EXHIBIT 4.3.6
FORM OF REFERENCE AGREEMENT
(REMIC, FIXED/FLOATING RATE CERTIFICATES, MORTGAGE LOANS)
GS MORTGAGE SECURITIES CORP.,
Depositor
[NAME OF MASTER SERVICER],
Master Servicer
and
[NAME OF TRUSTEE],
Trustee
___________________________________
REFERENCE AGREEMENT
incorporating by reference
STANDARD TERMS AND CONDITIONS
OF POOLING AND SERVICING
Dated as of [ ], 200_
___________________________________
Conduit Mortgage Pass-Through Certificates
TABLE OF CONTENTS
Page
ARTICLE I THE CERTIFICATES................................................. 2
SECTION 1.01 Designation................................................2
SECTION 1.02 Conveyance of Trust Fund; Issuance of Certificates;
REMIC Election and Designation ............................2
SECTION 1.03 Delivery of Documents......................................3
(1) the distributions due and payable on such Mortgage Assets
during each such Due Period;..................................6
(2) the amount, if any, to be deposited in the Certificate
Account on the Delivery Date pursuant to Section 1.03(9)
hereof;.......................................................6
(3) the amounts, if any, of the GPM Shortfalls or GPM Prepayment
Shortfalls available to be withdrawn from the GPM Fund
and deposited in the Certificate Account on or prior to
the Distribution Date immediately following the end of
each such Due Period pursuant to Section 7.01 hereof;.........6
(4) the amounts, if any, of the Buy-Down Shortfalls available
to be withdrawn from the Buy-Down Fund and deposited in
the Certificate Account on or prior to the Distribution
Date immediately following the end of each such Due
Period pursuant to Section 7.08 hereof; and...................6
(5) all other amounts available for such purpose and
required hereby or by Article I to be deposited in the
Certificate Account on or prior to the Payment Date
immediately following the end of each such Due Period;........6
SECTION 1.04 Forms Generally...........................................11
SECTION 1.05 Aggregate Initial Stated Principal Balance; Final
Scheduled Distribution Date; Classes; Terms...............11
SECTION 1.06 LIBOR Calculation.........................................12
SECTION 1.07 Distributions.............................................14
SECTION 1.08 Place and Notice for Final Distribution in Reduction
of Outstanding Stated Principal Balance ..................15
SECTION 1.09 Denominations.............................................15
SECTION 1.10 Distribution Dates........................................15
SECTION 1.11 Regular Record Dates......................................16
SECTION 1.12 Special Record Dates......................................16
SECTION 1.13 Early Termination.........................................16
SECTION 1.14 Wire Transfer Eligibility.................................16
SECTION 1.15 Required Rating...........................................16
SECTION 1.16 Pool Insurance Policy.....................................16
SECTION 1.17 Special Hazard Insurance Policy...........................16
SECTION 1.18 Mortgagor Bankruptcy Bond.................................16
SECTION 1.19 Servicing Agreements; Warranty and Subservicing
Agreements................................................16
SECTION 1.20 Custodial Agreements......................................16
SECTION 1.21 Distribution of Excess Cashflow on the Multi-Class
Certificates..............................................16
SECTION 1.22 Certain Defined Terms.....................................17
SECTION 1.23 Applicability of Certain Provisions of Standard Terms.....18
ARTICLE II DEFINITIONS RELATING TO THE CERTIFICATES; ASSUMPTIONS AS
TO TRUST FUND; MORTGAGE CERTIFICATES............................18
SECTION 2.01 Definitions...............................................19
SECTION 2.02 Calculations Respecting Mortgage Assets and Trust Fund....29
SECTION 2.03 Representations and Warranties of the Depositor with
Respect to the Mortgage Certificates......................31
SECTION 2.04 Administration of the Mortgage Certificates...............32
SECTION 2.05 Substitution of Mortgage Assets...........................33
ARTICLE III DISTRIBUTIONS..................................................35
SECTION 3.01 Distributions.............................................35
SECTION 3.02 Reports by Trustee to Certificateholders..................37
ARTICLE IV OPTIONAL TERMINATION............................................39
SECTION 4.01 Repurchase at the Option of the Depositor.................39
SECTION 4.02 Procedure Upon Optional Termination.......................40
ARTICLE V SPECIAL DISTRIBUTIONS............................................41
SECTION 5.01 Special Distributions.....................................41
SECTION 5.02 Notice of Special Distribution by the Trustee.............41
ARTICLE VI DEFICIENCY EVENTS...............................................42
SECTION 6.01 Occurrence; Trustee's Determinations......................42
SECTION 6.02 Distributions Upon a Determination of Sufficiency.........43
SECTION 6.03 Distributions Upon a Determination of Insufficiency.......43
SECTION 6.04 Sale of Trust Fund........................................44
ARTICLE VII ACCOUNTS AND ACCOUNTINGS.......................................45
SECTION 7.01 GPM Fund..................................................45
SECTION 7.02 Reserve Fund..............................................46
SECTION 7.03 Buy-Down Fund.............................................48
SECTION 7.04 Certificate Account.......................................48
SECTION 7.05 Investments...............................................49
SECTION 7.06 Custodial Account; Other Accounts.........................50
SECTION 7.07 Accountings...............................................51
SECTION 7.08 Trust Estate..............................................57
ARTICLE VIII MISCELLANEOUS.................................................57
SECTION 8.01 Standard Terms............................................57
SECTION 8.02 Ratification of Standards Terms...........................57
SECTION 8.03 Amendment.................................................57
SECTION 8.04 Counterparts..............................................58
SECTION 8.05 Governing Law.............................................58
SECTION 8.06 Severability of Provisions................................58
SECTION 8.07 REMIC Treatment...........................................58
REFERENCE AGREEMENT dated as of ________________, 200_ (the
"Reference Agreement") among GS Mortgage Securities Corp., a Delaware
corporation, as depositor (the "Depositor"), [NAME OF MASTER SERVICER], a [ ]
corporation, as master servicer (the "Master Servicer") and [NAME OF TRUSTEE],
a [ ] corporation, as trustee (together with its successors in trust
thereunder as provided in the Agreement referred to below, the "Trustee").
PRELIMINARY STATEMENT
The Depositor has duly authorized the execution and delivery of this
Reference Agreement (which incorporates by reference herein the Standard Terms
and Conditions of Pooling and Servicing (the "Standard Terms") attached
hereto), to provide for the issuance of its Conduit Mortgage Pass-Through
Certificates, Series [ ] issued as provided herein and delivered by the
Trustee to the Depositor, as provided hereunder. The Reference Agreement,
incorporating the Standard Terms, is sometimes referred to herein as the
Agreement, all references herein to Sections and Articles shall mean the
Sections and Articles of the Reference Agreement or the Standard Terms, as the
context may require, and capitalized terms used herein shall have the meanings
ascribed to them in the Standard Terms or the Reference Agreement. The
Depositor is the owner of the Mortgage Assets (as hereinafter defined) and the
other property being conveyed by it to the Trustee as part of the Trust Fund
(as hereinafter defined) and has duly authorized the execution and delivery of
this Agreement to provide for the conveyance to the Trustee of the Trust Fund.
By the execution and delivery of this Agreement, the Depositor has agreed that
it will elect to treat the Trust Fund as, and that the affairs of the Trust
Fund shall be conducted so as to qualify as, a "real estate mortgage
investment conduit" (a "REMIC") pursuant to Section 860D of the Internal
Revenue Code of 1986 (the "Code"). All covenants and agreements made by the
Depositor herein and in the Standard Terms are for the benefit and security of
the Certificateholders. The Depositor is entering into this Agreement and the
Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as follows:
ARTICLE I
THE CERTIFICATES
SECTION 1.01 Designation. The Certificates shall be designated
generally as the Conduit Mortgage Pass-Through Certificates, Series A. The
Multi-Class Certificates shall be designated generally as the Multi Class
Conduit Mortgage Pass-Through Certificates, Series A. The Residual
Certificates shall be designated as the Residual Certificates, Series A. [The
Multi-Class Certificates are Sequential Distribution Certificates.] [The Class
A-3 and Class A-4 Certificates are Sequential Distribution Certificates.]
SECTION 1.02 Conveyance of Trust Fund; Issuance of Certificates;
REMIC Election and Designation.
(a) In exchange for the Certificates, the Depositor hereby
delivers to the Trustee, without recourse, for the benefit of all present
and future Holders of the Certificates, all of the Depositor's right,
title and interest in and to:
(i) the Mortgage Loans listed in Schedule I to this
Agreement, which the Depositor causes to be delivered to the Trustee,
together with the Mortgage Files relating thereto and the other
property in respect thereof, and the proceeds thereof payable after
the Cut-off Date net of any amounts payable to the Servicers and the
Master Servicer in accordance with the provisions of the Standard
Terms, as specified in Section 2.01,
(ii) the Mortgage Certificates listed on Schedule I hereto,
and all distributions on such Mortgage Certificates payable to
holders of record after the Cut-off Date, as specified in Section
2.04, (the Mortgage Loans and the Mortgage Certificates are
hereinafter collectively referred to as the "Mortgage Assets")
(iii) funds held from time to time in the Custodial Account,
net of any amounts payable to the Master Servicer, as provided
herein,
(iv) the Depositor's rights under the Warranty and
Sub-servicing Agreements and the Servicing Agreements with respect to
the Mortgage Loans listed on Schedule I hereto,
(v) the Certificate Account, including all income from the
investment of funds therein,
(vi) the Reserve Fund, including all income from investment
of funds therein,
(vii) the Buy-Down Fund, including all income from the
investment of funds therein,
(viii) the GPM Fund, including all income from the
investment of funds therein,
(ix) the Pool Insurance Policy and the proceeds thereof, as
provided in Section 3.13,
(x) the Special Hazard Insurance Policy and the proceeds
thereof, as provided in Section 3.14,
(xi) the Mortgagor Bankruptcy Bond and the proceeds thereof,
as provided in Section 3.15 and
(xii) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid
property.
The Trustee acknowledges the transfer and assignment to it of the
Mortgage Assets and the delivery of the Mortgage Files relating to the
Mortgage Loans to it (or, with respect to Mortgage Loans subject to a
Custodial Agreement, to the respective Custodian on its behalf) and the
Mortgage Certificates and the other property included in the Trust Fund, all
to the extent provided above and in Section 2.01, and, concurrently with such
delivery, has delivered to or upon the order of the Depositor, in exchange for
Certificates duly authenticated and duly executed by the Trustee in authorized
denominations evidencing the entire ownership of the Trust Fund.
(b) The Depositor agrees that it will, and is hereby authorized
and directed to, elect to treat the Trust Fund as a REMIC within the
meaning of section 860D of the Code. Such election shall be included in
the partnership information return to be filed by the Depositor on behalf
of the REMIC constituted by the Trust Fund for its first taxable year,
which will be its first Fiscal Year.
(c) The Residual Certificates are being issued in a single Class
and are hereby designated by the Depositor as constituting in the
aggregate the sole class of "residual interests" in the Trust Fund for
purposes of section 860G(a)(2) of the Code.
(d) The Delivery Date is hereby designated as the "start-up day"
of the REMIC constituted by the Trust Fund within the meaning of Section
860G(a)(9) of the Code.
(e) After the Delivery Date, the Trustee shall not accept any
contribution of assets to the Trust Fund unless it has first received a
REMIC Qualification Opinion with respect to the inclusion of such assets
in the Trust Fund.
SECTION 1.03 Delivery of Documents. In connection with the foregoing
conveyance, the creation of the Trust Fund and the issuance of the
Certificates pursuant to Section 1.02, the Depositor hereby delivers to and/or
deposits with the Trustee the following documents, instruments and property
related to the Multi-Class Certificates and the Residual Certificates:
(a) Opinion of Counsel. Opinion(s) of Counsel (in which such counsel is
entitled to rely upon certificates, opinions or representations as to
matters of fact by Authorized Officers of the Depositor or the
Trustee and governmental officials and, as to matters involving the
laws of any state other than the state in which such counsel is
admitted to practice, upon an Opinion of Counsel satisfactory to the
Trustee) addressed to the Trustee to the effect that:
(i) the Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power to own its properties, to
conduct its business as now conducted by it and to enter into and
perform its obligations under this Agreement;
(ii) assuming due execution and delivery thereof by the
Trustee, this Agreement, as executed and delivered by the Depositor,
is the valid, legal and binding obligation of the Depositor,
enforceable in accordance with its terms, subject to bankruptcy,
reorganization, insolvency and other laws affecting the enforcement
of creditors' rights generally and to general principles of equity;
(iii) the Certificates, assuming that they have been duly
and validly authorized, executed, delivered and issued by the
Trustee, will, when authenticated by the Certificate Registrar
pursuant to this Agreement and delivered to or upon the order of the
Depositor by valid, legal and binding instruments, entitled to the
benefits of this Agreement;
(iv) immediately prior to the conveyance thereof to the
Trustee, the Depositor had the corporate power and authority to
convey the Mortgage Assets and other property included in the Trust
Fund to the Trustee pursuant to this Agreement;
(v) such action has been taken with respect to delivery of
possession of the Mortgage Assets and other property included in the
Trust Fund on the Closing Date and with respect to the execution and
delivery of all requisite documents as is necessary to make effective
the conveyance of such property to the Trustee, with either the
details of such action being necessary to make such conveyance
effective stated therein;
(vi) the Depositor has effectively conveyed to the Trustee
all of its right, title and interest in and to the Mortgage Assets
and other property included in the Trust Fund on the Delivery Date;
(vii) this Agreement is not required to be qualified under
the TIA; the Trust Fund created by this Agreement is not required to
be registered under the Investment Company Act of 1940, as amended;
the Registration Statement is effective under the Securities Act of
1933, as amended (the "Securities Act"), and to the best of such
counsel's knowledge, no stop order suspending such effectiveness has
been issued; [and the offer and sale of the Residual Certificates is
a transaction not required to be registered under the Securities
Act];
(viii) no consent, approval, authorization or order of any
state or Federal court or governmental agency or body is required for
the consummation by the Depositor of the transactions contemplated
herein, except such as may be required under the blue sky laws of any
jurisdiction in connection with the acquisition of Certificates and
such other approvals as have been obtained;
(ix) the issue and sale of the Certificates and the
fulfillment of the terms of this Agreement do not conflict with or
result in a breach or violation of any term or provision of, or
constitute a default under, the certificate of incorporation or
bylaws of the Depositor, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Depositor is
a party or by which it is bound, or any statute or regulation
applicable to the Depositor or, to the knowledge of such counsel, any
order of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor; and
(x) assuming compliance with the pertinent provisions of
this Agreement, the Trust Fund will qualify to be treated as a REMIC
under the Code; the Multi-Class Certificates will be treated as
"regular interests" in such REMIC; and the Residual Certificates will
be treated, in the aggregate, as the single Class of "residual
interests" in such REMIC.
(b) Accountant's Letter. A letter, addressed to the Trustee, of
a firm of Independent Accountants of recognized national reputation to
the effect that:
(i) they have performed the following procedures (which need
not constitute an examination in accordance with generally accepted
auditing standards):
(A) they have read Schedule I to this Agreement, and in
the case of Mortgage Certificates listed thereon, have examined
each such Mortgage Certificate, and have compared the pool
number, original principal amount, Maturity Date and coupon rate
set forth in each such Mortgage Certificate, to the
corresponding item in such Schedule I;
(B) they have computed the principal balance of each
Mortgage Certificate as of the date as of which such balance is
set forth in such Schedule I, using a pool balance and factor
reference source (specified in such letter), or, in the event
that no such pool balance and factor reference source is
available, on the basis of information supplied by the Servicer
of such Mortgage Certificate;
(C) they have compared the principal balance computed by
them for each such Mortgage Certificate as described in
paragraph (B) above to the principal balance thereof shown on
such Schedule I;
(D) they have read Schedule I to this Agreement, and, in
the case of the Mortgage Loans listed thereon, have verified the
accuracy of the information contained in Schedule I with respect
to such Mortgage Loans by comparing such information to data
contained in selected mortgage files and by reference to such
other sources as shall be specified in such letter;
(E) they have compared the outstanding principal balance
of each Mortgage Loan as of the date as of which such balances
are set forth in such Schedule I, information supplied by the
Servicer of such Mortgage Loan;
(F) they have examined each other asset, if any,
included in the Trust Fund and have compared (to the extent
applicable) the principal amount, interest rate and maturity
date thereof and other information with respect thereto to the
information with respect to such asset set forth in Article I;
(G) using the formula and methodology specified in the
applicable definition of "Asset Value" in Article I of this
Agreement, and the assumptions set forth in Section 2.02 hereof,
they have calculated the aggregate of the Asset Values for all
of the Mortgage Assets and have compared the total of the Asset
Values for the Trust Fund calculated by the Depositor to the
aggregate of the Asset Values calculated by them to the
Aggregate Initial Stated Principal Balance of the Certificates
proposed to be authenticated and delivered;
(H) in accordance with the provisions of Section 2.02
hereof, they have computed the amount of cash that will be
deposited in the Certificate Account during each Due Period (or
on or prior to the Distribution Date immediately following the
end of each such Due Period) as a result of:
(1) the distributions due and payable on such
Mortgage Assets during each such Due Period;
(2) the amount, if any, to be deposited in the
Certificate Account on the Delivery Date pursuant to
Section 1.03(9) hereof;
(3) the amounts, if any, of the GPM Shortfalls or
GPM Prepayment Shortfalls available to be withdrawn from
the GPM Fund and deposited in the Certificate Account on
or prior to the Distribution Date immediately following
the end of each such Due Period pursuant to Section 7.01
hereof;
(4) the amounts, if any, of the Buy-Down Shortfalls
available to be withdrawn from the Buy-Down Fund and
deposited in the Certificate Account on or prior to the
Distribution Date immediately following the end of each
such Due Period pursuant to Section 7.08 hereof; and
(5) all other amounts available for such purpose and
required hereby or by Article I to be deposited in the
Certificate Account on or prior to the Payment Date
immediately following the end of each such Due Period;
(A) in accordance with Section 2.02 hereof, they have
computed the income that can be earned and deposited in the
Certificate Account in each Due Period through the reinvestment
of each of the amounts described in paragraph (viii) above;
(B) if applicable, they have computed the scheduled
reductions in Asset Value, if any, for each month for each Due
Period and the amount required to be deposited by the Depositor
on the Closing Date in the GPM Fund and Buy-Down Fund pursuant
to Sections 1.03(j) and 1.03(i) hereof, respectively;
(C) they have computed the Requisite Amount of the
Reserve (to the extent each such amount is applicable to such
Certificates) and the amounts, if any, required to be deposited
by the Depositor on the Closing Date in the Reserve Fund in
respect of such amount pursuant to Section 1.03(k); and
(D) on the assumption that the aggregate of the amounts
computed by them pursuant to paragraphs (3) through (5) above is
the aggregate of the amounts that will actually be deposited in
the Certificate Account in each Due Period and that such amounts
are applied, in accordance with the terms hereof, to
distributions of interest on and in reduction of the Aggregate
Stated Principal Balance of the Multi-Class Certificates
proposed to be authenticated and delivered, they have computed
the amounts to be distributed with respect to interest on and in
reduction of Aggregate Stated Principal Balance of the
Multi-Class Certificates on each Distribution Date for such
Certificates, using the Assumed Maximum Interest Rate (in the
case of Certificates subject to Special Distributions, such
calculations may be based upon the assumption that Special
Distributions are made on any one or more Special Distribution
Dates); and
(ii) based upon the above-specified procedures, such firm
has determined that:
(A) the information set forth on Schedule I, which was
read by them as described in paragraphs (i)(A) and (i)(D) above,
accurately reflects the terms of each Mortgage Asset (subject,
in the case of Mortgage Certificates, to the accuracy of the
pool factors set forth in the reference source used by them,
and, in the case of Mortgage Loans, the degree of certainty
specified in such letter) and the information with respect to
any other assets included in the Trust Fund set forth in Article
I which was read by them as described in paragraph (i)(F) above,
accurately reflects the terms of such assets;
(B) the aggregate of the Asset Values for the Trust Fund
calculated by the Depositor does not exceed the aggregate of the
Asset Values for the Trust Fund calculated by them in accordance
with the terms of this Agreement and the aggregate of the Asset
Values calculated by them for the Trust Fund is not less than
the Aggregate Initial Stated Principal Balance of the
Certificates proposed to be authenticated and delivered;
(C) the Depositor's calculations of the aggregate of the
amounts described in clauses (i)(H) and (i)(I) above and of each
amount described in clauses (i)(J) through (i)(L) above agree
with the results of their calculations of such amounts and are
mathematically correct;
(D) for each Due Period, the aggregate of the amounts
described in clauses (i)(H), (i)(I), (i)(J) and (i)(K) above as
calculated by the Depositor and as computed by them equals or
exceeds the aggregate amount distributable with respect to
interest on and in reduction of Aggregate Outstanding Stated
Principal Balance of the Multi-Class Certificates on the
following Distribution Date (and, if applicable, on each Special
Distribution Date within such Due Period), as set forth in the
Depositor's calculations of the amounts described in clause
(i)(L) above and in their calculations of such amounts; and
(E) the Depositor's calculations of the amounts
described in clause (i)(L) above indicate that the aggregate of
such anticipated distributions in reduction of Aggregate
Outstanding Stated Principal Balance of each Class of such
Multi-Class Certificates distributable on each Distribution Date
(and, if applicable, on any Special Distribution Date) is an
amount sufficient to reduce the Aggregate Outstanding Stated
Principal Balance of each such Class to zero on or before the
Final Scheduled Distribution Date.
(b) The Mortgage Certificates. The Mortgage Certificates
included in the Trust Fund, which Mortgage Certificates have been
registered in the name of the Trustee prior to the Closing Date (or if
requested by the Trustee, in the name of its nominee).
(c) The Mortgage Loans. All of the Mortgage Loans included in
the Trust Fund, in the manner specified in Section 2.01.
(d) Mortgagor Bankruptcy Bond, Performance Bond, Special Hazard
Insurance Policy and Pool Insurance Policy. Evidence of the execution and
delivery of the Mortgagor Bankruptcy Bond, the Performance Bond and of
the issuance of the Special Hazard Insurance Policy and the Pool
Insurance Policy.
(e) Officers' Certificate of Insurers and Pool Insurers. An
Officers' Certificate of the Pool Insurer, to the effect that the
Insurance Policy issued by such Insurer is in full force and effect,
subject to its terms and conditions, with respect to the Mortgage Loans
specified in such Officers' Certificate; an Officers' Certificate of the
Special Hazard Insurer and the issuer of the Mortgagor Bankruptcy Bond,
to the effect that the Insurance Policy issued by such Insurer is in full
force and effect, subject to its terms and conditions, with respect to
the Mortgage Loans specified in such Officers' Certificate; and an
Officers' Certificate of the issuer of the Performance Bond to the effect
that the Performance Bond is in full force and effect with respect to the
obligations of the Master Servicer under this Agreement.
(f) Opinion of Counsel for Insurers. An Opinion of Counsel for
each Insurer dated the Delivery Date, to the effect that:
(i) the Insurer is duly organized, validly existing under
the laws of the state of its incorporation, is duly qualified to do
business in all jurisdictions where the nature of its operations as
contemplated by the Insurance Policy issued by such Insurer legally
requires such qualification, and has the power and authority
(corporate and other) to issue, and to take all action required of it
under, such Insurance Policy;
(ii) the execution, delivery and performance by the Insurer
of the Insurance Policy issued by such Insurer has been duly
authorized by all necessary corporate action on the part of the
Insurer, and under present law does not and will not contravene any
law or governmental regulation or order presently binding on the
Insurer or the charter or the by-laws of the Insurer or contravene
any provision of or constitute a default under any indenture,
contract or other instrument to which the Insurer is a party or by
which the Insurer is bound;
(iii) the execution, delivery and performance by the Insurer
of the Insurance Policy does 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 federal, State or other governmental
agency or authority which has not previously been effected; and
(iv) the Insurance Policy issued by such Insurer has been
duly issued and constitutes a legal, valid and binding agreement of
the Insurer, enforceable against the Insurer in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights general by or by general principles
of equity.
(g) Opinion of Counsel to the Master Servicer. An Opinion of
Counsel to the Master Servicer, dated not later than the date of the
Delivery Date, to the effect that:
(i) the Master Servicer is a duly organized and validly
existing corporation in good standing under the laws of _________;
the Master Servicer is duly qualified to do business as a foreign
corporation in and is in good standing under the laws of each
jurisdiction where the nature of its operations as contemplated by
this Agreement requires such qualification;
(ii) the Master Servicer has the corporate power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby; the execution, delivery and
performance of this Agreement have been duly authorized by all
requisite corporate action on the part of the Master Servicer and:
(A) do not conflict with or result in, or will not conflict with or
result in, a breach of the certificate of incorporation or bylaws of
the Master Servicer, or, to such counsel's knowledge, any of the
provisions of any indenture, mortgage, contract or other instrument
to which the Master Servicer is a party or by which it is bound or
(B) do not result in the creation or imposition of any lien, charge
or encumbrance upon any of its property pursuant to the terms of any
such indenture, mortgage, contract or other instruments; and
(iii) this Agreement constitutes a legal, valid and binding
agreement of the Master Servicer, enforceable against the Master
Servicer in accordance with its terms, subject, as to enforceability,
to the effect thereon of applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights
generally and to principles of equity.
(h) Initial Certificate Account Deposit. Cash in the amount
$_______ to be deposited in the Certificate Account as part of the Trust
Fund and applied in accordance with Section 7.04.
(i) Initial Buy-Down Fund Deposit. Cash, a Letter of Credit or
Eligible Investments in the amount of $_______ to be deposited in the
Buy-Down Fund as part of the Trust Fund, to be applied in accordance with
Section 7.03.
(j) Initial GPM Fund Deposit. Cash, a Letter of Credit or
Eligible Investments in the amount of $______ to be deposited in the
Buy-Down Fund as part of the Trust Fund, to be applied in accordance with
Section 7.01.
(k) Initial Reserve Fund Deposit. Cash, a Letter of Credit or
Eligible Investments in the amount of $_______ to be deposited in the
Reserve Fund as part of the Trust Fund, to be applied in accordance with
Section 7.02.
(l) Reinvestment Agreement. The Reinvestment Agreement attached
hereto as Exhibit ____.
The Trustee shall hold that portion of the Trust Fund, other than the Mortgage
Files, delivered to the Trustee on the Delivery Date consisting of Instruments
(as such term is defined in Section 9-102 of the Uniform Commercial Code as in
effect on the date hereof) in the State of New York, and may not remove such
Instruments from the State of New York, unless it receives an Opinion of
Counsel that after such transfer, the Trustee will continue to possess a
perfected first priority security interest in such Instrument.
SECTION 1.04 Forms Generally. The Certificates and the Certificate
Registrar's certificate of authentication shall be in substantially the forms
set forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the Trustee's or the Depositor's judgment be necessary,
appropriate or convenient to comply, or facilitate compliance, with applicable
laws, and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange on which any of the Certificates may be
listed, or as may, consistently herewith, be determined by the officers
executing such Certificates, as evidenced by their execution thereof.
The definitive Multi-Class Certificates shall be printed,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Multi-Class Certificates may be listed, all as
determined by the officers executing such Certificates, as evidenced by their
execution thereof. The definitive Residual Certificates may be produced in any
manner permitted for the definitive Multi-Class Certificates or may be
typewritten, all as determined by the officers executing such Certificates, as
evidenced by their execution thereof.
SECTION 1.05 Aggregate Initial Stated Principal Balance; Final
Scheduled Distribution Date; Classes; Terms.
(a) The Aggregated Initial Stated Principal Balance of the
Multi-Class Certificates is $_______. Such Aggregate Initial Stated
Principal Balance shall be divided among four Classes having the
designations, Initial Stated Principal Balances, Interest Rates, Final
Scheduled Distribution Dates and Initial Reduction Dates as follows:
Initial Final
Stated Scheduled [Initial
Principal Interest Distribution Reduction
Designation Balance Rate Date Date]
Class A-1 $ [Variable(1)]
Class A-2 $ [Variable(2)]
Class A-3(2) $ %
Class A-4(3), (4) $ %
__________
1 [The Class A-1 Certificates shall be Variable Rate Certificates and shall
bear interest at the per annum rate of _____% through ____________, 200_, and
thereafter at a variable rate of ___________ of _____% above LIBOR, determined
[quarterly] as set forth in Section 1.06 of this Reference Agreement, subject
to the Maximum Variable Interest Rate.]
2 [The Class A-2 Certificates shall be Variable Rate Certificates and shall
bear interest at the per annum rate of _____% through _________, 200_, and
thereafter at a variable per annum rate equal to _____% - (_________ x LIBOR),
determined [quarterly] as set forth in Section 1.06 of this Reference
Agreement, subject to the Minimum Variable Interest Rate.]
3 Fixed Rate Certificates.
4 Compound Interest Certificates.
Any distributions of interest and in reduction of Outstanding Stated
Principal Balance shall be made on the Multi-Class Certificates as provided in
Section 1.07. [The Interest Rate on the Variable Rate Certificates shall be
determined as provided in Section 1.06.]
(b) Residual Certificates authenticated and delivered under this
Agreement shall evidence Percentage Interests aggregating 100% of the
beneficial ownership of the Residual, except for Residual Certificates
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Residual Certificates pursuant to this
Agreement. Any distributions on the Residual Certificates shall be made
on each Distribution Date in an aggregate amount equal to the Residual
Distribution Amount. Provided that no Deficiency Event shall have
occurred and be continuing, the Holder of a Residual Certificate shall be
entitled to receive an amount equal to the Percentage Interest evidenced
by such Residual Certificate in the Residual Distribution Amount.
[No transfer of a Residual Certificate shall be made unless such
transfer is exempt from the registration requirements of the Securities Act
and any applicable state securities laws or unless such transfer is made in
accordance with the Securities Act and such laws. In the event that such a
transfer is to be made within three years from the Delivery Date: (i) the
Trustee or the Depositor may require an Opinion of Counsel acceptable to and
in form and substance satisfactory to the Trustee and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the Securities Act and state laws or is
being made pursuant to the Securities Act and state laws, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor, and (ii) the
Trustee shall require the transferee to execute an investment letter,
certifying to the Depositor and the Trustee the facts surrounding such
transfer, which investment letter shall not be an expense of the Trustee or
the Depositor. The Holder of a Residual Certificate desiring to effect such
transfer shall, and by the acceptance of such Certificate does hereby agree
to, indemnify the Trustee and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. The Residual Certificates shall have no principal
amount and no stated interest rate.]
SECTION 1.06 LIBOR Calculation.
(a) Commencing __________, 200_, interest distributions will be
made on the Variable Rate Certificates at the rate determined by [the
"Trustee"] on the basis of the London interbank offered rate quotations
for [three-month] Eurodollar deposits ("LIBOR") provided by _______,
________, and ___________, (the initial "Reference Banks"). The [Trustee]
will determine LIBOR for each Variable Rate Interest Accrual Period on
the Interest Rate Determination Date for such Variable Rate Interest
Accrual Period.
(b) The determination of the Interest Rate borne by the Variable
Rate Certificates shall be made in accordance with the following
provisions:
(i) On each Interest Rate Determination Date, [the Trustee]
shall determine LIBOR on the basis of quotations provided by the
Reference Banks as of 11:00 a.m. (London Time) as such quotations
appear on the Reuters screen LIBOR Page (as defined in the
International SWAP Dealers Association, Inc. Code of Standard
Wording, Assumptions and Provisions for SWAPs, 1986 edition). LIBOR
as determined by [the Trustee] shall be the arithmetic mean of such
quotations, such arithmetic mean rounded upward, if necessary, to the
nearest multiple of ____ of 1.00%.
(ii) If, on any Interest Rate Determination Date, at least
two but fewer than all of the Reference Banks provide quotations,
LIBOR will be determined in accordance with (i) above on the basis of
the offered quotations of those Reference Banks providing such
quotations.
(iii) If, on any Interest Rate Determination Date, only one
or none of the Reference Banks provides [the Trustee] with such
offered quotations, LIBOR shall be the higher of:
(A) LIBOR as determined on the previous Interest Rate
Determination Date; and
(B) the Reserve Interest Rate. The "Reserve Interest
Rate" will be 1/4 of 1.00% above the rate per annum (rounded
upward as aforesaid) that [the Trustee] determines to be either:
(x) the arithmetic mean of the offered quotations that leading
banks in New York City selected by [the Trustee (after
consultation with the Depositor, if practicable)] are quoting on
the relevant Interest Rate Determination Date for [three-] month
Eurodollar deposits to the principal London office of each of
the Reference Banks or those of them (being at least two in
number) to which such offered quotations are, in the opinion of
[the Trustee], being so made or (y) in the event that [the
Trustee] can determine no such arithmetic mean, the arithmetic
mean of the offered quotations that leading banks in New York
City selected by [the Trustee (after consultation with the
Depositor, if practicable)] are quoting on such Interest Rate
Determination Date to leading European banks for [three-month]
Eurodollar deposits; provided, however, that if the banks
selected as aforesaid by [the Trustee] are not quoting as
mentioned above, LIBOR for such Variable Rate Interest Accrual
Period shall be as specified in (A) above.
(iv) In no event will the Variable Interest Rate borne by
the Class A-1 Certificates exceed the Maximum Variable Interest Rate.
(v) In no event will the Variable Interest Rate borne by the
Class A-2 Certificates exceed the Minimum Variable Interest Rate.
(c) Each Reference Bank shall be a leading bank engaged in
transactions in Eurodollar deposits in the international Eurocurrency
market, shall not control, be controlled by or be under common control
with, the Depositor and shall have an established place of business in
London.
(d) Promptly after each Interest Rate Determination Date, the
Trustee shall cause the Interest Rate for the Variable Rate Interest
Accrual Period following such Interest Rate Determination Date to be
published in an English language newspaper of general circulation
published each business day in New York City. In addition, the Trustee
shall provide telephonic advice from the Corporate Trust Office to
Certificateholders of such Interest Rate applicable to the then current
and the immediately preceding Variable Rate Interest Accrual Periods.]
SECTION 1.07 Distributions. Distributions made to the Holders of the
Multi-Class Certificates shall be made in the following order of priority. On
each Distribution Date, the Trustee shall, to the extent funds are available
in the Certificate Account therefor, make distributions to the Holders of the
Class A-1 Certificates in an amount equal to the Interest Distribution Amount
for such Class, then it shall make a distribution to the Holders of the Class
A-2 in an amount equal to the Interest Distribution Amount for such Class,
then to the Holders of the Class A-3 Certificates in an amount equal to the
Interest Distribution Amount for such Class and then to the Holders of the
Class A-4 Certificates in an amount equal to the Interest Distribution Amount
for such Class; provided, however, that no distributions of any Interest
Distribution Amounts shall be made on any Class A-4 Certificate until after
its Accretion Termination Date. Prior to the Accretion Termination Date, the
Interest Distribution Amount for the Class A-4 Certificates will be added to
the Outstanding Stated Principal Balance of such Class A-4 Certificates. The
aggregate amount of each distribution in reduction of Outstanding Stated
Principal Balance on Multi-Class Certificates will be equal to the Stated
Principal Distribution Amount. [On each Distribution Date, after distribution
of the Interest Distribution Amount for each Class of Multi-Class
Certificates, the Stated Principal Distribution Amount shall be allocated ___%
to the Class A-1 Certificates, ____% to the Class A-2 Certificates , and ____%
to the Class A-3 Certificates. On the Distribution Date on which the
Outstanding Stated Principal Balances of the Class A-1, Class A-2 and Class
A-3 Certificates have been reduced to zero, and on each Distribution Date
thereafter, the Trustee shall distribute (after, in the case of the
Distribution Date on which the Outstanding Stated Principal Balances of the
Class A-1, Class A-2 and Class A-3 Certificates have been reduced to zero,
applying amounts in the Certificate Account in respect of the Stated Principal
Distribution Amount to such reduction) the Stated Principal Distribution
Amount to the Holders of the Class A-4 Certificates until the Outstanding
Stated Principal Balance thereof has been reduced to zero.] [On each
Distribution Date, after distribution of the Interest Distribution Amount for
each Class of Multi-Class Certificates, the Stated Principal Distribution
Amount shall be distributed to the Holders of the Multi-Class Certificates in
the order of their Final Scheduled Distribution Dates. Each such distribution
to a Class of Multi-Class Certificates shall not exceed the aggregate
Outstanding Stated Principal Balance of such Class. Any excess shall be
distributed on such Distribution Date to the Class of Multi-Class Certificates
having the next earliest Final Scheduled Distribution Date and so on until the
Stated Principal Distribution Amount is distributed. On each succeeding
Distribution Date, the Trustee shall distribute to the Class of Multi-Class
Certificates to which distributions in reduction of Outstanding Stated
Principal Balance are currently being made an amount equal (after distribution
of the Aggregate Interest Distribution Amount for such Distribution Date) to
the Stated Principal Distribution Amount, if any, until distributions have
been made to the Holders of the Multi-Class Certificates of such Class in an
aggregate amount equal to the Initial Stated Principal Balance of such Class
(or in the case of a Compound Interest Certificate, the Compound Value of such
Compound Interest Certificates) and continue to make such distributions on
each Distribution Date until distributions have been made to each Holder of a
Multi-Class Certificate in an amount equal to the Initial Stated Principal
Balance of such Certificate (or in the case of Compound Interest Certificate,
the Compound Value of any Compound Interest Certificate).] Distributions in
reduction of Outstanding Stated Principal Balance to a particular class shall
be made on a pro rata basis among the Certificates of such Class.
On each Distribution Date, provided that no Deficiency Event shall
have occurred or be continuing, the amount, if any, remaining in the
Certificate Account shall be distributed in accordance with the provisions of
Section 3.01.
Notwithstanding the foregoing, in the event that a Deficiency Event
has occurred and is continuing, distributions on the Certificates shall be
made in the manner specified in Article XVI hereof.
SECTION 1.08 Place and Notice for Final Distribution in Reduction of
Outstanding Stated Principal Balance.
(a) The final distribution in reduction of Outstanding Stated
Principal Balance of each Multi-Class Certificate on any Distribution
Date, Optional Termination Date or Special Distribution Date shall be
distributable upon presentation and surrender thereof at the office or
agency of the Trustee maintained for such purposes in the County and
State of New York.
(b) Notice of final distribution in reduction of Outstanding
Stated Principal Balance of any Certificate on any Distribution Date,
Optional Termination Date or Special Distribution Date shall be mailed no
later than the ______ day prior to the applicable Distribution Date or
Optional Termination Date, or the fifth day prior to the applicable
Special Distribution Date, as the case may be.
SECTION 1.09 Denominations. The Multi-Class Certificates are issuable
in minimum denominations of $____ and in multiples of $_____ in excess thereof
(in each case expressed in terms of the Initial Stated Principal Balance
thereof at the Delivery Date). The Residual Certificates shall have no
principal denomination.
SECTION 1.10 Distribution Dates. The Distribution Dates for the
Certificates are [_________, _______________, ______________, and
_____________, of each year, commencing on ____________, 200_.]
SECTION 1.11 Regular Record Dates. [The Regular Record Date for each
Distribution Date will be the close of business on the [last] Business Day [of
the [second] month] preceding the applicable Distribution Date. [The Record
Date for the Variable Rate Certificates will be the close of business on the
______ Business Day of the month in which the applicable Distribution Date
occurs. The Record Date for the Fixed Rate Certificate will be the close of
business on the ______Business Day of the month in which the applicable
Distribution Date occurs.]
SECTION 1.12 Special Record Dates. The Special Record Date for each
Special Distribution Date will be the close of business on the [last] Business
Day [of the [second] month] preceding the applicable Special Distribution
Date. [The Special Record Date for the Variable Rate Certificates will the
close of business on the [ ] Business Day of the [ ] month in which the
applicable Special Distribution Date occurs. The Special Record Date for the
Fixed Rate Certificates will be the close of business on the _____Business Day
of the month in which the applicable Special Distribution Date occurs.]
SECTION 1.13 Early Termination. On any Distribution Date on or after
the [later] of ______ or the date on which the Outstanding Stated Principal
Balance of the [Class A-3] Certificates has been reduced to zero, or on any
Distribution Date on which the Principal Balance of the Mortgage Assets is
less than 10% of the Principal Balance of the Mortgage Assets included in the
Trust Fund on the Cut-off Date, the Mortgage Assets may be repurchased, at the
option of the Depositor, in whole, but not in part, in the manner and at the
Repurchase Price provided in Article IV.
SECTION 1.14 Wire Transfer Eligibility.[To be completed]
SECTION 1.15 Required Rating. The Certificates shall have been rated
"___" by [______________].
SECTION 1.16 Pool Insurance Policy. A specimen of the Pool Insurance
Policy with respect to the Mortgage Loans is attached hereto as Exhibit B. The
Pool Insurer is _________________, a _________ corporation.
SECTION 1.17 Special Hazard Insurance Policy. A specimen of the
Special Hazard Insurance Policy with respect to the Mortgage Loans is attached
hereto as Exhibit C. The Special Hazard Insurer is ____________________, a
_____________ corporation.
SECTION 1.18 Mortgagor Bankruptcy Bond. A specimen of the Mortgagor
Bankruptcy Bond with respect to the Mortgage Loans is attached hereto as
Exhibit D. The Mortgagor Bankruptcy Bond has been issued by _________, a
__________ corporation.
SECTION 1.19 Servicing Agreements; Warranty and Subservicing
Agreements. The Servicing Agreements and Warranty and Subservicing Agreements
with respect to the Mortgage Loans included in the Trust Fund are listed on
Schedule II hereto.
SECTION 1.20 Custodial Agreements. The Custodial Agreements with
respect to the Mortgage Loans included in the Trust Fund are listed on
Schedule III hereto.
SECTION 1.21 Distribution of Excess Cashflow on the Multi-Class
Certificates. On each Distribution Date, __% of the Excess Cash Flow shall be
applied to distributions in reduction of Outstanding Stated Principal Balance
of the Multi-Class Certificates and shall be considered, for all purposes
hereof, as an addition to the related Stated Principal Distribution Amount.
SECTION 1.22 Certain Defined Terms. Article One of the Standard Terms
and Article II hereof provide that the meaning of certain defined terms used
in this Agreement shall, when applied to a particular Series of Certificates,
be as defined herein. With respect to such Certificates, the following
definitions shall apply:
"Accretion Termination Date": The Distribution Date on which
Outstanding Stated Principal Balances of the Class A-1, Class A-2 and Class
A-3 Certificates have been reduced to zero.
"Accrual Date: [ , 200_, the date upon which interest begins to
accrue on the Multi-Class Certificates, as specified herein, such Date being
specified on the face of such Multi-Class Certificates.] [With respect to the
Class A-1 and Class A-2 Certificates, ____________, 200_; with respect to the
Class A-3 and Class A-4 Certificates, _________, 200_.]
"Asset Value": [The Principal Balance of the Mortgage Assets.] With
respect to each Mortgage Asset Group included in the Trust Fund, an amount
equal to, as of the date of determination, the lesser of: (i) the present
value through the earlier of the Final Scheduled Distribution Date of the
Class of Multi-Class Certificates having the latest Final Scheduled
Distribution Date or the Distribution Date next succeeding the Maturity Date
of the latest maturing Mortgage Asset in such Mortgage Asset Group of the
stream of remaining scheduled principal and interest payments (including the
amount of cash to be deposited in the Certificate Account pursuant to Section
______ hereof), based upon fully amortizing the Outstanding Mortgage Asset
Amount thereof as of the most recent Principal Determination Date to the
Maturity Date of the latest maturing Mortgage Asset in such Mortgage Asset
Group, assuming no prepayments of principal, and calculated in accordance with
Section 2.02 hereof, plus, in the case of GPM Assets valued on the basis of
their respective maximum outstanding principal balances, the remaining
scheduled distributions from the GPM Fund, plus, in the case of Buy-Down
Assets, the remaining scheduled distributions from the Buy-Down Fund with
respect to such Mortgage Assets together, in each case, with reinvestment
income thereon at the Assumed Reinvestment Rate from the Assumed Deposit Date
to the next succeeding Distribution Date, discounted with the same frequency
as distributions are to be made on the Multi-Class Certificates at the rate of
__% per annum, and (ii) the product of the Outstanding Mortgage Asset Amount
of such Mortgage Asset Group as of the most recent Principal Determination
Date and ________________.
"Assumed Reinvestment Rate": ___% per annum through ________, 200_,
___ and per annum from _________, 200_ through ___________, 200_, and ___% per
annum thereafter.
"Cut-off Date": ____________ 1, 200_.
["Deficiency Distribution Date": The __ day of any month beginning
with the first date on which distributions following a Deficiency Event are to
commence pursuant to Section 6.02, or 6.03 and ending, in the case of Section
6.02 with any curing of such Deficiency Event.]
"Delivery Date": ___________, 200__.
"Designated Interest Accrual Date": [With respect to the Multi-Class
Certificates, the day preceding the day of the month that is a full month
preceding the applicable Distribution Date or Special Distribution Date.] With
respect to the Class A-1 and Class A-2 Certificates, the day preceding, and
with respect to the Class A-3 and Class A-4 Certificates, the day preceding
the day of the month that is a full month preceding, the applicable
Distribution Date or Special Distribution Date.]
"Due Period": With respect to any current Distribution Date, the
related Due Period shall be the period beginning immediately following the Due
Period applicable to the preceding Distribution Date (or, in the case of the
Due Period that is applicable to the first Distribution Date, beginning on the
Delivery Date) and ending on the day prior to such Distribution Date.
"Highest Interest Rate": __% per annum.
"Interest Accrual Period": With respect to the Multi-Class
Certificates, the period from the prior Distribution Date (or, from the
applicable Accrual Date in the case of the first Distribution Date) through
the Designated Interest Accrual Date for such Class preceding the current
Distribution Date or Optional Termination Date, as the case may be.
["Interest Rate Determination Date": With respect to any Class of
Variable Rate Certificates, the _______ day prior to any Distribution Date or,
if such day is not an International Business Day, the International Business
Day prior thereto. The Interest Rate Determination Date is the date on which
the Interest Rate at which interest will accrue on the Certificates of such
Class during the next succeeding Variable Rate Interest Period is determined.]
"Maximum Rate Assumption": __%.
["Maximum Variable Interest Rate": __% per annum.]
["Minimum Variable Interest Rate": __% per annum.]
"Principal Determination Date": The date of each month on which the
Outstanding Mortgage Asset Amount of a Mortgage Asset Group is determined so
that its Asset Value can be computed. With respect to the Multi-Class
Certificates, the Principal Determination Date is the first day of each month.
["Special Distribution Date": The [ ] day of each month, other than
the month in which a Distribution Date occurs.]
["Special Distribution Determination Date": The [ ] day of the month
preceding the related Special Distribution Date.]
"Termination Price": With respect to any particular Certificate of a
Class of Multi-Class Certificates subject to early termination pursuant to
Section 4.01 hereof or following the final payment of the principal of all of
the Mortgage Assets and the termination of this Agreement pursuant to Article
hereof, an amount equal to 100% of the Outstanding Stated Principal Balance of
such Multi-Class Certificate (in the case of any Compound Interest
Certificate, the Compound Value thereof), together with interest on such
Outstanding Stated Principal Balance at the applicable Interest Rate accrued
through the Designated Interest Accrual Date preceding the Distribution Date
on which such Optional Termination Date or final Distribution Date occurs.
SECTION 1.23 Applicability of Certain Provisions of Standard Terms. The
provisions of Section 2.03(b) shall be applicable to the Certificates; the
provisions of Sections 3.24 and 3.26 shall not be applicable to the
Certificates.
ARTICLE II
DEFINITIONS RELATING TO THE CERTIFICATES; ASSUMPTIONS AS TO TRUST FUND;
MORTGAGE CERTIFICATES
SECTION 2.01 Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context requires otherwise, have the following meanings.
"Account": The Certificate Account, the Buy-Down Fund, the GPM Fund,
the Reserve Fund and any other fund or account established pursuant to the
provisions of this Reference Agreement.
"Accountants' Certificates": A certificate of a firm of nationally
recognized Independent certified public accountants.
"Accrual Date": The date on which interest begins to accrue on the
Multi-Class Certificates, as specified in Article I and on the face of such
Certificates.
"Accrual Distribution Amount": Unless otherwise specified in Article
I, with respect to any Distribution Date, the aggregate amount of interest
that has accrued on the Compound Interest Certificates during the Interest
Accrual Period immediately preceding such Distribution Date that is not then
required to be distributed as provided herein and in Article I.
"Affiliate" Any person or entity controlling, controlled by, or under
common Control with the any Person. "Control" means the power to direct the
management and policies of a person or entity, directly or indirectly, whether
through ownership of voting securities, by contract or otherwise.
"Controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Aggregate Asset Value": The sum of the Asset Values of the Mortgage
Assets included in the Trust Fund on the date of determination.
"Aggregate Initial Stated Principal Balance": With respect to the
Multi-Class Certificates, the amount specified in Section 1.05.
"Aggregate Outstanding Stated Principal Balance": With respect to the
Multi-Class Certificates, as of any particular date of calculation, the sum
of: (i) the Compound Value of all Compound Interest Certificates, if any,
outstanding on such date, and (ii) the aggregate of the Stated Principal
Balances of all non-Compound Interest Certificates, if any, on such date.
"ARCs" or "Ascending Rate Certificates": A Class of Multi-Class
Certificates that bears interest at one Interest Rate until the date on which
such Certificates shall begin to bear a different Interest Rate, as specified
in Article I.
"Asset Proceeds": With respect to any Mortgage Asset included in the
Trust Fund, the amount paid to the holder of such Mortgage Asset in accordance
with its terms.
"Asset Value": Unless otherwise specified in Article I hereof, with
respect to any Mortgage Asset Group included in the Trust Fund, an amount
equal to, as of the date of such determination, the lesser of: (a) the present
value, through the earlier of the Final Scheduled Distribution Date of the
Class of Multi-Class Certificates having the latest Final Scheduled
Distribution Date or the Distribution Date next succeeding the Maturity Date
of the latest maturing Mortgage Asset in such Mortgage Asset Group of the
stream of remaining scheduled principal and interest payments on the Mortgage
Assets in such Mortgage Asset Group, based upon fully amortizing the
Outstanding Mortgage Asset Amount thereof as of the most recent Principal
Determination Date through such Maturity Date, assuming no prepayments of
principal and calculated in accordance with Section 2.02 hereof, plus, in the
event that such Mortgage Asset is a GPM Asset valued on the basis of its
maximum outstanding principal balance, the remaining scheduled distributions
with respect to such GPM Asset from the GPM Fund, plus, if the Mortgage Asset
is a Buy-Down Asset, the remaining scheduled distributions with respect to
such Buy-Down Mortgage Asset from the Buy-Down Fund, together in each case
with reinvestment income thereon at the Assumed Reinvestment Rate from the
Assumed Deposit Date to the next succeeding Distribution Date, discounted with
the same frequency as distributions required to be made on the Multi-Class
Certificates at the Highest Interest Rate and (b) the product of the Asset
Value Percentage and the Outstanding Mortgage Asset Amount of such Mortgage
Asset Group. Reinvestment income shall not be calculated on any amounts in any
Reserve Fund, GPM Fund or Buy-Down Fund that are funded by a Letter of Credit,
unless such Letter of Credit has been drawn upon and the cash deposited in the
Reserve Fund, GPM Fund or Buy-Down Fund.
"Asset Value Percentage": When used with respect to the Multi-Class
Certificates, shall mean 100%, unless otherwise specified in Article I.
"Authorized Officer": With respect to the Depositor, any officer of
the Depositor authorized to act for the Depositor in matters relating to this
Agreement and the Trust Fund and whose name appears on a list of Authorized
Officers furnished by the Depositor to the Trustee, as such list may be
amended or supplemented from time to time.
"Buy-Down Asset": The Buy-Down Certificates and the Buy-Down Mortgage
Loans included in the Trust Fund.
"Buy-Down Certificate": A Mortgage Certificate backed by buy-down
mortgage loans for which funds have been deposited in a buy-down fund to
reduce the Mortgagor's monthly payments during the early period of such
mortgage loan.
"Buy-Down Fund": The meaning specified in Section 7.03 hereof.
"Buy-Down Mortgage Loan": A level payment Mortgage Loan for which
funds have been deposited in escrow to reduce the Mortgagor's monthly payments
during the early period of such Mortgage Loan.
"Buy-Down Shortfall": With respect to any Buy-Down Asset, for each
month, the sum of: (1) the difference by which payments on such Buy-Down Asset
are less than the monthly payment scheduled (in computing the Asset Value of
such Buy-Down Asset) to be received from the related Mortgagors plus (2)
interest at the applicable Assumed Reinvestment Rate on such difference from
the applicable Due Date to the next Distribution Date.
"Certificate Account": The meaning specified in Section 7.04 hereof.
"Certificate of Deposit": A certificate of deposit satisfying the
definition of Eligible Investment.
"Class": All of the Certificates having the same characteristics and,
in the case of Multi-Class Certificates, the same Interest Rate and same Final
Scheduled Distribution Date as described herein.
"Code": The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
"Compound Interest Certificates": Any Multi-Class Certificate on
which interest accrues and is added to the Outstanding Stated Principal
Balance of such Multi-Class Certificate periodically as provided herein, but
with respect to which distributions in reduction of Outstanding Stated
Principal Balance are not made until the entire Stated Principal Balance of
each Multi- Class Certificate having an earlier Final Scheduled Distribution
Date has been reduced to zero, and with respect to which distributions of
interest will not be made until (unless otherwise specified in Article I) the
first Distribution Date on which the entire Outstanding Stated Principal
Balance of each Multi-Class Certificate having an earlier Final Scheduled
Distribution Date has been reduced to zero.
"Compound Value": With respect to any Distribution Date, the Initial
Stated Principal Balance of any Class of Compound Interest Certificates plus
all amounts, if any, previously added to the Outstanding Stated Principal
Balance thereof, compounded at the Interest Rate for such Class, and reduced
by any distributions in reduction of Stated Principal Balance on any
Certificates of such Class; with respect to any calculation on a date other
than a Distribution Date, the Compound Value as of the immediately preceding
Distribution Date, or (if prior to the first Distribution Date) the Initial
Stated Principal Balance of such Class of compound Interest Certificates. The
Outstanding Stated Principal Balance of any Compound Interest Certificate at
any time will be equal to its Compound Value.
["Deficiency Distribution Date": The day of any month specified in
Article I, beginning with the first date upon which distributions following a
Deficiency Event are to commence pursuant to Section 6.02 or Section 6.03 and
ending, in the case of distributions pursuant to Section 6.02, with any curing
of such Deficiency Event.]
["Deficiency Event": The inability of the Trustee to distribute to
the Holders of one or more Classes of Multi-Class Certificates in accordance
with the terms thereof and of this Agreement:
(i) on any Distribution Date, an amount at least equal to
the Multi-Class Distribution Amount;
(ii) on any Special Distribution Date, an amount at least
equal to the Special Distribution Amount;
(iii) on the Initial Reduction Date, if any, for a Class of
Multi-Class Certificates, a distribution in reduction of Outstanding
Stated Principal Balance of the Certificates of such Class; or
(iv) on the Final Scheduled Distribution Date for a Class,
an amount equal to the entire Outstanding Aggregate Stated Principal
Balance of the Certificates of such Class, together with any Interest
Distribution Amount applicable to such Class for the immediately
preceding Interest Accrual Period;
in each case because of the insufficiency for such purposes of the funds then
available in the Accounts.]
"Delivery Date": The date that Certificates are delivered to the
original purchasers of such Certificates as specified in Article I.
"Depositor Order" or "Depositor Request": A written order or request
signed in the name of the Depositor by an Authorized Officer.
"Designated Interest Accrual Date": With respect to any Class of
Multi-Class Certificates, the date specified in Article I preceding the
applicable Distribution Date, Optional Termination Date or Special
Distribution Date.
["Determination of Insufficiency": As defined in Section 6.03.]
["Determination of Sufficiency": As defined in Section 6.02.]
"Distribution Date": The dates specified in Article I, on which
distributions on the Certificates will be made.
"Distribution Date Statement": As defined in Section 7.07(b).
"Due Date": Each date on which a payment whether of principal or
interest or both is due and payable to the Trustee or its nominee on a
Mortgage Asset included in the Trust Fund.
"Due Period": With respect to each Distribution Date, the related Due
Period shall be the period specified in Article I.
"Eligible Investments": Any one or more of the following obligations
or securities:
(i) direct obligations of, and obligations fully guaranteed
by, the United States of America, FHLMC, FNMA 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; provided that obligations of, or guaranteed by, FHLMC or
FNMA shall be Eligible Investments only if, at the time of
investment, they are acceptable to the Rating Agency as collateral
for securities having ratings equivalent to their respective ratings
of the Multi-Class Certificates that were in effect at the Delivery
Date;
(ii) (a) demand and time deposits in, and bankers'
acceptances issued by, and depository institution or trust company
incorporated under the laws of the United States of America
(including the Trustee acting in its commercial banking capacity) or
any state thereof and subject to supervision and examination by
federal and/or state banking authorities so long as the commercial
paper and/or the debt obligations of such depository institution or
trust company (or, in the case of the principal depository
institution in a holding company system, the commercial paper or debt
obligations of such holding company) at the time of such investment
or contractual commitment providing for such investment have the
highest credit rating or ratings from the Rating Agency and (b) any
other demand or time deposit or certificate of deposit that is fully
insured by the Federal Deposit Insurance Corporation or the Federal
Savings and Loan Insurance Corporation;
(iii) repurchase obligations with respect to: (a) any
security described in clause (i) above or (b) any other security
issued or guaranteed by an 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, in either case
entered into with a depository institution or trust company (acting
as principal) described in clause (ii)(a) above where the Trustee
holds the security therefor;
(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 that have the highest credit
rating or ratings from the Rating Agency at the time of such
investment or contractual commitment providing for such investment;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investments therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust to exceed 10% of the aggregate outstanding principal balances
and amounts of all the Mortgage Assets and Eligible Investments held
as part of the Trust;
(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 one year after the date
of issuance thereof) having the highest rating or ratings from the
Rating Agency at the time of such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance
company or other corporation or entity acceptable to the Rating
Agency; and
(vii) any other demand, money market or time deposit,
obligation, security or investment as may be acceptable to the Rating
Agency as collateral for securities having ratings equivalent to
their respective ratings of the Certificates that were in effect at
the Delivery Date.
"Excess Cash Flow": With respect to any Distribution Date, the
excess, if any, of: (a) the aggregate of: (i) all payments received from the
Mortgage Assets included in the Trust Fund in the Due Period preceding such
Distribution Date (including, for purposes of the first Due Period, any amount
deposited in the Certificate Account on the Delivery Date and income or gain
that will be in the Certificate Account for such Series on such Distribution
Date from the reinvestment of such amounts, (ii) any withdrawals since the
preceding Distribution Date for such Series from the GPM Fund and the Buy-Down
Fund and (iii) any withdrawals since such preceding Distribution Date from any
Reserve Fund for such Series over (b) the sum of: (i) the Stated Principal
Distribution Amounts (net of any Excess Cash Flow included in the Stated
Principal Distribution Amounts), (ii) the Interest Distribution amounts and
(iii) if applicable, any distributions in reduction of Outstanding Stated
Principal Balance of Certificates of such Series pursuant to one or more
Special Distributions pursuant to Section 5.02 hereof since the preceding
Distribution Date.
"Final Scheduled Distribution Date": With respect to any Multi-Class
Certificate, the date specified in such Certificate as the fixed date on or
before which the Outstanding Stated Principal Balance thereof is to be reduced
to zero.
"Fixed Rate Certificate": A Multi-Class Certificate on which interest
accrues at the fixed rate specified in Section 1.05 and in such Certificate
for the entire term of such Certificate.
"Fixed Rate Interest Accrual Period": With respect to any
Distribution Date any Class of Fixed Rate Certificates, the period specified
in Article I.
"GPM Asset": Any Mortgage Asset backed by or evidencing a fractional
undivided interest in a pool of mortgage loans that provide, or any Mortgage
Loan that provides, for monthly installments during a portion of their terms
that are less than the actual amount of principal and interest payable on a
level debt service basis.
"GPM Fund": The meaning specified in Section 7.01.
"GPM Prepayment Shortfall": With respect to any Mortgage Asset Group
comprised of GPM Assets valued on the basis of their scheduled maximum
principal payments in calculating the initial Asset Value of such Mortgage
Asset Group, the amount by which such scheduled maximum principal amount,
exceeds the principal amount as of the date of determination, plus 30 days
interest on such amount, calculated at the Highest Interest Rate.
"GPM Shortfall": With respect to any Mortgage Asset Group comprised
of GPM Assets valued on the basis of their scheduled maximum principal
balances in calculating the initial Asset Value of such Mortgage Asset Group,
the sum of the amounts for each Due Date, if any, by which payments of
principal of and interest on such GPM Assets assumed in calculating Asset
Value exceed scheduled payments on such GPM Assets according to the related
graduated payment mortgage plan for the period during which such excess
occurs.
"Highest Interest Rate": The per annum rate of interest determined as
specified in Article I.
"Independent": When used with respect to any specified Person means a
Person who: (i) is in fact independent of the Depositor or an Affiliate of the
Depositor or the Trustee or an Affiliate of the Trustee, (ii) does not have
any direct financial interest or any material indirect financial interest in
the Depositor or in an Affiliate of the Depositor or the Trustee, and (iii) is
not connected with the Depositor or the Trustee as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions. Whenever it is provided herein that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by Depositor Request or Order and approved by the Trustee in the
exercise of reasonable care and such opinion or certificate shall state that
the signer has read this definition and that the signer is Independent within
the meaning hereof.
"Initial Reduction Date": With respect to any Class of Multi-Class
Certificates that are Sequential Distribution Certificates, the Distribution
Date, if any, specified in Article I on which the Holders of Certificates of
such Class are entitled to begin receiving distributions in reduction of
Stated Principal Balance, if such distributions have not already begun.
"Initial Stated Principal Balance": With respect to any Multi-Class
Certificate, the Outstanding Stated Principal Balance as shown on the face
thereof.
"Interest Accrual Period": With respect to any Class of Multi-Class
Certificates and any Distribution Date, Optional Termination Date or Special
Distribution Date, the period specified in Article I.
"Interest Distribution Amount": With respect to any date on which a
distribution is to be made on any Class of Multi-Class Certificates, an amount
equal to the amount of interest that accrues on the Outstanding Principal
Stated Balance of such Class from the date on which the previous distribution
was made to the Designated Interest Accrual Date for such Class. For the
purposes of this calculation, the Outstanding Stated Principal Balance of such
Class shall be determined as of the previous Distribution Date or Special
Distribution Date. The Interest Rate shall be determined, for any Class of
Variable Rate Certificates, on the related Variable Rate Interest
Determination Date as specified in Article I hereof. Unless otherwise
specified in Article I, all computations of interest accruals shall be made on
the basis of a year consisting of twelve months having 30 days each.
"Interest Rate": With respect to any Variable Rate Certificate for
any Variable Rate Interest Accrual Period, the rate of interest for such
Variable Rate Interest Accrual Period determined pursuant to Section 1.06 and
the terms of such Variable Rate Certificate. With respect to any Fixed Rate
Certificate, the fixed annual rate at which interest accrues on such Fixed
Rate Certificate, as specified in Section 1.05 and such Fixed Rate
Certificate.
"Interest Rate Determination Date": With respect to any Class of
Variable Rate Certificates, the date specified in Article I on which the
Interest Rate at which interest will accrue on the Certificates of such Class
during the succeeding Variable Rate Interest Accrual Period is determined.
"International Business Day": shall mean any day on which banks in
London and New York City are open for the transaction of international
business.
"Letter of Credit": An irrevocable and transferable letter of credit
issued solely to the Trustee and its successors or assigns by any banking
corporation situated in the United States the commercial paper or other
short-term debt obligations of which have received the highest rating from the
Rating Agency and are otherwise acceptable to the Rating Agency. Any such
Letter of Credit shall provide that: (a) it is conditional only on
certification by the Trustee of its authority to draw on the Letter of Credit
under the terms of this Agreement and (b) it is subject to termination upon
not less than 60 days' prior written notice to the Trustee, in which case,
unless such Letter of Credit is renewed or a substitute Letter of Credit in
the requisite amount is provided, upon receipt of any such written notice the
Trustee shall promptly, and in no case more than 15 days after such notice,
draw on the Letter of Credit for the entire unutilized balance thereof and
deposit such amount in the related fund. Any such Letter of Credit also shall
provide for written notice by a qualified bank to the Trustee of any change in
the rating of the commercial paper or other short-term debt obligations of the
banking corporation issuing the Letter of Credit, in which case upon receipt
of any such written notice the Trustee shall promptly, and in no case more
than 30 days after such notice, draw on the Letter of Credit for the entire
unutilized balance thereof and deposit such amount in the related fund, unless
prior thereto the Trustee shall replace such Letter of Credit with a Letter of
Credit issued by a qualified bank.
For purposes of the definition of "Letter of Credit," a qualified
bank shall be deemed to have commercial paper that has received the highest
rating from the Rating Agency if the bank is the principal subsidiary of a
bank holding company and the commercial paper of the bank holding company has
received the highest rating from such Rating Agency. A bank shall be deemed
the principal subsidiary of a bank holding company, if the bank's net worth
exceeds 66-2/3% of the consolidated net worth of the bank holding company.
"Maturity Date": With respect to any Mortgage Asset included in the
Trust Fund, the date on which the last payment of principal of such Mortgage
Asset shall be due and payable. In determining the Maturity Date of such
Mortgage Asset, all prepayments received prior to the date of determination
shall be taken into account.
"Multi-Class Certificate": A Certificate issued hereunder having an
Interest Rate and an Outstanding Stated Principal Balance.
"Multi-Class Distribution Amount": With respect to any Distribution
Date, the sum of: (i) the Interest Distribution Amounts and (ii) the Stated
Principal Distribution Amount.
"Non-Compound Interest Certificates": Multi-Class Certificates,
including PDC Certificates, other than Compound Interest Certificates.
"Officers' Certificate": A certificate signed by two Authorized
Officers of the Depositor.
"Optional Termination Date": The date of an optional termination as
specified by the Depositor as provided in Section 4.02.
"Original Mortgage Asset Group": All or a portion of a Mortgage Asset
Group, which may be a single Mortgage Asset, that is being substituted for
pursuant to Section 2.05.
"Outstanding": With respect to the Certificates, as of the date of
determination, all Certificates theretofore authenticated and delivered under
this Agreement except:
(i) Certificate theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for cancellation;
(ii) Certificates or portions thereof for the retirement of
which money in the necessary amount has been theretofore deposited
with the Trustee in trust for the Holders of such Certificates;
provided, however, that if such Certificates are to be retired
pursuant to Article II, notice of such retirement has been duly given
pursuant to this Agreement or provision therefor, satisfactory to the
Trustee, has been made;
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement unless proof satisfactory to the Trustee is presented that
any such Certificates are held by a bona fide purchaser; and
(iv) Certificates alleged to have been destroyed, lost,
stolen or mutilated and surrendered to the Trustee for which
replacement Certificates have been issued as provided for in Section
4.03;
provided, however, that in determining whether the Holders of the requisite
percentage of the Outstanding Stated Principal Balance of the Outstanding
Multi-Class Certificates or any Class thereof or, as to Residual Certificates,
of the requisite Percentage Interest, have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Depositor or any Affiliate of the Depositor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, or waiver, only Certificates that
the Trustee knows to be so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee that the pledgee is entitled so to act with respect to such and that
the pledgee is not the Depositor or any Affiliate of the Depositor.
"Outstanding Mortgage Asset Amount": With respect to any Mortgage
Asset Group, the aggregate of the Outstanding Mortgage Certificate Amounts and
the Outstanding Mortgage Loan Amounts.
"Outstanding Mortgage Certificate Amount": With respect to any
Mortgage Certificate, the outstanding principal amount of such Mortgage
Certificate, based on information provided by the Servicer.
"Outstanding Mortgage Loan Amount": With respect to any Mortgage
Loan, the outstanding principal amount of such Mortgage Loan, less any
principal advances on such Mortgage Loan, based on information provided by the
Servicer or the Master Servicer.
"Outstanding Stated Principal Balance": With respect to any
Multi-Class Certificate, as of any particular date of calculation, the Initial
Stated Principal Balance (plus with respect to any Compound Interest
Certificate, any additions to the Compound Value thereof) less any
distributions in reduction of Outstanding Stated Principal Balance made with
respect thereto.
"[PDC] Certificate": A Multi-Class Certificate having a specified
schedule for distributions in reduction of Outstanding Stated Principal
Balance.
"Percentage Interest": As to any Residual Certificate, the percentage
ownership interest in the Residual evidenced thereby as set forth on the face
thereof.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Predecessor Certificate": With respect to any particular
Certificate, every previous Certificate of the same Class evidencing all or a
portion of the same interest in the Trust Fund as evidenced by such particular
Certificate, and, for the purpose of this definition, any Certificate
authenticated and delivered under Section 4.03 in lieu of a lost, destroyed or
stolen Certificate (or a mutilated Certificate delivered to the Certificate
Registrar) shall be deemed to evidence the same interest in the Trust Fund as
the lost, destroyed or stolen Certificate (or the mutilated Certificate
delivered to the Certificate Registrar).
"Principal Determination Date": With respect to an accounting
pursuant to Section 7.07, the first day of the month for which the accounting
is given.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Rating Agency": The rating agency or agencies specified in Article I
hereof, or any successor Person thereto.
"Regular Record Date": With respect to a Distribution Date, the close
of business on the calendar day specified in Article I that precedes the
applicable Distribution Date.
"Reinvestment Agreements": One or more Reinvestment Agreements listed
in a schedule to this Reference Agreement or one or more replacement
Reinvestment Agreements on substantially the same terms, from a bank,
insurance company or other corporation or entity meeting the credit rating
requirements (or the parent company of which meets the requirements) set forth
in the definition of Eligible Investments. If Reinvestment Income pursuant to
a Reinvestment Agreement is used to determine Asset Value, then, provided that
such Reinvestment Agreement initially qualified as an Eligible Investment,
such Reinvestment Agreement will continue to be an Eligible Investment even if
such use might result in the Rating Agency lowering the outstanding rating of
the Certificates; provided, however, that in such event, such Reinvestment
Agreement shall not be terminated unless: (i) the Trustee determines, based on
a certificate from an Independent certified public accounting firm of national
reputation, that such termination would not [cause a Deficiency Event
hereunder or] result in a decrease in the Asset value or extension of the
final Scheduled Distribution Date of any class of the Multi-Class
Certificates, or (ii) a replacement Reinvestment agreement is substituted and
such substitution does not result in the Rating Agency lowering the
outstanding rating of the Certificates.
"Reinvestment Income": Any interest or other earnings on funds and
accounts that are part of the Trust.
"REMIC": As defined in the Preliminary Statement hereto.
"Requisite Amount of the Reserve": With respect to any Distribution
Date, the amount, if any, specified in Article XI.
"Reserve Fund": The meaning specified in Section 7.02.
"Residual": With respect to any Distribution Date, the excess of
amounts in the Certificate Account (after taking into account applicable
deposits from the Reserve Fund, Buy-Down Fund and GPM Fund) over the
Multi-Class Distribution Amount of such Distribution Date.
"Residual Certificate": A Certificate issued hereunder which
represents an interest on any Distribution Date in the Residual.
"Sequential Distribution Certificates": Any Class of Multi-Class
Certificates as to which distributions in reduction of Outstanding Stated
Principal Balance are applied in the order of the respective Final Scheduled
Distribution Dates of the Multi-Class Certificates.
"Servicer": For each Mortgage Certificate, the issuer of such
Mortgage Certificate or the Person specified as such with respect thereto in
the agreement under which such Mortgage Certificate was issued; for any
Mortgage Loan, as defined in Article I.
"Single Certificate": A Certificate issued in the minimum
denomination of $1,000.
"Special Distribution": A distribution on the Multi-Class
certificates other than on a Distribution Date, as provided in Sections 5.01
and 7.07(d).
"Special Distribution Amount": The amount determined under Section
7.07(d).
"Special Distribution Date": With respect to any Multi-Class
Certificate, the date in any month (other than a month in which a Distribution
Date occurs) on which Special Distributions may be made, as provided in
Sections 5.01 and 7.07(d).
"Special Distribution Determination Date": With respect to any
Multi-Class Certificate, the date in any month (other than a month in which a
Distribution Date occurs) on which Special Distributions may be made, as
provided in Section 5.01 and 7.07(d).
"Special Distribution Statement": As defined in Section 7.07(d) hereof.
"Special Record Date": With respect to any Special Distribution Date,
the date as of which the Holders of Multi-Class Certificates entitled to
receive a Special Distribution are to be determined, as provided in Sections
5.01, 7.07(d) and Article I hereof.
"Standard Certificate": A Multi-Class Certificate that is not a
Compound Interest Certificate or a [PDC] Certificate.
"Stated Principal Distribution Amount": Unless otherwise specified in
Article I, with respect to any Distribution Date for the Multi-Class
Certificates, as of the end of the Due Period preceding such Distribution
Date, the sum of: (i) the Accrual Distribution Amount, if any, (ii) the
amount, if any, by which the Aggregate Outstanding Stated Principal Balance of
the Multi-Class Certificates (before taking into account the amount of
interest accrued on the compound Interest Certificates to be added to the
Outstanding Stated Principal Balance thereof on the Distribution Date and
before giving effect to any distributions in reduction of Outstanding Stated
Principal Balance to be made on the Multi-Class Certificates on such
Distribution Date) exceeds the Asset Value of the Mortgage Assets as of such
Distribution Date and (iii) the percentage of Excess Cash Flow, if any,
specified in Article I to be applied to the reduction of Outstanding Stated
Principal Balance of the Multi-Class Certificates.
"Substitute Mortgage Asset Group": All or any portion of a Mortgage
Asset Group, which may be a single Mortgage Asset, that is being substituted
into the Trust Fund pursuant to Section 2.05.
"Substitution Date": Any date not later than three months after the
Delivery Date, or, in the case of substitution of "defective obligations"
under Section 860 G(a)(4)(B)(ii) of the Code, the date chosen by the Depositor
as the date for the substitution of Mortgage Assets pursuant to Section 12.05
hereof.
"TIA": The Trust Indenture Act of 1939.
"Trust Fund": All money, instruments and other property delivered to
the Trustee under this Agreement for the benefit of the Holders of the
Certificates as of any particular time, including all proceeds thereof.
"Variable Rate Interest Accrual Period": With respect to any Class of
Variable Rate Certificates, the period commencing immediately subsequent to
the preceding Variable Rate Interest Accrual Period (or, in the case of the
Variable Rate Interest Accrual Period applicable to the first Distribution
Date, commencing on the Accrual Date for such Class) and ending on the
Designated Interest Accrual Date preceding the related Distribution Date,
during which interest shall accrue on a Class of Variable Rate Certificates,
payable on the immediately succeeding Distribution Date, at the Interest Rate
determined on the immediately preceding Interest Rate Determination Date.
SECTION 2.02 Calculations Respecting Mortgage Assets and Trust Fund.
(a) In connection with all calculations required to be made
pursuant to this Agreement with respect to distributions on any Mortgage
Assets, any payments on the mortgage loans included in or underlying the
Mortgage Assets or any payments on any other assets included in the Trust
Fund, and with respect to the income that can be earned from the
reinvestment of distributions on the Mortgage Assets and of any other
amounts receivable for deposit in an Account, the provisions set forth in
this Section 2.02 shall be applied except to the extent supplemented or
modified herein or in Article I.
(b) If Article I provides that calculations with respect to
distributions on all or any part of the Mortgage Assets included in the
Trust Fund shall be made on a mortgage loan by mortgage loan basis, then
such calculations shall be based upon current information as to the terms
of such mortgage loans and reports of payments received on such mortgage
loans supplied to the Trustee or the Depositor, as the case may be, by
the Servicer or the Master Servicer and satisfying such requirements, if
any, as may be set forth in Article I.
(c) For any Mortgage Certificate with respect to which
calculations required to be made pursuant to this Agreement are not
required to be made on a mortgage loan by mortgage loan basis, such
calculations shall be made on the basis of information or accounting as
to distributions on such Mortgage Certificate furnished by the Servicer
thereof.
(d) Unless otherwise specified in Article I, all calculations
with respect to distributions on the Mortgage Loans shall be based upon
current information as to the terms of the Mortgage Loans and the reports
of payments received on such Mortgage Loans and payments to be remitted
to the Trustee, as supplied to the Trustee by the Master Servicer.
To the extent they are not patently incorrect on their face, such
information or accounting may be conclusively relied upon in making such
calculations.
(e) Unless Article I provides otherwise, all calculations with
respect to future distributions on the Mortgage Asset or future payments
on the mortgage loans underlying a Mortgage Asset included in a Mortgage
Asset Group shall be made on the assumption that all of the mortgage
loans underlying or included in a Mortgage Asset included in a Mortgage
Asset Group constitute a single, fully-amortizing, fixed rate mortgage
loan:
(i) bearing interest at a fixed rate equal to the highest
rate that might be borne by any of the mortgage loans underlying or
included in any of the Mortgage Assets included in such Mortgage
Asset Group (such highest rate being the sum of: (A) the certificate
rate for the Mortgage Certificates in such Mortgage Asset Group or
the Pass-Through Rate for Mortgage Loans in such Mortgage Asset Group
and (B) either: (1) the highest servicing fee (including any master
servicing fee and retained yield) and guaranty fee, if any,
applicable to any of such mortgage loans or (2) in the case of a
Mortgage Certificate, if the exact servicing fee and guaranty fee, if
any, applicable to such underlying mortgage loans is not known, the
highest possible servicing fee that might be applicable thereto as
provided in applicable guidelines for the program pursuant to which
such Mortgage Certificate was issued), and subject to a servicing fee
and guaranty fee, if any, equal to the amount described above in
clause (B)(1) or (B)(2), whichever is applicable;
(ii) having an outstanding principal balance equal to the
Outstanding Mortgage Asset Amount of the Mortgage Assets included in
such Mortgage Asset Group;
(iii) maturing in the month of the Maturity Date of the
latest maturing Mortgage Asset in such Mortgage Asset Group;
(iv) which either provides for fixed level monthly payments
or, in the case of a Mortgage Asset Group comprised of GPM Assets,
provides for scheduled payment increases equal to the largest
percentage increase possible for any of the mortgage loans included
in, or underlying the GPM Assets included in such Mortgage Asset
Group, which payment increases would become effective for an
underlying mortgage loan maturing in the month of the Maturity Date
of the latest maturing GPM Asset of such Mortgage Asset Group.
(f) All calculations with respect to future distributions on a
Mortgage Asset shall be made on the assumption that none of the mortgage
loans included in, or underlying such Mortgage Asset is prepaid and that
all such mortgage loans paid in accordance with their actual payment
schedule, or the assumed payment schedule calculated pursuant to
subsection (e) of this Section 2.02, whichever is applicable, except as
may be provided in Article I.
(g) If any Mortgage Certificate (or mortgage loan underlying
such Mortgage Certificate) bears interest at a rate in excess of the
Highest Interest Rate, then, except as otherwise provided in Article I,
for purposes of any future distribution on such Mortgage Certificate, it
shall be assumed that in addition to the servicing fee and guaranty fee,
if any, actually payable with respect to the mortgage loans underlying
such Mortgage Certificate, or assumed to be payable with respect thereto
as provided in subsection (e) of this Section 2.02, such mortgage loans
are subject to an additional servicing fee equal, on an annual basis, to
the difference between: (i) the interest rate borne by such Mortgage
Certificate and (ii) the Highest Interest Rate.
(h) If the Pass-Through Rate on any Mortgage Loan included in
the Trust Fund is in excess of the Highest Interest Rate, then, except as
otherwise provided in Article I, for purposes of calculating the amount
of Excess Cash Flow resulting from any future distribution on such
Mortgage Loan, it shall be assumed that in addition to the servicing fee
(including any master servicing fee and retained yield) and guaranty fee,
if any, such Mortgage Loan is subject to an additional servicing fee
equal, on an annual basis, to the difference between: (i) the
Pass-Through Rate for such Mortgage Loan and (ii) the Highest Interest
Rate.
(i) Each distribution receivable with respect to a Mortgage
Asset included in the Trust Fund shall be assumed to be received, in the
case of a Mortgage Certificate, unless actually received earlier, on the
Business Day next succeeding the date on which such distribution is
payable to the holder of the Mortgage Certificate in accordance with its
terms, or in the case of a Mortgage Loan, unless actually received
earlier, on the [ ]th day of the month succeeding the date on which such
distribution is payable to the holder of such Mortgage Loan in accordance
with its terms and each such distribution shall be assumed to be
immediately deposited in the Certificate Account and reinvested on the
next day at the Assumed Reinvestment Rate specified in Article I. All
principal of and interest on investments held in the Account shall be
assumed to be received on the date due and immediately deposited therein
and reinvested on the next day at the applicable Assumed Reinvestment
Rate. All funds assumed to be reinvested at the applicable Assumed
Reinvestment Rate shall be assumed to remain so invested until the day
next preceding the day on which they are required to be available in the
related Certificate Account for application, in accordance with the terms
hereof and Article I, to distributions on the Certificates. All funds
eligible to be invested pursuant to a Reinvestment Agreement shall
(subject, however, to any limitations contained in such Reinvestment
Agreement) be assumed to be invested thereunder until such funds are, or
might be, required to be available for, application pursuant to this
Agreement.
SECTION 2.03 Representations and Warranties of the Depositor with
Respect to the Mortgage Certificates. The Depositor hereby represents and
warrants to the Trustee with respect to any Mortgage Certificates included in
the Trust Fund that:
(a) the Depositor is the owner of each Mortgage Certificate free
and clear of any liens or the adverse interests of any person;
(b) the Depositor has acquired its ownership in such Mortgage
Certificates in good faith without notice of any adverse claim;
(c) the Depositor has not assigned any interest in such Mortgage
Certificate or any distributions thereon, except as contemplated herein
(or if any such interest has been assigned, it has been released);
(d) the information set forth with respect to each Mortgage
Certificate in Schedule I hereto is complete and correct;
The representations and warranties set forth in this Section 2.03
shall survive the transfer and assignment of the Mortgage Certificates to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representation and warranties, the party discovering such breach
shall give prompt written notice to the other. Within 30 days or, with the
prior written consent of the Trustee, such longer period specified in such
consent, of its discovery or its receipt of the representations and warranties
set forth above, shall cure such breach in all material respects or shall
deliver a Substitute Mortgage Certificate for the Original Mortgage
Certificate in the manner, and under the circumstances, specified in Section
2.05 to cure such breach. In the event that the Depositor is unable to cure
such breach, it shall repurchase each affected Mortgage Certificate from the
Trustee. Any such repurchase by the Depositor shall be accomplished at a price
payable to the Trustee equal to the lesser of: (i) the sum of: (a) the
Outstanding Mortgage Certificate Amount of the Mortgage Certificate to be
repurchased on the date of such repurchase, (b) all interest accrued but
unpaid to the Trustee on such principal balance, at the rate of interest borne
by such Mortgage Certificate, through the last day of the month of such
repurchase and (ii) the Trust Fund's adjusted tax basis in such Mortgage
Certificate, determined in accordance with the Code and the regulations
promulgated thereunder. The payment of the purchase price for any repurchased
Mortgage Certificates shall be considered a prepayment in full of the related
Mortgage Certificate and shall be deposited by the Depositor in the
Certificate Account in accordance with the provisions of Section 7.04 hereof
and, upon such deposit into the Certificate Account, the related Mortgage
Certificate shall be released to the Depositor, and the Trustee shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as shall be reasonably requested by the Depositor to vest in the
Depositor, or its designee or assignee, title to any Mortgage Certificate
repurchased pursuant hereto. The obligation of the Depositor to repurchase any
Mortgage Certificate as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to
Certificateholders or the Trustee on behalf of Certificateholders. The Trustee
may take legal action to enforce the Depositor's obligation to repurchase such
Mortgage Certificates. The reasonable legal fees and expenses incurred by the
Trustee in connection with any such legal action shall be reimbursable to the
Trustee out of the proceeds of any such action and shall be retained by the
Trustee prior to the deposit of any remaining proceeds in the Certificate
Account pending distribution thereof to Certificateholders in accordance with
Section 3.01 hereof. Any distributions received by the Trustee with respect to
such repurchased Mortgage Certificate subsequent to the date of such
repurchase shall be promptly remitted by the Trustee to the Depositor.
SECTION 2.04 Administration of the Mortgage Certificates. The Trustee
shall deposit in the Certificate Account, as soon as practicable after
receipt, each distribution of interest and principal and all other payments or
amounts made to the Trustee with respect to the Mortgage Certificates. If the
Trustee shall not have received a distribution with respect to a Mortgage
Certificate by the second Business Day after the date on which such
distribution was due and payable pursuant to the terms of such Mortgage
Certificate, the Trustee shall request the issuer or guarantor, if any, of
such Mortgage Certificate to make such payment as promptly as possible and
legally permitted and shall, subject to the last sentence of this paragraph,
take such legal action against such issuer or guarantor as the Trustee shall
deem appropriate under the circumstances, including the prosecution of any
claims in connection therewith. The reasonable legal fees and expenses
incurred by the Trustee in connection with the prosecution of any such legal
action shall be reimbursable to the Trustee out of the proceeds of any such
action and shall be retained by the Trustee prior to the deposit of any
remaining proceeds in the Certificate Account pending distribution thereof to
Certificateholders in accordance with Section 3.01 hereof. In the event that
the Trustee has reason to believe that the proceeds of any such legal action
may be insufficient to reimburse it for its projected legal fees and expenses,
the Trustee shall notify the Master Servicer that it is not obligated to
pursue any such available remedies unless adequate indemnity for its legal
fees and expenses is provided to the Trustee, and the Trustee shall take such
action as shall be appropriate under the circumstances.
SECTION 2.05 Substitution of Mortgage Assets.
(a) The Trustee may, and when required by the provisions of the
Escrow Account shall, execute instruments to release property held by it
under this Agreement, or convey the Trustee's interest in the same, in a
manner and under circumstances that are not inconsistent with the
provisions of this Agreement. No party relying upon an instrument
executed by the Trustee as provided in this Article II shall be bound to
ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any monies.
(b) The Depositor may, within two years following the Delivery
Date, request by Depositor Request to substitute any Substitute Mortgage
Asset Group for any Original Mortgage Asset Group. Such Depositor Request
shall state the Substitution Date for such substitution. Any substitution
under this Section 2.05 involving an Original Mortgage Asset Group that
contains cash shall occur prior to the first Distribution Date.
(c) Any number of substitutions may occur on any subsequent
Delivery Date. All substitutions occurring under this Section 2.04 shall
in the aggregate meet the following conditions:
(i) Substitute Mortgage Asset Groups may only be substituted
for Original Mortgage Asset Groups of like kind (e.g., Mortgage Loans
shall only be substituted for Mortgage Loans; any type of Mortgage
Assets may be substituted for an Original Mortgage Asset Group
containing cash;
(ii) No more than 40% in the Aggregate Outstanding Trustee
Asset Amount (not including any cash held in the Certificate Account)
making up the Trust Fund on the Closing Date may be substituted for;
(iii) There may be no substitutions for any Mortgage Assets
that made up part of a Substitute Mortgage Asset Group;
(iv) Any substitute Mortgage Asset Group must have an
aggregate Asset Value at least equal to that of the Original Mortgage
Asset Group for which it will be substituted; the Asset Value of cash
shall be determined by the Rating Agency and shall be evidenced by an
Officer's Certificate of the Depositor executed on the Closing Date;
(v) No substitution will be permitted that would delay the
Final Scheduled Distribution Date of any Class of Multi-Class
Certificates;
(vi) After the expiration of a period of 90 days from the
Delivery Date, Mortgage Assets may only be substituted for in the
event of a default or late payment on or defect in the Mortgage
Certificates or Mortgage Loans being substituted for; and
(vii) No Rating Agency shall, as a consequence of such
substitution, downgrade its rating of the Multi-Class Certificates.
(d) In connection with any such substitution, on the
Substitution Date the Depositor shall deliver to the Trustee the
following:
(i) The Mortgage Certificates included in the Substitute
Mortgage Asset Group;
(ii) The Mortgage Files with respect to each of the Mortgage
Loans included in the Substitute Mortgage Asset Group;
(iii) Cash, if any, to be deposited in the related
Certificate Account, in an amount equal to the sum of: (A) the
payment of principal and interest paid or to be paid on any Trustee
Asset in such Substitute Trustee Asset Group during the month of such
Substitution Date, (B) if so required by the Rating Agency, an amount
equal to the amount set forth pursuant to clause (A) multiplied by a
fraction, the numerator of which is the applicable Assumed
Reinvestment Rate multiplied by the number of days, if any, from the
immediately preceding Due Date to the Substitution Date and the
denominator of which is 360 and (C) the amounts, if any, required to
be deposited in the GPM Fund, the Buy-Down Fund and the Reserve Fund
as a result of such substitution;
(iv) An Officer's Certificate, dated as of the Substitution
Date:
(A) certifying with respect to the Mortgage Loans in the
Substitute Mortgage Asset Group that the representation and
warranties of the Depositor with respect to the Mortgage Loans
in the Original Mortgage Asset Group contained in Section 2.01
hereof are true and correct, as of the Substitution Date, with
respect to such Mortgage Loans;
(B) certifying with respect to the Mortgage Certificates
in the Substitute Mortgage Asset Group that the representation
and warranties of the Depositor with respect to the Mortgage
Certificates in the Original Mortgage Asset Group contained in
Section 2.03 hereof are true and correct, as of the Substitution
Date, with respect to such Mortgage Certificates;
(C) certifying that such substitution on such
Substitution Date will be in compliance with the provisions
hereof;
(D) setting forth calculations demonstrating that such
substitution on such Substitution Date will be in compliance
with Sections 2.05(c)(i), (ii), (iv) and (v) hereof;
(v) An Opinion of Counsel stating that: (A) such
substitution will not result in the disqualification of the Trust
Fund as a REMIC, (B) such substitution is in compliance with the
provisions hereof, (C) the Trust Fund will not as a result of such
substitution become an "investment company," as such term is used in
the Investment Company Act of 1940, as amended; and (D) the
Substitute Mortgage Assets constitute "qualified replacement
mortgages" as defined in Section 860G(a)(4) of the Code; and
(vi) A certificate of a firm of Independent Accounts
verifying the calculation of the Asset Value of the Substitute
Mortgage Asset Group and the Original Mortgage Asset Group to be
released and the amount of principal prepayments, if any, with
respect to the Mortgage Assets in such Substitute Mortgage Asset
Group since the immediately preceding Due Date and verifying the
amount, if any, required to be deposited into or released from the
Certificate Account, GPM Fund, Buy-Down Fund and Reserve Fund as a
result of such substitution and stating that such substitution will
not result in an extension of the Final Scheduled Distribution Date
of any Class of Multi-Class Certificates.
(e) Upon such substitution, the Trustee shall deliver to the
Depositor the Original Mortgage Asset Group, all distributions on such
Original Mortgage Asset Group received by the Trustee on the Due Date
prior to such Substitution Date, all amounts in the Certificate Account
with respect to such Original Mortgage Asset Group on the Substitution
Date and any investment earning on such amounts.
ARTICLE III
DISTRIBUTIONS
SECTION 3.01 Distributions.
(a) On any Distribution Date, the total amount of distributions
that shall be made to the Certificateholders shall equal the sum of the
total amount of funds available in the Certificate Account and available
to be released from any Reserve Fund, GPM Fund, or Buy-Down Fund, as
specified in the related Distribution Date Accounting (the "Amount
Available"). The Trustee shall make the distributions to the Holders of
each Class of the Multi-Class Certificates and the Residual Certificates
on the basis hereof and as specified in Article I.
(b) Unless otherwise specified in Article I, all distributions
made with respect to any Multi-Class Certificate shall be applied first
to the interest then accrued and distributable on such Multi-Class
Certificate and then to effect reductions in the Outstanding Stated
Principal Balance thereof. Unless otherwise specified in Article I,
distribution of interest shall be made in the order of the Final
Scheduled Distribution Dates of each Class of Multi-Class Certificates,
until the Interest Distribution Amount for each such Class has been
distributed. No distribution of any Interest Distribution Accounts shall
be made on any Compound Interest Certificate until after its Accretion
Termination Date.
(c) Interest at the applicable Interest Rate shall accrue on the
Outstanding Stated Principal Balance of each Outstanding Compound
Interest Certificate from the Accrual Date, but none of such accrued
interest shall be distributable until the Accretion Termination Date for
such Compound Interest Certificate. Unless otherwise specified in Article
I, on each Distribution Date prior to the Accretion Termination Date for
any Class of Compound Interest Certificate, interest that has accrued
(determined as described above) on such Certificate during the preceding
Interest Accrual Period shall be added to the outstanding Stated
Principal Balance of such Certificate and shall thereafter accrue
interest from such Distribution Date. On the Accretion Termination Date
for any Class of such Certificates, interest accrued on such Class of
Compound Interest Certificates during the preceding Interest Accrual
Period shall be distributable in an amount equal to the lesser of: (a)
the Multi-Class Distribution Amount for such Accretion Termination Date
less the aggregate amount to be distributed with respect to interest and
in reduction of Outstanding Stated Principal Balance on all other
Multi-Class Certificates required to be so distributed on such date, and
(b) the amount of interest so accrued on such Class of Compound Interest
Certificates. The portion, if any, of such interest that is not
distributed on such Accretion Termination Date shall be added to the
Compound Value of such Class of Compound Interest Certificates and shall
hereafter accrue interest as set forth above. On any Distribution Date
after the Accretion Termination Date distributions of interest shall be
made on any Class of Compound Interest Certificates in the manner set
forth in subsection (b) above.
(d) Unless otherwise specified in Article I, on each
Distribution Date, the Trustee shall make distributions in reduction of
Outstanding Stated Principal Balance to the Holders of the Outstanding
Class of Multi-Class Certificates having the earliest Final Scheduled
Distribution Date in an amount equal to the sum of the Stated Principal
Distribution Amount with respect to such Distribution Date. With respect
to any Class of Multi-Class Certificates, such distribution shall not
exceed the then Aggregate Outstanding Stated Principal Balance of such
Class. Any excess of the Stated Principal Distribution Amount over such
Aggregate Outstanding Stated Principal Balance shall be distributed on
such Distribution Date to the Class of Multi-Class Certificates having
the next earliest Final Scheduled Distribution Date and so on until the
full amount of such sum is so distributed. On each succeeding
Distribution Date, after the Trustee has distributed all Interest
Distribution Amounts with respect to the Class of Multi-Class
Certificates then Outstanding and entitled to receive such a
distribution, the Trustee shall distribute the Stated Principal
Distribution Amount with respect to such Distribution Date in the same
manner. The Trustee shall continue to make distributions in this manner
until the Aggregate Outstanding Stated Principal Balance of all
Multi-Class Certificates has been reduced to zero.
[(e) If so specified in Article I, distributions of the
Principal Distribution Amount shall be made on a Class of [PDC]
Certificates beginning on the First [PDC] Paydown Date, in an Amount not
in excess of the [PDC] Amount of such Class. Any excess of the sum of the
Stated Principal Distribution Amount over the [PDC] Amount shall be
distributed in the order of priority provided in subsection (d) above.
Any excess of the [PDC] Amount over the Stated Principal Distribution
Amount shall be added to the [PDC] Amount applicable to the next
succeeding Distribution Date or Special Distribution Date and may be
carried forward until all distributions with respect thereto have been
made. If prior to such Distribution Date, distributions have been made
such that the Aggregate Outstanding Stated Principal Balance of all other
Classes of Multi-Class Certificates has been reduced to zero,
distributions shall be made to such [PDC] Certificates as set forth in
subsection (d) above.]
(f) Unless otherwise specified in Article I, any amounts
remaining in the Certificate Account after the distribution of the
Multi-Class Distribution Amount shall be distributed to the Holders of
the Residual Certificates on the basis of the Percentage Interest
evidenced by such Residual Certificate in the Residual.
(g) Unless otherwise specified in Article I, all distributions
hereunder shall be made on a pro rata basis among all of the Certificates
of any Class.
[(h) Notwithstanding any of the foregoing provisions with
respect to distributions of interest on and in reduction of Outstanding
Stated Principal Balance of the Certificates, if a Deficiency Event shall
have occurred, then distributions in reduction of Outstanding Stated
Principal Balance of and of interest on the Certificates subsequent to
the Distribution Date upon which such Deficiency Event first occurred
shall be made in accordance with Article VI.]
(i) Distributions in reduction of Outstanding Stated Principal
Balance of the Multi-Class Certificates shall begin no later than the
Initial Reduction Date for such Class and shall end no later than the
Final Scheduled Distribution Date therefor, unless the Outstanding Stated
Principal Balance of such Certificate becomes distributable at an earlier
date by reason of [the occurrence of a Deficiency Event or] the
termination of the Trust Fund pursuant to Article IV.
(j) Except for the final distribution with respect to a
Certificate, which shall be made as specified in Article I, any
distribution of interest on or in reduction of Outstanding Stated
Principal Balance of a Certificate shall be made to the Person in whose
name such Certificate (or one or more Predecessor Certificates) is
registered at the close of business on the Regular Record Date for such
Distribution Date by check mailed to such Certificateholder at the
address appearing in the Certificate Register, or upon written request by
the Certificateholder, by wire transfer (in the event that such
Certificateholder meets the requirements specified in Article I) or by
such other means of payment as such Certificateholder and the Trustee may
agree.
SECTION 3.02 Reports by Trustee to Certificateholders.
(a) On each Distribution Date, the Trustee shall deliver a
written report:
(i) to each Holder of Multi-Class Certificates of a Class on
which a distribution of interest and in reduction of Outstanding
Stated Principal Balance is then being made, setting forth the amount
of such distribution that represents interest and the amount applied
to reduce such Outstanding Stated Principal Balance, and the
Outstanding Stated Principal Balance of a Single Certificate of each
such Class after giving effect to the distribution in reduction of
Outstanding Stated Principal Balance made on such Distribution Date;
(ii) to each Holder of Multi-Class Certificates of a Class
on which a distribution of interest only is then being made, setting
forth the Aggregate Outstanding Stated Principal Balance of each
Class of Multi-Class Certificates after giving effect to the
distribution in reduction of Outstanding Stated Principal Balance
made on such Distribution Date and on any Special Distribution Date
occurring subsequent to the last such report and after including in
the Aggregate Outstanding Stated Principal Balance of any Class of
Compound Interest Certificates the amount of any accrued interest
added to the Compound Value thereof on such Distribution Date;
(iii) to each Holder of a Compound Interest Certificate (but
only if such Holder shall not have received on such Distribution Date
a distribution of interest equal to the entire amount of interest
accrued on such Certificate during the preceding Interest Accrual
Period) setting forth:
(A) the information contained in the report delivered
pursuant to subsection (ii) above,
(B) the interest accrued on a Single Certificate of such
Class of Compound Interest Certificates during the preceding
Interest Accrual Period and added to the Compound Value of such
Compound Interest Certificate, and
(C) the Outstanding Stated Principal Balance of a Single
Certificate of such Class of Compound Interest Certificates
after giving effect to the addition thereto of all interest
accrued thereon during the preceding Interest Accrual Period;
and
(iv) to each Holder of a Residual Certificate, a report
containing the information delivered to Holders of Multi-Class
Certificates pursuant to subsections (i), (ii) and (iii) above and
setting forth the aggregate amount of distributions received on the
Mortgage Assets and the reinvestment income earned thereon during the
preceding Due Period and the applications of all such amounts, the
Outstanding Stated Principal Balance of each Class of Outstanding
Multi-Class Certificates after giving effect to the distributions
then being made to Holders of Multi-Class Certificates, the
Outstanding Mortgage Asset Amount at the end of the immediately
preceding Due Period, and the amount, if any (in the aggregate and
per Single Certificate), then being distributed to Holders of
Residual Certificates.
(b) In addition to the information set forth above, the report
delivered to each Certificateholder shall set forth:
(i) the amount of servicing compensation received by the
Servicers and the Master Servicer during the Due Period preceding the
related Distribution Date and such other customary information as the
Trustee deems necessary or desirable to enable Certificateholders to
prepare their tax returns;
(ii) the book value of any collateral acquired on behalf of
the Certificateholders through foreclosure or grant of deed in lieu
of foreclosure or otherwise of any Mortgage Loan (or any mortgage
loan in which a Participation Certificate evidences an interest);
(iii) the number and aggregate principal amount of Mortgage
Loans (or mortgage loans in which a Participation Certificate
evidences an interest) delinquent 30 days and 60 or more days; and
(iv) the amount of coverage remaining under the Pool
Insurance Policy and the Special Hazard Insurance Policy, after
giving effect to any amount with respect thereto distributed to
Certificateholders on the Distribution Date.
(c) Whenever the Trustee believes that the entire remaining
Outstanding Stated Principal Balance of any Class of Multi-Class
Certificates will become distributable on the next Distribution Date (or,
in the case of the final distribution upon a Residual Certificate upon
termination of the Trust Fund), the Trustee shall, no later than the
fifth day preceding such Distribution Date, mail or cause to be mailed to
each Person in whose name a Certificate to be so retired is registered at
the close of business on the applicable Record Date a notice to the
effect that:
(i) it is expected that funds sufficient to make a
distribution that will reduce the Outstanding Stated Principal
Balance of such Multi-Class Certificate to zero (or in the case of a
Residual Certificate, the amount of such final distribution) will be
available in the Certificate Account on such Distribution Date, and
(ii) if such funds are available: (A) such final
distribution will be payable on such Distribution Date, but only upon
presentation and surrender of such Certificate at the office or
agency of the Trustee maintained for such purpose pursuant to Section
3.06 (the address of which shall be set forth in such notice) and
that the Record Date otherwise applicable to such Distribution Date
will not be applicable, and in the case of a Multi-Class Certificate,
that (B) no interest shall accrue on such Certificate after the end
of the Interest Accrual Period with respect to such Distribution
Date.
ARTICLE IV
OPTIONAL TERMINATION
SECTION 4.01 Repurchase at the Option of the Depositor. To the extent
specified in Article XI, the Mortgage Assets included in the Trust Fund shall
be repurchaseable at the option of the Depositor as permitted herein on any
Optional Termination Date at the Repurchase Price specified herein.
Unless otherwise specified in Article XI, the Repurchase Price for
any such Optional Termination shall be equal to the greater of: (a) the
Outstanding Mortgage Asset Amount as of the date of repurchase, together with
accrued and unpaid interest thereon at the Pass-Through Rate for the related
Mortgage Pool, or at the rate of interest borne by a Mortgage Certificate or a
Participation Certificate through the last day of the month of such
repurchase, plus the appraised value of any property acquired in respect
thereof or (b) the fair market value of the Mortgage Assets (as specified
below).
[For purposes of this Section 4.01, the fair market value of a
Mortgage Asset shall be deemed to be: (a) the most recent bid price for such
Mortgage Asset in the over-the-counter securities market if such Mortgage
Asset is traded in such market, (b) if such Mortgage Asset is traded on a
securities exchange, the average closing sale price for such Mortgage Asset on
such securities exchange for the last five trading days of such exchange
immediately preceding such repurchase, (c) if such Mortgage Asset is not so
traded, a value determined on the basis of current prices of securities deemed
by the Depositor to be most comparable to such Mortgage Asset or (d) in the
case of Mortgage Loans and Participation Certificates, the product of: (i) the
Outstanding Mortgage Loan Amount of such Mortgage Loan or the Outstanding
Participation Certificate Amount of such Participation Certificate, based on
the information provided by the Servicer, and (ii) the lower of the bid prices
as quoted by two nationally-recognized dealers selected by the Depositor (one
of which may be an Affiliate of the Depositor) which are at the time making a
market in comparable mortgage notes or participation certificates.] The right
of the Depositor to repurchase the Mortgage Assets shall be subject to the
conditions specified in Article I and is conditioned upon the Depositor's
having previously given notice of termination as required by Section 4.02(a).
SECTION 4.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section
4.01, the Depositor shall, at least ten days prior to the date notice is
to be mailed to the Certificateholders (unless a shorter period shall be
satisfactory to the Trustee), notify the Trustee of such Optional
Termination Date, and of the Repurchase Price of the Mortgage Assets to
be purchased.
(b) Any repurchase by the Depositor of the Mortgage Assets shall
be made on the Optional Termination Date by deposit of the Repurchase
Price into the Certificate Account on or before the Distribution Date on
which such repurchase is effected. Upon receipt from the Depositor of the
Repurchase Price, the Trustee and each co-trustee and separate trustee,
if any, then acting as such under this Agreement, shall, upon Depositor
Request and at the expense of the Depositor, execute and deliver all such
instruments of transfer or assignment, in each case without recourse, as
shall be reasonably requested by the Depositor to vest title in the
Mortgage Assets so repurchased to the Depositor and shall transfer or
deliver to the Depositor or its designee the repurchased Mortgage Assets.
Any distributions on the Mortgage Assets received by the Trustee with
respect to such repurchased Mortgage Assets shall be promptly remitted by
it to the Depositor.
(c) Notice of any optional termination pursuant to the
provisions of this Article IV, specifying the Distribution Date upon
which the final distribution shall be made, shall be given promptly by
the Trustee by first class mail to Holders of the Certificates mailed no
later than ______ days preceding the Optional Termination Date. Such
notice shall constitute the adoption by the Trustee of a complete
liquidation within the meaning of Section 860(F)(a)(4)(A)(i) of the Code
on the date such notice is given. Such notice shall specify: (A) the
Distribution Date (which, in any event, shall be no later than 90 days
from the date the Trustee sent such notice to the Certificateholders)
upon which final distribution on the Certificates will be made upon
presentation and surrender of the Certificates at the office or agency of
the Trustee therein designated, (B) the Termination Price or, in the case
of the Residual Certificates, the Residual Distribution, (C) in the case
of a Multi-Class Certificate, that interest shall cease to accrue after
the end of the Interest Accrual Period with respect to such Optional
Termination Date and (D) that the Record Date otherwise applicable to
such Optional Termination Date is not applicable, such distribution being
made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee maintained for such purposes (the address
of which shall be set forth in such notice). The Trustee shall give such
notice to the Certificate Registrar at the time such notice is given to
Holders of the Certificates. Upon deposit in the Certificate Account on
the Optional Termination Date of an amount equal to the Repurchase Price
pursuant to Section 4.03 and presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to each Holder of
a Multi-Class Certificate an amount equal to the Termination Price for
such Certificate. Funds remaining in the Certificate Account after
allocation of funds to Holders of Multi-Class Certificates shall be
distributed to the holders of the Residual Certificates.
(d) Following receipt of notice of termination from the
Depositor pursuant to Section 4.02(a), the Trustee shall, prior to the
Optional Termination Date, sell any Eligible Investments then held in the
Accounts that mature subsequent to such Distribution Date, deposit the
proceeds of such sale into the related Account and reinvest such proceeds
in accordance with the applicable provisions of Article VII. Any amounts
remaining in the Accounts after making, or providing for, final
distributions to the Holders of the Multi-Class Certificates shall be
distributed to the Holders of the Residual Certificates on the Optional
Termination Date.
ARTICLE V
SPECIAL DISTRIBUTIONS
SECTION 5.01 Special Distributions. All or a portion of the
Multi-Class Certificates (having other than monthly Distribution Dates) shall
be subject to Special Distributions in reduction of Outstanding Stated
Principal Balance pursuant to this Section 5.01 on the day of the month
specified in Article I, in the event that the Trustee makes the determinations
specified in Section 7.07(d).
SECTION 5.02 Notice of Special Distribution by the Trustee. Notice of
distributions pursuant to Section 5.01 shall be given by first class mail,
postage prepaid, mailed not less than five days prior to the applicable
Special Distribution Date to each Holder of all Classes of the Multi-Class
Certificates affected at the address for such Holder specified in the
Certificate Register.
All notices of such distributions shall state: (i) Special
Distribution Date; (ii) the Special Distribution Amount; (iii) that on the
Special Distribution Date, if the affected Class of Multi-Class Certificates
is not to receive a final distribution in reduction of its Outstanding Stated
Principal Balance, the Special Distribution Amount will be distributed as
shall be specified in such notice, that accruals of interest will cease with
respect to principal amounts upon which distributions are to be made on the
date specified on the notice of distribution and that, subject to clause (vi)
below, distribution of the Special Distribution Amount will be made by check
mailed to the Person whose name appears as the registered Holder thereof on
the Certificate Register on the Special Distribution Record Date applicable to
such Special Distribution Date and identified in such notice of distribution;
(iv) that on a Special Distribution Date, if distributions on the affected
Multi-Class Certificates will cause such Certificates to have received total
distributions equal to the Initial Stated Principal Balance of such
Certificates and in the case of any Compound Interest Certificates, the
Compound Value of such Certificate will have been paid in full, the fact of
such distribution in full and that all interest distributions in respect
thereof shall cease on the date specified on the notice of redemption; (v) if
such payment is the final distribution on the affected Class of Multi-Class
Certificates that the Special Distribution Record Date otherwise applicable to
the Certificates is not otherwise applicable; and (vi) the place where such
Certificates are to be surrendered for distribution of the applicable portion
of the Special Distribution Amount if such Certificates are to receive their
final distribution in reduction of Outstanding Stated Principal Balance, which
shall be the office or agency of the Trustee to be maintained as provided in
Section 3.06.
Notice of distribution of Multi-Class Certificates shall be given by
the Trustee at its expense. Failure to give notice of distribution, or any
defect therein, to any Holder of any Multi-Class Certificate selected for
Special Distribution shall not impair or affect the validity of such
distributions with respect to any other Certificate.
ARTICLE VI
DEFICIENCY EVENTS
SECTION 6.01 Occurrence; Trustee's Determinations.
Upon the occurrence of a Deficiency event, the Trustee shall,
promptly after the Distribution Date on which such Deficiency Event occurs,
determine whether or not the application on a monthly basis of all future
distributions on the Mortgage Assets and other amounts receivable with respect
to the Trust Fund towards distributions on the Multi-Class Certificates in
accordance with the priorities as to distributions of principal set forth in
such Certificates and Article XI will result in the retirement of the entire
Aggregate Stated Principal Balance of and the distribution of all interest
accrued on the Multi- Class Certificates under the Maximum Rate Assumption, if
applicable. In making any such determination, the Trustee shall ignore all
Initial Reduction Dates and, except for the Final Scheduled Distribution Date
applicable to the Class or Classes of Multi-Class Certificates having the
latest Final Scheduled Distribution Date, all Final Scheduled Distribution
Dates, to the effect that a positive determination under this Section 6.01 can
be made if the Trustee can determine that such distributions will be
sufficient to pay interest at the applicable Interest Rates under the Maximum
Rate Assumption, if applicable and to reduce the entire Outstanding Stated
Principal Balance of each Certificate to zero on or before such latest Final
Scheduled Distribution Date.
The Trustee shall obtain and rely upon an opinion or report of a firm
of Independent Accountants of nationally recognized reputation as to the
sufficiency of the amounts receivable with respect to the Trust Fund to make
such distributions in reduction of Outstanding Stated Principal Balance of and
interest on the Multi-Class Certificates, which opinion or report shall be
conclusive evidence as to such sufficiency.
Pending the making of any determination pursuant to this Section
6.01, distributions on the Multi-Class Certificates shall continue to be made
in accordance with Articles I and III.
As promptly as practicable following any determination pursuant to
this Section 6.01, the Trustee shall notify all Holders of Certificates as to
such determination and the effect thereof upon future distributions on the
Certificates as set forth in Sections 6.02 and 6.03.
SECTION 6.02 Distributions Upon a Determination of Sufficiency. In
the event that the Trustee shall have made a positive determination pursuant
to Section 6.01 (a "Determination of Sufficiency"), the Trustee shall,
beginning on the first Deficiency Distribution Date which occurs more than ten
days subsequent to the date upon which the Trustee made such Determination of
Sufficiency, withdraw from the Certificate Account on each Deficiency
Distribution Date all amounts at the time held therein (after any withdrawal
as provided in the following paragraph) and shall distribute such amounts to
Holders of Multi-Class Certificates as of the related Special Record Date in
accordance with the priorities and allocations as to principal and interest
set forth below in this Section 6.02. In the event that the Accretion
Termination Date has not occurred with respect to a Class of Compound Interest
Certificates, interest accrued but not required to be distributed on such
Class shall be added to the Compound Value of each Certificate of such Class
in the same manner as prior to the occurrence of the Deficiency Event.
Each such monthly distribution on a Deficiency Distribution Date
shall be made without regard to any calculations as to the Multi-Class
Distribution Amount and, so long as such monthly distributions continue
pursuant to this Section 6.02, no withdrawals from the Certificate Account
shall be made for the purpose of distributions to Holders of Residual
Certificates until either such Deficiency Event is declared to be not
continuing pursuant to the following paragraph or until the Outstanding Stated
Principal Balance of all Multi-Class Certificates has been reduced to zero.
All amounts available for distribution from the Certificate Account on each
Deficiency Distribution Date pursuant to this Section 6.02 shall be applied,
first, to the payment of all interest accrued but undistributed on the
Multi-Class Certificates to [the Designated Interest Accrual Date with respect
to] such Deficiency Distribution Date (other than accrued interest on any
Class of Compound Interest Certificates for which the Accretion Termination
Date has not yet occurred) and, second, to the reduction of the Outstanding
Stated Principal Balance of the Outstanding Multi-Class Certificates in the
order of priority set forth in Article I.
In the event that, subsequent to the making of any distribution on a
Deficiency Distribution Date that would otherwise be a Distribution Date, the
Trustee determines (and a firm of Independent Accountants of nationally
recognized reputation confirms) that: (i) it could make a Determination of
Sufficiency pursuant to Section 6.01 which included taking into consideration
the making of distributions on the basis specified in Article I as well as all
applicable Initial Reduction Dates and Final Scheduled Distribution Dates and
(ii) the Asset Value of all Mortgage Asset Groups as of the related Principal
Determination Date is greater than the Aggregate Outstanding Stated Principal
Balance of the Multi-Class Certificates (after giving effect to the
distribution in reduction of Stated Principal Balance made on such Deficiency
Distribution Date), the Trustee shall notify all Certificateholders and
declare such Deficiency Event to no longer be continuing and resume
distributions on the Certificates (including, to the extent applicable,
Residual Certificates) as provided herein on each Distribution Date as if no
such Deficiency Event had occurred.
SECTION 6.03 Distributions Upon a Determination of Insufficiency. In
the event that the Trustee shall have made a negative determination pursuant
to Section 6.01 (a "Determination of Insufficiency"), the Trustee shall,
beginning on the first Deficiency Distribution Date that occurs more than ten
days subsequent to the date upon which the Trustee made such Determination of
Insufficiency, withdraw from the Certificate Account on each Deficiency
Distribution Date all amounts at the time held therein and shall distribute
such amounts to the Holders of Multi-Class Certificates in the following order
and priorities:
First: To the payment of amounts then accrued and
undistributed on all Multi-Class Certificates (including any Compound
Interest Certificates) for interest on the Outstanding Stated
Principal Balance of each such Certificate at the Highest Interest
Rate (notwithstanding the Interest Rate borne by such Multi-Class
Certificate) from the date with respect to which interest on such
Certificate was last distributed or in the case of any Compound
Interest Certificates, added to the Compound Value thereof) to such
Deficiency Distribution Date; and
Second: To the reduction of the Outstanding Stated Principal
Balance of each Multi-Class Certificate, ratably among all
Multi-Class Certificates, without preference or priority of any kind
and without regard to the sequence in which the distribution in
reduction of Outstanding Stated Principal Balance of Multi-Class
Certificates is otherwise paid.
Each such monthly distribution on a Deficiency Distribution Date
shall be made without regard to any calculations as to the Multi-Class
Certificate Distribution Amount and, so long as such monthly distributions
continue pursuant to this Section 6.02, no withdrawals from the Certificate
Account shall be made for the purpose of distributions to Holders of Residual
Certificates until the Outstanding Stated Principal Balance of all Multi-Class
Certificates has been reduced to zero.
So long as distributions on Multi-Class Certificates are being made
pursuant to this Section 6.03, the Holders of Multi-Class Certificates
representing more than 50% of the Aggregated Outstanding Stated Principal
Balance of all Classes of the Multi-Class Certificates may direct the Trustee
to sell the Trust Fund pursuant to Section 6.04, any such direction being
irrevocable and binding (subject, however, to satisfaction of the conditions
set forth in Section 6.04) upon the Holders of all such Multi-Class
Certificates as well as upon the Holders of all Residual Certificates. Pending
any such sale, monthly distributions shall continue to be made on the
Multi-Class Certificates on each Deficiency Distribution Date pursuant to this
Section 6.03. In the absence of such a direction, the Trustee shall not sell
all or a portion of the Trust Fund.
SECTION 6.04 Sale of Trust Fund. Upon receipt of a direction for the
sale of the Trust Fund from Holders of Multi-Class Certificates representing
more than 50% of the Aggregate Stated Principal Balance of all Classes of the
Multi-Class Certificates, the Trustee shall proceed to sell the Trust Fund in
one or more separate, private or public sales, the method, manner, time, place
and terms of any such sale being in the sole discretion of the Trustee,
provided that: (a) any such sale shall be conducted in a commercially
reasonable manner and (b) except as hereinafter provided: (i) any such sale
and the distribution of the proceeds thereof to Holders of the Certificates
shall be conducted in such a manner as to constitute a "qualified liquidation"
for purposes of Section 860F(a)(4)(A) of the Code and (ii) there shall have
been delivered to the Trustee an Opinion of Counsel with respect to such
proposed sale and the distribution of the proceeds thereof to
Certificateholders, stating that such sale will not disqualify the Trust Fund
as a REMIC under the Code. In the event that there shall be delivered to the
Trustee an Opinion of Counsel to the effect that the net proceeds of any sale
of the Trust Fund after payment of all taxes on "prohibited transactions" as
defined in Section 860F of the Code would not be less than the amount that
would be distributable to the Holders of the Multi-Class Certificates pursuant
to Section 16.03 on the next Deficiency Distribution Date following such sale,
then clause (ii) of the proviso to the immediately preceding sentence shall be
inapplicable to such sale.
The proceeds of any such sale (after reimbursement to the Trustee of
its reasonable expenses and disbursements) shall be distributed promptly to
Holders of Multi-Class Certificates upon presentation and surrender of the
Certificates at the office or agency specified in the notice to the Holders of
the Certificates of such final distribution. Such proceeds shall be applied in
the order and priority set forth in Section 16.03 for monthly distributions
thereunder. In the event that proceeds remaining after the retirement of the
Outstanding Stated Principal Balance of each Multi-Class Certificate together
with accrued and undistributed interest thereon at the Highest Interest Rate,
such remaining net proceeds shall be distributed to Holders of Residual
Certificates in accordance with the respective Percentage Interests evidenced
thereby upon presentation and surrender of such Residual Certificates at the
office or agency of the Trustee maintained pursuant to Article I.
ARTICLE VII
ACCOUNTS AND ACCOUNTINGS
SECTION 7.01 GPM Fund.
(a) If so specified in Article I, the Trustee shall establish,
on or before the Delivery Date, one or more accounts collectively
designated as the GPM Fund. All monies received by the Trustee pursuant
to Article I with respect to the GPM Fund, together with any Eligible
Investments in which such monies are or will be invested or reinvested
during the term of this Agreement, shall be held by the Trustee in the
GPM Fund as part of the Trust Fund subject to disbursement and withdrawal
as herein provided. Monies shall be subject to withdrawal pursuant to
Subsections (d) and (e) of this Section 7.01.
(b) Upon Depositor Request, all or a portion of the GPM Fund
shall be invested and reinvested at the direction of the Depositor in one
or more Eligible Investments. If the Depositor shall not have given any
direction pursuant to this Section 7.01(b), the GPM Fund shall be
invested and reinvested by the Trustee pursuant to Section 7.05, as fully
as practicable in such manner as the Trustee shall from time to time
determine in its sole discretion, but only in one or more Eligible
Investments. All income or other gain from such investments shall be
credited to such GPM Fund and any loss resulting from such investments
shall be charged to such GPM Fund. The Trustee shall not in any way be
held liable by reason of any insufficiency of such GPM Fund resulting
from any loss of investment in any Eligible Investment.
(c) If any amounts of investments as provided in Section 7.01(b)
shall be needed for disbursement from the GPM Fund as set forth in
Section 7.01(d), the Trustee shall cause a sufficient amount of such
investments to be sold or otherwise converted to cash to the credit of
such GPM Fund. The Trustee shall not in any way be held liable by reason
of the inability of the Trustees to make any required payment from the
GPM Fund because of any insufficiency of such GPM Fund either resulting
from any loss of investment in any Eligible Investment or resulting from
disbursements made pursuant to Section 7.01(d).
(d) Disbursements from the GPM Fund shall be made, to the extent
funds therefore are available, pursuant to instructions contained in the
Distribution Date Statements prepared in accordance with Section 7.07.
(e) The amount required to be maintained in the GPM Fund as of
any date shall be an amount equal to the greater of the remaining
aggregate of GPM Shortfalls for all GPM Assets (when taken together with
Reinvestment Income thereon at the applicable Assumed Reinvestment Rate
if the GPM Fund is funded with a Letter of Credit) or the aggregate of
GPM Prepayment Shortfalls with respect to such GPM Assets. Upon receipt
by the Trustee of an Accountants' Certificate to the effect that with
respect to all of the GPM Assets, the amount required to be maintained in
the GPM Fund at such time, pursuant to this Section 7.01, is less than
the amount of such GPM Fund then held by the Trustee, the Trustee shall
on the next succeeding Distribution Date pay to the Holders of the
Residual Certificates an amount equal to the difference between the
amount of such GPM Fund then held by the Trustee and the amount set forth
in such Accountants' Certificate.
SECTION 7.02 Reserve Fund.
(a) If so specified in Article I, the Trustee shall establish,
on or before the Delivery Date, one ore more accounts designated as the
Reserve Fund. All monies received by the Trustee pursuant to Article I
with respect to the Reserve Fund, together with any Eligible Investments
in which such monies are or will be invested or reinvested during the
term of this Agreement, and any income or other gain realized from such
investment shall be held by the Trustee in the Reserve Fund as part of
the Trust subject to disbursement and withdrawal as herein provided.
Monies shall be subject to withdrawal pursuant to Subsection (d) of this
Section 7.02.
(b) Upon Depositor Request all or a portion of the Reserve Fund
shall be invested and reinvested at the Depositor's direction in one or
more Eligible Investments. If the Depositor shall not have given any
directions pursuant to this Section 7.02(b), the Reserve Fund shall be
invested and reinvested by the Trustee pursuant to Section 7.05, as fully
as practicable, in such manner as the Trustee shall from time to time
determine in its sole discretion, but only in one or more Eligible
Investments. All income or other gain from such investments shall be
credited to such Reserve Fund and any loss resulting from such
investments shall be charged to such Reserve Fund. The Trustee shall not
in any way be held liable by reason of any insufficiency of such Reserve
Fund resulting from any loss of investment in any Eligible Investment.
(c) If any amounts invested as provided in Section 7.02(b) shall
be needed for disbursement from the Reserve Fund as set forth in Section
7.02(d), the Trustee shall cause a sufficient amount of such investments
of such Reserve Fund to be sold or otherwise converted to cash to the
credit of such Reserve Fund. The Trustee shall not in any way be held
liable by reason of the inability of the Trustee to make any required
payment from such Reserve Fund because of any insufficiency of such
Reserve Fund either resulting from any loss of investment in any Eligible
Investment or resulting from disbursements made pursuant to Section
7.02(d).
(d) Disbursements from the Reserve Fund shall be made, to the
extent funds therefor are available, pursuant to instructions contained
in the Distribution Date Statements prepared in accordance with Section
7.07. Upon receipt by the Trustee of an Accountants' Certificate to the
effect that the amount required to be maintained in the Reserve Fund as
of the next succeeding Distribution Date is less than the amount of such
Reserve Fund then held by the Trustee, the Trustee shall on the next
succeeding Distribution Date pay to the Holders of the Residual
Certificates an amount equal to any excess over such required amount.
SECTION 7.03 Buy-Down Fund.
(a) If so specified in Article I, the Trustee shall establish,
on or before the Delivery Date, one or more accounts designated as the
Buy-Down Fund. All monies received by the Trustee pursuant to Article I
with respect to the Buy-Down Fund, together with any Eligible Investments
in which such monies are or will be invested or reinvested during the
term of this Agreement, and any income or other gain realized from such
investment shall be held by the Trustee in the Buy-Down Fund as part of
the Trust subject to disbursement and withdrawal as herein provided.
Monies shall be subject to withdrawal pursuant to Subsection (d) of this
Section 7.03.
(b) Upon Depositor Request, all or a portion of the Buy-Down
Fund shall be invested and reinvested at the Depositor's direction in one
or more Eligible Investments. If the Depositor shall not have given any
directions pursuant to this Section 7.03 (b), the Buy-Down Fund shall be
invested and reinvested by the Trustee pursuant to Section 7.05, as fully
as practicable, in such manner as the Trustee shall from time to time
determine in its sole discretion, but only in one or more Eligible
Investments. All income or other gain from such investments shall be
credited to such Buy-Down Fund and any loss resulting from such
investments shall be charged to such Buy-Down Fund. The Trustee shall not
in any way be held liable by reason of any insufficiency of such Buy-Down
Fund resulting from any loss of investment in any Eligible Investment.
(c) If any amounts invested as provided in Section 7.03(b) shall
be needed for disbursement from the Buy-Down Fund as set forth in Section
7.03(d), the Trustee shall cause a sufficient amount of such investments
of such Buy-Down Fund to be sold or otherwise converted to cash to the
credit of such Buy-Down Fund. The Trustee shall not in any way be held
liable by reason of the inability of the Trustee to make any required
payment from such Buy-Down Fund because of any insufficiency of such
Buy-Down Fund either resulting from any loss of investment in any
Eligible Investment or resulting from disbursements made pursuant to
Section 7.03(d).
(d) Disbursements from the Buy-Down Fund shall be made, to the
extent funds therefor are available, pursuant to instructions contained
in the Distribution Date Statements prepared in accordance with Section
7.07. Upon receipt by the Trustee of an Accountants' Certificate and to
the effect that the amount required to be maintained in the Buy-Down Fund
as of the next succeeding Distribution Date is less than the amount of
such Buy-Down Fund then held by the Trustee, the Trustee shall on the
next succeeding Distribution Date pay to the Holders of the Residual
Certificates an amount equal to any excess over such required amount
which amount shall thereupon be deemed not to be part of the Trust Fund.
SECTION 7.04 Certificate Account.
(a) The Trustee shall, prior to the Delivery Date, establish the
Certificate Account into which the Trustee shall from time to time
deposit all Asset Proceeds and all proceeds transferred from the GPM
Fund, the Reserve Fund or Buy-Down Fund. All monies deposited from time
to time in the Certificate Account pursuant to this Agreement shall be
held by the Trustee as part of the Trust Fund as herein provided.
(b) All payments to be made from time to time to the Holders out of funds
in the Certificate Account pursuant to this Agreement shall be made
by the Trustee.
(c) Upon Depositor Request, all or a portion of the monies in
the Certificate Account shall be invested and reinvested at the
Depositor's direction in one or more Eligible Investments. If the
Depositor shall not have given any directions pursuant to this Section
7.04(c), the Trustee shall, pursuant to Section 7.05, invest and reinvest
such monies as fully as practicable, in such manner as the Trustee shall
from time to time determine in its sole discretion, but only in one or
more Eligible Investments. All income or other gain from such investments
shall be credited to such Certificate Account and any loss resulting from
such investments shall be charged to such Certificate Account. All such
investments shall mature prior to the next Distribution Date or Special
Distribution Date. The Trustee shall not in any way be held liable by
reason of any insufficiency in any Certificate Account resulting from any
loss on any Eligible Investments.
SECTION 7.05 Investments.
(a) Notwithstanding anything to the contrary in this Agreement,
investments of funds held by the Trustee under the Agreement shall be
made pursuant to any applicable Reinvestment Agreements to the extent
provided in such agreements, and the Trustee shall deposit funds as
required by any such Reinvestment Agreements to the extent provided in
such agreements, and the Trustee shall deposit funds as required by any
such Reinvestment Agreements. No change shall be made in the terms and
conditions of any such Reinvestment Agreements if such change would
result in the Rating Agency lowering the outstanding rating of the
Certificates.
(b) Each Account shall relate solely to the Certificates with
respect to which it was established and to the Mortgage Assets and other
property which make up the Trust Fund. The Trustee may hold any funds or
other property received or held by it as part of an Account in collective
amounts maintained by it in the normal course of its business and
containing funds or property held by it for other Persons, provided that
such Accounts are under the sole control of the Trustee and the Trustee
maintains adequate records indicating the ownership of all such funds or
property and the portions thereof held for credit to each Account.
(c) The Residualholders shall not direct the Trustee to make any
investment of any funds in an Account or to sell any investment held in
an Account except under the following terms and conditions:
(i) each such investment shall be made in the name of the
Trustee (in its capacity as such) or in the name of its nominee;
(ii) the Trustee shall have sole control over such
investment, the income thereon and the proceeds thereof;
(iii) any certificate or other instrument evidencing such
investment shall be delivered directly to the Trustee or its agent;
and
(iv) the proceeds of each sale of such an investment shall
be remitted by the purchaser thereof directly to the Trustee for
deposit in the Account in which such investment was held.
(d) If any amounts are needed for disbursement from an Account
and sufficient uninvested funds are not available therein to make such
disbursement, in the absence of a Depositor Request for the liquidation
of investments held therein in an amount sufficient to provide the
required funds, the Trustee shall cause to be sold or otherwise converted
to cash a sufficient amount of the investments in such account or fund.
(e) The Trustee shall not in any way be held liable by reason of
any insufficiency in any account or fund except for losses on investments
which are liabilities of the Trustee.
(f) All investments of funds in an account or fund and all sales
of investments held in an account or fund shall, except as provided
below, be made by the Trustee in accordance with a Depositor Request.
Subject to compliance with the requirements of Section 7.01, 7.02, 7.03
and 7.04, whichever is applicable, such Depositor Request may authorize
the Trustee to make the specific investments set forth therein, to make
investments from time to time consistent with the general instructions
set forth therein, or to make specific investments pursuant to written or
telegraphic instructions of the employees or agents of the Depositor
identified therein, in each case in such accounts as such Depositor
Request shall specify.
(g) In the event that the Depositor shall have failed to give
investment directions to the Trustee by 11:00 p.m. Eastern Time on any
Business Day authorizing the Trustee to invest the funds then in an
Account the Trustee shall invest and reinvest the funds then in each
related Account to the fullest extent practicable, in such manner as the
Trustee shall from time to time determine, but only in one or more
Eligible Investments bearing interest or sold at a discount. All such
investments shall mature on the next Business Day following the date of
such investment.
SECTION 7.06 Custodial Account; Other Accounts.
(a) In lieu of establishing the Certificate Account pursuant to
Section 3.08, the Master Servicer shall, no later than the Delivery Date,
establish the Custodial Account in which it shall deposit the amounts
required to be deposited pursuant to Section 3.08. On the [ ]th day of
each month, or if such [ ]th day is not a Business Day, the next
preceding Business Day, the Master Servicer shall remit to the
Certificate Account by wire transfer of immediately available funds the
amounts deposited in the Custodial Account pursuant to Section 3.08, net
of the amounts permitted to be withdrawn by the Master Servicer pursuant
to Section 3.12. Notwithstanding anything to the contrary contained in
this Reference Agreement, the Master Servicer's obligations with respect
to the Custodial Account shall be the same as those imposed by the
Standard Terms. Amounts deposited from time to time in the Custodial
Account shall be held by the Master Servicer for the benefit of the
Certificateholders, subject to the rights of the Master Servicer to
reimbursement and withdrawal, as provided in the Standard Terms.
(b) To the extent provided herein, the Trustee shall, prior to
the Delivery Date, establish other funds and accounts to secure the
Certificates. Disbursements from such other funds and accounts shall be
made as provided herein.
SECTION 7.07 Accountings.
The Trustee shall render the accounting and perform the activities
called for below by the dates stated below.
(a) Monthly. Not later than the second Business Day prior to the
end of each month, the Trustee shall render to the Depositor the monthly
Accounting Report which shall contain the following information with
respect to the Mortgage Assets:
(i) The Outstanding Mortgage Asset Amount as of the
Principal Determination Date for the current month;
(ii) The principal payments with respect to the Mortgage
Assets received or to be received by the Trustee during the current
month;
(iii) The payment of interest on the Mortgage Assets
received or to be received by the Trustee during the current month;
(iv) The Buy-Down Shortfall, if any, with respect to the
Buy-Down Assets;
(v) The GPM Shortfall, if any, with respect to the GPM
Assets;
(vi) The GPM Prepayment Shortfall, if any, with respect to
the GPM Assets;
(vii) The amount of uninsured loss, if any, with respect to
any Mortgage Asset; and
(viii) The amount, if any, to be paid to a Servicer or the
Master Servicer in reimbursement for a Nonrecoverable Advance.
(b) Distribution Date Statement. Not later than the second
Business Day preceding a Distribution Date, the Trustee shall render to
the Depositor an accounting which it shall make available to all
Certificateholders. The Distribution Date Statement shall contain the
following information with respect to the Mortgage Assets:
(i) For the GPM Fund:
(A) the balance in the GPM Fund immediately after the
last Distribution Date;
(B) the net Reinvestment Income, if any, earned and to
be earned from the last Distribution Date to the next succeeding
Distribution Date on amounts in the GPM Fund;
(C) any withdrawals from the GPM Fund during the period
since the Distribution Date pursuant to any Special
Distributions;
(D) any withdrawals from the GPM Fund during the period
from the last Distribution Date to the next succeeding
Distribution Date based upon the Accountants' Certificate as
described in Section 17.01(e);
(E) any balance in the GPM Fund, prior to any
distributions therefrom, at the next succeeding Distribution
Date as calculated in accordance with (i) through (iv) above;
(F) the required balance of the GPM Fund as of the next
succeeding Distribution Date based on the principal balances of
the Mortgage Assets as of the most recent Principal
Determination Date;
(G) the amount by which the balance in the GPM Fund as
calculated in (E) above will exceed the required balance as of
the next succeeding Distribution Date as calculated in (F)
above, if any;
(H) the amount of the greater of the GPM Shortfall or
GPM Prepayment Shortfall, to be withdrawn from the GPM Fund and
deposited into the Certificate Account on the next succeeding
Distribution Date; and
(I) the sum of the amounts in (G) and (H) above, which
must be transferred to the Certificate Account.
(ii) For the Reserve Fund:
(A) the balance in the Reserve Fund immediately after
the last Distribution Date;
(B) the net Reinvestment Income, if any, earned and to
be earned from the last Distribution Date to the next succeeding
Distribution Date on amounts in the Reserve Fund;
(C) any withdrawals from the Reserve Fund since the last
Distribution Date pursuant to any Special Distributions;
(D) any withdrawals from the Reserve Fund during the
period from the last Distribution Date to the next succeeding
Distribution Date based upon the Accountants' Certificate as
described in Section 7.02(d);
(E) any balance in the Reserve Fund, prior to any
distributions therefrom, at the next succeeding Distribution
Date, as calculated in accordance with (A) through (D) above;
(F) the required balance of the Reserve Fund as set
forth in Article I;
(G) the amount by which the balance in the Reserve Fund
as calculated in (E) above, will exceed the required balance as
of the next succeeding Distribution Date as calculated in (F)
above, in any;
(H) any amount required to be withdrawn from the Reserve
Fund as described in Article I on the next succeeding
Distribution Date and deposited in the Certificate Account; and
(I) the sum of the amounts in (G) and (H) above, which
must be transferred to the Certificate Account.
(iii) For the Buy-Down Fund:
(A) the balance in the Buy-Down Fund immediately after
the last Distribution Date;
(B) the net Reinvestment Income, if any, earned and to
be earned from the last Distribution Date to the next succeeding
Distribution Date on amounts in the Buy-Down Fund;
(C) any withdrawals from the Buy-Down Fund since the
last Distribution Date pursuant to any Special Distributions;
(D) any withdrawals from the Buy-Down Fund during the
period from the last Distribution Date to the next succeeding
Distribution Date based upon the Accountants' Certificate as
described in Section 7.03(d);
(E) any balance in the Buy-Down Fund, prior to any
distributions therefrom, at the next succeeding Distribution
Date, as calculated in accordance with (A) through (D) above;
(F) the required balance of the Buy-Down Fund as of the
next succeeding Distribution Date, based on the principal
balances of the Buy-Down Assets as of the most recent Principal
Determination Date;
(G) the amount by which the balance in the Buy-Down Fund
as calculated in (E) above, will exceed the required balance as
of the next succeeding Distribution Date as calculated in (F)
above, if any;
(H) the amount of the Buy-Down Shortfall to be withdrawn
from the Buy-Down Fund and deposited in the Certificate Account
on the next succeeding Payment Date; and
(I) the sum of the amounts in (vii) and (viii) above,
which must be transferred to the Certificate Account.
(iv) The Interest Distribution Amount to be made on each
Class of Multi-Class Certificates on the next succeeding Distribution
Date.
(v) The amount of accrued interest, if any, for the most
recent Interest Accrual Period on each Class of Compound Interest
Certificates that is to be added to the principal of those
Certificates on the next succeeding Distribution Date.
(vi) The Aggregate Outstanding Stated Principal Balance of
each Class of Multi-Class Certificates.
(vii) The Stated Principal Distribution Amount to be made on
the next succeeding Distribution Date.
(viii) Based on the Outstanding Mortgage Asset Amount of the
Mortgage Assets as of the most recent Principal Determination Date,
the Aggregate Asset Value of the Mortgage Assets as of the next
succeeding Distribution Date.
(ix) The amount of Excess Cash Flow on such Distribution
Date and the portion, if any, thereof that is to be added pursuant to
the provisions of this Reference Agreement to the Stated Principal
Distribution Amount on the Outstanding Multi-Class Certificates.
(x) For the Certificate Account:
(A) the balance in the Certificate Account immediately
after the last Distribution Date;
(B) the net Reinvestment Income earned and to be earned
from the last Distribution Date to the next succeeding
Distribution Date on amounts in such Certificate Account (after
giving effect to any withdrawals pursuant to Paragraph (D)
below);
(C) collections of interest and principal from Mortgage
Assets from the last Distribution Date to the next succeeding
Distribution Date;
(D) the amount to be withdrawn from the GPM Fund,
Reserve Fund and Buy-Down Fund and deposited into the
Certificate Account on the next succeeding Distribution Date as
calculated in Section 7.07(b)(i)(I), 7.07(b)(ii)(I) and
7.07(b)(iii)(I);
(E) the Interest Distribution Amount on each Class of
Multi-Class Certificates and the Stated Principal Distribution
Amount on the next succeeding Distribution Date;
(F) withdrawals from the Certificate Account since the
last Distribution Date to the next succeeding Distribution Date
pursuant to any Special Distributions; and
(G) the Residual Distribution for the period from the
last Distribution Date to the next succeeding Distribution Date.
(c) Distribution Date Actions. The Trustee shall, pursuant to
the Distribution Date Statement referred to in clause (b):
(i) deposit on the next succeeding Distribution Date to the
Certificate Account from the GPM Fund, the amount set forth pursuant
to Section 7.07(b)(i)(I), from the Reserve Fund, the amount set forth
pursuant to Section 7.07(b)(ii)(I) and from the Buy-Down Fund, the
amount set forth pursuant to Section 7.07(b)(iii)(I);
(ii) withdraw on the next succeeding Distribution Date from
the Certificate Account and pay to the Holders of the Multi-Class
Certificates the amount which is set forth pursuant to Section
7.07(b)(x)(E); and
(iii) withdraw on the next succeeding Distribution Date from
the Certificate Account and pay to the Holders of the Residual
Certificates the amount set forth pursuant to Section 7.07(b)(x)(G).
If the actual amount of distributions received by the Trustee during
the last month of a related Due Period differs from the expected amount of
distributions used by the Trustee in accordance with this Article VII in
determining the distribution requirement for a Distribution Date, the Trustee
shall immediately following the end of such Due Period: (i) recompute all
amounts in the related Accounting Report and Distribution Date Statement to
reflect the actual amount of distributions received during the last month of
such Due Period, (ii) revise such Accounting Report and Distribution Date
Statement accordingly, and (iii) deliver such revised Accounting Report and
Distribution Date Statement to the Depositor. Upon such delivery, such revised
Accounting Report and Distribution Date Statement shall be controlling for all
purposes under this Agreement.
Each Distribution Date Statement shall be delivered by the Trustee to
the firm of Independent Accountants of recognized national reputation
appointed by the Depositor. If such firm of Independent Accountants sets forth
any exceptions to the Distribution Date Statement in its certificate or
opinion delivered to the Trustee, the Distribution Date Statement shall be
deemed to have been amended to reflect such exceptions and such amended
Distribution Date Statement shall be controlling for all purposes under this
Agreement.
(d) Special Distribution Statement. For Multi-Class Certificates
that do not provide for monthly distributions, the Trustee shall render
to the Depositor and make available to Holders of Certificates a Special
Distribution Statement by the Special Distribution Determination Date. In
such Special Distribution Statement the Trustee shall:
(i) Set forth the amount in the Certificate Accounts as of
the most recent Special Distribution Determination Date;
(ii) Determine and set forth the amounts to be credited to
the Certificate Account from such Special Distribution Determination
Date to the next succeeding Distribution Date as a result of
anticipated payments in respect of the Mortgage Assets for all
Assumed Deposit Dates in such period (based on the published
information regarding such payments, if available, or scheduled
payments), deposits into the Certificate Account from the GPM Fund
Buy-Down Fund and Reserve Fund during such period, and projected
earnings during such period from the investment of the funds in the
Certificate Account, GPM Fund, Buy-Down Fund and Reserve Fund (based
on the applicable Assumed Reinvestment Rate or on Actual and
available reinvestment rates if such investment is made at such rates
immediately following the calculation of such projected earnings);
(iii) Determine and set forth the Multi-Class Certificate
Distribution Amount on all Certificates Outstanding from the prior
Distribution Date to the next succeeding Distribution Date, net of
any distributions in respect of the Outstanding Stated Principal
Balance of the Multi-Class Certificates or interest thereof;
(iv) State the amount of distributions in respect of
reduction of Outstanding Stated Principal Balance of the Multi-Class
Certificates to be distributed on such Special Distribution Date
(which amount shall not exceed the portion of the principal
distribution received with respect to the related Mortgage Assets
that would otherwise be includable in the Stated Principal
Distribution Amount for the following Distribution Date);
(v) State the amount of distributions in respect of interest
to be distributed on such Special Distribution Date in respect of the
Outstanding Stated Principal Balance of Multi-Class Certificates to
be distributed; and
(vi) State the amounts included in such statement pursuant
to clauses (iv) and (v) above expressed in each case per Single
Certificate, to be distributed on such Special Distribution Date.
If the amount set forth in Clause (iii) above exceeds the aggregate
of the amounts set forth pursuant to clauses (i) and (ii) above, the Trustee
shall be required to make a Special Distribution from the Certificate Account
to the Multi-Class Certificates in an amount equal to the Special Distribution
Amount as of the most recent Special Distribution Determination Date. If the
aggregate of the amounts set forth pursuant to clauses (i) and (ii) above
equals or exceeds the amount set forth in clause (iii) above, no Special
Distribution is required. The Special Distribution Amount shall equal the
minimum amount of funds in the Certificate Account that would have to be
distributed to make the excess of the amount set forth in clause (iii) above,
over the amount set forth in clauses (i) and (ii) above, equal zero.
In each month in which a Special Distribution Date Statement is
required to be prepared, on the last date in such month on which notice of a
special redemption may be mailed, the Trustee shall verify that the amount of
the current month's distributions on Mortgage Assets that were assumed by it
to be due on such Mortgage Assets in connection with the preparation of the
related Special Distribution Date Statement are consistent with the amounts of
distributions received, or reported to it as being due, in that month, in each
case based upon receipts and information received by the Trustee as of the
close of business on the immediately preceding Business Day. If there is any
discrepancy between the assumed distributions used in preparing such Special
Distribution Date Statement and the receipts and information received by the
Trustee received as of such time, the Trustee shall revise its Special
Distribution Date Statement accordingly and deliver it to the Depositor. Such
revised Special Distribution Date Statement shall supersede the previous
Special Distribution Date Statement and be controlling for all purposes under
this Indenture.
Each Special Distribution Date Statement shall be delivered by the
Trustee to the firm of Independent Accountants of recognized national
reputation appointed by the Depositor. If such firm sets forth any exceptions
to the Distribution Date Statement in its certificate or opinion, delivered to
the Trustee, the Special Distribution Date Statement shall be deemed to have
been amended to reflect such exceptions and such amended Special Distribution
Date Statement shall be deemed to be controlling for all purposes of this
Agreement.
SECTION 7.08 Trust Estate. The Trustee may, and when required by the
provisions of this Agreement shall, execute instruments to release property
held by it under this Agreement, or convey the Trustee's interest in the same,
in a manner and under circumstances which are not inconsistent with the
provisions of this Agreement. No party relying upon an instrument executed by
the Trustee as provided in this Article VII shall be bound to ascertain the
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any monies.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Standard Terms. The Standard Terms attached hereto are
hereby incorporated herein by reference and hereby form a part of this
instrument with the same force and effect as if set forth in full herein. In
the event that any term or provision contained herein shall conflict or be
inconsistent with any term or provision contained in the Standard Terms, the
terms and provisions of this Reference Agreement shall govern.
SECTION 8.02 Ratification of Standards Terms. As incorporated by
reference into this Reference Agreement, the Standard Terms is in all respects
ratified and confirmed, and the Standard Terms and this Reference Agreement
shall be read, taken and construed as one and the same instrument.
SECTION 8.03 Amendment. This Agreement may be amended from time to
time by the Depositor, the Master Servicer and the Trustee with the consent of
the Holders of Certificates evidencing, as to each Class of Multi-Class
Certificates, Outstanding Stated Principal Balances aggregating not less than
66% of the Aggregate Outstanding Stated Principal Balance of such Class and,
as to Residual Certificates, Percentage Interests aggregating not less than
66% for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Agreement or of modifying in any
manner the rights of the Holders of any Certificates under this Agreement;
provided, however, that no such amendment shall, without the consent of the
Holder of each Outstanding Certificate affected thereby:
(a) reduce in any manner the amount of, or delay the timing of,
any distribution on a Certificate required to be made hereunder or reduce
the Outstanding Stated Principal Balance of or the Interest Rate on a
Multi-Class Certificate or the Termination Price with respect thereto or
change any place of payment where, or the coin or currency in which,
distributions on any Certificate are payable;
(b) modify any of the provisions of this Section 8.03, except to
increase any percentage specified therein or to provide that certain
other provisions of this Agreement cannot be modified without the consent
of the Holder of each Outstanding Certificate affected thereby;
(c) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(d) permit the creation of any lien with respect to any party on
the Trust Fund;
(e) modify any of the provisions of this Agreement in such
manner as to affect the calculation of the Multi-Class Distribution
Amount for any Distribution Date (including the calculation of any of the
individual components of such Multi-Class Distribution Amount);
(f) modify any of the provisions of Article VIII in such a way
to permit an earlier retirement of the Certificates and termination of
the Trust Fund and this Agreement pursuant to said Article.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
SECTION 8.04 Counterparts. This Reference Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed
to be an original, but all of such counterparts shall together be one and the
same instrument.
SECTION 8.05 Governing Law. This Reference Agreement shall be
construed in accordance with and governed by the substantive laws of the State
of New York applicable to agreements made and to be performed in the State of
New York and the obligations, rights and remedies of the parties hereto and of
the Certificateholders shall be determined in accordance with such laws.
SECTION 8.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Reference 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 Reference Agreement and shall in no
way affect the validity or enforceability of the other provisions of this
Reference Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 8.07 REMIC Treatment. The provisions of this Agreement shall
be construed so as to carry out the intention of the parties that the Trust
Fund be treated as a REMIC at all times until the Certificates are retired and
this Agreement is terminated pursuant to Article IV.
IN WITNESS WHEREOF, the Depositor, the Master Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized and their respective seals duly attested to
be hereunto affixed all as of the day and year first above written.
[Seal] GS Mortgage Securities Corp.,
as Depositor
Attest:
______________________ By:________________________________
Authorized Officer Name:
Title:
[Seal] [NAME OF MASTER SERVICER]
as Master Servicer
Attest:
______________________ By:________________________________
Authorized Officer Name:
Title:
[Seal] [NAME OF TRUSTEE]
as Trustee
Attest:
______________________ By:________________________________
Authorized Officer Name:
Title:
STATE OF )
) ss.
COUNTY OF )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared and , known to me to be the
persons and officers whose names are subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said [NAME OF
DEPOSITOR], a [ ], and that they executed the same as the act of said
corporation for the purposes and consideration therein expressed, and in the
capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of , 200_.
______________________________
Notary Public in and for the
State of
[SEAL]
My commission expires:
_______________________________
STATE OF )
) ss.
COUNTY OF )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared and , known to me to be the
persons and officers whose names are subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said [NAME OF
TRUSTEE], a [ ], as trustee, and that they executed the same as the act of
said corporation for the purposes and consideration therein expressed, and in
the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of , 200_.
_____________________________
Notary Public in and for the
State of
[SEAL]
My commission expires:
_____________________________
STATE OF )
) ss.
COUNTY OF )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared and , known to me to be the
persons and officers whose names are subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said [NAME OF MASTER
SERVICER], a [ ], and that they executed the same as the act of said
corporation for the purposes and consideration therein expressed, and in the
capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of , 200_.
________________________________
Notary Public in and for the
State of
[SEAL]
My commission expires:
________________________________
Exhibit A
(a) The form of the face of any Variable Rate Certificate is as follows:
PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING STATED PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
Conduit Mortgage Pass-Through
Certificates [Class A], Series __
FINAL SCHEDULED DISTRIBUTION DATE: ____________,
ACCRUAL DATE: ____________, ____
[INSERT TO COME]
$________________ No. ________________
This Certificate evidences an undivided interest in a portion of the
distributions receivable with respect to a pool of [conventional] [fixed rate]
[mortgage loans and] [mortgage participation certificates, evidencing
participation interests in such mortgage loans and meeting the requirements of
the nationally recognized rating agency or agencies rating the [Class A]
Certificates (collectively, the "Rating Agency") for a rating in one of the
two highest rating categories of such Rating Agency (the "Mortgage Loans")]
[and certain related property], which pool was created and sold by
[ ]
This Certificate does not represent an obligation or interest in [ ]
or the Trustee referred to below or any of their affiliates. This certificate
is not guaranteed or insured by any governmental agency or instrumentality.
This Certificate certifies that ________________________ is the
registered owner of an undivided interest in a portion of the distributions
receivable with respect to a pool of [conventional] [fixed rate] [mortgage
loans and] [mortgage participation certificates, evidencing participation
interests in such mortgage loans and meeting the requirements of the
nationally recognized rating agency or agencies rating the [Class A]
Certificates (collectively, the "Rating Agency") for a rating in one of the
two highest rating categories of such Rating Agency (the "Mortgage Loans")]
[and certain related property] (collectively, the "Trust Fund"), which pool
was created and sold by [ ] (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement referred to below). The
Trust Fund was created pursuant to the Standard terms and Provisions of
Pooling and Servicing (the "Standard Terms") as amended and Supplemented by a
Reference Pooling and Servicing Agreement dated as of _______________, ____,
200_ (the "Reference Agreement" and, together with the Standard Terms, the
Agreement") between the Depositor, _________, as master servicer ("the Master
Servicer"), and ________________, as trustee (the "Trustee", which term
includes any successor trustee under the Pooling and Servicing Agreement). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which reference is hereby made for a
statement of the respective rights thereunder of the Depositor, Master
Servicer, the Trustee and the Holders of all Certificates issued thereunder
and to which Agreement the holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, the Trustee is required to
distribute to the registered Holder of this Certificate, but only out of the
distributions received with respect to the Trust Fund and only to the extent
such distributions are adequate for such purpose, the Stated Principal Balance
of ____________ - _________ Dollars in [quarterly] installments on __________,
___________, ____________ and _________________ (the "Distribution Dates") in
each year, commencing no later than the Final Scheduled Distribution Date of
any Class of Multi-Class Certificates having any earlier Final Scheduled
Distribution Date and ending on or before ___________, (the "Final Scheduled
Distribution Date") of this Certificate and interest (computed on the basis of
a 360-day year of twelve 30-day months) [monthly] [quarterly] at a variable
rate determined in the manner described on the reverse hereof, in an amount
equal to the interest accrued on the outstanding principal balance of this
Certificate during the [three]-month period ending [one month prior to] [on]
each such Distribution Date [each such period being hereinafter referred to as
a "Variable Rate Interest Accrual Period") or, in the case of the first
Distribution Date, in an amount equal to the interest accrued from the Accrual
Date set forth above to _____________, 200_. [Interest accrued on this
Certificate in any Variable Rate Interest Accrual Period will be calculated on
the assumption that any distribution of principal made with respect to this
Certificate on a Distribution Date that occurs during such Variable Rate
Interest Accrual Period was instead made one month prior to such Distribution
Date.] Installments of the Stated Principal Balance of this Certificate will
be distributable in the amounts and on the dates described on the reverse
hereof.
Distributions in respect of the Stated Principal Balance of and
interest on this Certificate are payable in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts. All distributions made by the Trustee with
respect to this Certificate shall be applied first to interest accrued on this
Certificate as provided above and then to the reduction of the Outstanding
Stated Principal Balance of this Certificate. Except as provided on the
reverse hereof, any installment of principal or interest that is not
distributed when and as due shall accrue interest at the rate at which
interest accrues on the principal balance of this Certificate from the date
due to the date of distribution thereof.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed under its official seal.
Dated:
_________________________________
as Trustee
[SEAL]
By:_____________________________
Authorized Officer
(b) The form of the face of any Multi-Class Certificate having a
fixed rate of interest is as follows:
PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN
INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING STATED PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
Conduit Mortgage Pass-through
Certificates, [Class A], Series ____
FINAL SCHEDULED DISTRIBUTION DATE:
ACCRUAL DATE: ________________, _____
$_______________ No._______________
This Certificate evidences an undivided interest in a portion of the
distributions receivable with respect to a pool of [conventional] [fixed rate]
[mortgage loans and] [mortgage participation certificates, evidencing
participation interests in such mortgage loans and meeting the requirements of
the nationally recognized rating agency or agencies rating the [Class A]
Certificates (collectively, the "Rating Agency") for a rating in one of the
two highest rating categories of such Rating Agency (the "Mortgage Loans")]
[and certain related property], which pool was sold by
[ ]
This Certificate does not represent an obligation or interest in [ ]
or the Trustee referred to below or any of their affiliates. This Certificate
is not guaranteed or insured by any governmental agency or instrumentality.
This Certificate certifies that ________________________________ is
the registered owner of an undivided interest in a portion of the
distributions receivable with respect to a pool of [conventional] [fixed rate]
[mortgage loans and] [mortgage participation certificates, evidencing
participation interests in such mortgage loans and meeting the requirements of
the nationally recognized rating agency or agencies rating the [Class A]
Certificates (collectively, the "Rating Agency") for a rating in one of the
two highest rating categories of such Rating Agency (the "Mortgage Loans")]
[and certain related property] (collectively, the "Trust Fund"), which pool
was created and sold by [ ] (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement referred to below). The
Trust was created pursuant to the Standard Terms and Provisions of Pooling and
Servicing (the "Standard Terms") as amended and supplemented by a Reference
Pooling and Servicing Agreement dated as of ________________, ___ 200_ (the
"Reference Agreement" and, together with the Standard Terms, the "Agreement")
between the Depositor, _____________, as master servicer (the "Master
Servicer") and ______________, as trustee (the "Trustee", which term includes
any successor trustee under the Agreement). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which reference is hereby made for a statement
of the respective rights thereunder of the Depositor, Master Servicer, the
Trustee and the Holders of all Certificates issued thereunder and to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, the Trustee is required to
distribute to the registered Holder of this Certificate, but only out of the
distributions received with respect to the Trust Fund and only to the extent
such distributions are adequate for such purpose, the Stated Principal Balance
of __________ Dollars in [quarterly] installments on __________, ___________,
____________ and _________________ (the "Distribution Dates") in each year,
commencing no later than the Final Scheduled Distribution Date of any Class of
Multi-Class Certificates having any earlier Final Scheduled Distribution Date
and ending on or before ____________, _____ (the "Final Scheduled Distribution
Date") of this Certificate and interest (computed on the basis of a 360-day
year of twelve 30-day months) [quarterly] [monthly] on such Distribution Dates
at the rate of ____ percent (____%) per annum, in an amount equal to the
interest accrued on the Outstanding Stated Principal Balance of this
Certificate during the [three]-month period ending [one month prior to] [on]
each such Distribution Date (each such period being hereinafter referred to as
an "Interest Accrual Period") or, in the case of the first Distribution Date,
in an amount equal to the interest accrued from the Accrual Date set forth
above to __________ ____, 200_. [Interest accrued on this Certificate in any
Interest Accrual Period will be calculated on the assumption that any
distribution in respect of the Stated Principal Balance of this Certificate on
a Distribution Date that occurs during such Interest Accrual Period was
instead made one month prior to such Distribution Date.] Installments of
principal of this Certificate will be distributable in the amounts and on the
dates described on the reverse hereof. All distributions made by the Trustee
with respect to this Certificate shall be applied first to interest accrued on
this Certificate as provided above and then to the reduction of the
Outstanding Stated Principal Balance of this Certificate. Except as provided
on the reverse hereof, any installment of principal or interest that is not
distributed when and as due shall accrue interest at the rate at which
interest accrues on the principal balance of this Certificate from the date
due to the date of distribution thereof.
Distributions in respect of the Stated Principal Balance of and
interest on this Certificate are payable in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed under its official seal.
Dated:
__________________________________
as Trustee
[SEAL]
By: _____________________________
Authorized Officer
(c) The form of the face of any Multi-Class Certificate that is a
Compound Interest Certificate is as follows:
INTEREST DISTRIBUTIONS ON THIS CERTIFICATE MAY NOT BE
DISTRIBUTABLE FOR A CONSIDERABLE PERIOD. UNTIL
DISTRIBUTABLE, SUCH DISTRIBUTIONS ARE ADDED TO THE STATED
PRINCIPAL BALANCE OF THIS CERTIFICATE. THEREAFTER, PRINCIPAL
OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS.
ACCORDINGLY, THE OUTSTANDING STATED PRINCIPAL BALANCE OF
THIS CERTIFICATE AT ANY TIME MAY BE SIGNIFICANTLY DIFFERENT
FROM THE AMOUNT SHOWN ON THE FACE HEREOF.
Conduit Mortgage Pass-through
Certificates, [Class A], Series __
FINAL SCHEDULED DISTRIBUTION DATE:
ACCRUAL DATE: ________________, _____
[INSERT TO COME]
$__________ No.____________
This Certificate evidences an undivided interest in a portion of the
distributions receivable with respect to a pool of [conventional] [fixed rate]
[mortgage loans and] [mortgage participation certificates, evidencing
participation interests in such mortgage loans and meeting the requirements of
the nationally recognized rating agency or agencies rating the [Class A]
Certificates (collectively, the "Rating Agency") for a rating in one of the
two highest rating categories of such Rating Agency (the "Mortgage Loans")]
[and certain related property], which pool was created and sold by
[ ]
This Certificate does not represent an obligation or interest in [ ]
or the Trustee referred to below or any of their affiliates. This Certificate
is not guaranteed or insured by any governmental agency or instrumentality.
This Certificate certifies that ________________________________ is
the registered owner of an undivided interest in a portion of the
distributions receivable with respect to a pool of [conventional] [fixed rate]
[mortgage loans and] [mortgage participation certificates, evidencing
participation interests in such mortgage loans and meeting the requirements of
the nationally recognized rating agency or agencies rating the [Class A]
Certificates (collectively, the "Rating Agency") for a rating in one of the
two highest rating categories of such Rating Agency (the "Mortgage Loans")]
[and certain related property] (collectively, the "Trust Fund"), which pool
was created and sold by [ ] (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement referred to below). The
Trust Fund was created pursuant to the Standard Terms and Provisions of
Pooling and Servicing (the "Standard Terms") as amended and supplemented by a
Reference Pooling and Servicing Agreement dated as of ________________, ____
200_ (the "Reference Agreement" and, together with the Standard Terms, the
"Agreement") between the Depositor, _____________, as master servicer (the
"Master Servicer"), and ____________, as trustee (the "Trustee", which term
includes any successor trustee under the Agreement). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
reference is hereby made for a statement of the respective rights thereunder
of the Depositor, the Master Servicer, the Trustee and the Holders of all
Certificates issued thereunder and to which Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, the Trustee is required to
distribute to the registered Holder of this Certificate, but only out of the
distributions received with respect to the Trust Fund and only to the extent
such distributions are adequate for such purpose, the Stated Principal Balance
of __________ Dollars in [quarterly] installments on __________, _________,
____________ and _________________ (the "Distribution Dates") in each year,
commencing no later than the Final Scheduled Distribution Date of any Class of
Multi-Class Certificates having any earlier Final Scheduled Distribution Date
and ending on or before ____________, _____ (the "Final Scheduled Distribution
Date") of this Certificate and interest (computed on the basis of a 360-day
year of twelve 30-day months) [quarterly] [monthly] on such Distribution Dates
at the rate of ____ percent (____%) per annum, in an amount equal to the
interest accrued on the outstanding principal balance of this Certificate
(including in such unpaid principal balance the amount, if any, of interest
accrued but not distributed on this Certificate and added to the Stated
Principal Balance hereof as described below) during the [three]-month period
ending [one month prior to] [on] each such Distribution Date (each such period
being hereinafter referred to as an "Accrual Period") or, in the case of the
first Distribution Date, in an amount equal to the interest accrued from the
Accrual Date set forth above to _________ ____, 200_.
Prior to the Distribution Date on which all Classes of Multi-Class
Certificates having an earlier Final Scheduled Distribution Date have been
paid in full (the "Accretion Termination Date") for this Certificate, interest
on this Certificate shall not be distributable to the holder of this
Certificate but shall instead accrue from the Interest Accrual Date at the
rate stated above. On each Distribution Date prior to the Accretion
Termination Date, an amount equal to the interest accrued on the Outstanding
Stated Principal Balance of this Certificate (including in such Outstanding
Stated Principal Balance any interest accrued but not distributable on this
Certificate) during the immediately preceding Interest Accrual Period shall be
added to the Outstanding Stated Principal Balance of this Certificate.
[Interest accrued on this Certificate in any Interest Accrual Period will be
calculated on the assumption that any distribution in respect of the Stated
Principal Balance made with respect to this Certificate any accrued interest
added to the outstanding principal balance of this Certificate on a
Distribution Date that occurs during such Interest Accrual Period was instead
made and/or added one month prior to such Distribution Date.]
Installments of the Stated Principal Balance of this Certificate will
be distributable in the amounts and on the dates described on the reverse
hereof.
Distributions in respect of the Stated Principal Balance of and
interest on this Certificate are payable in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts. All distributions made by the Trustee with
respect to this Certificate shall be applied first to interest accrued on this
Certificate as provided above and then to the reduction of the Outstanding
Stated Principal Balance of this Certificate. Except as provided on the
reverse hereof, any installment of principal or interest that is not
distributed when and as due shall accrue interest at the rate at which
interest accrues on the principal balance of this Certificate from the date
due to the date of distribution thereof.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed under its official seal.
Dated:
_________________________________
as Trustee
[SEAL]
By:______________________________
Authorized Officer
(d) The form of the reverse of all Multi-Class Certificates which do
not include any Variable Rate Certificate is as follows:
This Certificate is one of a duly authorized issue of Certificates
designated as Conduit Mortgage Pass-through Certificates, Series ___ (herein
collectively called the "Multi-Class Certificates"), issued in ______ Classes
(Classes ___, ___, ____, and ___) under the Agreement.
The aggregate amount of distributions in respect of the Stated
Principal Balance of the Multi-Class Certificates on each Distribution Date is
equal to the lesser of: (i) funds remaining in the Certificate Account on such
Distribution Date after the subtraction of an amount equal to the amount
distributable as interest on all classes of Multi-Class Certificates on such
Distribution Date (the "Interest Distribution Amounts") and (ii) the
Multi-Class Certificate Distribution Amount with respect to such Distribution
Date. Such distributions are distributable [pro rata amount the Multi-Class
Certificates of all Classes.] [_____% to the Certificates of Class ____ and
____% to the Multi-Class Certificates of Class ____.] [The amount
distributable on the Certificates on any Distribution Date is distributable
first on the Multi-Class Certificates of Class ____, until distributions in
respect of the entire Stated Principal Balance of such Class ____ Certificates
have been made. On the Stated Distribution Date on which the entire Stated
Principal Balance of the Class ____ Certificates has been retired, any
remaining amounts required to be distributed on such Distribution Date in
respect of such Stated Principal Balance of the Multi-Class Certificates shall
be distributed on the Class ____ Certificates. Thereafter, all amounts
required to be distributed on each Distribution Date in respect of such Stated
Principal Balance of the Multi-Class Certificates shall continue to be
distributed as principal of the Class ____ Certificates until the entire
Stated Principal Balance thereof has been distributed. Distributions in
respect of the Stated Principal Balance of the remaining Classes of
Certificates shall be made in a similar manner, with the required Stated
Principal Distribution Amount on each Distribution Date always being applied
first to the reduction of the Aggregate Outstanding Stated Principal Balance
of the then Outstanding Class of the Multi-Class Certificates having the
earliest Final Scheduled Distribution Date of all Multi-Class Certificates
then Outstanding.] Distributions in respect of the Stated Principal Balance of
a Class of Multi-Class Certificates shall in all cases be made pro rata among
all Outstanding Multi-Class Certificates of such Class, without preference or
priority of any kind.
Notwithstanding the foregoing, the Agreement provides that a
Deficiency Event thereunder will occur, if: (i) there are insufficient amounts
in the Certificate Account on any Distribution Date to distribute to Holders
of Multi-Class Certificates all Interest Distribution Amounts and the
Principal Distribution Amount, (ii) the entire Stated Principal Balance of
each Class of Multi-Class Certificates shall not have been completely
distributed on or before the Final Scheduled Distribution Date for such Class
or (iii) with respect to each Class of Multi-Class Certificates that is still
Outstanding on the Final Scheduled Distribution Date of any Class of
Multi-Class Certificates having an earlier Final Scheduled Distribution Date,
an installment of principal shall not have been distributed by such date.
Distribution of the then remaining undistributed Stated Principal
Balance of this Multi-Class Certificate on its Final Scheduled Distribution
Date or on such earlier date as payments received with respect to the assets
included in the Trust Fund are required to be distributed with respect to the
then remaining Stated Principal Balance of this Multi-Class Certificate, or
payment of the Termination Price payable on the Optional Termination Date,
shall be made only upon presentation of this Certificate to the office or
agency of the Trustee maintained for such purpose. Distributions in respect of
interest on this Certificate on each Distribution Date, together with any
installment of the Stated Principal Balance of this Certificate on such Date,
and any Special Distribution required to be made on this Certificate on any
Special Distribution Date to the extent distribution is not made in full of
the Stated Principal Balance of this Certificate, shall be made by check
mailed to the Person whose name appears as the registered Holder of this
Certificate (or one or more predecessor Certificates) on the Certificate
Register as of the Record Date preceding such Distribution Date or such
Special Distribution Date.
Checks for amounts that include distributions in respect of the
Stated Principal Balance of this Certificate shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the
Certificate Register as of the applicable Record Date without requiring that
this Certificate be submitted for notation of payment and checks returned
undelivered will be held for payment to the Person entitled thereto, subject
to the terms of the Agreement, at the office or agency in the United States of
America designated for such purpose pursuant to the Agreement. Any reduction
in the Stated Principal Balance of this Certificate (or any one or more
predecessor Certificates) effected by any distributions made on any
Distribution Date, Special Distribution Date or Deficiency Distribution Date
shall be binding upon all Holders of this Certificate and of any Multi-Class
Certificate issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not noted hereon.
If funds are expected to be available, as provided in the Agreement,
to make a distribution in full of the then remaining undistributed Stated
Principal Balance of this Certificate on a Distribution date or Special
Distribution Date that is prior to the Final Scheduled Distribution Date, then
the Trustee will notify the Person who was the registered Holder hereof on the
____ day of the month [prior to the month] in which such Distribution Date or
Special Distribution Date occurs, by notice mailed no later than the ____ day
of such month, and the amount then distributable shall, if sufficient funds
therefor are available, be distributable only upon presentation of this
Certificate to the office or agency maintained for such purpose.
Any portion of any installment in respect of the Stated Principal
Balance of or interest on this Certificate that was distributable but was not
distributed or duly provided for on a Distribution Date shall forthwith cease
to be payable to the Person who was the registered Holder of this Certificate
on the applicable Record Date, and shall be distributed, in whole or in part,
to the extent funds are available for such payment, on each Deficiency
Distribution Date thereafter until all such overdue amounts are paid or duly
provided for, to the Person in whose name this Certificate (or one or more
predecessor Certificates) is registered on the Record Date applicable to each
such Deficiency Distribution Date or at any other time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Certificates may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Agreement.
If a Deficiency Event, as defined in the Agreement and as described
above, shall occur and be continuing, the Agreement provides that, to the
extent distributions are being made as described in the penultimate sentence
of this paragraph, the Holders of Multi-Class Certificates aggregating not
less than 50% of the Aggregate Outstanding Stated Principal Balance of each
Class thereof may direct the Trustee to see the Trust Fund in the manner and
subject to the conditions described in the Agreement. In such event, the net
proceeds of such sale would be distributed as a final distribution on the
Multi-Class Certificates and Holders thereof may receive less than, but in no
event more than, the undistributed Stated Principal Balance thereof and
undistributed Interest thereon to the date [one more prior to the date] of
such final distribution. The Agreement also provides that, notwithstanding the
occurrence of a Deficiency Event, under certain circumstances specified in the
Agreement, all amounts collected as proceeds of the Trust Fund or otherwise
shall continue to be applied to monthly distributions in respect of the Stated
Principal Balance of and interest on the Multi-Class Certificates in the same
order of priority as if such Deficiency Event had not occurred. In all other
circumstances, following the occurrence of a Deficiency Event, all amounts
collected as proceeds of the Trust Fund or otherwise shall be distributed
monthly pro rata among all Multi-Class Certificates, without preference or
priority, first as distributions of interest and then as distributions in
reduction of such Stated Principal Balance. In such event, interest on the
then Outstanding Stated Principal Balance of this Certificate shall accrue at
the Highest Interest Rate.
As provided in the Agreement and only under special circumstances
specified therein, the principal of the Multi-Class Certificates is subject to
being fully paid pursuant to Special Distribution at 100% of the Outstanding
Stated Principal Balance thereof to be so retired by such Special Distribution
(including interest accrued but not distributed on a Class of Compound
Interest Certificates and added to the Stated Principal Balance thereof)
together with undistributed interest distributions on such Principal Balance
to be so retired from the end of the preceding Interest Accrual Period (or the
Accrual Date if no Distribution Date has yet occurred) to the date [one month
prior to the date] of such Special Distribution. Any such Special Distribution
with respect to the Multi-Class Certificates will be made on the applicable
Special Distribution Date and in the manner hereinabove set forth. As provided
in the Agreement, all Special Distributions will be in the same proportions
and on the same priorities as hereinabove set forth for distributions of
principal on a Distribution Date. If provision is made for a Special
Distribution in respect of the Stated Principal Balance of this Certificate in
accordance with the Agreement, the portion of the Stated Principal Balance of
this Certificate retired in such Special Distribution shall thereupon cease to
accrue interest from and after the date [one month prior to the date] set for
such distribution.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution to Certificate holders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the later of: (i) the maturity or
other liquidation of the last Mortgage Certificate subject thereto, and (ii)
the repurchase by the Depositor from the Trust Fund of all remaining Mortgage
Certificates. The Agreement permits, but does not require, the Depositor to
repurchase all remaining Mortgage Certificates at a price determined as
provided in the Agreement. The exercise of such right will effect Optional
Termination, but the Seller's right to repurchase such remaining Mortgage
Certificates may not be exercised prior to: (a) the time that the aggregate
Mortgage Asset Amount is less than ___% of the Aggregate Mortgage Asset Amount
at the Closing Date or (b) ________________ ____, 20__. In the event of such a
Termination, the amount distributable to the Holder of a Multi-Class
Certificate will be ___% of the Stated Principal Balance thereof together with
accrued interest to [the date one month prior to] the Distribution Date on
which the proceeds of such repurchase are required to be distributed.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate may be registered on the
Certificate Register, upon surrender of this Certificate for registration or
transfer at the office or agency of the Trustee designated for that purpose
pursuant to the Agreement, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
authorized in writing, and thereupon one or more new Multi-Class Certificates
of the same Class, of authorized denominations and in the same aggregate
initial principal balance, will be issued to the designated transferee or
transferees.
Prior to the due presentment for registration of transfer of this
Certificate, the Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered: (i) on any Record Date, for purposes of making
distributions, and (ii) on any other date for any other purpose, as the owner
hereof, whether or not any distribution required to be made on this
Certificate shall be overdue, and neither the Trustee, the Certificate
Registrar nor any such agent shall be affected by notice to the contrary.
The Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the Seller and the rights of the Holders of the Certificates
under the Agreement at any time by the Trustee with the consent of the Holders
of Certificates of each Class, voting as a Class, evidencing, in the
aggregate, not less than 66 2/3% of the Voting Rights of such Class and, as to
Residual Certificates, Percentage Interests aggregating not less than 66 2/3%.
Any such consent by the Holder, at the time of the giving thereof, of this
Certificate (or any one or more predecessor Certificates) shall be conclusive
and binding upon such Holder and upon all future Holders of this Certificate
and of any Multi-Class Certificate issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such consent or waiver is made upon this Certificate. The Agreement also
permits the amendment or waiver of certain terms and conditions set forth in
the Agreement without the consent of Holders of any Multi-Class Certificates
issued thereunder.
The Multi-Class Certificates are issuable only in registered form in
denominations as provided in the Agreement and subject to certain limitations
therein set forth. The Multi-Class Certificates are exchangeable for a like
Aggregate Initial Stated Principal Balance of Multi-Class Certificates of the
same Class of different authorized denominations, as requested by the Holder
surrendering same.
The Trustee has executed this Certificate solely as trustee under the
Agreement and the Trustee shall be liable hereunder only in respect of the
assets of the Trust Fund created by such Agreement.
The remedies of the Holder hereof as provided herein, or in the
Agreement, shall be cumulative and concurrent but may be pursued solely
against the assets of the Trust Fund. No failure on the part of the Holder in
exercising any right or remedy hereunder shall operate as waiver or release
thereof, nor shall any single or partial exercise of any such right or remedy
preclude any other further exercise thereof or the exercise of any other right
or remedy hereunder.
As provided in the Agreement, this Certificate and the Agreement
shall be construed in accordance with, and governed by, the laws of the State
of New York applicable to agreements made and to be performed therein.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed under its official seal.
Dated:
_________________________________
as Trustee
[SEAL]
By:______________________________
Authorized Officer
(e) The form of the reverse of any Variable Rate Certificate is as
follows:
This Certificate is one of a duly authorized issue of Certificates
designated as Conduit Mortgage Pass-Through Certificates, Series __ ) herein
collectively called the "Multi-Class Certificates") issued in ____________
Classes (Classes ___, ____, ___ and ___) under the Agreement. Distributions in
respect of interest on the Class ___, Class ___ and Class ___ Multi-Class
Certificates will be made at the fixed rates per annum specified on the faces
thereof.
During the initial Interest Accrual Period, the Certificate Interest
Rate of the Class ___ Multi-Class Certificates will be ___% per annum. During
such subsequent Variable Rate Interest Accrual Period, the Class ___
Multi-Class Certificates will accrue interest, subject to the Variable
Interest Rate Cap of ___% per annum, at a rate per annum determined for such
Variable Rate Interest Accrual Period by the Trustee in the manner described
below.
On ________________, 200_, and thereafter on the ______ business day
preceding each Distribution Date so long as the Class ___ Multi-Class
Certificates are still outstanding (each such date a "Variable Interest
Determination Date"), the Trustee will request each of _________________,
_________________, _________________, and _________________ or any duly
appointed substitute reference bank (the "Reference Banks"), to inform the
Trustee of the lowest quotation offered by its principal London office for
making immediate [three-month] United States dollar deposits in leading banks
in the London interbank market, as of 11:00 a.m. (London time) on such
Variable Rate Interest Determination Date. (As used herein, "business day"
means a day on which banks are open for dealing in foreign currency and
exchange in London and New York.)
The establishment of the Interest Rate by the Trustee and the
Trustee's subsequent calculation of the Interest Rate applicable to Variable
Rate Certificates for the relevant Variable Rate Interest Accrual Period shall
(in the absence of manifest error) be final and binding. The Trustee shall
cause each Interest Rate established as aforesaid for each Interest Accrual
Period to be published promptly after the determination thereof in a newspaper
of general circulation in New York City.
[The remainder of the form of the reverse of a Variable Rate
Certificate shall be as set forth in subsection (d) hereof beginning with the
second paragraph thereof]
(f) The form of any Residual Certificate is as follows:
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE MULTI-
CLASS CERTIFICATES DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
[THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
OR LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT OR UNDER APPLICABLE STATE LAW AND IS TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1.05 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.]
Conduit Mortgage Pass-Through
Certificates, [Class A], Series
Percentage Interest: __%
This Certificate evidences a percentage interest in any distributions
allocable to the Residual Certificates with respect to a pool of
[conventional] [fixed rate] [mortgage loans and] [mortgage participation
certificates, evidencing participation interests in such mortgage loans and
meeting the requirement of the nationally recognized rating agency or agencies
rating the [Class A] Certificates (collectively, the "Rating Agency") for a
rating in one of the two highest rating categories of such Rating Agency (the
"Mortgage Loans")] [and certain related property], which pool was created and
sold by
[ ]
This Certificate does not represent an obligation of or interest in [
] or the Trustee refereed to below or any of their affiliates. This
Certificate is not guaranteed or insured by any governmental agency or
instrumentality.
This Certificate certifies that is the registered owner of the
Percentage Interest evidenced by this Certificate as set forth above in a
portion of the distributions receivable with respect to a pool of
[conventional] [fixed rate] [mortgage loans and] [mortgage participation
certificates, evidencing participation interests in such mortgage loans and
meeting the requirements of the nationally recognized rating agency or
agencies rating the [Class A] Certificates (collectively, the "Rating Agency")
for a rating in one of the two highest rating categories of such Rating Agency
(the "Mortgage Loans")] [and certain related property] (collectively, the
"Trust Fund"), which pool was created and sold by [ ] (hereinafter called the
"Depositor", which term includes any successor entity under the Agreement
referred to below). The Trust Fund was created pursuant to Standard Terms and
Provisions of Pooling and Servicing (the "Standard Terms") as amended and
supplemented by a Reference Pooling and Servicing Agreement dated as of
__________, 200_ (the "Reference Agreement" and together with the Standard
Terms, the "Agreement") between the Depositor, __________, as master servicer
(the "Master Servicer"), and ________ ___, as trustee (the "Trustee", which
term includes any successor trustee under the Pooling and Servicing
Agreement). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement reference is hereby made for a statement of the respective
rights thereunder of the Depositor, the Master Servicer, the Trustee and the
Holders of all Certificates issued hereunder and to which Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which
such Holder is bound.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee is required to distribute on the ___ day of [each month] or, if such
___ day is not a Business Day, the Business Day immediately following (the
"Distribution Date"), commencing on ___________, 200_, to the Person in whose
name this Certificate is registered at the close of business on the ___ day
(or if such _____ day is not a Business Day, the Business Day immediately
preceding such _________ day) of the [second] month next preceding the month
of such distribution (the "Record Date"), an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the portion of the
distributions received with respect to the assets in the Trust Fund that are
distributable to holders of Residual Certificates, as provided in the
Agreement. The interests of holders of Residual Certificates in the assets in
the Trust Fund are in all cases subordinate and subject to the prior rights of
holders of Multi-Class Certificates as specified in the Agreement.
Distributions on this Certificate will be made by the Trustee by
check mailed to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register, unless such Person requests
by written notice to the Trustee that such payments be made thereafter by wire
transfer of immediately available funds to the account specified by such
Person. Such wire transfers shall be made at the expense of such Person.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or
agency maintained for that purpose in the County and State of New York.
[No transfer of this Certificate will be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance
with said Act and laws. In the event that such a transfer is to be made within
three years from the day of initial issuance of the Certificates pursuant to
the Agreement: (i) the Trustee or the Depositor may require an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Trustee
and the Depositor that such transfer is exempt (describing the applicable
exemption and the basis therefor) from or is being made pursuant to the
registration requirements of the Securities Act of 1933, as amended, and of
any applicable statute of any state, and (ii) the transferee shall execute an
investment letter in the form described by the Agreement. The holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.]
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed under its official seal.
Dated:
________________________________
as Trustee
[SEAL]
By:_____________________________
Authorized Officer