer (in form reasonably acceptable to the
Trustee) and as are necessary to the prosecution of any such proceedings. The
Trustee or the Custodian, shall, upon request of the Master Servicer, or of a
Servicer, and delivery to the Trustee or the applicable Custodian, of a trust
receipt signed by a Servicing Officer substantially in the form annexed hereto
as Exhibit C or in the form annexed to the applicable Custodial Agreement as
Exhibit C, release the related Mortgage File held in its possession or control
to the Master Servicer (or the applicable Servicer). Such trust receipt shall
obligate the Master Servicer or applicable Servicer to return the Mortgage
File to the Trustee or Custodian, as applicable, when the need therefor by the
Master Servicer or applicable Servicer no longer exists unless (i) the
Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that herein above specified, the
trust receipt shall be released by the Trustee or the Custodian, as
applicable, to the Master Servicer (or the applicable Servicer) or (ii) the
Mortgage File has been delivered directly or through a Servicer to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for
the foreclosure of the Mortgaged Property either judicially or non-judicially,
and the Master Servicer has delivered directly or through a Servicer to the
Trustee a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was
delivered and the purpose or purposes of such delivery.
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee. | (a) The Master Servicer shall transmit, or
cause the applicable Servicer to transmit, to the Trustee such documents and
instruments coming into the possession of the Master Servicer or such Servicer
from time to time as are required by the terms hereof to be delivered to the
Trustee. Any funds received by the Master Servicer or by a Servicer in respect
of any Mortgage Loan or which otherwise are collected by the Master Servicer
or by a Servicer as Liquidation Proceeds or Insurance Proceeds in respect of
any Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer's right to retain or
withdraw from the Collection Account the Master Servicing Fee and other
amounts provided in this Agreement, and to the right of each Servicer to
retain its Servicing Fee and other amounts as provided in the applicable
Servicing Agreement. The Master Servicer shall, and shall (to the extent
provided in the applicable Servicing Agreement) cause each Servicer to,
provide access to information and documentation regarding the Mortgage Loans
to the Trustee, its agents and accountants at any time upon reasonable request
and during normal business hours, and to Certificateholders that are savings
and loan associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such Office
and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of the
Office of Thrift Supervision or other regulatory authority, such access to be
afforded without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by it.
In fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, or any Servicer, in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by such Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee; provided, however, that the Master Servicer and each Servicer
shall be entitled to setoff against, and deduct from, any such funds any
amounts that are properly due and payable to the Master Servicer or such
Servicer under this Agreement or the applicable Servicing Agreement and shall
be authorized to remit such funds to the Securities Administrator in
accordance with this Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee shall own or, to the extent that
a court of competent jurisdiction shall deem the conveyance of the Mortgage
Loans from the Seller to the Depositor not to constitute a sale, the Trustee
shall have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by, or
under the control of, a Servicer or the Master Servicer that are collected by
such Servicer or the Master Servicer in connection with the Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which such
Servicer is entitled under the applicable Servicing Agreement, or the Master
Servicer or the Depositor is entitled to hereunder); and the Master Servicer
agrees that so long as the Mortgage Loans are assigned to and held by the
Trustee, all documents or instruments constituting part of the Mortgage Files,
and such funds relating to the Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Master Servicer or
any Servicer shall be held by the Master Servicer or such Servicer for and on
behalf of the Trustee as the Trustee's agent and bailee for purposes of
perfecting the Trustee's security interest therein as provided by the
applicable Uniform Commercial Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not
authorize any Servicer to, create, incur or subject any Mortgage Loans, or any
funds that are deposited in any custodial account, Escrow Account or the
Collection Account, or any funds that otherwise are or may become due or
payable to the Trustee, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, nor assert by legal action or
otherwise any claim or right of setoff against any Mortgage Loan or any funds
collected on, or in connection with, a Mortgage Loan.
Section 9.14. Representations and Warranties of the Master Servicer.
| (a) The Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator and the Trustee, for the benefit of the
Certificateholders and the Class 1-A5 Certificate Insurer, as of the Closing
Date that:
(i) it is validly existing and in good standing under the
jurisdiction of its formation, and as Master Servicer has full power
and authority to transact any and all business contemplated by this
Agreement and to execute, deliver and comply with its obligations
under the terms of this Agreement, the execution, delivery and
performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the Master
Servicer is a party or by which it is bound or to which any of its
assets are subject, which violation, default or breach would
materially and adversely affect the Master Servicer's ability to
perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties
hereto, a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with the terms
hereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights in general, and by general equity
principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any
order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that
any such default would materially and adversely affect its
performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw
or any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this Agreement or the performance
by the Master Servicer of its obligations under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential
mortgage loans, is an FNMA- and FHLMC approved seller/servicer;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master
Servicer; and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section
9.02, each of which is in full force and effect, and each of which
provides at least such coverage as is required hereunder.
(b) It is understood and agreed that the representations and
warranties set forth in this Section 9.14 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Depositor,
the Securities Administrator and the Trustee and hold them harmless against
any loss, damages, penalties, fines, forfeitures, legal fees and related
costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach of the Master Servicer's representations and warranties contained in
Section 9.14(a). Notwithstanding anything in this Agreement to the contrary,
the Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to, lost
profits). It is understood and agreed that the enforcement of the obligation
of the Master Servicer set forth in this Section to indemnify the Depositor,
the Trustee and the Securities Administrator as provided in this Section
constitutes the sole remedy (other than as set forth in Section 6.14) of the
Depositor, the Securities Administrator and the Trustee, respecting a breach
of the foregoing representations and warranties. Such indemnification shall
survive any termination of the Master Servicer as Master Servicer hereunder,
and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor,
the Master Servicer, the Trustee or the Class 1-A5 Certificate Insurer or
notice thereof by any one of such parties to the other parties.
(c) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 2.03(a) through (f) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicer and hold it harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Depositor's representations and warranties contained in Sections 2.03(a)
through (f) hereof. It is understood and agreed that the enforcement of the
obligation of the Depositor set forth in this Section to indemnify the Master
Servicer as provided in this Section constitutes the sole remedy of the Master
Servicer respecting a breach by the Depositor of the representations and
warranties in Sections 2.03(a) through (f) hereof.
Any cause of action against the Depositor relating to or arising out
of the breach of the representations and warranties made in Sections 2.03(a)
through (f) hereof shall accrue upon discovery of such breach by either the
Depositor or the Master Servicer or notice thereof by any one of such parties
to the other parties.
Section 9.15. Closing Certificate and Opinion. | On or before the
Closing Date, the Master Servicer shall cause to be delivered to the Depositor
and Xxxxxx Brothers Inc. an Opinion of Counsel, dated the Closing Date, in
form and substance reasonably satisfactory to the Depositor and Xxxxxx
Brothers Inc., as to the due authorization, execution and delivery of this
Agreement by the Master Servicer and the enforceability thereof.
Section 9.16. Standard Hazard and Flood Insurance Policies. | For
each Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by each Servicer, standard fire and
casualty insurance and, where applicable, flood insurance, all in accordance
with the provisions of this Agreement and the related Servicing Agreement, as
applicable. It is understood and agreed that such insurance shall be with
insurers meeting the eligibility requirements set forth in the applicable
Servicing Agreement and that no earthquake or other additional insurance is to
be required of any Mortgagor or to be maintained on property acquired in
respect of a defaulted loan, other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance.
Pursuant to Section 4.01, any amounts collected by the Master
Servicer, or by any Servicer, under any insurance policies maintained pursuant
to this Section 9.16 (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or released to the
Mortgagor in accordance with the Master Servicer's or the Servicer's normal
servicing procedures and Accepted Servicing Practices) shall be deposited into
the Collection Account, subject to withdrawal pursuant to Section 4.02. Any
cost incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to the amount owing under the Mortgage Loan where the terms of the Mortgage
Loan so permit; provided, however, that the addition of any such cost shall
not be taken into account for purposes of calculating the distributions to be
made to Certificateholders and shall be recoverable by the Master Servicer or
such Servicer pursuant to Section 4.02(v).
Section 9.17. Presentment of Claims and Collection of Proceeds. | The
Master Servicer shall, or shall cause each Servicer (to the extent provided in
the applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies
with respect to the Mortgage Loans, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to a Servicer and remitted to
the Master Servicer) in respect of such policies or bonds shall be promptly
deposited in the Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the Master
Servicer's or the Servicer's normal servicing procedures need not be so
deposited (or remitted).
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies.
| (a) The Master Servicer shall not take, or knowingly permit any Servicer
(consistent with the applicable Servicing Agreement) to take, any action that
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. To the extent that coverage is
available, the Master Servicer shall use its best reasonable efforts to keep
in force and effect, or to cause each Servicer to keep in force and effect (to
the extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer to, cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in effect at the date of the initial issuance of the
Certificates and is required to be kept in force hereunder except as required
by applicable law or in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
to present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents. | The Trustee (or its custodian, if any, as directed
by the Trustee), shall retain possession and custody of the originals of the
Primary Mortgage Insurance Policies or certificate of insurance if applicable
and any certificates of renewal as to the foregoing as may be issued from time
to time as contemplated by this Agreement. Until all amounts distributable in
respect of the Certificates have been distributed in full and the Master
Servicer otherwise has fulfilled its obligations under this Agreement, the
Trustee (or its custodian, if any, as directed by the Trustee) shall also
retain possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions of this Agreement. The Master Servicer
shall promptly deliver or cause to be delivered to the Trustee (or its
custodian, if any, as directed by the Trustee), upon the execution or receipt
thereof the originals of the Primary Mortgage Insurance Policies and any
certificates of renewal thereof, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
Section 9.20. Realization Upon Defaulted Mortgage Loans. | The Master
Servicer shall use its reasonable best efforts to, or to cause each Servicer
to, foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, all in accordance with the applicable
Servicing Agreement. Alternatively, the Master Servicer may take, or authorize
any Servicer to take, other actions in respect of a defaulted Mortgage Loan,
which may include (i) accepting a short sale (a payoff of the Mortgage Loan
for an amount less than the total amount contractually owed in order to
facilitate a sale of the Mortgaged Property by the Mortgagor) or permitting a
short refinancing (a payoff of the Mortgage Loan for an amount less than the
total amount contractually owed in order to facilitate refinancing
transactions by the Mortgagor not involving a sale of the Mortgaged Property),
(ii) arranging for a repayment plan or (iii) agreeing to a modification in
accordance with Section 9.04. In connection with such foreclosure or other
conversion or action, the Master Servicer shall, consistent with Section 9.18,
follow such practices and procedures as it shall reasonably determine to be in
the best interests of the Trust Fund and the Certificateholders and which
shall be consistent with its customary practices in performing its general
mortgage servicing activities; provided that the Master Servicer shall not be
liable in any respect hereunder if the Master Servicer is acting in connection
with any such foreclosure or other conversion or action in a manner that is
consistent with the provisions of this Agreement. Neither the Master Servicer,
nor any Servicer, shall be required to expend its own funds or incur other
reimbursable charges in connection with any foreclosure, or attempted
foreclosure which is not completed, or toward the correction of any default on
a related senior mortgage loan, or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to the
Certificateholders after reimbursement to itself for such expenses or charges
and (ii) that such expenses and charges will be recoverable to it through
Liquidation Proceeds or Insurance Proceeds (as provided in Section 4.02).
Section 9.21. Compensation to the Master Servicer. | The Master
Servicer shall be entitled to withdraw from the Collection Account, subject to
Section 5.05, the Master Servicing Fee to the extent permitted by Section
4.02(vi). Servicing compensation in the form of assumption fees, if any, late
payment charges, as collected, if any, or otherwise (including any Prepayment
Penalty Amount) shall be retained by the Master Servicer (or the applicable
Servicer) and shall not be deposited in the Collection Account. If the Master
Servicer does not retain or withdraw the Master Servicing Fee from the
Collection Account as provided herein, the Master Servicer shall be entitled
to direct the Trustee to pay the Master Servicing Fee to such Master Servicer
by withdrawal from the Certificate Account. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as
provided in this Agreement. Pursuant to Section 4.01(e), all income and gain
realized from any investment of funds in the Collection Account shall be for
the benefit of the Master Servicer as additional compensation. The provisions
of this Section 9.21 are subject to the provisions of Section 6.14(b).
Section 9.22. REO Property. | (a) In the event the Trust Fund
acquires ownership of any REO Property in respect of any Mortgage Loan, the
deed or certificate of sale shall be issued to the Trustee, or to its nominee,
on behalf of the Certificateholders. The Master Servicer shall use its
reasonable best efforts to sell, or, to the extent provided in the applicable
Servicing Agreement, cause the applicable Servicer to sell, any REO Property
as expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all
events within the time period, and subject to the conditions set forth in
Article X hereof. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall protect and conserve, or cause the applicable Servicer
to protect and conserve, such REO Property in the manner and to such extent
required by the applicable Servicing Agreement, subject to Article X hereof.
(b) The Master Servicer shall deposit or cause to be deposited all
funds collected and received by it, or recovered from any Servicer, in
connection with the operation of any REO Property in the Collection Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Master Servicing Fees or Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of any
net rental income or other net amounts derived from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable
Servicer as provided above, shall be deposited in the Collection Account on or
prior to the Determination Date in the month following receipt thereof (and
the Master Servicer shall provide prompt written notice to the Trustee upon
such deposit) and be remitted by wire transfer in immediately available funds
to the Trustee for deposit into the Certificate Account on the next succeeding
Deposit Date.
Section 9.23. [Omitted]
Section 9.24. Reports to the Trustee. | (a) Not later than 30 days
after each Distribution Date, the Master Servicer shall forward to the Trustee
a statement, deemed to have been certified by a Servicing Officer, setting
forth the status of the Collection Account maintained by the Master Servicer
as of the close of business on the related Distribution Date, indicating that
all distributions required by this Agreement to be made by the Master Servicer
have been made (or if any required distribution has not been made by the
Master Servicer, specifying the nature and status thereof) and showing, for
the period covered by such statement, the aggregate of deposits into and
withdrawals from the Collection Account maintained by the Master Servicer.
Copies of such statement shall be provided by the Master Servicer to the
Depositor, Attention: Contract Finance, and, upon request, any
Certificateholders (or by the Trustee at the Master Servicer's expense if the
Master Servicer shall fail to provide such copies (unless (i) the Master
Servicer shall have failed to provide the Trustee with such statement or (ii)
the Trustee shall be unaware of the Master Servicer's failure to provide such
statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions, "loan
level" information with respect to the Mortgage Loans as of the related
Determination Date, to the extent that such information has been provided to
the Master Servicer by the Servicers or by the Depositor.
Section 9.25. Annual Officer's Certificate as to Compliance. | (a)
The Master Servicer shall deliver to the Trustee, the Rating Agencies and the
Class 1-A5 Certificate Insurer on or before August 31 of each year, commencing
on August 31, 2002, an Officer's Certificate, certifying that with respect to
the period ending on the immediately preceding December 31; (i) such Servicing
Officer has reviewed the activities of such Master Servicer during the
preceding calendar year or portion thereof and its performance under this
Agreement; (ii) to the best of such Servicing Officer's knowledge, based on
such review, such Master Servicer has performed and fulfilled its duties,
responsibilities and obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of
any such duties, responsibilities or obligations, specifying each such default
known to such Servicing Officer and the nature and status thereof, (iii)
nothing has come to the attention of such Servicing Officer to lead such
Servicing Officer to believe that any Servicer has failed to perform any of
its duties, responsibilities and obligations under its Servicing Agreement in
all material respects throughout such year, or, if there has been a material
default in the performance or fulfillment of any such duties, responsibilities
or obligations, specifying each such default known to such Servicing Officer
and the nature and status thereof, and (iv) the Master Servicer has received
from each Servicer such Servicer's annual certificate of compliance and a copy
of such Servicer's annual audit report, in each case to the extent required
under the applicable Servicing Agreement, or, if any such certificate or
report has not been received by the Master Servicer, the Master Servicer is
using its best reasonable efforts to obtain such certificate or report.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at
the Master Servicer's expense if the Master Servicer failed to provide such
copies (unless (i) the Master Servicer shall have failed to provide the
Trustee with such statement or (ii) the Trustee shall be unaware of the Master
Servicer's failure to provide such statement).
Section 9.26. Annual Independent Accountants' Servicing Report. | If
the Master Servicer has, during the course of any fiscal year, directly
serviced any of the Mortgage Loans, then the Master Servicer at its expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish a statement to the Trustee, the Class 1-A5 Certificate
Insurer, the Rating Agencies and the Depositor on or before August 31 of each
year, commencing on August 31, 2002, to the effect that, with respect to the
most recently ended fiscal year, such firm has examined certain records and
documents relating to the Master Servicer's performance of its servicing
obligations under this Agreement and pooling and servicing and trust
agreements in material respects similar to this Agreement and to each other
and that, on the basis of such examination conducted substantially in
compliance with the audit program for mortgages serviced for FHLMC or the
Uniform Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that the Master Servicer's activities have been conducted in
compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages Serviced by
FHLMC requires it to report. Copies of such statements shall be provided to
any Certificateholder upon request by the Master Servicer, or by the Trustee
at the expense of the Master Servicer if the Master Servicer shall fail to
provide such copies. If such report discloses exceptions that are material,
the Master Servicer shall advise the Trustee whether such exceptions have been
or are susceptible of cure, and will take prompt action to do so.
Section 9.27. Merger or Consolidation. | Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master
Servicer shall be a Person that shall be qualified and approved to service
mortgage loans for FNMA or FHLMC and shall have a net worth of not less than
$15,000,000.
Section 9.28. Resignation of Master Servicer. | Except as otherwise
provided in Sections 9.27 and 9.29 hereof, the Master Servicer shall not
resign from the obligations and duties hereby imposed on it unless it or the
Trustee determines that the Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee. No such resignation shall become effective until the
Trustee shall have assumed, or a successor master servicer shall have been
appointed by the Trustee and until such successor shall have assumed, the
Master Servicer's responsibilities and obligations under this Agreement.
Notice of such resignation shall be given promptly by the Master Servicer to
the Depositor.
Section 9.29. Assignment or Delegation of Duties by the Master
Servicer. | Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; provided, however, that the Master
Servicer shall have the right without the prior written consent of the
Trustee, the Depositor or the Rating Agencies to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to perform and carry out any duties, covenants or obligations to be performed
and carried out by the Master Servicer hereunder. In no case, however, shall
any such delegation, subcontracting or assignment to an Affiliate of the
Master Servicer relieve the Master Servicer of any liability hereunder. Notice
of such permitted assignment shall be given promptly by the Master Servicer to
the Depositor and the Trustee. If, pursuant to any provision hereof, the
duties of the Master Servicer are transferred to a successor master servicer,
the entire amount of the Master Servicing Fees and other compensation payable
to the Master Servicer pursuant hereto, including amounts payable to or
permitted to be retained or withdrawn by the Master Servicer pursuant to
Section 9.21 hereof, shall thereafter be payable to such successor master
servicer.
Section 9.30. Limitation on Liability of the Master Servicer and
Others. | Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect
the Master Servicer or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer shall be entitled
to indemnification by the Trust Fund and will be 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 incurred by reason of willful misfeasance, bad faith or negligence
in the performance of his or its duties hereunder or by reason of reckless
disregard of his or its obligations and duties hereunder. The Master Servicer
and any director, officer, employee or agent of the Master Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Master
Servicer shall be under no obligation to appear in, prosecute or defend any
legal action that is not incidental to its duties to master service the
Mortgage Loans in accordance with this Agreement and that in its opinion may
involve it in any expenses or liability; provided, however, that the Master
Servicer may in its sole discretion undertake any such action that it may deem
necessary or desirable in respect to this Agreement and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder.
In such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust Fund
and the Master Servicer shall be entitled to be reimbursed therefor out of the
Collection Account it maintains as provided by Section 4.02.
Section 9.31. Indemnification; Third-Party Claims. | The Master
Servicer agrees to indemnify the Depositor, the Securities Administrator and
the Trustee, and hold them harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
any other costs, liability, fees and expenses that the Depositor, the
Securities Administrator and the Trustee may sustain as a result of the
failure of the Master Servicer to perform its duties and master service the
Mortgage Loans in compliance with the terms of this Agreement. The Depositor,
the Securities Administrator and the Trustee shall immediately notify the
Master Servicer if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans entitling the Depositor, the Securities
Administrator or the Trustee to indemnification hereunder, whereupon the
Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or them in respect of such claim.
Article X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. | (a) As set forth in the
Preliminary Statement hereto, the Trustee shall elect REMIC status in
accordance with the REMIC Provisions with respect to each of the Lower Tier
REMIC and the Upper Tier REMIC. The Trustee shall make such elections on Forms
1066 or other appropriate federal tax or information return for the taxable
year ending on the last day of the calendar year in which the Certificates are
issued. For the purposes of such elections, each of the Lower Tier Interests,
other than the Class LT-R Interest, is hereby designated as a regular interest
in the Lower Tier REMIC, and each Certificate, other than the Class R
Certificate, is hereby designated as a regular interest in the Upper Tier
REMIC. The Class LT-R Interest is hereby designated as the sole residual
interest in the Lower Tier REMIC. The Class R Certificate evidences ownership
of the Class LT-R Interest and is also hereby designated as the sole residual
interest in the Upper Tier REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 86OG(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.86OG-1(a)(4) will
be the Latest Possible Maturity Date.
(c) The Securities Administrator shall pay any and all tax related
expenses (not including taxes) of each REMIC, including but not limited to any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Securities Administrator in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Securities Administrator shall be entitled to reimbursement of expenses to
the extent provided in clause (i) above from the Certificate Account.
(d) The Securities Administrator shall prepare and file, and the
Trustee shall sign, all of each REMIC's federal and state tax and information
returns as such REMIC's direct representative. The expenses of preparing and
filing such returns shall be borne by the Securities Administrator. If any
Disqualified Organization acquires any Ownership Interest in a Residual
Certificate, then the Securities Administrator will upon request provide to
the Internal Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, such information as required in Section
860D(a)(6)(B) of the code needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations. The Securities Administrator shall be entitled to additional
compensation from such person for the cost of providing such information.
(e) The Securities Administrator shall perform on behalf of each
REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Among its other duties, if required by the Code, the
REMIC Provisions, or other such guidance, the Securities Administrator shall
provide (i) to the Treasury or other governmental authority such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any disqualified person or organization and (ii) to
the Trustee such information as is necessary for the Trustee to provide to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(f) The Trustee, the Securities Administrator, the Master Servicer
and the Holders of Certificates shall take any action or cause the REMIC to
take any action necessary to create or maintain the status of such REMIC as a
REMIC under the REMIC Provisions and shall assist each other as necessary to
create or maintain such status. Neither the Trustee, the Securities
Administrator, the Master Servicer nor the Holder of any Residual Certificate
shall take any action, cause the REMIC to take any action or fail to take (or
fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of such
REMIC as a REMIC or (ii) result in the imposition of a tax upon such REMIC
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee, the Securities Administrator and the Master Servicer have
received an Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not endanger such
status or result in the imposition of such a tax. In addition, prior to taking
any action with respect to the REMIC or the assets therein, or causing such
REMIC to take any action, which is not expressly permitted under the terms of
this Agreement any Holder of a Residual Certificate will consult with the
Trustee, the Securities Administrator, and the Master Servicer, or their
respective designees, in writing, with respect to whether such action could
cause an Adverse REMIC Event to occur with respect to such REMIC, and no such
Person shall take any such action or cause such REMIC to take any such action
as to which the Trustee, the Securities Administrator or the Master Servicer
has advised it in writing that an Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in such REMIC or, if no such amounts are available, out
of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in such REMIC, as the case
may be.
(h) The Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC on a calendar
year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither the Securities Administrator nor the Master Servicer
shall enter into any arrangement by which any REMIC will receive a fee or
other compensation for services.
(k) Upon the request of any Rating Agency, the Trustee or the
Securities Administrator shall deliver to such Rating Agency an Officer's
Certificate stating the Trustee's compliance with the provisions of this
Section 10.01 applicable to it.
Section 10.02. Prohibited Transactions and Activities. | Neither the
Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to the REMIC
after the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the party causing such sale, disposition, or substitution) that
such disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of such REMIC as a REMIC or of the Certificates other
than the Residual Certificates as the regular interests therein, (b) affect
the distribution of interest or principal on the Certificates, (c) result in
the encumbrance of the assets transferred or assigned to the Trust Fund
(except pursuant to the provisions of this Agreement) or (d) cause such REMIC
to be subject to a tax on prohibited transactions or prohibited contributions
pursuant to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status. | (a) In the event that a REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Trustee or the Securities
Administrator, as applicable, of its duties and obligations set forth herein,
the Trustee or the Securities Administrator, as applicable, shall indemnify
the Holder of the Residual Certificate against any and all losses, claims,
damages, liabilities or expenses ("Losses") resulting from such negligence;
provided, however, that neither the Trustee nor the Securities Administrator,
as applicable, shall be liable for any such Losses attributable to the action
or inaction of the Master Servicer, the Depositor, or the Holder of such
Residual Certificate, as applicable, or for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the Trustee or the Securities Administrator, as applicable, has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holder of such Residual Certificate now or hereafter existing at law or in
equity. Notwithstanding the foregoing, however, in no event shall the Trustee
or the Securities Administrator, as applicable, have any liability (1) for any
action or omission that is taken in accordance with and in compliance with the
express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent
performance by the Trustee or the Securities Administrator of, as applicable,
its duties and obligations set forth herein, and (3) for any special or
consequential damages to Certificateholders (in addition to payment of
principal and interest on the Certificates). In addition, neither the Trustee
nor the Securities Administrator shall have any liability for the actions or
failure to act of the other.
Section 10.04. REO Property. | (a) Notwithstanding any other
provision of this Agreement, the Master Servicer, acting on behalf of the
Trustee hereunder, shall not (except to the extent provided in the applicable
Servicing Agreement) permit any Servicer to, rent, lease, or otherwise earn
income on behalf of any REMIC with respect to any REO Property which might
cause such REO Property to fail to qualify as "foreclosure" property within
the meaning of section 860G(a)(8) of the Code or result in the receipt by any
REMIC of any "income from non-permitted assets" within the meaning of section
860F(a)(2) of the Code or any "net income from foreclosure property" which is
subject to tax under the REMIC Provisions unless the Master Servicer has
advised, or has caused the applicable Servicer to advise, the Trustee in
writing to the effect that, under the REMIC Provisions, such action would not
adversely affect the status of the REMIC as a REMIC and any income generated
for such REMIC by the REO Property would not result in the imposition of a tax
upon such REMIC.
(b) The Master Servicer shall make, or shall cause the applicable
Servicer to make, reasonable efforts to sell any REO Property for its fair
market value. In any event, however, the Master Servicer shall, or shall cause
the applicable Servicer to, dispose of any REO Property within three years
from the end of the calendar year of its acquisition by the Trust Fund unless
the Trustee has received a grant of extension from the Internal Revenue
Service to the effect that, under the REMIC Provisions and any relevant
proposed legislation and under applicable state law, the REMIC may hold REO
Property for a longer period without adversely affecting the REMIC status of
such REMIC or causing the imposition of a Federal or state tax upon such
REMIC. If the Trustee has received such an extension, then (a) the Trustee
shall provide a copy of such extension to the Master Servicer and the
Securities Administrator and (b) the Trustee, or the Master Servicer, acting
on its behalf hereunder, shall, or shall cause the applicable Servicer to,
continue to attempt to sell the REO Property for its fair market value for
such period longer than three years as such extension permits (the "Extended
Period"). If the Trustee has not received such an extension and the Trustee,
or the Master Servicer acting on behalf of the Trustee hereunder, or the
applicable Servicer is unable to sell the REO Property within 33 months after
its acquisition by the Trust Fund or if the Trustee has received such an
extension, and the Trustee, or the Master Servicer acting on behalf of the
Trustee hereunder, is unable to sell the REO Property within the period ending
three months before the close of the Extended Period, the Master Servicer
shall, or shall cause the applicable Servicer to, before the end of the three
year period or the Extended Period, as applicable, (i) purchase such REO
Property at a price equal to the REO Property's fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Master
Servicer) in an auction reasonably designed to produce a fair price prior to
the expiration of the three-year period or the Extended Period, as the case
may be.
Article XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. | This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section 11.02. Entire Agreement. | This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. Amendment. | (a) This Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee, without notice to or the consent of any of the
Holders, (i) to cure any ambiguity, (ii) to cause the provisions herein to
conform to or be consistent with or in furtherance of the statements made with
respect to the Certificates, the Trust Fund or this Agreement in any Offering
Document; or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement
or (iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code and the REMIC
Provisions. No such amendment effected pursuant to the preceding sentence
shall, as evidenced by an Opinion of Counsel, adversely affect the status of
any REMIC created pursuant to this Agreement, nor shall such amendment
effected pursuant to clause (iii) of such sentence adversely affect in any
material respect the interests of any Holder (without regard to the Class 1-A5
Certificate Insurance Policy). Prior to entering into any amendment without
the consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel (at the expense of the party requesting such amendment) to
the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material respect any
Holder if the Trustee receives written confirmation from each Rating Agency
that such amendment will not cause such Rating Agency to reduce, qualify or
withdraw the then current rating assigned to the Certificates (in the case of
the Class 1-A5 Certificates, determined without regard to the Class 1-A5
Certificate Insurance Policy) (and any Opinion of Counsel requested by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
Depositor, the Securities Administrator, the Master Servicer and the Trustee
with the consent of the Holders of not less than 66 2/3% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders; provided, however, that no
such amendment shall be made unless the Trustee receives an Opinion of
Counsel, at the expense of the party requesting the change, that such change
will not adversely affect the status of the REMIC as a REMIC or cause a tax to
be imposed on such REMIC; and provided further, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, payments received
on Mortgage Loans which are required to be distributed on any Certificate,
without the consent of the Holder of such Certificate or (ii) reduce the
aforesaid percentages of Class Principal Amount (or Percentage Interest) of
Certificates of each Class, the Holders of which are required to consent to
any such amendment without the consent of the Holders of 100% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to "Holder" or
"Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to any amendment of any Servicing
Agreement except pursuant to the standards provided in this Section with
respect to amendment of this Agreement.
Section 11.04. Voting Rights. | Except to the extent that the consent
of all affected Certificateholders is required pursuant to this Agreement,
with respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate outstanding
Certificate Principal Amount (or Notional Amount), Certificates owned by the
Depositor, the Master Servicer, the Securities Administrator, the Trustee or
any Servicer or Affiliates thereof are not to be counted so long as such
Certificates are owned by the Depositor, the Master Servicer, the Securities
Administrator, the Trustee or any Servicer or Affiliates thereof.
Section 11.05. Provision of Information. | (a) For so long as any of
the Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor and the Trustee
agree to cooperate with each other to provide to any Certificateholders and to
any prospective purchaser of Certificates designated by such
Certificateholder, upon the request of such Certificateholder or prospective
purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
or the Securities Administrator, in providing such information shall be
reimbursed by the Depositor.
(b) The Securities Administrator will provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, (i) a copy (excluding exhibits) of any report
on Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 6.20(c) and (ii) a copy of any other document incorporated
by reference in the Prospectus. Any reasonable out-of-pocket expenses incurred
by the Securities Administrator in providing copies of such documents shall be
reimbursed by the Depositor.
(c) On each Distribution Date, the Securities Administrator shall
deliver or cause to be delivered by first class mail to the Depositor,
Attention: Contract Finance, a copy of the report delivered to
Certificateholders pursuant to Section 4.03.
Section 11.06. Governing Law. | THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. Notices. | All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered to such party at the relevant address, facsimile number or
electronic mail address set forth below (or at such other address, facsimile
number or electronic mail address as such party may designate from time to
time by written notice in accordance with this Section 11.07): (a) in the case
of the Depositor, Structured Asset Securities Corporation, 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxx, (b) in the case of
the Trustee, 000 Xxxxx Xxxxx Xxxxxx, 00xx xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: Corporate Trust Group, (c) in the case of the Master
Servicer, Aurora Loan Services Inc., 0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000; Attention: Master Servicing, (d) in the case of the
Securities Administrator, Xxxxx Fargo Bank Minnesota, N. A., 00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: SASCO 2001-1, telecopy number
000-000-0000 and (e) in the case of the Class 1-A5 Certificate Insurer, MBIA
Insurance Corporation, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention:
Insured Portfolio Management - Structured Finance (IMP-SF), Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2001-1,
Class 1-A5 Certificates, or as to each party such other address as may
hereafter be furnished by such party to the other parties in writing. Any
notice required or permitted to be mailed to a Holder shall be given by first
class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice.
Section 11.08. Severability of Provisions. | If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or of
the Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers. | Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 11.10. Headings Not To Affect Interpretation. | The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement. | Nothing in this Agreement or
in the Certificates, express or implied, shall give to any Person, other than
the parties to this Agreement and their successors hereunder and the Holders
of the Certificates, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement, except to the extent specified in
Sections 11.14 and 11.15.
Section 11.12. Special Notices to the Rating Agencies. | (a) The
Depositor shall give prompt notice to the Rating Agencies and to the Class
1-A5 Certificate Insurer of the occurrence of any of the following events of
which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any Assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in
Section 6.14;
(iv) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(v) the appointment of any successor to any Master Servicer
pursuant to Section 6.14; and
(vi) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier, as follows:
If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Surveillance
If to Moody's, to:
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Residential Mortgage Surveillance
(c) The Securities Administrator shall provide or make available to
the Rating Agencies reports prepared pursuant to Section 4.03. In addition,
the Securities Administrator shall, at the expense of the Trust Fund, make
available to each Rating Agency such information as such Rating Agency may
reasonably request regarding the Certificates or the Trust Fund, to the extent
that such information is reasonably available to the Securities Administrator.
Section 11.13. Counterparts. | This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, and all
of which together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. | The Seller agrees that it
shall provide written notice to the Trustee, the Class 1-A5 Certificate
Insurer and the Master Servicer thirty days prior to any transfer or
assignment by the Seller of its rights under any Servicing Agreement or of the
servicing thereunder or delegation of its rights or duties thereunder or any
portion thereof to any Person other than the initial Servicer under such
Servicing Agreement; provided that the Seller shall not be required to provide
prior notice of any transfer of servicing that occurs within three months
following the Closing Date to an entity that is a Servicer on the Closing
Date. In addition, the ability of the Seller to transfer or assign its rights
and delegate its duties under any Servicing Agreement or to transfer the
servicing thereunder to a successor servicer shall be subject to the following
conditions:
(i) Such successor servicer must be qualified to service loans
for FNMA or FHLMC;
(ii) Such successor servicer must satisfy the seller/servicer
eligibility standards in the applicable Servicing Agreement,
exclusive of any experience in mortgage loan origination, and must
be reasonably acceptable to the Master Servicer, whose approval
shall not be unreasonably withheld;
(iii) Such successor servicer must execute and deliver to the
Trustee and the Master Servicer an agreement, in form and substance
reasonably satisfactory to the Trustee and the Master Servicer, that
contains an assumption by such successor servicer of the due and
punctual performance and observance of each covenant and condition
to be performed and observed by the applicable Servicer under the
applicable Servicing Agreement or, in the case of a transfer of
servicing to a party that is already a Servicer pursuant to this
Agreement, an agreement to add the related Mortgage Loans to the
Servicing Agreement already in effect with such Servicer;
(iv) If the successor servicer is not a Servicer of Mortgage
Loans at the time of transfer, there must be delivered to the
Trustee a letter from each Rating Agency to the effect that such
transfer of servicing will not result in a qualification, withdrawal
or downgrade of the then-current rating of any of the Certificates
(determined without regard to the Class 1-A5 Certificate Insurance
Policy, in the case of the Class 1-A5 Certificates);
(v) The Seller shall, at its cost and expense, take such steps,
or cause the terminated Servicer to take such steps, as may be
necessary or appropriate to effectuate and evidence the transfer of
the servicing of the Mortgage Loans to such successor servicer,
including, but not limited to, the following: (A) to the extent
required by the terms of the Mortgage Loans and by applicable
federal and state laws and regulations, the Seller shall cause the
prior Servicer to timely mail to each obligor under a Mortgage Loan
any required notices or disclosures describing the transfer of
servicing of the Mortgage Loans to the successor servicer; (B) prior
to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the
effective date of such transfer of servicing, the Seller shall cause
the prior Servicer to deliver to the successor servicer all Mortgage
Loan Documents and any related records or materials; (D) on or prior
to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to transfer to the successor
servicer, or, if such transfer occurs after a Remittance Date but
before the next succeeding Deposit Date, to the Master Servicer, all
funds held by the applicable Servicer in respect of the Mortgage
Loans; (E) on or prior to the effective date of such transfer of
servicing, the Seller shall cause the prior Servicer to, after the
effective date of the transfer of servicing to the successor
servicer, continue to forward to such successor servicer, within one
Business Day of receipt, the amount of any payments or other
recoveries received by the prior Servicer, and to notify the
successor servicer of the source and proper application of each such
payment or recovery; and (F) the Seller shall cause the prior
Servicer to, after the effective date of transfer of servicing to
the successor servicer, continue to cooperate with the successor
servicer to facilitate such transfer in such manner and to such
extent as the successor servicer may reasonably request.
Section 11.15. Matters Relating to the Class 1-A5 Certificate
Insurance Policy. | (a) All notices, statements, reports, certificates or
opinions required by this Agreement to be sent to any other party hereto or to
the Class 1-A5 Certificateholders shall also be sent, and any report or
statement sent by the Master Servicer to the Trustee or the Securities
Administrator shall be sent by the Trustee or the Securities Administrator, as
applicable, to the Class 1-A5 Certificate Insurer at the following address:
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management - Structured Finance
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2001-1, Class 1-A5 Certificates
or such other address as the Class 1-A5 Certificate Insurer may hereafter
furnish to the Depositor, the Securities Administrator and the Trustee.
(b) Notwithstanding any provision to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the interest of
such parties as set forth herein, the Class 1-A5 Certificate Insurer receive
the benefit of Sections 4.03, 5.02, 5.07 and 11.15 as an intended third party
beneficiary of this Agreement to the extent of such provisions.
(c) No purchase of the property of the Trust Fund pursuant to Section
7.01(b) shall occur if such purchase would result in a draw on the Class 1-A5
Certificate Insurance Policy, unless the Class 1-A5 Certificate Insurer has
consented to such purchase.
(d) All references herein to the rating of the Certificates shall be
without regard to the Class 1-A5 Certificate Insurance Policy.
IN WITNESS WHEREOF, the Depositor, the Trustee and the Master
Servicer have caused their names to be signed hereto by their respective
officers hereunto duly authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA, N.A.,
as Securities Administrator
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Assistant Vice President
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Trust Officer
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: President
Solely for purposes of Section 11.14,
accepted and agreed to by:
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
EXHIBIT A
FORMS OF CERTIFICATES
[See Tab #29]
EXHIBIT B-1
FORM OF TRUSTEE INITIAL CERTIFICATION
----------------
[Date]
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Trust Agreement, dated as of January 1, 2001, (the "Trust
Agreement"), between Structured Asset Securities
Corporation, as Depositor, Xxxxx Fargo Bank Minnesota,
N.A., as Securities Administrator, Aurora Loan Services
Inc., as Master Servicer and First Union National Bank, as
Trustee, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series
2001-1
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.01(a) of the Trust Agreement, subject to
review of the contents thereof, the undersigned, as Trustee, hereby certifies
that it has received the documents listed in Section 2.01(b) of the Trust
Agreement for each Mortgage File pertaining to each Mortgage Loan listed on
Schedule A, to the Trust Agreement.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Trust
Agreement. This Certificate is subject in all respects to the terms of Section
2.02 of the Trust Agreement and the Trust Agreement sections cross-referenced
therein.
FIRST UNION NATIONAL BANK,
as Trustee
By: ________________________
Name:
Title:
EXHIBIT B-2
FORM OF TRUSTEE INTERIM CERTIFICATION
--------------------
[Date]
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Trust Agreement, dated as of January 1, 2001, (the "Trust
Agreement"), between Structured Asset Securities
Corporation, as Depositor, Xxxxx Fargo Bank Minnesota,
N.A., as Securities Administrator, Aurora Loan Services
Inc., as Master Servicer and First Union National Bank, as
Trustee, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series
2001-1
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attachment hereto) it has received:
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee;
(ii) the original of any guarantee executed in connection with the
Mortgage Note, assigned to the Trustee;
(iii) with respect to each Mortgage Loan other than a Cooperative
Loan, the original recorded Mortgage with evidence of recording indicated
thereon. If, in connection with any Mortgage Loan, the Depositor cannot
deliver the Mortgage with evidence of recording thereon on or prior to
the Closing Date because of a delay caused by the public recording office
where such Mortgage has been delivered for recordation or because such
Mortgage has been lost, the Depositor shall deliver or cause to be
delivered to the Trustee (or its custodian), in the case of a delay due
to recording, a true copy of such Mortgage, pending delivery of the
original thereof, together with an Officer's Certificate of the Depositor
certifying that the copy of such Mortgage delivered to the Trustee (or
its custodian) is a true copy and that the original of such Mortgage has
been forwarded to the public recording office, or, in the case of a
Mortgage that has been lost, a copy thereof (certified as provided for
under the laws of the appropriate jurisdiction) and a written Opinion of
Counsel, memorandum of law or other written assurance acceptable to the
Trustee and the Depositor that an original recorded Mortgage is not
required to enforce the Trustee's interest in the Mortgage Loan;
(iv) The original of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused by
the public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy of
such assumption, modification or substitution agreement, pending delivery
of the original thereof, together with an Officer's Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or its custodian) is a
true copy and that the original of such agreement has been forwarded to
the public recording office;
(v) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each Mortgage
Loan;
(vi) If applicable, such original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete chain
of assignment from the originator, or, in the case of an Intervening
Assignment that has been lost, a written Opinion of Counsel acceptable to
the Trustee that such original Intervening Assignment is not required to
enforce the Trustee's interest in the Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or certificate,
if private mortgage guaranty insurance is required;
(viii) with respect to each Mortgage Loan other than a Cooperative
Loan, the original mortgagee title insurance policy or attorney's opinion
of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage or as to any security
agreement, chattel mortgage or their equivalent that cannot be delivered
on or prior to the Closing Date because of a delay caused by the public
recording office where such document has been delivered for recordation,
a photocopy of such document, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying that
the copy of such security agreement, chattel mortgage or their equivalent
delivered to the Trustee (or its custodian) is a true copy and that the
original of such document has been forwarded to the public recording
office;
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents; and
(xi) in connection with any pledge of Additional Collateral, the
original additional collateral pledge and security agreement executed in
connection therewith, assigned to the Trustee.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on the attachment hereto, it has reviewed the documents listed above and has
determined that each such document appears regular on its face and appears to
relate to the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement including, but
not limited to, Section 2.02(b).
FIRST UNION NATIONAL BANK,
as Trustee
By:_______________________________
Name:
Title:
EXHIBIT B-3
FORM OF TRUSTEE FINAL CERTIFICATION
______________________
[Date]
Structured Asset Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trust Agreement, dated as of January 1, 2001, (the "Trust
Agreement"), between Structured Asset Securities
Corporation, as Depositor, Xxxxx Fargo Bank Minnesota,
N.A., as Securities Administrator, Aurora Loan Services
Inc., as Master Servicer and First Union National Bank, as
Trustee, with respect to Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series
2001-1
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attachment hereto) it has received the applicable documents
listed in Section 2.02(b) of the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on the attachment hereto, it has reviewed the documents listed above and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in the Mortgage Loan
Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement.
FIRST UNION NATIONAL BANK,
as Trustee
By:________________________________
Name:
Title:
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of First Union National Bank, as trustee (the
"Trustee") under the Trust Agreement dated as of January 1, 2001, among
Structured Asset Securities Corporation, as Depositor, the Trustee, the
Securities Administrator and the Master Servicer relating to Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2001-1,
without recourse.
--------------------------------------
[current signatory on note]
By:___________________________________
Name:
Title:
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
--------------------------
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of January 1, 2001 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer, Xxxxx Fargo Bank Minnesota, N.A., as Securities
Administrator and you, as Trustee (the "Trust Agreement"), the undersigned
Master Servicer hereby requests a release of the Mortgage File held by you as
Trustee with respect to the following described Mortgage Loan for the reason
indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Master Servicer hereby certifies
that all amounts received in connection with the loan have been or will be
credited to the Collection Account or the Certificate Account (whichever is
applicable) pursuant to the Trust Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Master Servicer hereby certifies
that a Qualifying Substitute Mortgage Loan has been assigned and delivered to
you along with the related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage Loan repurchased. (The Master Servicer hereby certifies
that the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust
Agreement.)
5. Other. (Describe)
6. California Mortgage Loan expected to be paid in full.
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Trust
Agreement and will be returned to you within ten (10) days of our receipt of
the Mortgage File, except if the Mortgage Loan has been paid in full, or
repurchased or substituted for a Qualifying Substitute Mortgage Loan (in which
case the Mortgage File will be retained by us permanently) and except if the
Mortgage Loan is being foreclosed or is a California Mortgage Loan specified
in #6 above (in which case the Mortgage File will be returned when no longer
required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Trust Agreement.
-------------------------------------
[Name of Master Servicer]
By:__________________________________
Name:
Title: Servicing Officer
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn,
deposes and says:
1. That he [she] is [title of officer] _________ of [name of Purchaser]
_________________________________________ (the "Purchaser"), a
_______________________ [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on
behalf of which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is ____________.
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code") and will not be a "disqualified organization" as of
__________________ [date of transfer], and that the Purchaser is not acquiring
a Residual Certificate (as defined in the Agreement) for the account of, or as
agent (including a broker, nominee, or other middleman) for, any person or
entity from which it has not received an affidavit substantially in the form
of this affidavit. For these purposes, a "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of
any of the foregoing (other than an instrumentality if all of its activities
are subject to tax and a majority of its board of directors is not selected by
such governmental entity), any cooperative organization furnishing electric
energy or providing telephone service to persons in rural areas as described
in Code Section 1381(a)(2)(C), any "electing large partnership" within the
meaning of Section 775 of the Code, or any organization (other than a farmers'
cooperative described in Code Section 521) that is exempt from federal income
tax unless such organization is subject to the tax on unrelated business
income imposed by Code Section 511.
4. That the Purchaser either (x) is not, and on __________________
[date of transfer] will not be, an employee benefit plan subject to Section
406 or Section 407 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code, the trustee of any such plan
or a person acting on behalf of any such plan or investing the assets of any
such plan to acquire a Residual Certificate; (y) is an insurance company that
is purchasing the Certificate with funds contained in an "insurance company
general account" as defined in Section V(e) of Prohibited Transaction Class
Exemption ("PTCE") 95-60 and the purchase and holding of the Certificate are
covered under Section I and III of PTCE 95-60; or (z) herewith delivers to the
Trustee and shall deliver to the Depositor an opinion of counsel (a "Benefit
Plan Opinion") satisfactory to the Trustee and the Depositor, and upon which
the Trustee and the Depositor shall be entitled to rely, to the effect that
the purchase or holding of such Residual Certificate by the Investor will not
result in the assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or the Code and will
not subject the Trustee or the Depositor to any obligation in addition to
those undertaken by such entities in the Trust Agreement, which opinion of
counsel shall not be an expense of the Trustee or the Depositor.
5. That the Purchaser hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, Xxxxx Fargo Bank Minnesota, N.A., as Securities Administrator,
First Union National Bank, as Trustee and Aurora Loan Services Inc., as Master
Servicer, dated as of January 1, 2001, no transfer of a Residual Certificate
shall be permitted to be made to any person unless the Depositor and the
Trustee have received a certificate from such transferee containing the
representations in paragraphs 3 and 4 hereof.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations (such
entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to such Residual Certificate, and that the Purchaser
has provided financial statements or other financial information requested by
the transferor in connection with the transfer of the Residual Certificate in
order to permit the transferor to assess the financial capability of the
Purchaser to pay such taxes.
8. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof are
not satisfied or that the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without obtaining from
the prospective Purchaser an affidavit substantially in this form and
providing to the Trustee a written statement substantially in the form of
Exhibit G to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash
flows generated by the interest and that it intends to pay taxes associated
with holding such Residual Certificate as they become due.
10. That the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor
and the Trustee with an effective Internal Revenue Service Form W-8 ECI
(Certificate of Foreign Person's with the Conduct of a Trade or Business in
the United States) or successor form at the time and in the manner required by
the Code. "Non-U.S. Person" Any person other than (i) a citizen or resident of
the United States; (ii) a corporation (or entity treated as a corporation for
tax purposes) created or organized in the United States or under the laws of
the United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a partnership
for tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; or (v) a trust, if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last
clause of the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
U.S. Persons prior to such date, may elect to continue to be U.S. Persons.
11. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the restrictions on
transfer of any Residual Certificate to such a "disqualified organization," an
agent thereof, a Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Trustee as
its agent to act as "tax matters person" of the Trust Fund pursuant to the
Trust Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________, 20__.
--------------------------------------
[name of Purchaser]
By:___________________________________
Name:
Title:
Personally appeared before me the above-named [name of
officer] ________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the [title of officer]
_________________ of the Purchaser, and acknowledged to me that he [she]
executed the same as his [her] free act and deed and the free act and deed of
the Purchaser.
Subscribed and sworn before me this _____ day of __________,
20__.
NOTARY PUBLIC
---------------------------------
COUNTY OF_____________________
STATE OF_______________________
My commission expires the _____ day of __________, 20__.
EXHIBIT D-2
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
------------------
Date
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2001-
----------------------------------------
_______________________ (the "Transferor") has reviewed the
attached affidavit of _____________________________ (the "Transferee"), and
has no actual knowledge that such affidavit is not true and has no reason to
believe that the information contained in paragraph 7 thereof is not true, and
has no reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
EXHIBIT E
SERVICING AGREEMENTS
[See Tabs #13 through #25]
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2001-1
---------------------------------------
Reference is hereby made to the Trust Agreement dated as of
January 1, 2001 (the "Trust Agreement") among Structured Asset Securities
Corporation, as Depositor, Xxxxx Fargo Bank Minnesota, N.A., as Securities
Administrator, First Union National Bank, as Trustee and Aurora Loan Services
Inc., as Master Servicer. Capitalized terms used but not defined herein shall
have the meanings given to them in the Trust Agreement.
This letter relates to $_________ initial Certificate
Principal Amount of Class ______ Certificates which are held in the form of
Definitive Certificates registered in the name of ___________________ (the
"Transferor"). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the name
of [insert name of transferee].
In connection with such request, and in respect of such
Certificates, the Transferor hereby certifies that such Certificates are being
transferred in accordance with (i) the transfer restrictions set forth in the
Trust Agreement and the Certificates and (ii) Rule 144A under the Securities
Act to a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer", which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Placement Agent and the
Depositor.
----------------------------------------
[Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: __________________, ________
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
------------------
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 2001-1 (the "Privately
Offered Certificates") of Structured Asset Securities Corporation (the
"Depositor") which are held in the form of Definitive Certificates, we confirm
that:
(1) We understand that the Privately Offered Certificates have not
been, and will not be, registered under the Securities Act
of 1933, as amended (the "Securities Act"), and may not be sold
except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Privately Offered
Certificates within one year of the later of the date of original
issuance of the Privately Offered Certificates or the last day on
which such Privately Offered Certificates are owned by the Depositor
or any affiliate of the Depositor (which includes the Placement
Agent) we will do so only (A) to the Depositor, (B) to "qualified
institutional buyers" (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act
("QIBs"), (C) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act, or (D) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of January
1, 2001 among the Depositor, Xxxxx Fargo Bank Minnesota, N.A., as
Securities Administrator, First Union National Bank, as Trustee (the
"Trustee") and Aurora Loan Services Inc., as Master Servicer, a
signed letter in the form of this letter; and we further agree, in
the capacities stated above, to provide to any person purchasing any
of the Privately Offered Certificates from us a notice advising such
purchaser that resales of the Privately Offered Certificates are
restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited
Investor, we will be required to furnish to the Trustee and the
Depositor a certification from such transferee in the form hereof to
confirm that the proposed sale is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. We further understand that the
Privately Offered Certificates purchased by us will bear a legend to
the foregoing effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment
in the Privately Offered Certificates, and we and any account for
which we are acting are each able to bear the economic risk of such
investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for one or more accounts (each of which is an Institutional
Accredited Investor) as to each of which we exercise sole investment
discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand
that in accordance with ERISA, the Code and the Exemption, no Plan
and no person acting on behalf of such a Plan may acquire such
Certificate except in accordance with Section 3.03(d) of the Trust
Agreement.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By________________________________
Name:
Title:
EXHIBIT H
[FORM OF ERISA TRANSFER AFFIDAVIT]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the "Investor"),
a [corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The Investor either (x) is not, and on ___________ [date of
transfer] will not be, an employee benefit plan subject to Section 406 or
Section 407 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"), the trustee of any such plan or a person acting on behalf of any
such plan or investing the assets of any such plan; (y) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, is an insurance company
that is purchasing the Certificate with funds contained in an "insurance
company general account" as defined in Section V(e) of Prohibited Transaction
Class Exemption ("PTCE") 95-60 and the purchase and holding of the Certificate
are covered under Section I and III of PTCE 95-60; or (z) herewith delivers to
the Trustee and shall deliver to the Depositor an opinion of counsel (a
"Benefit Plan Opinion") satisfactory to the Trustee and the Depositor, and
upon which the Trustee and the Depositor shall be entitled to rely, to the
effect that the purchase or holding of such Certificate by the Investor will
not result in the assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or the Code and will
not subject the Trustee or the Depositor to any obligation in addition to
those undertaken by such entities in the Trust Agreement, which opinion of
counsel shall not be an expense of the Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities Corporation, as
Depositor, Xxxxx Fargo Bank Minnesota, N.A., as Securities Administrator,
First Union National Bank, as Trustee and Aurora Loan Services Inc., as Master
Servicer, dated as of January 1, 2001, no transfer of the ERISA-Restricted
Certificates shall be permitted to be made to any person unless the Depositor
and Trustee have received a certificate from such transferee in the form
hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 20__.
----------------------------------------
[Investor]
By:_____________________________________
Name:
Title:
ATTEST:
---------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named ___________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _________________ of the Investor, and acknowledged
that he executed the same as his free act and deed and the free act and deed
of the Investor.
Subscribed and sworn before me this _____ day of ___________ 20___.
----------------------------------
NOTARY PUBLIC
My commission expires the
____ day of __________,
20__.
EXHIBIT I
MONTHLY REMITTANCE ADVICE
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
EXHIBIT K
CUSTODIAL AGREEMENTS
[See Tabs #11 and #12]
EXHIBIT L
INSURANCE AGREEMENT
[See Tab #28]
EXHIBIT M
CLASS 1-A5 CERTIFICATE INSURANCE POLICY
[See Tab #26]
SCHEDULE A
ALL MORTGAGE LOANS
(by Mortgage Pool)
[To be retained at the Washington, D.C. office of Xxxxx & Xxxx LLP]
SCHEDULE B
MORTGAGE LOANS WITH RETAINED INTEREST
[To be retained at the Washington, D.C. office of Xxxxx & Wood LLP]
SCHEDULE C
[Reserved]
SCHEDULE D
POOL 1 AX LOANS
[To be retained at the Washington, D.C. office of Xxxxx & Xxxx LLP
SCHEDULE E
[Reserved]
SCHEDULE F
POOL 3 AX LOANS
[To be retained at the Washington, D.C. office of Xxxxx & Wood LLP]
