Exhibit 4.1
EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES INC., as Master Servicer,
▇▇▇▇▇ Fargo Bank Minnesota, N.A.,
as Securities Administrator
and
FIRST UNION NATIONAL BANK,
as Trustee
---------------------------
TRUST AGREEMENT
Dated as of February 1, 2001
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-2
Table of Contents
Page
Article I
DEFINITIONS
Section 1.01. Definitions.....................................................8
Section 1.02. Calculations Respecting Mortgage Loans. .......................42
Article II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. ...............................................42
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation
for Trust Fund............ ............. ......................46
Section 2.03. Representations and Warranties of the Depositor. ..............47
Section 2.04. Discovery of Breach. ..........................................49
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.........50
Section 2.06. Grant Clause. .................................................51
Article III
THE CERTIFICATES
Section 3.01. The Certificates. .............................................51
Section 3.02. Registration. .................................................53
Section 3.03. Transfer and Exchange of Certificates. ........................53
Section 3.04. Cancellation of Certificates. .................................58
Section 3.05. Replacement of Certificates. ..................................58
Section 3.06. Persons Deemed Owners. ........................................58
Section 3.07. Temporary Certificates. .......................................59
Section 3.08. Appointment of Paying Agent. ..................................59
Section 3.09. Book-Entry Certificates. ......................................59
Article IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. ...........................................61
Section 4.02. Application of Funds in the Collection Account.................62
Section 4.03. Reports to Certificateholders. ................................64
Section 4.04. Certificate Account. ..........................................67
Section 4.05. Determination of LIBOR. .......................................68
Section 4.06. The Class A4 Reserve Fund. ....................................69
Section 4.07. Securities Administrator Account. .............................70
Article V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. ......................................72
Section 5.02. Distributions from the Certificate Account. ...................72
Section 5.03. Allocation of Realized Losses. ................................81
Section 5.04. Advances by Master Servicer and the Securities Administrator. .82
Section 5.05. Compensating Interest Payments. ...............................83
Section 5.06. Distributions of Principal on Redemption Certificates..........83
Section 5.07. The Class A4 Certificate Insurance Policy. ....................88
Article VI
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee and Securities Administrator.................91
Section 6.02. Certain Matters Affecting the Trustee and the Securities
Administrator..................................................93
Section 6.03. Trustee and Securities Administrator Not Liable for
Certificates...................................................94
Section 6.04. Trustee and the Securities Administrator May Own
Certificates...................................................95
Section 6.05. Eligibility Requirements for Trustee and Securities
Administrator..................................................95
Section 6.06. Resignation and Removal of Trustee and Securities
Administrator .................................................95
Section 6.07. Successor Trustee and Successor Securities Administrator.......96
Section 6.08. Merger or Consolidation of Trustee or Securities
Administrator..................................................97
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.......97
Section 6.10. Authenticating Agents. ........................................99
Section 6.11. Indemnification of Trustee and Securities Administrator.......100
Section 6.12. Fees and Expenses of Securities Administrator, Custodian
and Trustee...................................................100
Section 6.13. Collection of Monies. ........................................101
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor...101
Section 6.15. Additional Remedies of Trustee Upon Event of Default..........105
Section 6.16. Waiver of Defaults............................................105
Section 6.17. Notification to Holders.......................................105
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default.......................................105
Section 6.19. Action Upon Certain Failures of the Master Servicer
and Upon Event of Default.....................................106
Section 6.20. Preparation of Tax Returns and Other Reports..................106
Article VII
PURCHASE AND TERMINATION OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation
of All Mortgage Loans.........................................107
Section 7.02. Procedure Upon Termination of Trust Fund......................108
Section 7.03. Additional Trust Fund Termination Requirements................109
Article VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders...............................109
Section 8.02. Access to List of Holders.....................................110
Section 8.03. Acts of Holders of Certificates...............................111
Article IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer.................................112
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and
Omissions Insurance Policy....................................112
Section 9.03. Master Servicer's Financial Statements and Related
Information...................................................112
Section 9.04. Power to Act; Procedures......................................113
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations..............114
Section 9.06. Collection of Taxes, Assessments and Similar Items............115
Section 9.07. Termination of Servicing Agreements; Successor Servicers......116
Section 9.08. Master Servicer Liable for Enforcement........................116
Section 9.09. No Contractual Relationship Between Servicers and Trustee or
Depositor.....................................................116
Section 9.10. Assumption of Servicing Agreement by Securities
Administrator.................................................116
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements..................117
Section 9.12. Release of Mortgage Files.....................................117
Section 9.13. Documents, Records and Funds in Possession of
Master Servicer To Be Held for Trustee........................119
Section 9.14. Representations and Warranties of the Master Servicer.........120
Section 9.15. Closing Certificate and Opinion...............................122
Section 9.16. Standard Hazard and Flood Insurance Policies..................122
Section 9.17. Presentment of Claims and Collection of Proceeds..............123
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies........123
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies
and Documents.................................................123
Section 9.20. Realization Upon Defaulted Mortgage Loans.....................124
Section 9.21. Compensation to the Master Servicer...........................124
Section 9.22. REO Property..................................................125
Section 9.23. [Omitted].....................................................125
Section 9.24. Reports to the Trustee........................................125
Section 9.25. Annual Officer's Certificate as to Compliance.................126
Section 9.26. Annual Independent Accountants' Servicing Report..............126
Section 9.27. Merger or Consolidation.......................................127
Section 9.28. Resignation of Master Servicer................................127
Section 9.29. Assignment or Delegation of Duties by the Master Servicer.....127
Section 9.30. Limitation on Liability of the Master Servicer and Others.....128
Section 9.31. Indemnification; Third-Party Claims...........................128
Article X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration.........................................129
Section 10.02. Prohibited Transactions and Activities.......................131
Section 10.03. Indemnification with Respect to Certain Taxes and
Loss of REMIC Status.........................................131
Section 10.04. REO Property.................................................131
Article XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment......................132
Section 11.02. Entire Agreement.............................................132
Section 11.03. Amendment....................................................133
Section 11.04. Voting Rights................................................134
Section 11.05. Provision of Information.....................................134
Section 11.06. Governing Law................................................134
Section 11.07. Notices......................................................135
Section 11.08. Severability of Provisions...................................135
Section 11.09. Indulgences; No Waivers......................................135
Section 11.10. Headings Not To Affect Interpretation........................135
Section 11.11. Benefits of Agreement........................................135
Section 11.12. Special Notices to the Rating Agencies.......................136
Section 11.13. Counterparts.................................................137
Section 11.14. Transfer of Servicing........................................137
Section 11.15. Matters Relating to the Class A4 Certificate
Insurance Policy.............................................138
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 A4 Certificate Insurance Policy
Exhibit N-1 Form of Transfer Certificate for Transfer from Restricted Global
Security to Regulation S Global Security pursuant to
Section 3.03(h)(B)
Exhibit N-2 Form of Transfer Certificate for Transfer from Regulation S
Global Security to Restricted Global Securities pursuant
to Section 3.03(h)(C)
Mortgage Loan Schedules
Schedule A All Mortgage Loans (by Mortgage Pool)
Schedule B Mortgage Loans with Retained Interest
Schedule C Reserved
Schedule D Reserved
Schedule E Pool 3 AX Loans
This TRUST AGREEMENT, dated as of February 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"), ▇▇▇▇▇ 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 ▇▇▇▇▇▇ Capital, A
Division of ▇▇▇▇▇▇ 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 A4
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 A4 Reserve Fund, and the Class A4 Rounding Account.
The following table specifies the class designation, interest rate, and
principal amount for each class of Lower Tier Interests.
Lower Initial Class
Tier Principal
Lower Tier Class Interest (or Notional) Corresponding Class
Designation Rate Amount of Certificates
----------- ---- ------ ---------------
Class LT1-A1 7.00% $112,577,000 Class 1-A1
(1) Class 1-A8
Class LT1-A2 7.00% $75,000,000 Class 1-A2
Class LT1-A3 7.00% $4,500,000 Class 1-A3
Class LT1-A4 7.00% $22,700,000 Class A4
Class LT1-A5 7.00% $27,220,000 Class 1-A5
(2) Class 1-A8
Class LT1-A6 7.00% $46,000,000 Class 1-A6
Class LT1-A7 7.00% $162,150 Class 1-A7
(3) Class A4
Class LT1-AP 0.00% $59,547 Class 1-AP
Class LT1-B 7.00% $19,214,745.06 Classes B1-B6
Class LT1-Q 7.00% $100 Class R
Class LT2-A1 7.00% $41,174,000 Class 2-A1
(4) Class 2-A2
Class LT2-A3 7.00% $75,000,000 Class 2-A3
Class LT2-A4 7.00% $6,300,000 Class A4
Class LT2-A5 7.00% $45,000 Class 2-A5
(5) Class A4
Class LT2-B 7.00% $8,168,313.77 Classes B1-B6
Class LT3-A1 7.00% $74,058,000 Class 3-A1
(6) Class 3-A5
Class LT3-A2 7.00% $55,000,000 Class 3A2
Class LT3-A3 7.00% $7,000,000 Class 3-A3
Class LT3-A4 7.50% $16,000,000 Class A-4
(7) Class 3-A8
Class LT3-A6 8.50% $68,029,000 Class 3-A6
(8) Class 3-A7
Class LT3-AP 0.00% $623,456 Class 3-AP
Class LT3-AX (9) (9) Class 3-AX
Class LT3-B 7.50% $14,714,509.48 Classes B1-B6
Class LT-R (10) Class R
---------------------------
(1) The Class 1-A8 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT1-A1 Interest. Specifically, for each Accrual Period the Class
1-A8 Certificates are entitled to interest accruals on the Class LT1-A1
Interest at a rate of 0.50%
(2) The Class 1-A8 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-A8 Certificates are entitled to interest accruals on the Class LT1-A5
Interest at a rate of 1.00%
(3) The Class 1-A7 Certificates are only entitled to the principal of
the Class LT1-A7 Interest. Interest on the Class LT1-A7 Interest, at a
rate of 7.00%, is used to pay the Class A4 Certificate Insurer.
(4) The Class 2-A2 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT2-A1 Interest. Specifically, for each Accrual Period the Class
2-A2 Certificates are entitled to interest accruals on the Class LT2-A1
Interest at a rate of 1.00%.
(5) The Class 2-A5 Certificates are only entitled to the principal of
the Class LT2-A5 Interest. Interest on the Class LT2-A5 Interest, at a
rate of 7.00%, is used to pay the Class A4 Certificate Insurer.
(6) The Class 3A-5 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT3-A1 Interest. Specifically, for each Accrual Period the Class
3-A5 Certificates are entitled to interest accruals on the Class LT3-A1
Interest at a rate of 0.90%.
(7) The Class 3A-8 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT3-A4 Interest. Specifically, for each Accrual Period the Class
3-A8 Certificates are entitled to interest accruals on the Class LT3-A1
Interest at a rate of 0.045%.
(8) The Class 3-A7 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT3-A6 Interest. Specifically, for each Accrual Period the Class
3-A7 Certificates are entitled to interest accruals on the Class LT3-A6
Interest at an annual rate equal to 8.00% minus LIBOR, subject to a
minimum rate of 0.00%.
(9) 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 Loans and 7.50%. The Class LT3-AX does
not have a principal balance.
(10) 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, the Available Distribution Amount for Pool 1,
Pool 2, and Pool 3 shall be distributed with respect to the Lower Tier
Interests in the following manner:
(i) On each Distribution Date, interest is to be distributed on each
Lower Tier Regular Interest at the rate described above to the same
extent that interest is distributed on the Corresponding Class or Classes
of Certificates;
(ii) For each Class of Lower Tier Interest for which there is a
Corresponding Class of Senior Certificates, principal is to be
distributed on such Class of Lower Tier Interest on each Distribution
Date in the same manner and in the same amount as principal is
distributed on such Corresponding Class of Senior Certificates;
(iii) On each Distribution Date, the excess, if any, of the Available
Distribution Amount for Pool 1 over the amounts distributed pursuant to
clauses (i) and (ii) above is to be distributed as principal on the Class
LT1-B Interest;
(iv) On each Distribution Date, the excess, if any, of the Available
Distribution Amount for Pool 2 over the amounts distributed pursuant to
clauses (i) and (ii) above is to be distributed as principal on the Class
LT2-B Interest.
(v) On each Distribution Date, the excess, if any, of the Available
Distribution Amount for Pool 2 over the amounts distributed pursuant to
clauses (i) and (ii) above is to be distributed as principal on the Class
LT3-B Interest.
On each Distribution Date, Realized Losses shall be allocated among the
Lower Tier Interests in the following manner:
(i) Realized Losses (other than the applicable AP Percentage of such
Realized Losses) attributable to the Mortgage Loans in Pool 1 for
any Distribution Date shall be allocated first to the Class LT1-B
Interest until its principal balance is reduced to zero;
(ii) Realized Losses attributable to the Mortgage Loans in Pool 2 shall
be allocated first to the Class LT2-B Interest until its balance is
reduced to zero;
(iii) Realized Losses (other than the applicable AP Percentage of such
Realized Losses) attributable to the Mortgage Loans in Pool 3 shall
be allocated first to the Class LT3-B Interest until its balance is
reduced to zero;
(iv) Realized Losses (other than the AP Percentages of such Realized
Losses) in excess of the allocations made pursuant to clauses (i),
(ii), and (iii) above are to be allocated first among the Class
LT1-B, Class LT2-B, and Class LT3-B Interests, whichever has a
remaining balance, to the extent of its remaining principal balance,
and then among the remaining classes of Lower Tier Interests in the
same manner that such Realized Losses are allocated among the
Corresponding Classes of Certificates;
(v) The AP Percentage of Realized Losses with respect to Pool 1 shall be
allocated to the Class LT1-AP Interest until its Principal Amount
has been reduced to zero, and the AP Percentage of Realized Losses
with respect to Pool 3 shall be allocated to the Class LT3-AP until
its Principal Amount has been reduced to zero.
Net Prepayment Shortfalls and Excess Losses are to be allocated among the
Classes of Lower Tier Interests in the same manner that such items are
allocated among the Corresponding Classes of Certificates.
The following table 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
Certificate Principal or Minimum
Interest (or Notional) Percentage
Class Designation Rate Rate Interest
----------------- ---- ---- --------
Class 1-A1 6.50% $112,577,000 $25,000
Class 1-A2 7.00% $ 75,000,000 $25,000
Class 1-A3 7.00% $ 4,500,000 $25,000
Class 1-A5 6.00% $ 27,220,000 $25,000
Class 1-A6 7.00% $ 46,000,000 $25,000
Class 1-A7 0.00% $ 162,150 100%
Class 1-A8 7.00% (1) $834,000
Class 1-AP 0.00% $ 59,547 100%
Class 2-A1 6.00% $ 41,174,000 $25,000
Class 2-A2 7.00% (2) $834,000
Class 2-A3 7.00% $ 75,000,000 $25,000
Class 2-A5 0.00% $ 45,000 100%
Class 3-A1 6.10% $ 74,058,000 $25,000
Class 3-A2 7.00% $ 55,000,000 $25,000
Class 3-A3 7.00% $ 7,000,000 $25,000
Class 3-A5 7.00% (3) $834,000
Class 3-A6 (4) $ 68,029,000 $25,000
Class 3-A7 (5) (6) $2,667,000
Class 3-A8 7.50% (7) 100%
Class 3-AP 0.00% $ 623,454 100%
Class 3-AX 7.50% (8) 100%
Class A4 7.00% $ 45,000,000 $1,000
Class B1 (9) $ 15,154,000 $100,000
Class B2 (9) $ 10,102,000 $100,000
Class B3 (9) $ 6,734,000 $100,000
Class B4 (9) $ 3,704,000 $250,000
Class B5 (9) $ 3,030,000 $250,000
Class B6 (9) $ 3,373,567.31 $250,000
Class R 7.00% $ 100 $100
---------------------------
(1) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 1-A8 Certificates will
equal the sum of (1) the product of (a) 7.1428571429% and (b) the Class
Principal Amount of the Class 1-A1 Certificates immediately before such
Distribution Date and (2) the product of (a) 14.▇▇▇▇▇▇▇▇▇▇% and (b) the
Class Principal Amount of the Class 1-A5 Certificates immediately before
such Distribution Date.
(2) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 2-A2 Certificates will
equal the product of (i) 14.▇▇▇▇▇▇▇▇▇▇% and (ii) the Class Principal
Amount of the Class 2-A1 Certificates immediately before such
Distribution Date.
(3) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) for the Class 3-A5 Certificates will
equal the product of (i) 12.▇▇▇▇▇▇▇▇▇▇% and (ii) the Class Principal
Amount of the Class 3-A1 Certificates immediately before such
Distribution Date.
(4) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for the Class 3-A6 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%.
(5) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for the Class 3-A7 Certificates is
the per annum rate equal to 8.00% minus LIBOR, subject to a minimum rate
of 0.00%.
(6) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 3-A7 Certificates will
equal the Class 3-A6 Principal Amount immediately before such
Distribution Date.
(7) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 3-A8 Certificates will
equal the product of (i) 6.0000000000% and (ii) the Component Principal
Amount of the A4(3) Component immediately before such Distribution Date.
(8) 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 7.50%, and the denominator of
which is 7.50% and (ii) the total Scheduled Principal Balance of the Pool
3 AX Loans as of the first day of the related Accrual Period.
(9) For any Distribution Date (and the related Accrual Period) the
Class B1, Class B2, Class B3, Class B4, Class B5 and Class B6
Certificates will bear interest at a per annum rate equal to the Average
Rate for such Distribution Date.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $673,545,820.
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 3-A6 and Class 3A-7 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 3-A6 and
Class 3A-7 Certificates, the period beginning on the Distribution Date in the
calendar month preceding the month in which the related Distribution Date
occurs (or from February 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 the Class A4 Certificates) and any
Component, and any Distribution Date, the product of the Certificate Interest
Rate for such Class of Certificates (or the Component Interest Rate, for such
Component) and the Class Principal Amount (or Class Notional Amount) of such
Class of Certificates (or the Component Principal Amount of such Component)
immediately preceding such Distribution Date, as reduced by such Class's or
Components 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 and, if applicable, the related Component of the
related Certificate Group pro rata based on the Accrued Certificate Interest
otherwise distributable thereto, and allocable to the Subordinate Certificates
pro rata based on interest accrued on their respective Apportioned Principal
Balances. As to the Class A4 Certificates and any Distribution Date, Accrued
Certificate Interest will equal the sum of Accrued Certificate Interest on
each Component thereof. Interest shall be calculated for such Certificates and
Components on the basis of a 360-day year consisting of twelve 30-day months.
Act: As defined in Section 3.03(c).
Additional Collateral: None.
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
Securities Administrator) 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 A4 Certificate Insurance Premium: As to any Distribution
Date, the sum of (a) the Class A4 Certificate Insurance Premium for such
Distribution Date and (b) the amount of any Class A4 Certificate Insurance
Premium that was not distributed to the Class A4 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:
(1) the applicable AP Percentage of the principal portion 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;
(2) 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;
(3) 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
(4) 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:
(1) 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 Securities Administrator 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 the Master
Servicer, the Trustee, the Securities Administrator, a Custodian or
any Servicer pursuant to the terms of this Agreement, a 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
(2) 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.
Bank: ▇▇▇▇▇▇ Brothers Bank, FSB and its successors and assigns. ----
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, $330,240, 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, all of the Classes of Certificates listed in the second
table of the Preliminary Statement, other than the Class R Certificates,
constitute Book-Entry Certificates.
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-A4 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
(other than the Principal Only 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 or a Class A4 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. The Certificate Principal Amount
of any Class A4 Certificate as of any Distribution Date will equal the sum of
the Component Principal Amounts of its A4(1), A4(2) and A4(3) Components.
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 A4 Certificate Insurance Policy: The Certificate Guaranty Insurance
Policy No. 34538 dated the Closing Date including any endorsements thereto
issued by the Class A4 Certificate Insurer to the Trustee for the benefit of
the Holders of the Class A4 Certificates, a copy of which is attached as
Exhibit M hereto.
Class A4 Certificate Insurance Premium: With respect to any Distribution
Date and with respect to the Class A4 Certificate Insurance Policy, an amount
equal to 1/12th of the product of (a) the Class Principal Amount of the Class
A4 Certificates as of such Distribution Date (prior to giving effect to any
distribution thereon on such Distribution Date) and (b) the Class A4 Premium
Percentage.
Class A4 Certificate Insurer: MBIA Insurance Corporation, or any
successor thereto, as issuer of the Class A4 Certificate Insurance Policy.
Class A4 Certificate Insurer Default: The occurrence and continuance of
any of the following events:
(a) the Class A4 Certificate Insurer shall have failed to make a payment
required to be made under the Class A4 Certificate Insurance Policy in
accordance with its terms;
(b) the Class A4 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 A4
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 A4 Certificate Insurer (or the taking of possession of
all or any material portion of the property of the Class A4 Certificate
Insurer).
Class A4 Guaranteed Distributions: (a) With respect to any Distribution
Date, (i) the Accrued Certificate Interest for each Component of the Class A4
Certificates for such Distribution Date, including the amount of any Net
Prepayment Interest Shortfalls relating to prepayments and any Relief Act
Reductions allocable to such Components on such Distribution Date that are not
covered by the Class A4 Reserve Fund and (ii) the amount of any Realized Loss
allocated to the Components of the Class A4 Certificates on such Distribution
Date and (b) for the Final Scheduled Distribution Date, the Class Principal
Amount of the Class A4 Certificates to the extent unpaid on the Final
Scheduled Distribution Date.
Class A4 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 A4 Certificateholders and designated,
"First Union National Bank, Class A4 Policy Payments Account in trust for
registered holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2001-2, Class A4." Funds in the Class A4
Policy Payments Account shall be held in trust for the benefit of the Class A4
Certificateholders for the uses and purposes set forth in this Agreement.
Class A4 Premium Percentage: The meaning assigned to such term in the
Insurance Agreement.
Class A4 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 A4
Certificateholders and designated "First Union National Bank, Class A4 Reserve
Fund in trust for registered holders of Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 2001-2, Class A4." The
Class A4 Reserve Fund shall not be a part of any REMIC and, for all federal
and state income tax purposes, shall be beneficially owned by ▇▇▇▇▇▇ Brothers
Inc.
Class A4 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 A4 Certificateholders and designated
"First Union National Bank, Class A4 Rounding Account in trust for registered
holders of Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2001-2, Class A4." Funds in the Rounding Account shall be
held in trust for the benefit of the Class A4 Certificateholders for the uses
and purposes set forth in this Agreement. The Class A4 Rounding Account shall
not be a part of any REMIC and, for all federal and state income tax purposes,
shall be beneficially owned by ▇▇▇▇▇▇ Brothers Inc.
Class A Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A5,
Class 1-A6, Class 1-A7, Class 1-A8, Class 1-AP, Class 2-A1, Class 2-A2, Class
2-A3, Class 2-A5, Class 3-A1, Class 3-A2, Class 3-A3, Class 3-A5, Class 3-A6,
Class 3-A7, Class 3-A8, Class 3-AP, Class 3-AX and Class A4 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.
Clearstream: Clearstream Banking, societe anonyme, and any successor
thereto.
Closing Date: February 28, 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: Each of the components having the designations and initial
Component Principal Amounts as follows:
Initial Component
Designation Principal Amount
----------- ----------------
A4(1) Component $22,700,000
A4(2) Component 6,300,000
A4(3) Component 16,000,000
Component Certificate: Any Class A4 Certificate.
Component Interest Rate: With respect to each of the A4(1), A4(2) and
A4(3) Components, 7.00% per annum.
Component Notional Amount: Not applicable.
Component Principal Amount: With respect to each Component as of any
Distribution Date, the initial Component Principal Amount of such Component
(as set forth in the definition of "Component" above) as of the Closing Date
as reduced by all amounts previously distributed on that Component in respect
of principal and the principal portion of any Realized Losses (as defined
herein) previously allocated to that Component.
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, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, 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, ▇▇▇▇▇ & 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: February 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 & ▇▇▇▇▇▇ 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 A4
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, 7.00% per annum; with respect to
Pool 2, 7.00% per annum; and with respect to Pool 3, 7.50% 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 7.00% per annum and with respect to Pool 3, any
Mortgage Loan with a Net Mortgage Rate less than 7.50% 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 March 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 A4 Certificates, determined without regard to
the Class A4 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
("First Union"), 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) First Union, the Securities
Administrator, the Master Servicer or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered, (y)
First Union, 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 First Union 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.
Euroclear: ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System.
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, March 25, 2031; for each Class of Group 2 Certificates, March
25, 2031; for each Class of Group 3 Certificates, March 25, 2031; and for the
Class A4 Certificates and each Class of Subordinate Certificates, March 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.
FNBN: First National Bank of Nevada, one of the Servicers.
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, $13,470,916 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.
Global Securities: The global certificates representing the Book-Entry
Certificates.
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-AP or Class R
Certificate and the A4(1) Component of the Class A4 Certificates.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class 2-A1, Class 2-A2, Class 2-A3 or Class 2-A5
Certificate and the A4(2) Component of the Class A4 Certificates.
Group 3: All of the Group 3 Certificates.
Group 3 Certificate: Any Class 3-A1, Class 3A-2, Class 3-A3, Class 3-A5,
Class 3A-6, Class 3-A7, Class 3A-8, Class 3-AX or Class 3-AP Certificate and
the A4(3) Component of the Class A4 Certificates.
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.
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.
Individual Redemption Certificate: A Redemption Certificate with a $1,000
Certificate Principal Amount.
Initial LIBOR Rate: 5.56%.
Insurance Agreement: The Insurance Agreement dated as of February 1,
2001, among the Depositor, the Seller, the Trustee and the Class A4
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 A4
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 March 2034.
▇▇▇▇▇▇ Capital: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ 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 3A-6 or Class 3A-7 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, the sum of (1) 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 and (2) the difference between (x) the
fixed monthly servicing fee of $8.00 per Mortgage Loan paid to FNBN pursuant
to the Master Interim Servicing Agreement, dated as of November 15, 2000,
between the Bank and FNBN for the Mortgage Loans serviced by FNBN and (y) the
monthly Servicing Fee which would have accrued with respect to such Mortgage
Loans serviced by FNBN determined using a Servicing Fee Rate per Mortgage Loan
of 0.25% per annum.
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: ▇▇▇▇▇'▇ 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 February 1,
2001, for the sale of the Mortgage Loans by ▇▇▇▇▇▇ Capital to the Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan and designate, among other data fields, the
applicable Mortgage Pool in which such Mortgage Loan is included, the Servicer
of such Mortgage Loan and the Retained Interest, if any, applicable to such
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 Senior Certificate other than the Class
1-AP or Class and Class 3-AP Certificates.
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 7.00% per annum; with
respect to Pool 3, any Mortgage Loan with a Net Mortgage Rate equal to or
greater than 7.50% 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 A4 Certificate Insurer with respect to any Distribution Date pursuant to
Section 5.07(a), which shall be in the form attached to the Class A4
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-A8, Class 2-A2, Class 3-A5, Class 3-A7,
Class 3-A8, or Class 3-AX Certificate.
Notional Component: None.
Offering Document: Either of the private placement memorandum dated
February 27, 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: ▇▇▇▇▇▇ 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 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 D 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 A4
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 and a
Pool 3 Mortgage Loan, all premiums or charges paid by the obligors under the
related 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-A7, Class 1-AP, Class 2-A5 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 February 27, 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 A4 Certificate Insurer shall be reimbursed from the Purchase
Price for any unpaid Reimbursement Amount due to the Class A4 Certificate
Insurer with respect to such repurchased Mortgage Loan. The Master Servicer or
the applicable Servicer (or the Securities Administrator, 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, such Servicer or the Securities
Administrator 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 A4 Certificates
is determined without regard to the Class A4 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 A4 Certificates is determined
without regard to the Class A4 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 Fitch and ▇▇▇▇▇'▇.
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 3A-6 and Class 3A-7 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 with respect to any Class 3A-6 and Class 3A-7 Certificates, the day
immediately preceding the related Distribution Date.
Redemption Certificate: Any Class A4 Certificate.
Reference Banks: As defined in Section 4.05.
Regulation S: Regulation S promulgated under the Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term contained in, Regulation S means such rule, section, subsection,
definition or term, as the case may be, or any successor thereto, in each case
as the same may be amended from time to time.
Regulation S Global Security: The meaning specified in Section 3.01(c).
Reimbursement Amount: As defined in Section 5.02(a)(6).
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
and any Restricted Global Security.
Restricted Global Security: The meaning specified in Section 3.01(c).
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: ▇▇▇▇▇▇ 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 A4 Rounding Account.
S&P: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
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 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: ▇▇▇▇▇ 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 from the second Business Day prior to the Distribution Date to but
excluding the Deposit Date and (ii) in the Certificate Account from the
Deposit Date to but excluding the 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: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc., or
any successor in interest.
Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A5,
Class 1-A6, Class 1-A7, Class 1-A8, Class 1-AP, Class 2-A1, Class 2-A2, Class
2-A3, Class 2-A5, Class 3A-1, Class 3A-2, Class 3A-3, Class 3A-5, Class 3A-6,
Class 3A-7, Class 3A-8, Class 3-AX, Class A4, 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-A6, Class 1-A7, Class R
Certificates and the A4(1) Component of the Class A4 Certificate, in the case
of Pool 1, the Class 2-A1, Class 2-A3, Class 2-A5 Certificates and the A4(2)
Component of the Class A4 Certificate, in the case of Pool 2, and the Class
3A-1, Class 3A-2, Class 3A-3, Class 3A-6 Certificates and the A4(3) Component
of the Class A4 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 (and the Component
Principal Amount of the related Components) 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) and the Component
Principal Amount of the related Component 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, First Horizon Home Loan Corporation and FNBN.
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: Except for FNBN, each Servicing Agreement between a
Servicer, the Seller and the Trustee, dated as of February 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.
In the case of FNBN, the Master Interim Servicing Agreement, dated November
15, 2000, between the Bank and FNBN, which has been assigned by the Bank to
the Seller pursuant to an Assignment and Assumption Agreement, dated February
28, 2001, and by the Seller to the Depositor pursuant to the Mortgage Loan
Sale Agreement.
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, $8,000,000, 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 ▇▇▇▇▇▇ 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 A4 Certificate Insurance
Policy, the Class A4 Reserve Fund, the Class A4 Rounding Account, the Class A4
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 A4 Certificate Insurer has paid a claim under the Class A4 Certificate
Insurance Policy in respect of the Class A4 Certificates, the Class A4
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 A4 Certificate Insurer to deliver the Class A4 Certificate Insurance
Policy for the benefit of the Class A4 Certificateholders and has made an
initial deposit to the Class A4 Reserve Fund of $28,000.
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:
(1) 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);
(2) the original of any guarantee executed in connection with
the Mortgage Note, assigned to the Trustee;
(3) 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;
(4) 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;
(5) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each
Mortgage Loan;
(6) 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;
(7) the original Primary Mortgage Insurance Policy or
certificate, if private mortgage guaranty insurance is required;
(8) 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;
(9) 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;
(10) with respect to any Cooperative Loan, the Cooperative Loan
Documents;
(11) 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
(12) 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) (1) 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) (which Opinion of Counsel may be in the form
of a memorandum of law) 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.
(2) 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
A4 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 A4 Certificate Insurer, to the Securities
Administrator and to the Master Servicer, as of the Closing Date or such other
date as is specified, that:
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) 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
(6) 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
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 ▇▇▇▇▇▇
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
▇▇▇▇▇▇ 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 A4 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 A4 Certificate Insurer by the Depositor, any Transferor
or ▇▇▇▇▇▇ Capital and assigned to the Trustee, the Depositor, such Transferor
or ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 A4 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.
(c) The Class B4, Class B5 or Class B6 Certificates offered and sold in
reliance on the exemption from registration under Rule 144A shall be issued
initially in the form of one or more permanent global Certificates in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A added to the forms of such Certificates (each,
a "Restricted Global Security"), which shall be deposited on behalf of the
subscribers for such Certificates represented thereby with the Trustee, as
custodian for DTC and registered in the name of a nominee of DTC, duly
executed and authenticated by the Trustee as hereinafter provided. The
aggregate principal amounts of the Restricted Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee or DTC or its nominee, as the case may be, as hereinafter provided.
The Class B4, Class B5 or Class B6 Certificates sold in offshore
transactions in reliance on Regulation S shall be issued initially in the form
of one or more permanent global Certificates in definitive, fully registered
form without interest coupons with the applicable legends set forth in Exhibit
A hereto added to the forms of such Certificates (each, a "Regulation S Global
Security"), which shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for DTC and
registered in the name of a nominee of DTC, duly executed and authenticated by
the Trustee as hereinafter provided. The aggregate principal amounts of the
Regulation S Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee or DTC or its nominee, as
the case may be, as hereinafter provided.
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 or a Regulation S Global
Security, 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. In addition, each Holder of a Regulation
S Global Security shall be deemed to have represented and warranted to the
Trustee, the Certificate Registrar and any of their respective successors
that: (i) such Person is not a U.S. person within the meaning of Regulation S
and was, at the time the buy order was originated, outside the United States
and (ii) such Person understands that such Certificates have not been
registered under the Securities Act of 1933, as amended (the "Act"), and that
(x) until the expiration of the 40-day distribution compliance period (within
the meaning of Regulation S), no offer, sale, pledge or other transfer of such
Certificates or any interest therein shall be made in the United States or to
or for the account or benefit of a U.S. person (each as defined in Regulation
S), (y) if in the future it decides to offer, resell, pledge or otherwise
transfer such Certificates, such Certificates may be offered, resold, pledged
or otherwise transferred only (A) to a person which the seller reasonably
believes is a "qualified institutional buyer" (a "QIB") as defined in Rule
144A under the Act, that is purchasing such Certificates for its own account
or for the account of a qualified institutional buyer to which notice is given
that the transfer is being made in reliance on Rule 144A or (B) in an offshore
transaction (as defined in Regulation S) in compliance with the provisions of
Regulation S, in each case in compliance with the requirements of this
Agreement; and it will notify such transferee of the transfer restrictions
specified in this Section.
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:
(1) 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
Act) of the Depositor or the Placement Agent or (y) being made to a QIB
by a transferor that has provided the Trustee with a certificate in the
form of Exhibit F hereto; and
(2) 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.
(h) Notwithstanding any provision to the contrary herein, so long as a
Global Security representing either of the Class B4, Class B5 or Class B6
Certificates remains outstanding and is held by or on behalf of DTC, transfers
of a Global Security representing any such Certificates, in whole or in part,
shall only be made in accordance with Section 3.01 and this Section 3.03(h).
(A) Subject to clauses (B) and (C) of this Section 3.03(h),
transfers of a Global Security representing either of the Class B4, Class
B5 or Class B6 Certificates shall be limited to transfers of such Global
Security, in whole or in part, to nominees of DTC or to a successor of
DTC or such successor's nominee.
(B) Restricted Global Security to Regulation S Global Security. If a
holder of a beneficial interest in a Restricted Global Security deposited
with or on behalf of DTC wishes at any time to exchange its interest in
such Restricted Global Security for an interest in a Regulation S Global
Security, or to transfer its interest in such Restricted Global Security
to a Person who wishes to take delivery thereof in the form of an
interest in a Regulation S Global Security, such holder, provided such
holder is not a U.S. person, may, subject to the rules and procedures of
DTC, exchange or cause the exchange of such interest for an equivalent
beneficial interest in the Regulation S Global Security. Upon receipt by
the Trustee, as Certificate Registrar, of (I) instructions from DTC
directing the Trustee, as Certificate Registrar, to be credited a
beneficial interest in a Regulation S Global Security in an amount equal
to the beneficial interest in such Restricted Global Security to be
exchanged but not less than the minimum denomination applicable to such
holder's Certificates held through a Regulation S Global Security, (II) a
written order given in accordance with DTC's procedures containing
information regarding the participant account of DTC and, in the case of
a transfer pursuant to and in accordance with Regulation S, the Euroclear
or Clearstream account to be credited with such increase and (III) a
certificate in the form of Exhibit N-1 hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such
interest has been made in compliance with the transfer restrictions
applicable to the Global Securities, including that the holder is not a
U.S. person, and pursuant to and in accordance with Regulation S, the
Trustee, as Certificate Registrar, shall reduce the principal amount of
the Restricted Global Security and increase the principal amount of the
Regulation S Global Security by the aggregate principal amount of the
beneficial interest in the Restricted Global Security to be exchanged,
and shall instruct Euroclear or Clearstream, as applicable, concurrently
with such reduction, to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the
Regulation S Global Security equal to the reduction in the principal
amount of the Restricted Global Security.
(C) Regulation S Global Security to Restricted Global Security. If a
holder of a beneficial interest in a Regulation S Global Security
deposited with or on behalf of DTC wishes at any time to transfer its
interest in such Regulation S Global Security to a Person who wishes to
take delivery thereof in the form of an interest in a Restricted Global
Security, such holder may, subject to the rules and procedures DTC,
exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Restricted Global Security. Upon receipt by the
Trustee, as Certificate Registrar, of (I) instructions from DTC directing
the Trustee, as Certificate Registrar, to cause to be credited a
beneficial interest in a Restricted Global Security in an amount equal to
the beneficial interest in such Regulation S Global Security to be
exchanged but not less than the minimum denomination applicable to such
holder's Certificates held through a Restricted Global Security, to be
exchanged, such instructions to contain information regarding the
participant account with DTC to be credited with such increase, and (II)
a certificate in the form of Exhibit N-2 hereto given by the holder of
such beneficial interest and stating, among other things, that the Person
transferring such interest in such Regulation S Global Security
reasonably believes that the Person acquiring such interest in a
Restricted Global Security is a QIB, is obtaining such beneficial
interest 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 jurisdiction, then the Trustee, as Certificate
Registrar, will reduce the principal amount of the Regulation S Global
Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in
the Regulation S Global Security to be transferred and the Trustee, as
Certificate Registrar, shall instruct DTC, concurrently with such
reduction, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Restricted
Global Security equal to the reduction in the principal amount of the
Regulation S Global Security.
(D) Other Exchanges. In the event that a Global Security is
exchanged for Certificates in definitive registered form without interest
coupons, pursuant to Section 3.09(c) hereof, such Certificates may be
exchanged for one another only in accordance with such procedures as are
substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply
with Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to
non-U.S. persons in compliance with Regulation S under the Act, as the
case may be), and as may be from time to time adopted by the Trustee.
(E) Restrictions on U.S. Transfers. Transfers of interests in the
Regulation S Global Security to U.S. persons (as defined in Regulation S)
shall be limited to transfers made pursuant to the provisions of Section
3.03(h)(C).
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):
(1) the provisions of this Section 3.09 shall be in full force and
effect;
(2) 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;
(3) 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
(4) 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 2001-2." 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):
(1) all payments on account of principal, including Principal
Prepayments and late collections, on the Mortgage Loans;
(2) 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;
(3) 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.
(4) all Insurance Proceeds;
(5) all Advances made by the Master Servicer or any Servicer
pursuant to Section 5.04 or the applicable Servicing Agreement; and
(6) 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:
(1) 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;
(2) 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;
(3) 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;
(4) 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);
(5) 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;
(6) subject to Section 5.05, to pay to itself income earned on the
investment of funds deposited in the Collection Account;
(7) 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;
(8) 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));
(9) to make payment to itself, the Trustee, Securities Administrator
and others pursuant to any provision of this Agreement;
(10) to withdraw funds deposited in error in the Collection Account;
(11) to clear and terminate any Collection Account pursuant to
Section 7.02;
(12) 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 Securities Administrator 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 Securities Administrator thereto
shall be prior to the rights of the Certificateholders; and
(13) 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-A4 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 and the Master Servicer):
(1) 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;
(2) 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;
(3) the amount, if any, of any distribution to the Holders of a
Residual Certificate;
(4) (A) the aggregate amount of any Advances required to be made by
or on behalf of the Master Servicer or any Servicer (or the Securities
Administrator) 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;
(5) 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;
(6) the Class Principal Amount (or Class Notional Amount) of each
Class of Certificates and the Component, Principal Amount of each
Component, 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 or Component Principal
Amounts due to Realized Losses:
(7) 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;
(8) the amount of the Master Servicing Fees, Servicing Fees and
Securities Administrator Fee paid during the Due Period to which such
distribution relates;
(9) 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;
(10) 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;
(11) 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;
(12) 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;
(13) 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;
(14) the Certificate Interest Rate applicable to such Distribution
Date with respect to each Class of Certificates;
(15) 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);
(16) any Insured Payments made in respect of Class A4 Guaranteed
Distributions paid under the Class A4 Certificate Insurance Policy; and
(17) any amounts withdrawn from the Class A4 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 A4 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, except in the case of
any (actual/actual) information or data regarding the Mortgage Loans provided
by FNBN, in which case the Master Servicer shall be responsible for converting
such information or data to a scheduled/scheduled basis.
On each Distribution Date, the Securities Administrator shall also
provide or make available to the Depositor the above-described written report
in a mutually agreed upon manner and format.
(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 A4
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:
(1) to withdraw amounts deposited in the Certificate Account in
error;
(2) 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;
(3) 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;
(4) to make distributions to the Certificateholders and the Class A4
Certificate Insurer pursuant to Article V; and
(5) 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:
(1) 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;
(2) 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
(3) 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 A4 Reserve Fund. (a) The Trustee shall establish
and maintain the Class A4 Reserve Fund, which shall be an Eligible Account
into which there shall have been deposited the amount of $28,000 on the
Closing Date. No additional funds will be deposited in the Class A4 Reserve
Fund after the Closing Date. All funds deposited in the Class A4 Reserve Fund,
other than investment earnings thereon which shall be released by the Trustee
to ▇▇▇▇▇▇ Brothers Inc. from time to time by written order, shall be held in
trust for the benefit of the Holders of the Class A4 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 ▇▇▇▇▇▇ Capital
for deposit in the Class A4 Reserve Fund out of its own funds, without any
right of reimbursement therefor, immediately as realized. The Class A4 Reserve
Fund shall be an "outside reserve fund" under the REMIC Provisions. ▇▇▇▇▇▇
Brothers Inc. shall be the beneficial owner of the Class A4 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 A4
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
A4 Reserve Fund on behalf of the Trust Fund for the following purposes:
(1) prior to each Distribution Date, to withdraw from the Class A4
Reserve Fund an amount equal to the lesser of (a) any Net Prepayment
Interest Shortfalls and any Relief Act Reductions for Pool 1, Pool 2 or
Pool 3 allocable to the A4(1), A4(2) or A4(3) Components of the Class A4
Certificates for the related Distribution Date, and (b) the amount on
deposit in the Class A4 Reserve Fund, and remit such amount to the
Certificate Account for distribution to the Class A4 Certificateholders
on such Distribution Date; and
(2) on the earlier of (a) the Distribution Date on which the Class
Principal Amount of the Class A4 Certificates is reduced to zero and (b)
the termination of this Agreement pursuant to Section 7.01, to clear and
terminate the Class A4 Reserve Fund and to pay all amounts on deposit
therein to ▇▇▇▇▇▇ 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
"▇▇▇▇▇ 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 2001-2." 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:
(1) to withdraw amounts deposited in the Securities Administrator
Account in error;
(2) 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;
(3) to make payments to the Trustee for deposit into the Certificate
Account pursuant to Section 4.07(d); and
(4) 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)(1), (2) and (4)), 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 A4 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 A4 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:
(1) from the Available Distribution Amount for each Mortgage Pool,
the Aggregate Class A4 Certificate Insurance Premium;
(2) from the Available Distribution Amount for each Mortgage Pool,
to each Class of Senior Certificates or Components in the related
Certificate Group (other than any Class of Principal Only Certificates),
the Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Class's or Component's allocable share of any Net
Prepayment Interest Shortfalls for the related Mortgage Pool for such
Distribution Date; provided, however, that any shortfall in available
amounts for each Mortgage Pool shall be allocated among the Classes or
Components of the related Certificate Group in proportion to the amount
of Accrued Certificate Interest (as so reduced) that would otherwise be
distributable thereon;
(3) from the Available Distribution Amount for each Mortgage Pool,
to each Class of Senior Certificates or Components 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 or Components of the related
Certificate Group in proportion to the Interest Shortfall for each such
Class or Components on such Distribution Date;
(4) from the remaining Available Distribution Amount for each
Mortgage Pool, to the Senior Certificates or Components 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-A6, Class 1-A7, Class 1-AP and Class R Certificates and to
the A4(1) Component, from the Available Distribution Amount for Pool
1 for such Distribution Date, in reduction of their respective Class
Principal Amounts or Component Principal Amount, concurrently, as
follows:
(i) to the Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A5,
Class 1-A6, Class 1-A7 and Class R Certificates and the A4(1)
Component, 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 March 2004, an amount up to
approximately $22,862.15 for such Distribution Date, pro
rata to the A4(i) Component and the Class 1-A7 Certificate
until their respective Component Principal Amount and the
Class Principal Amount have been reduced to zero;
(c) to the Class 1-A1, Class 1-A2 and Class 1-A3
Certificates, 72.90% of the remaining Senior Principal
Distribution Amount for Pool 1, as follows:
(I) to the Class 1-A1 and Class 1-A2 Certificates, until a
total of $1,440,000 has been distributed under this clause
(4)(A)(i)(c)(I) for such Distribution Date, concurrently, as
follows:
(A) 85.00% of the amount distributable pursuant to clause
(4)(A)(i)(c)(I)(A) to the Class 1-A1 Certificates, until the
Class Principal Amount thereof has been reduced to zero; and
(B) 15.00% of the amount distributable pursuant to clause
(4)(A)(i)(c)(I) to the Class 1-A2 Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
(II) sequentially, to the Class 1-A2, Class 1-A1 and Class 1-A3
Certificates, in that order, until the Class Principal Amount of
each such Class has been reduced to zero; and
(d) to the Class 1-A5 and Class 1-A6 Certificates,
until a total of $430,000 has been distributed under this
clause (4)(A)(i)(d) for such Distribution Date,
concurrently, as follows:
(I) 90.00% of the amount distributable pursuant to clause
(4)(A)(i)(d) to the Class 1-A5 Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
(II) 10.00% of the amount distributable pursuant to clause
(4)(A)(i)(d) to the Class 1-A6 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
(e) sequentially, to the Class 1-A6, and 1-A5
Certificates, in that order, until the Class Principal
Amount of each of those Classes has been reduced to zero;
and
(f) pro rata, to the A4(1) Component and the Class
1-A7 Certificates, until the Component Principal Amount of
such Component and the Class Principal Amount of such
Class has been reduced to zero;
(g) sequentially, to the Class 1-A1, Class 1-A2 and
Class 1-A2 Certificates, in that order, until the Class
Principal Amount of each of those Classes has been reduced
to zero; and
(ii) to the Class 1-AP Certificates, the AP Principal
Distribution Amount for Pool 1 for such Distribution Date,
until their Class Principal Amount has been reduced to zero;
(B) to the Class 2-A1, Class 2-A3 and Class 2A-5
Certificates, in reduction of their Class Principal Amounts,
and to the A4(2) Component, in reduction of its Component
Principal Amount, from the Senior Principal Amount for Pool 2,
in the following order of priority:
(i) if the Distribution Date occurs on or after the
Distribution Date in March 2004, an amount up to $6,345 for
such Distribution Date, pro rata to the A4(2) Component and the
Class 2-A5 Certificates until their respective Component
Principal Amount and Class Principal Amount have been reduced
to zero;
(ii) to the Class 2-A1 and Class 2-A3 Certificates,
until a total of $650,000 has been distributed under this
clause (4)(B)(ii) for such Distribution Date, concurrently, as
follows:
(a) 90.00% of the amount distributable
pursuant to clause (4)(B)(ii), to the Class 2-A1
Certificates, until the Class Principal Amount thereof has
been reduced to zero; and
(b) 10.00% of the amount distributable pursuant to
clause (4)(B)(ii), to the Class 2-A3 Certificates, until
the Class Principal Amount thereof has been reduced to
zero;
(iii) sequentially, to the Class 2-A3 and Class 2-A1
Certificates, in that order, until the Class Principal Amount
of each of those Classes has been reduced to zero;
(iv) pro rata, to the A4(2) Component and the Class 2-A5
Certificates, until the Component Principal Amount of such
Component and the Class Principal Amount of such Class have
been reduced to zero;
(C) to the Class 3-A1, Class 3-A2, Class 3-A3 , Class 3-A6
and Class 3-AP Certificates, in reduction of their Class
Principal Amounts, and to the A4(3) Component, in reduction of
its Component Principal Amount, from the Available Distribution
Amount for Pool 3, concurrently, as follows:
(i) to the Class 3-A1, Class 3-A2, Class 3-A3 and Class
3-A6 Certificates, and the A4(3) Component, the Senior
Principal Distribution Amount for Pool 3, in the following
order of priority:
(a) if the Distribution Date occurs on or
after the Distribution Date in March 2004, to the A4(3)
Component, an amount up to $16,000 for such Distribution
Date, until its Component Principal Balance is reduced to
zero;
(b) 33.3333333333% of the Senior Principal
Distribution Amount for Pool 3 to the Class 3-A6
Certificates, until their Class Principal Amount has been
reduced to zero; and
(c) to the Class 3-A1 and Class 3-A2 Certificates,
until a total of $780,000 has been distributed under this
clause (4)(C)(i)(c) for such Distribution Date,
concurrently, as follows:
(I) 95.00% of the amount distributable pursuant to
clause (4)(C)(i)(c), to the Class 3-A1 Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
(II) 5.00% of the amount distributable pursuant to clause
(4)(C)(i)(c) to the Class 3-A2 Certificates, until the Class
Principal Amount has been reduced to zero; and
(d) sequentially, to the Class 3-A2, Class 3-A1 and
Class 3-A3 Certificates and the A4(3) Component, in that
order, until the Class Principal Amount of each of those
Classes has been reduced to zero.
(ii) to the Class 3-AP Certificates, the AP Principal
Distribution Amount for Pool 3, until the Class Principal
Amount thereof has been reduced to zero;
(5) 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;
(6) from the Available Distribution Amount for each Mortgage Pool,
to the Class A4 Certificate Insurer, any unreimbursed Insured Payments,
plus all amounts due to the Class A4 Certificate Insurer under the
Insurance Agreement, together with interest thereon at the rate specified
in the Insurance Agreement (collectively, the "Reimbursement Amounts");
and
(7) 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 and Components of the related Certificate
Group (other than any related Principal Only Certificates) pro rata based on
(i) in the case of the related Non-AP Senior Certificates, 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 A4 Reserve Fund with respect to such Distribution
Date pursuant to Section 4.06, to the extent of funds on deposit in the Class
A4 Reserve Fund, and shall apply such funds to distributions on the Class A4
Certificates, as interest thereon, in the amount of (i) any Net Prepayment
Interest Shortfalls for each Mortgage Pool allocable to the related Component
of the Class A4 Certificates on such Distribution Date and (ii) any Relief Act
Reductions allocable to the related Component of the Class A4 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) (1) On each Distribution Date prior to the Credit Support Depletion
Date but after the date on which the aggregate Certificate Principal Amount or
Component Principal Amount of the Non-AP Senior Certificates or the related
Component 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)(7), 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 or Components
(other than any Notional Certificates) remaining outstanding pursuant to
Section 5.02(a)(4), until the Class Principal Amounts or Component 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 or Component Principal Amount of
the Non-AP Senior Certificates or Components 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 or Components 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 and the
Component Principal Amount of such Components of each such
Certificate Group.
(2) (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 or Components (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
and the Component Principal Amount of the Components 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 or Components 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 or Components 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
and the Component Principal Amount of the Components, 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 or
Components of the related Certificated Group, pro rata, in
accordance with their Class Principal Amounts or Component
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 the Securities
Administrator. (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, the Securities
Administrator, 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 that would have been deposited in such Certificate Account
over (b) the amount of any Advance made by the Master Servicer with respect to
such Distribution Date; provided, however, that the Securities Administrator
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
Securities Administrator 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:
(1) 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
(2) 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
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 ▇▇▇▇▇▇ 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
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 A4 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 A4
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 A4
Certificate Insurer by completing a Notice of Nonpayment in the form of
Exhibit A to the Class A4 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 A4 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 A4 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 A4 Certificate Insurer, as
appropriate, and the Fiscal Agent, if any, and the Trustee shall comply with
the provisions of the Class A4 Certificate Insurance Policy to obtain payment
by the Class A4 Certificate Insurer of such voided scheduled payment. In
addition, the Trustee shall mail notice to all Holders of the Class A4
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 A4 Certificate Insurance Policy, a copy of which shall
be made available to such Holders by the Trustee. The Trustee shall furnish to
the Class A4 Certificate Insurer and the appropriate Fiscal Agent, if any, its
records listing the payments on the affected Class A4 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 A4 Certificates (the
"Class A4 Policy Payments Account") over which the Trustee shall have
exclusive control and sole right of withdrawal. The Class A4 Policy Payments
Account shall be an Eligible Account. The Trustee shall deposit any amount
paid under the Class A4 Certificate Insurance Policy into the Class A4 Policy
Payments Account and distribute such amount only for the purposes of making
payments to Holders of the Class A4 Certificates in respect of the Class A4
Guaranteed Distributions (or other amounts payable pursuant to paragraph (b)
above on the Class A4 Certificates by the Class A4 Certificate Insurer
pursuant to the Class A4 Certificate Insurance Policy) for which the related
claim was made under the Class A4 Policy. Such amounts shall be allocated by
the Trustee to Holders of Class A4 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 A4 Certificates from funds in the Class A4 Policy Payments Account
shall be noted as provided in subsection (e) below. Funds held in the Class A4
Policy Payments Account shall not be invested by the Trustee.
(d) Any funds received from the Class A4 Certificate Insurer for deposit
into the Class A4 Policy Payments Account pursuant to the Class A4 Certificate
Insurance Policy in respect of a Distribution Date or otherwise as a result of
any claim under such Class A4 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 A4 Certificates, or (ii) of other amounts
to which payments under the Class A4 Certificate Insurance Policy are to be
applied. Funds received by the Trustee as a result of any claim under the
Class A4 Certificate Insurance Policy shall be used solely for payment to the
Holders of the Class A4 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
A4 Policy Payments Account on the first Business Day after each Distribution
Date shall be remitted promptly to the Class A4 Certificate Insurer pursuant
to the written instruction of the Class A4 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 A4 Certificate Insurer and deposited into the Class A4
Policy Payments Account and (ii) the allocation of such funds to (A) payments
of interest on and principal in respect of any Class A4 Certificates, (B)
Realized Losses allocated to the Class A4 Certificates, (C) Net Prepayment
Interest Shortfalls and Relief Act Reductions allocated to the Class A4
Certificates, and (D) payments in respect of Preference Amounts. The Class A4
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 A4 Certificate Insurance Policy shall
be considered payment by the Class A4 Certificate Insurer and not by the Trust
Fund with respect to the Class A4 Certificates and the Class A4 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 A4 Certificate
by its acceptance of such Class A4 Certificate agrees, that, without the need
for any further action on the part of the Class A4 Certificate Insurer or the
Trustee, to the extent the Class A4 Certificate Insurer makes Insured
Payments, directly or indirectly, on account of principal of or interest on
any Class A4 Certificates, the Class A4 Certificate Insurer will be fully
subrogated to the rights of the Holders of such Class A4 Certificates to
receive the related Reimbursement Amount pursuant to Section 5.02(a)(vi). The
Class A4 Certificateholders, by acceptance of the Class A4 Certificates,
assign their rights as Holders of the Class A4 Certificates to the extent of
the Class A4 Certificate Insurer's interest with respect to amounts paid under
the Class A4 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 A4 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 A4 Certificate Insurer to receive any moneys paid or payable in respect
of the Class A4 Certificates under this Agreement or otherwise. Anything
herein to the contrary notwithstanding, solely for purposes of determining the
Class A4 Certificate Insurer's rights as subrogee for payments distributable
pursuant to Section 5.02, any payment with respect to distributions to the
Class A4 Certificates that is made with funds received pursuant to the terms
of the Class A4 Certificate Insurance Policy shall not be considered payment
of the Class A4 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 A4 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 A4 Certificate Insurer of such Event
of Default.
(h) The Trustee shall promptly notify the Securities Administrator and
the Class A4 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 A4 Certificates. Each Holder of a Class A4 Certificate, by its purchase
of Class A4 Certificates, and the Trustee hereby agree that the Class A4
Certificate Insurer (so long as no the Class A4 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 A4 Certificate Insurer shall be
subrogated to the rights of the Trustee and each Holder of a Class A4
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 A4 Certificate Insurance Policy
to the Class A4 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 or the Securities Administrator shall have actual knowledge) has
occurred and has not otherwise been cured or waived, the Trustee or the
Securities Administrator 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 or the Securities
Administrator 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:
(1) 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;
(2) 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;
(3) 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
(4) 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 Securities Administrator, during such time, if any, as the
Securities Administrator 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:
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) 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;
(6) 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;
(7) 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
(8) 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
A4 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 A4 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 A4 Certificates, determined without
regard to the Class A4 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 A4 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 A4 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 A4 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 A4 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.
(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:
(1) 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;
(2) 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;
(3) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian
hereunder; and
(4) 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:
(1) 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;
(2) 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
(3) 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":
(1) 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
(2) 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
(3) 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
(4) 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
(5) 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
(6) 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
(7) 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
(8) 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;
(9) 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
(10) Any failure of the Master Servicer to remit to the Securities
Administrator any payment required to be made to the Securities
Administrator 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 Securities
Administrator and upon receipt of written notice by the Securities
Administrator from the Trustee pursuant to and under the terms of this
Agreement; and the Securities Administrator 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 and the Securities Administrator in effecting the termination
of the defaulting Master Servicer's responsibilities and rights hereunder as
Master Servicer including, without limitation, notifying Servicers of the
assignment of the master servicing function and providing the Securities
Administrator or its designee all documents and records in electronic or other
form reasonably requested by it to enable the Securities Administrator or its
designee to assume the defaulting Master Servicer's functions hereunder and
the transfer to the Securities Administrator 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
or Securities Administration 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 A4
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 9.28 and within a period of time not to exceed 90
days after the Securities Administrator receives written notice from the
Trustee pursuant to Section 6.14(a) or Section 9.28, the Securities
Administrator, 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 or the Trustee's failure
to provide information required by this Agreement shall not be considered a
default by the Securities Administrator hereunder. In addition, the Securities
Administrator shall have no responsibility for any act or omission of the
Master Servicer prior to the issuance of any notice of termination and within
a period of time not to exceed 90 days after the Securities Administrator
receives written notice from the Trustee pursuant to Section 6.14(a) or
Section 9.28, as applicable. The Securities Administrator shall have no
liability relating to the representations and warranties of the Master
Servicer set forth in Section 9.14. In the Securities Administrator's capacity
as such successor, the Securities Administrator shall have the same
limitations on liability herein granted to the Master Servicer. As
compensation therefor, the Securities Administrator 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 Securities Administrator may, if it
shall be unwilling to continue to so act, or shall, if it is unable to so act,
request the Trustee to appoint, petition a court of competent jurisdiction to
appoint, or appoint on its own behalf 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 or the Securities
Administrator as a successor master servicer may be an Affiliate of the
Trustee or the Securities Administrator; provided, however, that, unless such
Affiliate meets the net worth requirements and other standards set forth
herein for a successor master servicer, the Trustee or the Securities
Administrator, 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 or the Securities Administrator
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, the Securities Administrator 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,
the Securities Administrator 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, the Securities
Administrator 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, the Securities Administrator 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, the
Securities Administrator 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. Neither the Securities
Administrator 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 Trustee to deliver, or any delay in delivering cash, documents or records
to it, or (ii) the failure of Trustee to cooperate as required by this
Agreement.
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 A4 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 A4 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 (▇▇▇▇▇), 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 Securities Administrator and
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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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 A4
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:
(1) 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
(2) 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 A4 Certificates
without regard to the Class A4 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 Securities
Administrator. (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), after a period not to exceed ninety days after the
Securities Administrator receives written notice from the Trustee pursuant to
Section 6.14(a) or Section 9.28, as applicable, the Securities Administrator
shall thereupon assume all of the rights and obligations of such Master
Servicer hereunder and enforce the rights under each Servicing Agreement
entered into with respect to the Mortgage Loans. The Securities Administrator,
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 Securities Administrator, and hereby agrees to
indemnify and hold harmless the Securities Administrator from and against all
costs, damages, expenses and liabilities (including reasonable attorneys'
fees) incurred by the Securities Administrator as a result of such liability
or obligations of the Master Servicer and in connection with the Securities
Administrator's assumption (but not its performance, except to the extent that
costs or liability of the Securities Administrator 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 Securities Administrator
against negligent or willful misconduct of the Securities Administrator.
(b) The Master Servicer that has been terminated shall, upon request of
the Securities Administrator or 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 A4 Certificate Insurer, as of the Closing
Date that:
(1) 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;
(2) 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;
(3) 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);
(4) 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;
(5) 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;
(6) 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;
(7) 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;
(8) 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;
(9) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer;
and
(10) 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 A4 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
▇▇▇▇▇▇ Brothers Inc. an Opinion of Counsel, dated the Closing Date, in form
and substance reasonably satisfactory to the Depositor and ▇▇▇▇▇▇ 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 A4 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 A4 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, the
Trustee or the Securities Administrator 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 and the
Securities Administrator. In the event such determination of ineligibility of
the Master Servicer to continue in the capacity of master servicer is made by
the Master Servicer or the Trustee, no such resignation shall become effective
until a period of time not to exceed ninety days after the Securities
Administrator receives written notice thereof from the Trustee and until the
Securities Administrator 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
Securities Administrator, 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, the Trustee and the Securities
Administrator. 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 A4 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 A4 Certificates,
determined without regard to the Class A4 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, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇, (b) in the case of the
Trustee, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Group, (c) in the case of the Master
Servicer, Aurora Loan Services Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Master Servicing, (d) in the case of the
Securities Administrator, ▇▇▇▇▇ Fargo Bank Minnesota, N. A., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: SASCO 2001-2, telecopy number
▇▇▇-▇▇▇-▇▇▇▇ and (e) in the case of the Class A4 Certificate Insurer, MBIA
Insurance Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Insured Portfolio Management - Structured Finance (IMP-SF), Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2001-2,
Class A4 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 A4
Certificate Insurer of the occurrence of any of the following events of which
it has notice:
(1) any amendment to this Agreement pursuant to Section 11.03;
(2) any Assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(3) the occurrence of any Event of Default described in Section
6.14;
(4) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(5) the appointment of any successor to any Master Servicer
pursuant to Section 6.14; and
(6) 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 Fitch, to:
Fitch Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgage Surveillance
If to Moody's, to:
▇▇▇▇▇'▇ Investors Service
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 Securities Administrator, the Class
A4 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:
(1) Such successor servicer must be qualified to service loans for
FNMA or FHLMC;
(2) 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;
(3) 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, the Securities Administrator 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;
(4) If the successor servicer is not a Servicer of Mortgage Loans at
the time of transfer, there must be delivered to the Trustee and the
Securities Administrator 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 A4 Certificate
Insurance Policy, in the case of the Class A4 Certificates);
(5) 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 A4 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 A4 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 A4 Certificate Insurer at the following address:
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Insured Portfolio Management - Structured Finance
Re: Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2001-2,
Class A4 Certificates
or such other address as the Class A4 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 A4 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 A4
Certificate Insurance Policy, unless the Class A4 Certificate Insurer has
consented to such purchase.
(d) All references herein to the rating of the Certificates shall be
without regard to the Class A4 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Securities Administrator
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trust Officer
AURORA LOAN SERVICES INC.,
as Master Servicer
By: /s/ E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------
Name: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
Solely for purposes of Section 11.14, accepted and agreed to by:
▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
EXHIBIT A
---------
FORMS OF CERTIFICATES
EXHIBIT B-1
-----------
FORM OF TRUSTEE INITIAL CERTIFICATION
________________
[Date]
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: Trust Agreement, dated as of February 1, 2001, (the "Trust
Agreement"), between Structured Asset Securities Corporation, as
Depositor, ▇▇▇▇▇ 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 2001-2
----------------------------------------------------------------
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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: Trust Agreement, dated as of February 1, 2001, (the "Trust
Agreement"), between Structured Asset Securities Corporation, as
Depositor, ▇▇▇▇▇ 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 2001-2
----------------------------------------------------------------
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:
(1) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee;
(2) the original of any guarantee executed in connection with the
Mortgage Note, assigned to the Trustee;
(3) 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;
(4) 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;
(5) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each Mortgage
Loan;
(6) 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;
(7) the original Primary Mortgage Insurance Policy or certificate,
if private mortgage guaranty insurance is required;
(8) 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;
(9) 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;
(10) with respect to any Cooperative Loan, the Cooperative Loan
Documents; and
(11) 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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement, dated as of February 1, 2001, (the "Trust
Agreement"), between Structured Asset Securities Corporation, as
Depositor, ▇▇▇▇▇ 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 2001-2
----------------------------------------------------------------
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 February 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 2001-2, 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 February 1, 2001 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer, ▇▇▇▇▇ 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, ▇▇▇▇▇ 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 February 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, 4 and 5 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 Claim for exception From Withholding on Income Effectively
Connected 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" means 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; (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; (vi) and, to the extent
provided in Treasury regulations, certain trusts in existence prior to August
20, 1996 that are treated as United States persons prior to such date and
elect to continue to be treated as United States 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 2001-2
---------------------------------------
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
_______________________________
Name:
Title:
EXHIBIT E
---------
SERVICING AGREEMENTS
EXHIBIT F
---------
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2001-2
---------------------------------------
Reference is hereby made to the Trust Agreement dated as of February
1, 2001 (the "Trust Agreement") among Structured Asset Securities Corporation,
as Depositor, ▇▇▇▇▇ 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 2001-2 (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 two years of the later of
the date of original issuance of the Privately Offered Certificates or
the last day on which such Privately Offered Certificates are owned by
the Depositor or any affiliate of the Depositor (which includes the
Placement Agent) we will do so only (A) to the Depositor, (B) to
"qualified institutional buyers" (within the meaning of Rule 144A under
the Securities Act) in accordance with Rule 144A under the Securities Act
("QIBs"), (C) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act, or (D) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of February 1,
2001 among the Depositor, ▇▇▇▇▇ 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, ▇▇▇▇▇ 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 February 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
EXHIBIT L
---------
INSURANCE AGREEMENT
EXHIBIT M
---------
CLASS A4 CERTIFICATE INSURANCE POLICY
EXHIBIT N-1
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO REGULATION S GLOBAL SECURITY
(Transfers pursuant toss.3.03(h)(B)
of the Agreement)
------------------------------------------
Re: Structured Asset Securities Corporation Mortgage Loan Trust
Mortgage Pass-Through Certificates, Series 2001-2
Reference is hereby made to the Trust Agreement (the "Agreement") among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Securities
Administrator and First Union National Bank, as Trustee, dated as of February
1, 2001. Capitalized terms used but not defined herein shall have the meanings
given to them in the Agreement.
This letter relates to U.S. $ ______________________________ aggregate
principal amount of Securities which are held in the form of a Restricted
Global Security with DTC in the name of [name of transferor] (the
"Transferor") to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In connection with such request, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions
set forth in the Agreement and the Securities and in accordance with Rule 904
of Regulation S, and that:
a. the offer of the Securities was not made to a person in the
United States;
b. at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States;
c. no directed selling efforts have been made in contravention of
the requirements of Rule 903 or 904 of Regulation S, as applicable;
d. the transaction is not part of a plan or scheme to evade the
registration requirements of the United States Securities Act of
1933, as amended; and
e. the transferee is not a U.S. person (as defined in Regulation S).
You 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 proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
________________________________________
[Name of Transferor]
By:_____________________________________
Name:
Title:
Date:_________________, ___
EXHIBIT N-2
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL SECURITY
TO RESTRICTED GLOBAL SECURITY
(Transfers pursuant toss.3.03(h)(C)
of the Agreement)
--------------------------------------
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2001-2
Reference is hereby made to the Trust Agreement (the "Agreement") among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Securities
Administrator and First Union National Bank, as Trustee, dated as of February
1, 2001. Capitalized terms used but not defined herein shall have the meanings
given to them in the Agreement.
This letter relates to U.S. $____________ aggregate principal amount of
Securities which are held in the form of a Regulations S Global Security in
the name of [name of transferor] (the "Transferor") to effect the transfer of
the Securities in exchange for an equivalent beneficial interest in a
Restricted Global Security.
In connection with such request, and in respect of such Securities, the
Transferor does hereby certify that such Securities are being transferred in
accordance with (i) the transfer restrictions set forth in the Agreement and
the Securities and (ii) Rule 144A under the United States Securities Act of
1933, as amended, to a transferee that the Transferor reasonably believes is
purchasing the Securities for its own account or an account with respect to
which the transferee exercises sole investment discretion, the transferee and
any such account is a qualified institutional buyer within the meaning of 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 jurisdiction.
_________________________________________
[Name of Transferor]
By:______________________________________
Name:
Title:
Date:_____________________, _____
SCHEDULE A
----------
ALL MORTGAGE LOANS
(by Mortgage Pool)
[To be retained at the Washington, D.C. office of ▇▇▇▇▇ & Wood LLP]
SCHEDULE B
----------
MORTGAGE LOANS WITH RETAINED INTEREST
[To be retained at the Washington, D.C. office of ▇▇▇▇▇ & ▇▇▇▇ LLP]
SCHEDULE C
----------
[Reserved]
SCHEDULE D
----------
POOL 3 AX LOANS
[To be retained at the Washington, D.C. office of ▇▇▇▇▇ & Wood LLP
SCHEDULE E
----------
[Reserved]