EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES INC., as Master Servicer,
and
JPMORGAN CHASE BANK,
as Trustee
---------------------------
TRUST AGREEMENT
Dated as of February 1, 2002
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-4H
TABLE OF CONTENTS
Page
Article I DEFINITIONS.............................................................................................3
Section 1.01. Definitions...............................................................................3
Section 1.02. Calculations Respecting Mortgage Loans...................................................33
Article II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES........................................................33
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans.....................33
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation for Trust Fund..............36
Section 2.03. Representations and Warranties of the Depositor..........................................38
Section 2.04. Discovery of Breach......................................................................39
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans...................................40
Section 2.06. Grant Clause.............................................................................41
Article III THE CERTIFICATES.....................................................................................42
Section 3.01. The Certificates.........................................................................42
Section 3.02. Registration.............................................................................43
Section 3.03. Transfer and Exchange of Certificates....................................................44
Section 3.04. Cancellation of Certificates.............................................................49
Section 3.05. Replacement of Certificates..............................................................50
Section 3.06. Persons Deemed Owners....................................................................50
Section 3.07. Temporary Certificates...................................................................50
Section 3.08. Appointment of Paying Agent..............................................................51
Section 3.09. Book-Entry Certificates..................................................................51
Article IV ADMINISTRATION OF THE TRUST FUND......................................................................52
Section 4.01. Collection Account.......................................................................52
Section 4.02. Application of Funds in the Collection Account...........................................54
Section 4.03. Reports to Certificateholders............................................................56
Section 4.04. Certificate Account......................................................................59
Article V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES...............................................................60
Section 5.01. Distributions Generally..................................................................60
Section 5.02. Distributions from the Certificate Account...............................................60
Section 5.03. Allocation of Realized Losses............................................................65
Section 5.04. Advances by Master Servicer and the Trustee..............................................67
Section 5.05. Compensating Interest Payments...........................................................68
Article VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT.............................................................68
Section 6.01. Duties of Trustee........................................................................68
Section 6.02. Certain Matters Affecting the Trustee....................................................70
Section 6.03. Trustee Not Liable for Certificates......................................................71
Section 6.04. Trustee May Own Certificates.............................................................71
Section 6.05. Eligibility Requirements for Trustee.....................................................72
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Page
Section 6.06. Resignation and Removal of Trustee.......................................................72
Section 6.07. Successor Trustee........................................................................73
Section 6.08. Merger or Consolidation of Trustee.......................................................73
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian.................................73
Section 6.10. Authenticating Agents....................................................................75
Section 6.11. Indemnification of Trustee...............................................................76
Section 6.12. Compensation of the Trustee..............................................................76
Section 6.13. Collection of Monies.....................................................................77
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor..............................77
Section 6.15. Additional Remedies of Trustee Upon Event of Default.....................................81
Section 6.16. Waiver of Defaults.......................................................................81
Section 6.17. Notification to Holders..................................................................81
Section 6.18. Directions by Certificateholders and Duties of Trustee During Event of Default...........81
Section 6.19. Action Upon Certain Failures of the Master Servicer and Upon Event of Default............82
Section 6.20. Preparation of Tax Returns and Other Reports.............................................82
Article VII PURCHASE AND TERMINATION OF THE TRUST FUND...........................................................83
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation of All Mortgage Loans...........83
Section 7.02. Procedure Upon Termination of Trust Fund.................................................84
Section 7.03. Additional Trust Fund Termination Requirements...........................................85
Article VIII RIGHTS OF CERTIFICATEHOLDERS........................................................................85
Section 8.01. Limitation on Rights of Holders..........................................................85
Section 8.02. Access to List of Holders................................................................86
Section 8.03. Acts of Holders of Certificates..........................................................86
Article IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER.................................87
Section 9.01. Duties of the Master Servicer............................................................87
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance Policy..87
Section 9.03. Master Servicer's Financial Statements and Related Information...........................88
Section 9.04. Power to Act; Procedures.................................................................88
Section 9.05. Servicing Agreements Between the Master Servicer and Servicers; Enforcement of Servicers'
Obligations.............................................................................90
Section 9.06. Collection of Taxes, Assessments and Similar Items.......................................91
Section 9.07. Termination of Servicing Agreements; Successor Servicers.................................91
Section 9.08. Master Servicer Liable for Enforcement...................................................92
Section 9.09. No Contractual Relationship Between Servicers and Trustee or Depositor...................92
Section 9.10. Assumption of Servicing Agreement by Trustee.............................................92
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements.............................................93
Section 9.12. Release of Mortgage Files................................................................93
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Page
Section 9.13. Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee.....94
Section 9.14. Representations and Warranties of the Master Servicer....................................96
Section 9.15. Closing Certificate and Opinion..........................................................98
Section 9.16. Standard Hazard and Flood Insurance Policies.............................................98
Section 9.17. Presentment of Claims and Collection of Proceeds.........................................98
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies...................................99
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies and Documents.................99
Section 9.20. Realization Upon Defaulted Mortgage Loans...............................................100
Section 9.21. Compensation to the Master Servicer.....................................................100
Section 9.22. REO Property............................................................................101
Section 9.23. [Reserved]..............................................................................101
Section 9.24. Reports to the Trustee..................................................................101
Section 9.25. Annual Officer's Certificate as to Compliance...........................................102
Section 9.26. Annual Independent Accountants' Servicing Report........................................102
Section 9.27. Merger or Consolidation.................................................................103
Section 9.28. Resignation of Master Servicer..........................................................103
Section 9.29. Assignment or Delegation of Duties by the Master Servicer...............................103
Section 9.30. Limitation on Liability of the Master Servicer and Others...............................104
Section 9.31. Indemnification; Third-Party Claims.....................................................104
Article X REMIC ADMINISTRATION..................................................................................105
Section 10.01. REMIC Administration....................................................................105
Section 10.02. Prohibited Transactions and Activities..................................................107
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of REMIC Status..................107
Section 10.04. REO Property............................................................................107
Article XI MISCELLANEOUS PROVISIONS.............................................................................108
Section 11.01. Binding Nature of Agreement; Assignment.................................................108
Section 11.02. Entire Agreement........................................................................108
Section 11.03. Amendment...............................................................................109
Section 11.04. Voting Rights...........................................................................110
Section 11.05. Provision of Information................................................................110
Section 11.06. Governing Law...........................................................................110
Section 11.07. Notices.................................................................................111
Section 11.08. Severability of Provisions..............................................................111
Section 11.09. Indulgences; No Waivers.................................................................111
Section 11.10. Headings Not To Affect Interpretation...................................................111
Section 11.11. Benefits of Agreement...................................................................111
Section 11.12. Special Notices to the Rating Agencies..................................................112
Section 11.13. Counterparts............................................................................113
Section 11.14. Transfer of Servicing...................................................................113
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ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Trustee Initial Certification
Exhibit B-2 Form of Trustee Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreements
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreements
Exhibit L [Reserved]
Exhibit M [Reserved]
Exhibit N-1 Form of Transfer Certificate for Transfer from Restricted Global Security to
Regulation S Global Security pursuant to Section 3.03(h)(B)
Exhibit N-2 Form of Transfer Certificate for Transfer from Regulation S Global Security
to Restricted Global Securities pursuant to Section 3.03(h)(C)
Exhibit O Senior Principal Priorities
Schedule A All Mortgage Loans (in the Aggregate and by Mortgage Pool)
v
This TRUST AGREEMENT, dated as of February 1, 2002 (the
"Agreement"), is by and among STRUCTURED ASSET SECURITIES CORPORATION, a
Delaware corporation, as depositor (the "Depositor"), AURORA LOAN SERVICES
INC., as master servicer (the "Master Servicer"), and JPMORGAN CHASE BANK, a
national banking association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from ▇▇▇▇▇▇ Capital, A
Division of ▇▇▇▇▇▇ Brothers Holdings Inc. and ▇▇▇▇▇▇ Brothers Bank, FSB
(each, a "Seller") and at the Closing Date is the owner of the Mortgage Loans
and the other property being conveyed by it to the Trustee for inclusion in
the Trust Fund. On the Closing Date, the Depositor will acquire the
Certificates from the Trust Fund, as consideration for its transfer to the
Trust Fund of the Mortgage Loans and the other property constituting the
Trust Fund. The Depositor has duly authorized the execution and delivery of
this Agreement to provide for the conveyance to the Trustee of the Mortgage
Loans and the other property constituting the Trust Fund. All covenants and
agreements made by the Depositor, the Master Servicer and the Trustee herein
with respect to the Mortgage Loans and the other property constituting the
Trust Fund are for the benefit of the Holders from time to time of the
Certificates. The Depositor and the Master Servicer are entering into this
Agreement, and the Trustee is accepting the Trust Fund created hereby, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be
treated for federal income tax purposes as a real estate mortgage investment
conduit (the "REMIC"). Each Certificate, other than the Class R Certificate,
represents ownership of one or more regular interests in the REMIC for
purposes of the REMIC Provisions. The Class R Certificate represents
ownership of the sole class of residual interest in the REMIC for purposes of
the REMIC Provisions. The REMIC shall hold as assets all property of the
Trust Fund.
1
THE REMIC
The following table specifies the Class designation, Certificate
Interest Rate, initial Class Principal (or Notional) Amount and minimum
denomination (by dollar amount or Percentage Interest) for each Class of
Certificates (each of which, other than the Class R Certificate, represents
ownership of one or more regular interests in the REMIC) constituting the
interests in the Trust Fund created hereunder.
Initial Class Minimum
Principal Denomination
Certificate (or Notional) or Percentage
Class Designation Interest Rate Amount Interest
----------------- ------------- ------ --------
Class 1-A 6.75% $250,321,000.00 $25,000.00
Class 1-AP 0.00%(1) $574,016.00 $100,000.00
Class 1-AX 6.75%(2) (2) $1,000,000.00
Class 2-A 6.75% $29,245,000.00 $25,000.00
Class 2-AP 0.00%(1) $99,562.00 100%
Class 2-AX 6.75%(2) (2) $1,000,000.00
Class B1 6.75% $2,897,000.00 $100,000.00
Class B2 6.75% $2,462,000.00 $100,000.00
Class B3 6.75% $2,028,000.00 $100,000.00
Class B4 6.75% $579,000.00 $250,000.00
Class B5 6.75% $434,000.00 $250,000.00
Class B6 6.75% $1,014,435.00 $250,000.00
Class R 6.75%(3) $100.00(3) 100%
---------------------------
(1) The Class 1-AP and Class 2-AP Certificates are principal-only
certificates and will not be entitled to payments of interest.
(2) The Class 1-AX and Class 2-AX Certificates are interest-only
certificates, have no principal balance and accrue interest on the
Class 1-AX Notional Amount and the Class 2-AX Notional Amount,
respectively (initially $22,409,360.00 and $2,765,714.00,
respectively).
(3) The Class R Certificate comprises ownership of the residual interest
in the REMIC.
As of the Cut-off Date, the Mortgage Loans had an aggregate
Scheduled Principal Balance of $289,654,113.69.
For purposes hereof, each Pool of Mortgage Loans constitutes a fully
separate and distinct sub-trust.
2
Article I DEFINITIONS
Section 1.01. Definitions.
The following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of
prudent mortgage servicing institutions that service or master service
mortgage loans of the same type and quality as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee or the Master Servicer or (y) as provided in the
applicable Servicing Agreement, to the extent applicable to the related
Servicer.
Accountant: A person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accretion Directed Certificate: Not applicable.
Accretion Termination Date: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificate: Not applicable.
Accrual Component: Not applicable.
Accrual Period: With respect to any Distribution Date and any Class
of Certificates, the one-month period beginning immediately following the end
of the preceding Accrual Period (or from the Cut-off Date, in the case of the
first Accrual Period) and ending on the last day of the month immediately
preceding the month in which such Distribution Date occurs.
Accrued Certificate Interest: As to any Class of Certificates (other
than any Principal Only Certificates), and any Distribution Date, the product
of the Certificate Interest Rate for such Class of Certificates and the Class
Principal Amount (or Class Notional Amount) of such Class of Certificates
immediately preceding such Distribution Date, as reduced by such Class's
share of the interest portion of (i) any Excess Losses for the related
Mortgage Pool for such Distribution Date and (ii) any Relief Act Reduction,
in each case allocable among the Senior Certificates for such Distribution
Date pro rata based on the Accrued Certificate Interest otherwise
distributable thereto, and allocable to the Subordinate Certificates pro rata
based on interest accrued on their respective Apportioned Principal Balances.
Act: As defined in Section 3.03(c).
Additional Collateral: None.
3
Advance: An advance of the aggregate of payments of principal and
interest (net of the applicable Servicing Fee) on one or more Mortgage Loans
that were due on the Due Date in the related Due Period and not received as
of the close of business on the related Determination Date, required to be
made by or on behalf of the Master Servicer and the related Servicer (or by
the Trustee) pursuant to Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Principal Balance: The aggregate of the Scheduled Principal
Balances for all Mortgage Loans at any date of determination.
Aggregate Subordinate Percentage: With respect to any Distribution
Date, the sum of the Class Principal Amounts of the Subordinate Certificates
immediately prior to such date divided by the sum of the Non-AP Pool Balances
for all Mortgage Pools for the immediately preceding Distribution Date.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
AP Deferred Amount: As to any Distribution Date on or prior to the
Credit Support Depletion Date and, with respect to each of the Class 1-AP and
Class 2-AP Certificates, (i) the aggregate of the applicable AP Percentage of
the principal portion of each Realized Loss (other than any Excess Loss) for
such Distribution Date on a Discount Mortgage Loan in the related Mortgage
Pool; and (ii) all such amounts previously allocated thereto and not
distributed to such Certificate as an AP Deferred Amount.
AP Percentage: As to any Discount Mortgage Loan, the percentage
equivalent of a fraction, the numerator of which is the Designated Rate minus
the Net Mortgage Rate of such Discount Mortgage Loan and the denominator of
which is the Designated Rate. As to any Non-Discount Mortgage Loan, 0%.
AP Principal Distribution Amount: For any Distribution Date and for
each Mortgage Pool, the sum of the following amounts:
(i) the applicable AP Percentage of the principal portion of
each Scheduled Payment (without giving effect to any Debt Service
Reduction occurring prior to the Bankruptcy Coverage Termination
Date) on each Mortgage Loan in the related Mortgage Pool due during
the related Due Period;
(ii) the applicable AP Percentage of each of the following
amounts: (1) each Principal Prepayment collected on a Mortgage Loan
in the related Mortgage Pool during
4
the applicable Prepayment Period, (2) each other unscheduled
collection, including Insurance Proceeds and Net Liquidation
Proceeds (other than with respect to any Mortgage Loan in the
related Mortgage Pool that was finally liquidated during the
applicable Prepayment Period), representing or allocable to
recoveries of principal of such Mortgage Loan in the related
Mortgage Pool received during the applicable Prepayment Period and
(3) the principal portion of all proceeds of the purchase of any
Mortgage Loan in the related Mortgage Pool (or, in the case of a
permitted substitution, amounts representing a principal adjustment)
actually received by the Trustee with respect to the applicable
Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to
principal of any Mortgage Loan in the related Mortgage Pool that was
finally liquidated during the related Prepayment Period, the
applicable AP Percentage of the related net Liquidation Proceeds
allocable to principal; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Apportioned Principal Balance: As to any Class of Subordinate
Certificates and any Distribution Date, the Class Principal Amount of such
Class immediately prior to such Distribution Date multiplied by a fraction,
the numerator of which is the applicable Group Subordinate Amount for such
date and the denominator of which is the sum of the Group Subordinate Amounts
for all Mortgage Pools for such date.
Appraised Value: With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such
Mortgage Loan as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however,
that the Trustee shall not be responsible for determining whether any such
assignment is in recordable form.
Aurora: Aurora Loan Services Inc. or its successor in interest, in
its capacity as a Servicer.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
Available Distribution Amount: As to each Mortgage Pool and on any
Distribution Date, the sum of the following amounts:
5
(v) the total amount of all cash received by the Master
Servicer through the Remittance Date applicable to each Servicer and
deposited by the Master Servicer by the Deposit Date for such
Distribution Date on the Mortgage Loans of such Mortgage Pool
(including proceeds of any Insurance Policy and any other credit
support relating to such Mortgage Loans and including recoveries
through liquidation of any REO Property), plus all Advances made by
the Master Servicer or any Servicer (or the Trustee in its capacity
as successor Master Servicer) for such Distribution Date, any
Compensating Interest Payment for such date and Mortgage Pool and
any amounts paid by any Servicer in respect of Prepayment Interest
Shortfalls in respect of the related Mortgage Loans for such date
and any proceeds of any purchase of a related Mortgage Loan, but not
including:
(A) all amounts distributed pursuant to Section 5.02 on
prior Distribution Dates;
(B) all Scheduled Payments of principal and interest
collected but due on a date subsequent to the related Due
Period;
(C) all Principal Prepayments received or identified by
the applicable Servicer after the applicable Prepayment Period
(together with any interest payments received with such
prepayments to the extent that they represent the payment of
interest accrued on the related Mortgage Loans for the period
subsequent to the applicable Prepayment Period);
(D) any other unscheduled collection, including Net
Liquidation Proceeds and Insurance Proceeds, received by the
Master Servicer after the applicable Prepayment Period;
(E) all fees and amounts due or reimbursable to the Master
Servicer, the Trustee (other than the Trustee Fee), a Custodian
or any Servicer pursuant to the terms of this Agreement, a
Custodial Agreement or the applicable Servicing Agreement;
(F) any Prepayment Interest Excess; and
(vi) any other payment made by the Master Servicer, any
Servicer, the Sellers, the Depositor, or any other Person with
respect to such Distribution Date (including the Purchase Price with
respect to any Mortgage Loan purchased by the Sellers, the Depositor
or any other Person).
Balloon Mortgage Loan: Not applicable.
Balloon Payment: Not applicable.
Bankruptcy: With respect to any Person, the making of an assignment
for the benefit of creditors, the filing of a voluntary petition in
bankruptcy, adjudication as a bankrupt or insolvent, the entry of an order
for relief in a bankruptcy or insolvency proceeding, the seeking of
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief,
6
or seeking, consenting to or acquiescing in the appointment of a trustee,
receiver or liquidator, dissolution, or termination, as the case may be, of
such Person pursuant to the provisions of either the United States Bankruptcy
Code of 1986, as amended, or any other similar state laws.
Bankruptcy Coverage Termination Date: With respect to either
Mortgage Pool, the Distribution Date on which the Bankruptcy Loss Limit has
been reduced to zero (or less than zero).
Bankruptcy Loss Limit: As of the Cut-off Date, $173,725, which
amount shall be reduced from time to time by the amount of Bankruptcy Losses
allocated to the Certificates.
Bankruptcy Losses: With respect to the Mortgage Loans in the related
Mortgage Pool, losses that are incurred as a result of Deficient Valuations
and any reduction, in a bankruptcy proceeding, of the amount of the Scheduled
Payment on a Mortgage Loan other than as a result of a Deficient Valuation.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
Trustee to the effect that any proposed transfer will not (i) cause the
assets of the Trust Fund to be regarded as plan assets for purposes of the
Plan Asset Regulations or (ii) give rise to any fiduciary duty on the part of
the Depositor or the Trustee.
Blanket Mortgage: The mortgage or mortgages encumbering a
Cooperative Property.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, all of the Classes of
Certificates listed in the second table of the Preliminary Statement, other
than the Class R Certificates, constitute Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in Colorado, Maryland, New York, New York
or, if other than New York, the city in which the Corporate Trust Office of
the Trustee is located, or (iii) with respect to any Remittance Date or any
Servicer reporting date, the States specified in the definition of "Business
Day" in the applicable Servicing Agreement, are authorized or obligated by
law or executive order to be closed.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
accordance with the provisions of Section 4.04.
Certificate Group: Either (i) the Group 1 Certificates and the Group
Subordinate Amount with respect to Pool 1 or (ii) the Group 2 Certificates
and the Group Subordinate Amount with respect to Pool 2, as applicable.
References herein to the Certificates of a Certificate Group
7
include that portion (but only that portion) of the Group Subordinate Amount
which relates to the related Mortgage Pool.
Certificate Interest Rate: With respect to each Class of
Certificates (other than the Principal Only Certificates), the applicable per
annum rate specified or determined as provided in the Preliminary Statement
hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate (other
than a Notional Certificate or a Class AP Certificate), at the time of
determination, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (plus, in
the case of any Negative Amortization Certificate, any Deferred Interest
allocated thereto on previous Distribution Dates, less the amount of all
principal distributions previously made with respect to such Certificate, all
Realized Losses allocated to such Certificate, and, in the case of a
Subordinate Certificate, any Subordinate Certificate Writedown Amount
allocated to such Certificates. For purposes of Article V hereof, unless
specifically provided to the contrary, Certificate Principal Amounts shall be
determined as of the close of business of the immediately preceding
Distribution Date, after giving effect to all distributions made on such
date. Notional Certificates are issued without Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of "Holder."
Class: All Certificates bearing the same class designation.
Class 1-AX Notional Amount: With respect to any Distribution Date
will be equal to the product of (1) a fraction, the numerator of which is the
weighted average of the Net Mortgage Rates of the Non-Discount Mortgage Loans
in Pool 1 at the beginning of the related Due Period minus 6.75% and the
denominator of which is 6.75% and (2) the total Scheduled Principal Balance
of the Non-Discount Mortgage Loans in Pool 1 as of the first day of the
related Accrual Period.
Class 2-AX Notional Amount: With respect to any Distribution Date
will be equal to the product of (1) a fraction, the numerator of which is the
weighted average of the Net Mortgage Rates of the Non-Discount Mortgage Loans
in Pool 2 at the beginning of the related Due Period minus 6.75% and the
denominator of which is 6.75% and (2) the total Scheduled Principal Balance
of the Non-Discount Mortgage Loans in Pool 2 as of the first day of the
related Accrual Period.
Class A Certificate: Any Class 1-A, Class 2-A, Class 1-AX, Class
2-AX, Class 1-AP and Class 2-AP Certificate.
8
Class B Certificate: Any Class B1, Class B2, Class B3, Class B4,
Class B5 or Class B6 Certificate.
Class Notional Amount: With respect to each Class of Notional
Certificates, the applicable class notional amount calculated as provided in
the Preliminary Statement hereto.
Class Percentage: With respect to each Class of Subordinate
Certificates, for each Distribution Date, the percentage obtained by dividing
the Class Principal Amount of such Class immediately prior to such
Distribution Date by the sum of the Class Principal Amounts of all
Certificates, immediately prior to such date.
Class Principal Amount: With respect to each Class of Certificates
other than any Class of Notional Certificates, the aggregate of the
Certificate Principal Amounts of all Certificates of such Class at the date
of determination. With respect to each Class of Notional Certificates, zero.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
As of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Clearstream: Clearstream Banking, societe anonyme, and any successor
thereto.
Closing Date: February 27, 2002.
Code: The Internal Revenue Code of 1986, as amended, and as it may
be further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: A separate account established and maintained by
the Master Servicer pursuant to Section 4.01.
Compensating Interest Payment: With respect to each Mortgage Pool
and any Distribution Date, an amount equal to the excess of (x) the aggregate
of any Prepayment Interest Shortfalls with respect to such Mortgage Pool and
such Distribution Date over (y) the aggregate of any amounts required to be
paid by any Servicer in respect of such shortfalls but not paid; provided
that the aggregate Compensating Interest Payment to be paid by the Master
Servicer for any Distribution Date shall not exceed the Master Servicing Fee
that would be payable to the Master Servicer in respect of such Mortgage Pool
and Distribution Date without giving effect to any Compensating Interest
Payment.
Component: Not applicable.
Component Certificate: Not applicable.
9
Component Interest Rate: Not applicable.
Component Notional Amount: Not applicable.
Component Principal Amount: Not applicable.
Component Writedown Amount: Not applicable.
Control: The meaning specified in Section 8-106 of the UCC.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Veterans Administration.
Converted Mortgage Loan: None.
Convertible Mortgage Loan: None.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares
and a Proprietary Lease.
Cooperative Loan Documents: As to any Cooperative Loan, (i) the
Cooperative Shares, together with a stock power in blank; (ii) the original
executed Security Agreement and the assignment of the Security Agreement
endorsed in blank; (iii) the original executed Proprietary Lease and the
assignment of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi)
executed UCC-3 financing statements (or copies thereof) or other appropriate
UCC financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of recording
thereon (or in a form suitable for recordation).
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, that includes the allocation of individual
dwelling units to the holders of the Cooperative Shares of the Cooperative
Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The office located at JPMorgan Chase Bank,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Institutional Trust Services (SASCO 2002-4H).
10
Credit Score: With respect to any Mortgage Loan, a numerical
assessment of default risk with respect to the Mortgagor under such Mortgage
Loan, determined on the basis of a methodology developed by Fair, ▇▇▇▇▇ &
Co., Inc.
Credit Support Depletion Date: The Distribution Date on which,
giving effect to all distributions on such date, the aggregate Certificate
Principal Amount of the Subordinate Certificates is reduced to zero.
Credit Support Percentage: As to any Class of Subordinate
Certificates and any Distribution Date, the sum of the Class Percentages of
all Classes of Certificates that rank lower in priority than such Class.
Custodial Agreement: Each custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto.
Cut-off Date: February 1, 2002.
Cut-off Date Aggregate Principal Balance: With respect to the
Mortgage Loans in the Trust Fund on the Closing Date, the Aggregate Principal
Balance for all such Mortgage Loans as of the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction of the Scheduled Payment that the related Mortgagor is obligated to
pay on any Due Date as a result of any proceeding under Bankruptcy law or any
similar proceeding.
Deferred Interest: With respect to any Class of Negative
Amortization Certificates and any Distribution Date, the lesser of (x) the
applicable Interest Distribution Amount for such date (without giving effect
to any Deferred Interest) and (y) the aggregate Mortgage Loan Negative
Amortization, if any, for the related Due Period.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under such Mortgage Loan, which
valuation results from a proceeding under Bankruptcy law or any similar
proceeding.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Deposit Date: With respect to each Distribution Date, one Business
Day immediately preceding such Distribution Date.
11
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Designated Rate: 6.75% per annum.
Determination Date: With respect to each Distribution Date, the day
of the latest Remittance Date immediately preceding such Distribution Date.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate
less than 6.75% per annum.
Disqualified Organization: A "disqualified organization" as defined
in Section 860E(e)(5) of the Code.
Distribution Date: The 25th day of each month, or, if such 25th day
is not a Business Day, the next succeeding Business Day commencing in March
2002.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of
a holding company, the commercial paper or other short term debt or deposit
obligations of such holding company or depository institution, as the case
may be) have been rated by each Rating Agency in its highest short-term
rating category, or (iii) a segregated trust account or accounts (which shall
be a "special deposit account") maintained with the Trustee or any other
federal or state chartered depository institution or trust company, acting in
its fiduciary capacity, in a manner acceptable to the Trustee and the Rating
Agencies. Eligible Accounts may bear interest.
Eligible Investments: Any one or more of the following obligations
or securities:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
12
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
or state banking authorities, so long as at the time of investment
or the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC,
if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States
of America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest short-term credit ratings of each Rating Agency;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the Aggregate Principal
Balance and the aggregate principal amount of all Eligible
Investments in the Certificate Account; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating
Agency;
(v) commercial paper (including both non interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date
of issuance thereof) rated by each Rating Agency in its highest
short-term ratings;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on
behalf of the holders of such receipts; and
(viii) any other demand, money market fund, common trust fund
or time deposit or obligation, or interest-bearing or other security
or investment (including those managed or advised by the Trustee or
an Affiliate thereof), (A) rated in the highest rating category by
each Rating Agency or (B) that would not adversely affect the then
current
13
rating by either Rating Agency of any of the Certificates. Such
investments in this subsection (viii) may include money market
mutual funds or common trust funds, including any other fund for
which JPMorgan Chase Bank, the Trustee, the Master Servicer or an
affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian,
notwithstanding that (x) JPMorgan Chase Bank, the Master Servicer or
an affiliate thereof charges and collects fees and expenses from
such funds for services rendered, (y) JPMorgan Chase Bank, the
Master Servicer or an affiliate thereof charges and collects fees
and expenses for services rendered pursuant to this Agreement, and
(z) services performed for such funds and pursuant to this Agreement
may converge at any time. The Trustee specifically authorizes
JPMorgan Chase Bank or an affiliate thereof to charge and collect
from the Trustee such fees as are collected from all investors in
such funds for services rendered to such funds (but not to exceed
investment earnings thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest
payments with respect to the obligations underlying such instrument, or (ii)
both principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: Any Class R, Class B4, Class B5 or
Class B6 Certificate or any Certificate with a rating below the lowest
applicable rating permitted under the Underwriter's Exemption.
Escrow Account: Any account established and maintained by the
applicable Servicer pursuant to the applicable Servicing Agreement.
Euroclear: JPMorgan Chase Bank, Brussels office, as operator of the
Euroclear System.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14(a).
Excess Loss: Any Bankruptcy Loss, or portion thereof, in excess of
the then-applicable Bankruptcy Loss Limit, any Fraud Loss, or portion
thereof, in excess of the then-applicable Fraud Loss Limit, and any Special
Hazard Loss, or portion thereof, in excess of the then-applicable Special
Hazard Loss Limit.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
14
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: The Distribution Date in March
2032.
Financial Asset: The meaning specified in Section 8-102(a)(9) of the
UCC.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch Ratings or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loss: Any Realized Loss on a Liquidated Mortgage Loan
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, as reported
by the Servicer to the Master Servicer.
Fraud Loss Limit: With respect to any Distribution Date (x) prior to
the first anniversary of the Cut-off Date, $5,793,082 less the aggregate of
Fraud Losses since the Cut-off Date, and (y) from the first to the fourth
anniversary of the Cut-off Date, an amount equal to (1) the lesser of (a) the
Fraud Loss Limit as of the most recent anniversary of the Cut-off Date and
(b) 1% of the aggregate principal balance of all the Mortgage Loans as of the
most recent anniversary of the Cut-off Date less (2) the aggregate of Fraud
Losses since the most recent anniversary of the Cut-off Date. On or after the
fifth anniversary of the Cut-off Date, the Fraud Loss Limit shall be zero.
Global Securities: The global certificates representing the
Book-Entry Certificates.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class 1-A, Class 1-AX, Class 1-AP or Class
R Certificate.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class 2-A, Class 2-AX or Class 2-AP
Certificate.
Group Subordinate Amount: With respect to either Mortgage Pool and
any Distribution Date, the excess of the Non-AP Pool Balance of such Mortgage
Pool for the immediately preceding Distribution Date over the sum of the
aggregate of the Certificate Principal Amounts
15
of the Non-AP Senior Certificates of the related Certificate Group
immediately prior to the related Distribution Date.
Holder or Certificateholder: The registered owner of any Certificate
as recorded on the books of the Certificate Registrar except that, solely for
the purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the
Trustee, the Master Servicer, any Servicer or any Affiliate thereof shall be
deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Trustee shall be protected in relying upon any such
consent, only Certificates which a Responsible Officer of the Trustee knows
to be so owned shall be disregarded. The Trustee may request and conclusively
rely on certifications by the Depositor, the Master Servicer and any Servicer
in determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer or such Servicer.
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other
Person, and (c) is not connected with such other Person or any Affiliate of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
Initial LIBOR Rate: Not applicable.
Insurance Agreement: Not applicable.
Insurance Policy: Any Primary Mortgage Insurance Policy and any
standard hazard insurance policy, flood insurance policy, earthquake
insurance policy or title insurance policy relating to the Mortgage Loans or
the Mortgaged Properties, to be in effect as of the Closing Date or
thereafter during the term of this Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the applicable Servicer in connection with procuring such proceeds, (ii) to
be applied to restoration or repair of the related Mortgaged Property or
(iii) required to be paid over to the Mortgagor pursuant to law or the
related Mortgage Note.
Insured Payment: Not applicable.
Interest Distribution Amount: Not applicable.
Interest Shortfall: With respect to any Class of Certificates (other
than a Principal Only Certificate) and any Distribution Date, any Accrued
Certificate Interest not distributed (or added
16
to principal) with respect to any previous Distribution Date, other than any
Net Prepayment Interest Shortfalls.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: The Distribution Date in March 25,
2035.
▇▇▇▇▇▇ Bank: ▇▇▇▇▇▇ Brothers Bank, FSB, or any successor in
interest.
▇▇▇▇▇▇ Capital: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers
Holdings Inc., or any successor in interest.
LIBOR: Not applicable.
LIBOR Certificate: Not applicable.
LIBOR Component: Not applicable.
LIBOR Determination Date: Not applicable.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which
the Master Servicer or the applicable Servicer has determined that all
amounts that it expects to recover on behalf of the Trust Fund from or on
account of such Mortgage Loan have been recovered.
Liquidation Expenses: Expenses that are incurred by the Master
Servicer or a Servicer in connection with the liquidation of any defaulted
Mortgage Loan and are not recoverable under the applicable Primary Mortgage
Insurance Policy, including, without limitation, foreclosure and
rehabilitation expenses, legal expenses and unreimbursed amounts expended
pursuant to Sections 9.06, 9.16 or 9.22.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, including any
amounts remaining in the related Escrow Account.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of
the principal balance of such Mortgage Loan at origination, or such other
date as is specified, to the Original Value thereof.
London Business Day: Not applicable.
Maintenance: With respect to any Cooperative Unit, the rent or fee
paid by the Mortgagor to the Cooperative Corporation pursuant to the
Proprietary Lease.
17
Master Servicer: Aurora Loan Services Inc., or any successor in
interest, or if any successor master servicer shall be appointed as herein
provided, then such successor master servicer.
Master Servicing Fee: As to any Distribution Date, all income and
gain realized from the investment of funds in the Collection Account during
the period from and including the Deposit Date in the calendar month
immediately preceding the month in which such Distribution Date occurs, to
but excluding the Deposit Date relating to such Distribution Date.
Master Servicing Fee Rate: Not applicable.
Material Defect: As defined in Section 2.02(c) hereof.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
Corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related
Mortgage, or an Assignment of Mortgage, has been or will be recorded in the
name of MERS, as agent for the holder from time to time of the Mortgage Note.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor in
interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering
a fee simple interest in real property securing a Mortgage Note, together
with improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Trustee or a Custodian pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences
of indebtedness secured by each such Mortgage or a manufactured housing
contract conveyed, transferred, sold, assigned to or deposited with the
Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as
amended from time to time.
Mortgage Loan Sale Agreement: Either of (i) the agreement dated as
of February 1, 2002, for the sale of certain of the Mortgage Loans by ▇▇▇▇▇▇
Capital to the Depositor or (ii) the agreement dated as of February 1, 2002,
for the sale of certain of the Mortgage Loans by ▇▇▇▇▇▇ Bank to the
Depositor, as the context requires.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan and designate, among other data
fields, (i) the applicable Mortgage Pool in which such Mortgage Loan is
included, (ii) the Servicer of such Mortgage Loan and (iii) the term and
method of calculation of Prepayment Penalty Amounts, if any, as such schedule
may be amended from time to time to reflect the addition of Mortgage Loans
to, or the deletion of Mortgage Loans from, the Trust Fund. The Depositor
shall be responsible for providing the Trustee and the Master Servicer with
all amendments to the Mortgage Loan Schedule
18
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Either of Pool 1 or Pool 2.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: Either of (x) the fee simple interest in real
property, together with improvements thereto including any exterior
improvements to be completed within 120 days of disbursement of the related
Mortgage Loan proceeds, or (y) in the case of a Cooperative Loan, the related
Cooperative Shares and Proprietary Lease, securing the indebtedness of the
Mortgagor under the related Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
NAS Certificate: Not applicable.
NAS Percentage: Not applicable.
NAS Prepayment Shift Percentage: Not applicable.
NAS Priority Amount: Not applicable.
NAS Scheduled Principal Percentage: Not applicable.
Negative Amortization Certificate: None.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds net of unreimbursed expenses incurred
in connection with liquidation or foreclosure and unreimbursed Advances,
Servicing Advances and Servicing Fees, if any, received and retained in
connection with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage
Rate thereof reduced by the sum of the applicable Servicing Fee Rate, the
Trustee Fee Rate and, if applicable, the premium rate on any lender-provided
mortgage insurance.
Net Prepayment Interest Shortfall: With respect to each Mortgage
Pool and any Distribution Date, the excess, if any, of any Prepayment
Interest Shortfalls with respect to the Mortgage Loans in such Mortgage Pool
for such date over the sum of any amounts paid by the Servicers with respect
to such shortfalls and any amount that is required to be paid by the Master
Servicer in respect of such shortfalls pursuant to this Agreement.
Non-AP Percentage: As to any Discount Mortgage Loan, the percentage
equivalent of the fraction, the numerator of which is the Net Mortgage Rate
of such Discount Mortgage Loan and the denominator of which is the Designated
Rate. As to any Non-Discount Mortgage Loan, 100%.
19
Non-AP Pool Balance: As to each Pool and any Distribution Date, the
sum of the applicable Non-AP Percentage of the Scheduled Principal Balance of
each Mortgage Loan included in such Mortgage Pool.
Non-AP Senior Certificate: Any Senior Certificate other than a Class
1-AP or Class 2-AP Certificate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Rate equal to or greater than 6.75% per annum.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than (i) a citizen or resident of
the United States; (ii) a corporation (or entity treated as a corporation for
tax purposes) created or organized in the United States or under the laws of
the United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a partnership
for tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; or (v) a trust,
if a court within the United States is able to exercise primary supervision
over the administration of the trust and one or more U.S. Persons have
authority to control all substantial decisions of the trust. Notwithstanding
the last clause of the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
U.S. Persons prior to such date, may elect to continue to be U.S. Persons.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class 1-AX and Class 2-AX Certificate.
Notional Component: Not applicable.
Offering Document: Either of the private placement memorandum dated
February 27, 2002 relating to the Class B4, Class B5 and Class B6
Certificates, or the Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee, and who may be in-house or
outside counsel to the Depositor, the Master Servicer or a Servicer but which
must be Independent outside counsel with respect to any
20
such opinion of counsel concerning the transfer of any Residual Certificate
or concerning certain matters with respect to ERISA, or the taxation, or the
federal income tax status, of the REMIC. For purpose of Section 2.01(c)(i),
the Opinion of Counsel referred to therein may take the form of a memorandum
of law or other acceptable assurance.
Original Credit Support Percentage: With respect to each Class of
Subordinate Certificates, the Credit Support Percentage for such Class of
Certificates on the Closing Date.
Original Group Subordinate Amount: As to either Mortgage Pool, the
Group Subordinate Amount for such Mortgage Pool on the Closing Date.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate and the related
Class, such Certificate's percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the
same Class as such Certificate. With respect to any Certificate other than a
Notional Certificate, the Percentage Interest evidenced thereby shall equal
the initial Certificate Principal Amount thereof divided by the initial Class
Principal Amount of all Certificates of the same Class. With respect to any
Notional Certificate, the Percentage Interest evidenced thereby shall equal
the initial Class Notional Amount divided by the initial Class Notional
Amount of all Certificates of the same Class.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: ▇▇▇▇▇▇ Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set
forth in 29 C.F.R. 2510.3-101.
Pool 1: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 1.
Pool 1 Mortgage Loan: Any Mortgage Loan in Pool 1.
Pool 2: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 2.
Pool 2 Mortgage Loan: Any Mortgage Loan in Pool 2.
Pool PMI Policy: Not applicable.
21
Preference Amount: Not applicable.
Prepayment Interest Excess: With respect to any Distribution Date
and any Principal Prepayment in full received on the Mortgage Loans serviced
by Aurora from the first day through the sixteenth day of the month during
which such Distribution Date occurs, all amounts paid in respect of interest
at the applicable Net Mortgage Rate on such Principal Prepayment.
Prepayment Interest Shortfall: With respect to any Distribution Date
any Principal Prepayment in part and any Principal Prepayment in full, the
difference between (i) one full month's interest at the applicable Mortgage
Rate (after giving effect to any applicable Relief Act Reduction), as reduced
by the applicable Servicing Fee Rate and the Master Servicing Fee Rate (if
the Master Servicer is acting as Servicer), on the outstanding principal
balance of such Mortgage Loan immediately prior to such prepayment and (ii)
the amount of interest actually received with respect to such Mortgage Loan
in connection with such Principal Prepayment.
Prepayment Penalty Amounts: With respect to any Distribution Date,
all premiums or charges paid by the obligors under the related Mortgage Notes
due to Principal Prepayments collected by the Servicers during the
immediately preceding Prepayment Period.
Prepayment Period: With respect to any Distribution Date and any
Principal Prepayment, whether in part or in full (including any liquidation),
the calendar month immediately preceding the month in which such Distribution
Date occurs.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if
any, on an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Amount Schedules: Not applicable.
Principal Only Certificate: Any Class 1-AP or Class 2-AP Certificate.
Principal Only Component: Not applicable.
Principal Prepayment: Any Mortgagor payment of principal (other than
a Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the applicable Servicing
Agreement.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated February 25, 2002,
together with the accompanying prospectus dated February 25, 2002, relating
to each Class of Certificates other than the Class B4, Class B5 and Class B6
Certificates.
22
Purchase Price: With respect to the repurchase of a Mortgage Loan
pursuant to this Agreement, an amount equal to the sum of (a) 100% of the
unpaid principal balance of such Mortgage Loan, (b) accrued interest thereon
at the Mortgage Rate, from the date as to which interest was last paid to
(but not including) the Due Date immediately preceding the related
Distribution Date and (c) any unreimbursed Servicing Advances with respect to
such Mortgage Loan. The Master Servicer or the applicable Servicer (or the
Trustee, if applicable) shall be reimbursed from the Purchase Price for any
Mortgage Loan or related REO Property for any Advances made with respect to
such Mortgage Loan that are reimbursable to the Master Servicer, such
Servicer or the Trustee under this Agreement or the related Servicing
Agreement, as well as any unreimbursed Servicing Advances and accrued and
unpaid Master Servicing Fees or Servicing Fees, as applicable.
QIB: As defined in Section 3.03(c).
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Collection Account or the
Certificate Account and insuring a minimum, fixed or floating rate of return
on investments of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other corporation
whose long-term debt is rated by each Rating Agency in one of its two highest
rating categories or, if such insurance company has no long-term debt, whose
claims paying ability is rated by each Rating Agency in one of its two
highest rating categories, and whose short-term debt is rated by each Rating
Agency in its highest rating category;
(b) provide that the Trustee may exercise all of the rights under
such contract or surety bond without the necessity of taking any action by
any other Person;
(c) provide that if at any time the then current credit standing of
the obligor under such guaranteed investment contract is such that continued
investment pursuant to such contract of funds would result in a downgrading
of any rating of the Certificates, the Trustee shall terminate such contract
without penalty and be entitled to the return of all funds previously
invested thereunder, together with accrued interest thereon at the interest
rate provided under such contract to the date of delivery of such funds to
the Trustee;
(d) provide that the Trustee's interest therein shall be
transferable to any successor trustee hereunder; and
(e) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Collection Account or the Certificate
Account, as the case may be, not later than the Business Day prior to any
Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the related Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided and whose claims
paying ability is rated by each Rating Agency in its highest rating category
or whose selection as an insurer will not adversely affect the rating of the
Certificates.
23
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of
any other mortgage loan substituted for the same Deleted Mortgage Loan) as of
the Due Date in the month in which such substitution occurs not in excess of
the Scheduled Principal Balance of the related Deleted Mortgage Loan;
provided, however, that, to the extent that the Scheduled Principal Balance
of such Mortgage Loan is less than the Scheduled Principal Balance of the
related Deleted Mortgage Loan, then such differential in principal amount,
together with interest thereon at the applicable Mortgage Rate net of the
Master Servicing Fee and the applicable Servicing Fee from the date as to
which interest was last paid through the end of the Due Period in which such
substitution occurs, shall be paid by the party effecting such substitution
to the Trustee for deposit into the Certificate Account, and shall be treated
as a Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not lower
than the Net Mortgage Rate of the related Deleted Mortgage Loan and will be a
Discount Mortgage Loan if the Deleted Mortgage Loan was a Discount Mortgage
Loan or a Non-Discount Mortgage Loan if the Deleted Mortgage Loan was a
Non-Discount Mortgage Loan; (iii) has a remaining stated term to maturity not
longer than, and not more than one year shorter than, the remaining term to
stated maturity of the related Deleted Mortgage Loan; (iv) (A) has a
Loan-to-Value Ratio as of the date of such substitution of not greater than
80%; provided, however, that if the related Deleted Mortgage Loan has a
Loan-to-Value Ratio of greater than 80%, then the Loan-to-Value Ratio of such
substitute Mortgage Loan may be greater than 80% but shall not be greater
than the Loan-to-Value Ratio of the related Deleted Mortgage Loan and (B) the
addition of such substitute Mortgage Loan does not increase the weighted
average Loan-to-Value Ratio of the related Mortgage Pool by more than 5%; (v)
will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date as of which such substitution
occurs; (vi) is not a Cooperative Loan unless the related Deleted Mortgage
Loan was a Cooperative Loan; (vii) if applicable, has the same index as and a
margin not less than that of the related Deleted Mortgage Loan; (viii) has
not been delinquent for a period of more than 30 days more than once in the
twelve months immediately preceding such date of substitution; (ix) is
covered by a Primary Mortgage Insurance Policy if the related Deleted
Mortgage Loan is so covered, and the Loan-to-Value Ratio of such Mortgage
Loan is greater than 80%; and (x) has a Credit Score not greater than 20
points lower than the Credit Score of the related Deleted Mortgage Loan;
provided, however, that if the Deleted Mortgage Loan does not have a Credit
Score, then such substitute Mortgage Loan shall have a Credit Score equal to
or greater than 700. In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one mortgage
loan is substituted for one or more Deleted Mortgage Loans, then (a) the
Scheduled Principal Balance referred to in clause (i) above shall be
determined such that the aggregate Scheduled Principal Balance of all such
substitute Mortgage Loans shall not exceed the aggregate Scheduled Principal
Balance of all Deleted Mortgage Loans and (b) each of (1) the rate referred
to in clause (ii) above, (2) the remaining term to stated maturity referred
to in clause (iii) above, (3) the Loan-to-Value Ratio referred to in clause
(iv) above and (4) the Credit Score referred to in clause (x) above shall be
determined on a weighted average basis, provided that the final scheduled
maturity date of any Qualifying Substitute Mortgage Loan shall not exceed the
Final Scheduled Distribution Date of any Class of Certificates. Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage
Loan pursuant to this Agreement, the party effecting such substitution shall
certify such qualification in writing to the Trustee.
24
Rating Agency: Each of S&P, ▇▇▇▇▇'▇ and Fitch.
Realized Loss: (a) with respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, plus (ii) interest at the applicable Net Mortgage
Rate from the date as to which interest was last paid up to the last day of
the month of such liquidation, minus (iii) Liquidation Proceeds received, net
of amounts that are reimbursable to the Master Servicer or the applicable
Servicer with respect to such Mortgage Loan (other than Advances of principal
and interest) including expenses of liquidation, and (b) with respect to each
Mortgage Loan that has become the subject of a Deficient Valuation, the
difference between the unpaid principal balance of such Mortgage Loan
immediately prior to such Deficient Valuation and the unpaid principal
balance of such Mortgage Loan as reduced by the Deficient Valuation. In
determining whether a Realized Loss on a Liquidated Mortgage Loan is a
Realized Loss of interest or principal, Liquidation Proceeds shall be
allocated, first, to payment of expenses related to such Liquidated Mortgage
Loan, then to accrued unpaid interest and finally to reduce the principal
balance of the Mortgage Loan.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the related Cooperative Corporation and the originator of
such Mortgage Loan to establish the rights of such originator in the related
Cooperative Property.
Record Date: With respect to any Distribution Date and each Class of
-Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs with
respect to any Distribution Date.
Redemption Certificate: None.
Reference Banks: Not applicable.
Regulation S: Regulation S promulgated under the Act or any
successor provision thereto, in each case as the same may be amended from
time to time; and all references to any rule, section or subsection of, or
definition or term contained in, Regulation S means such rule, section,
subsection, definition or term, as the case may be, or any successor thereto,
in each case as the same may be amended from time to time.
Regulation S Global Security: The meaning specified in Section
3.01(c).
Relevant UCC: The Uniform Commercial Code as in effect in the
applicable jurisdiction.
Relief Act Reduction: With respect to any Mortgage Loan as to which
there has been a reduction in the amount of interest collectible thereon as a
result of application of the Solders' and Sailors' Civil Relief Act of 1940,
as amended, any amount by which interest collectible on such Mortgage Loan
for the Due Date in the related Due Period is less than interest accrued
thereon for the applicable one-month period at the Mortgage Rate without
giving effect to such reduction.
REMIC: The REMIC, as described in the Preliminary Statement hereto.
25
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at
sections 860A through 86OG of Subchapter M of Chapter 1 of the Code, and
related provisions, and regulations, including proposed regulations and
rulings, and administrative pronouncements promulgated thereunder, as the
foregoing may be in effect from time to time.
Remittance Date: The day in each month on which each Servicer is
required to remit payments to the account maintained by the Master Servicer,
as specified in the related Servicing Agreement, which is the 18th day of
each month (or if such 18th day is not a Business Day, the next succeeding
Business Day).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan or otherwise treated as having been acquired pursuant
to the REMIC Provisions.
Reserve Interest Rate: Not applicable.
Residual Certificate: Any Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
any Trust Officer, the Treasurer, or any assistant treasurer, working in its
corporate trust department and having direct responsibility for the
administration of this Agreement.
Restricted Certificate: Any Class B4, Class B5 or Class B6
Certificate and any Restricted Global Security.
Restricted Global Security: The meaning specified in Section 3.01(c).
Retained Interest: Not applicable.
Retained Interest Mortgage Loan: Not applicable.
Retained Interest Holder: Not applicable.
Retained Interest Rate: Not applicable.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., or any successor in interest.
Scheduled Amount: Not applicable.
Scheduled Certificate: None.
Scheduled Component: None.
Scheduled Payment: Each scheduled payment of principal and interest
(or of interest only, if applicable) to be paid by the Mortgagor on a
Mortgage Loan, as reduced (except where otherwise specified herein) by the
amount of any related Debt Service Reduction (excluding all
26
amounts of principal and interest that were due on or before the Cut-off Date
whenever received) and, in the case of an REO Property, an amount equivalent
to the Scheduled Payment that would have been due on the related Mortgage
Loan if such Mortgage Loan had remained in existence. In the case of any
bi-weekly payment Mortgage Loan, all payments due on such Mortgage Loan
during any Due Period shall be deemed collectively to constitute the
Scheduled Payment due on such Mortgage Loan in such Due Period.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan
as of any Distribution Date, the principal balance of such Mortgage Loan at
the close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or
before the Due Date in the related Due Period, whether or not received from
the Mortgagor or advanced by the applicable Servicer or the Master Servicer,
and all amounts allocable to unscheduled principal payments (including
Principal Prepayments, Net Liquidation Proceeds, Insurance Proceeds and
condemnation proceeds, in each case to the extent identified and applied
prior to or during the applicable Prepayment Period) and (ii) any REO
Property as of any Distribution Date, the Scheduled Principal Balance of the
related Mortgage Loan on the Due Date immediately preceding the date of
acquisition of such REO Property by or on behalf of the Trustee (reduced by
any amount applied as a reduction of principal on the Mortgage Loan). With
respect to any Mortgage Loan as of the Cut-off Date, as specified in the
Mortgage Loan Schedule.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Cooperative Shares and the
originator of the related Mortgage Note that defines the terms of the
security interest in such Cooperative Shares and the related Proprietary
Lease.
Security Entitlement: The meaning specified in Section 8-102(a)(17)
of the UCC.
Seller: Either of (i) ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers
Holdings Inc., or any successor in interest or (ii) ▇▇▇▇▇▇ Brothers Bank,
FSB, or any successor in interest.
Senior Certificate: Any Class 1-A Class 2-A, Class 1-AX, Class 2-AX,
Class 1-AP, Class 2-AP, or Class R Certificate.
Senior Percentage: With respect to each Mortgage Pool and any
Distribution Date, the percentage equivalent of the fraction, the numerator
of which is the aggregate of the Certificate Principal Amounts of each Class
of Senior Certificates (other than any Notional Certificate and the Class AP
Certificates) in each case relating to such Mortgage Pool, immediately prior
to such Distribution Date and the denominator of which is the related Non-AP
Pool Balance for the immediately preceding Distribution Date.
Senior Prepayment Percentage: With respect to each Mortgage Pool and
any Distribution Date occurring during the five years beginning on the first
Distribution Date, 100%. With respect to each Mortgage Pool and for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date, the related Senior Percentage plus the following
percentage of the related Subordinate Percentage for such Distribution Date:
for any Distribution
27
Date in the first year thereafter, 70%; for any Distribution Date in the
second year thereafter, 60%; for any Distribution Date in the third year
thereafter, 40%; for any Distribution Date in the fourth year thereafter,
20%; and for any subsequent Distribution Date, 0%; provided, however, that if
on any of the foregoing Distribution Dates the Senior Percentage for a
Mortgage Pool exceeds the initial Senior Percentage for such Mortgage Pool,
the Senior Prepayment Percentage for each Mortgage Pool for such Distribution
Date shall once again equal 100% for such Distribution Date.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage for either Mortgage Pool below the level in effect for the most
recent prior period set forth in the paragraph above shall be effective on
any Distribution Date if, as of the first Distribution Date as to which any
such decrease applies, (i) the average outstanding principal balance on such
Distribution Date and for the preceding five Distribution Dates of all
Mortgage Loans in such Mortgage Pool that were delinquent 60 days or more
(including for this purpose any REO Property or Mortgage Loans in foreclosure
and the Scheduled Payments that would have been due on Mortgage Loans with
respect to which the related Mortgaged Property has been acquired by the
Trust Fund if the related Mortgage Loan had remained in existence) is greater
than or equal to 50% of the applicable Group Subordinate Amount immediately
prior to such Distribution Date or (ii) cumulative Realized Losses with
respect to the Mortgage Loans in such Mortgage Pool exceed (a) with respect
to the Distribution Date on the fifth anniversary of the first Distribution
Date, 30% of the related Original Group Subordinate Amount, (b) with respect
to the Distribution Date on the sixth anniversary of the first Distribution
Date, 35% of the related Original Group Subordinate Amount, (c) with respect
to the Distribution Date on the seventh anniversary of the first Distribution
Date, 40% of the related Original Group Subordinate Amount, (d) with respect
to the Distribution Date on the eighth anniversary of the first Distribution
Date, 45% of the related Original Group Subordinate Amount, and (e) with
respect to the Distribution Date on the ninth anniversary of the first
Distribution Date or thereafter, 50% of the related Original Group
Subordinate Amount. After the Class Principal Amount of each Class of Senior
Certificates in any Certificate Group has been reduced to zero, the Senior
Prepayment Percentage for the related Mortgage Pool shall be 0%.
Senior Principal Distribution Amount: For each Certificate Group and
any Distribution Date, the sum of the following amounts:
(i) the product of (1) the related Senior Percentage for such
date and (2) the principal portion (multiplied by the applicable
Non-AP Percentage) of each Scheduled Payment (without giving effect
to any Debt Service Reduction occurring prior to the Bankruptcy
Coverage Termination Date), on each Mortgage Loan in the related
Mortgage Pool due during the related Due Period;
(ii) the product of (a) the related Senior Prepayment
Percentage for such date and (b) each of the following amounts
(multiplied by the applicable Non-AP Percentage): (1) each Principal
Prepayment on the Mortgage Loans in the related Mortgage Pool
collected during the related Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan
in the related Mortgage Pool that was finally liquidated during the
related Prepayment Period) representing or allocable to recoveries
of principal received
28
during the related Prepayment Period, and (3) the principal portion
of all proceeds of the purchase of any Mortgage Loan in the related
Mortgage Pool (or, in the case of a permitted substitution, amounts
representing a principal adjustment) actually received by the
Trustee during the related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable to
principal of any Mortgage Loan in the related Mortgage Pool that was
finally liquidated during the related Prepayment Period, the lesser
of (a) the related net Liquidation Proceeds allocable to principal
(multiplied by the applicable Non-AP Percentage) and (b) the product
of the related Senior Prepayment Percentage for such date and the
Scheduled Principal Balance (multiplied by the applicable Non-AP
Percentage) of such related Mortgage Loan at the time of
liquidation; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
If on any Distribution Date the Class Principal Amount of each Class of
Senior Certificates (other than any Class AP Certificates) in any Certificate
Group has been reduced to zero, the Senior Principal Distribution Amount for
such Certificate Group for such date (following such reduction) and each
subsequent Distribution Date shall be zero.
Senior Principal Priorities: The priorities for distribution of
principal to the Senior Certificates as set forth in Exhibit O.
Servicer: Any Servicer that has entered into any of the Servicing
Agreements attached as Exhibit E hereto, or any successors in interest.
Servicing Advances: Expenditures incurred by the Servicer in
connection with the liquidation or foreclosure of a Mortgage Loan which are
eligible for reimbursement under the Servicing Agreement.
Servicing Agreement: Each Servicing Agreement between a Servicer and
the related Seller dated as of February 1, 2002, attached hereto in Exhibit
E, and any other servicing agreement entered into between a successor
servicer and the related Seller or the Trustee pursuant to the terms hereof.
Servicing Fee: The Servicing Fee specified in the applicable
Servicing Agreement.
Servicing Fee Rate: With respect to any Servicer, as specified in
the applicable Servicing Agreement.
Servicing Officer: Any officer of the Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished
by the Master Servicer to the Trustee, as such list may from time to time be
amended.
Special Hazard Loss: With respect to the Mortgage Loans, (x) any
Realized Loss arising out of any direct physical loss or damage to a
Mortgaged Property which is caused by or results
29
from any cause, exclusive of any loss covered by a hazard policy or a flood
insurance policy required to be maintained in respect of such Mortgaged
Property and any loss caused by or resulting from (i) normal wear and tear,
(ii) conversion or other dishonest act on the part of the Trustee, the Master
Servicer, any Servicer or any of their agents or employees, or (iii) errors
in design, faulty workmanship or faulty materials, unless the collapse of the
property or a part thereof ensues, or (y) any Realized Loss arising from or
related to the presence or suspected presence of hazardous wastes, or
hazardous substances on a Mortgaged Property unless such loss is covered by a
hazard policy or flood insurance policy required to be maintained in respect
of such Mortgaged Property, in any case, as reported by any Servicer to the
Master Servicer.
Special Hazard Loss Limit: As of the Cut-off Date, $2,896,541, which
amount shall be reduced from time to time to an amount equal on any
Distribution Date to the lesser of (a) the greatest of (i) 1% of the
aggregate of the Scheduled Principal Balances of the Mortgage Loans; (ii)
twice the Scheduled Principal Balance of the Mortgage Loan having the highest
Scheduled Principal Balance, and (iii) the aggregate Scheduled Principal
Balances of the Mortgage Loans secured by Mortgaged Properties located in the
single California postal zip code area having the highest aggregate Scheduled
Principal Balance of Mortgage Loans of any such postal zip code area and (b)
the Special Hazard Loss Limit as of the Closing Date less the amount, if any,
of Special Hazard Losses incurred with respect to Mortgage Loans since the
Closing Date.
Specified Rating: Not applicable.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Subordinate Certificate: Any Class B Certificate.
Subordinate Certificate Writedown Amount: As to any Distribution
Date, the amount by which (i) the sum of the Class Principal Amounts of all
the Certificates (after giving effect to the distribution of principal and
the application of Realized Losses in reduction of the Certificate Principal
Amounts of the Certificates on such Distribution Date) exceeds (ii) the
aggregate Scheduled Principal Balance of the Mortgage Loans for such
Distribution Date.
Subordinate Class Percentage: With respect to any Distribution Date
and any Class of Subordinate Certificates, the percentage obtained by
dividing the Class Principal Amount of such Class immediately prior to such
Distribution Date by the aggregate Certificate Principal Amount of all
Subordinate Certificates immediately prior to such Distribution Date.
Subordinate Component Percentage: Not applicable.
Subordinate Percentage: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior
Percentage for such Distribution Date.
Subordinate Prepayment Percentage: With respect to each Mortgage
Pool and any Distribution Date, the difference between 100% and the related
Senior Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: For each Certificate
Group and any Distribution Date, the sum of the following:
30
(i) the product of (1) the related Subordinate Percentage for
such date and (2) the principal portion (multiplied by the
applicable Non-AP Percentage) of each Scheduled Payment (without
giving effect to any Debt Service Reduction occurring prior to the
applicable Bankruptcy Coverage Termination Date) on each Mortgage
Loan in the related Mortgage Pool due during the related Due Period;
(ii) the product of (a) the related Subordinate Prepayment
Percentage for such date and (b) each of the following amounts
(multiplied by the applicable Non-AP Percentage): (1) each Principal
Prepayment on the Mortgage Loans in the related Mortgage Pool
collected during the related Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan
in the related Mortgage Pool that was finally liquidated during the
related Prepayment Period) representing or allocable to recoveries
of principal received during the related Prepayment Period, and (3)
the principal portion of all proceeds of the purchase of any
Mortgage Loan in the related Mortgage Pool (or, in the case of a
permitted substitution, amounts representing a principal adjustment)
actually received by the Trustee during the related Prepayment
Period;
(iii) with respect to unscheduled recoveries allocable to
principal of any Mortgage Loan in the related Mortgage Pool that was
finally liquidated during the related Prepayment Period, the related
net Liquidation Proceeds allocable to principal (multiplied by the
applicable Non-AP Percentage) less any related amount paid pursuant
to subsection (iii) of the definition of Senior Principal
Distribution Amount for the related Certificate Group; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
TAC Amount: Not applicable.
TAC Certificate: None.
TAC Component: None.
Tax Matters Person: The "tax matters person" as specified in the
REMIC Provisions.
Termination Price: As defined in Section 7.01 hereof.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: Each seller of Mortgage Loans to ▇▇▇▇▇▇ Capital or
▇▇▇▇▇▇ Bank as applicable, pursuant to a Transfer Agreement.
31
Trust Fund: The corpus of the trust created pursuant to this
Agreement, consisting of the Mortgage Loans, the assignment of the
Depositor's rights under the Mortgage Loan Sale Agreements, such amounts as
shall from time to time be held in the Collection Account, the Certificate
Account, any Escrow Account, the Insurance Policies, any REO Property and the
other items referred to in, and conveyed to the Trustee under, Section
2.01(a).
Trust Rate: Not applicable.
Trustee: JPMorgan Chase Bank, not in its individual capacity but
solely as Trustee, or any successor in interest, or if any successor trustee
or any co-trustee shall be appointed as herein provided, then such successor
trustee and such co-trustee, as the case may be.
Trustee Fee: As to any Distribution Date, an amount equal to the
product of the Trustee Fee Rate and the aggregate Scheduled Principal Balance
of the Mortgage Loans as of the first day of the related Due Period.
Trustee Fee Rate: 0.0035% per annum.
UCC: The Uniform Commercial Code as adopted in the State of New York.
Undercollateralization Distribution: As defined in Section 5.02(g)(2).
Undercollateralized Group: With respect to any Distribution Date,
the Non-AP Senior Certificates of any Certificate Group as to which the
aggregate Certificate Principal Amount thereof, after giving effect to
distributions pursuant to Sections 5.02(a) and (b) on such date is greater
than the Non-AP Pool Balance of the related Mortgage Pool for such
Distribution Date.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58,
65 Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Unscheduled Principal Amount: With respect to each Distribution Date
and either Mortgage Pool, the amount described in clauses (ii) and (iii)
(without application of the related Senior Prepayment Percentage) of the
definition of Senior Principal Distribution Amount with respect to such
Mortgage Pool.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement
until the Class Notional Amount of each Class of Notional Certificates has
been reduced to zero, 95% of all Voting Interests shall be allocated to the
Certificates other than the Notional Certificates and 5% of all Voting
Interests shall be allocated to the Notional Certificates. After the Class
Notional Amount of each Class of Notional Certificate has been reduced to
zero, 100% of all Voting Interests shall be allocated to the remaining
Classes of Certificates. Voting Interests allocated to the Notional
Certificates shall be allocated among the Classes of such Certificates (and
among the Certificates of each such Class) in proportion to their Class
Notional Amounts (or Notional Amounts). Voting Interests shall be allocated
among the other Classes of Certificates (and among the Certificates of each
such Class) in proportion to their Class Principal Amounts (or Certificate
Principal Amounts).
32
Section 1.02. Calculations Respecting Mortgage Loans.
Calculations required to be made pursuant to this Agreement with
respect to any Mortgage Loan in the Trust Fund shall be made based upon
current information as to the terms of the Mortgage Loans and reports of
payments received from the Mortgagor on such Mortgage Loans and payments to
be made to the Trustee as supplied to the Trustee by the Master Servicer. The
Trustee shall not be required to recompute, verify or recalculate the
information supplied to it by the Master Servicer.
Article II DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this Agreement,
the Depositor does hereby transfer, assign, set over, deposit with and
otherwise convey to the Trustee, without recourse, subject to Sections 2.02,
2.04, 2.05 and 2.06, in trust, all the right, title and interest of the
Depositor in and to the Mortgage Loans. Such conveyance includes, without
limitation, the right to all distributions of principal and interest received
on or with respect to the Mortgage Loans on and after the Cut-off Date (other
than payments of principal and interest due on or before such date) and all
such payments due after such date but received prior to such date and
intended by the related Mortgagors to be applied after such date, together
with all of the Depositor's right, title and interest in and to the
Collection Account and all amounts from time to time credited to and the
proceeds of the Collection Account, the Certificate Account and all amounts
from time to time credited to and the proceeds of the Certificate Account,
any Escrow Account established pursuant to Section 9.06 hereof and all
amounts from time to time credited to and the proceeds of any such Escrow
Account, any REO Property and the proceeds thereof, the Depositor's rights
under any Insurance Policies related to the Mortgage Loans, and the
Depositor's security interest in any collateral pledged to secure the
Mortgage Loans, including the Mortgaged Properties and any Additional
Collateral, and any proceeds of the foregoing, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust,
for the benefit and use of the Holders of the Certificates and for the
purposes and subject to the terms and conditions set forth in this Agreement,
and, concurrently with such receipt, has caused to be executed, authenticated
and delivered to or upon the order of the Depositor, in exchange for the
Trust Fund, Certificates in the authorized denominations evidencing the
entire ownership of the Trust Fund.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under each Mortgage Loan Sale Agreement including all rights of the related
Seller under the related Servicing Agreements to the extent assigned under
such Mortgage Loan Sale Agreement. The Trustee hereby accepts such
assignment, and shall be entitled to exercise all rights of the Depositor
under the related Mortgage Loan Sale Agreement as if, for such purpose, it
were the Depositor. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, any Seller, or
any
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other Person in connection with the Mortgage Loans or any other agreement
or instrument relating thereto except as specifically set forth herein..
(b) In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, or cause to be delivered to and
deposited with, the Trustee, and/or any custodian acting on the Trustee's
behalf, if applicable, the following documents or instruments with respect to
each Mortgage Loan (each a "Mortgage File") so transferred and assigned:
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee, as
shown in Exhibit B-4, or in blank (in each case, with all necessary
intervening endorsements as applicable);
(ii) the original of any guarantee executed in connection with
the Mortgage Note, assigned to the Trustee;
(iii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original recorded Mortgage with evidence of
recording indicated thereon. If, in connection with any Mortgage Loan,
the Depositor cannot deliver the Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost, the Depositor shall
deliver or cause to be delivered to the Trustee (or its custodian), in
the case of a delay due to recording, a true copy of such Mortgage,
pending delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such Mortgage
delivered to the Trustee (or its custodian) is a true copy and that the
original of such Mortgage has been forwarded to the public recording
office, or, in the case of a Mortgage that has been lost, a copy thereof
(certified as provided for under the laws of the appropriate
jurisdiction) and a written Opinion of Counsel acceptable to the Trustee
and the Depositor that an original recorded Mortgage is not required to
enforce the Trustee's interest in the Mortgage Loan;
(iv) the original of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loans, or, as
to any assumption, modification or substitution agreement which cannot
be delivered on or prior to the Closing Date because of a delay caused
by the public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy
of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer's Certificate
of the Depositor certifying that the copy of such assumption,
modification or substitution agreement delivered to the Trustee (or its
custodian) is a true copy and that the original of such agreement has
been forwarded to the public recording office;
(v) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each Mortgage
Loan;
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(vi) if applicable, such original intervening assignments of
the Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete chain
of assignment from the originator, or, in the case of an Intervening
Assignment that has been lost, a written Opinion of Counsel acceptable
to the Trustee that such original Intervening Assignment is not required
to enforce the Trustee's interest in the Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or
certificate, if private mortgage guaranty insurance is required;
(viii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original mortgagee title insurance policy or
attorney's opinion of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage
or equivalent executed in connection with the Mortgage or as to any
security agreement, chattel mortgage or their equivalent that cannot be
delivered on or prior to the Closing Date because of a delay caused by
the public recording office where such document has been delivered for
recordation, a photocopy of such document, pending delivery of the
original thereof, together with an Officer's Certificate of the
Depositor certifying that the copy of such security agreement, chattel
mortgage or their equivalent delivered to the Trustee (or its custodian)
is a true copy and that the original of such document has been forwarded
to the public recording office;
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents;
(xi) in connection with any pledge of Additional Collateral, the
original additional collateral pledge and security agreement executed in
connection therewith, assigned to the Trustee; and
(xii) with respect to any manufactured housing contract, any
related manufactured housing sales contract, installment loan agreement
or participation interest.
The parties hereto acknowledge and agree that the form of
endorsement attached hereto as Exhibit B-4 is intended to effect the transfer
to the Trustee, for the benefit of the Certificateholders, of the Mortgage
Notes and the Mortgages.
(c) (i) Assignments of Mortgage with respect to each Non-MERS
Mortgage Loan other than a Cooperative Loan shall be recorded; provided,
however, that such Assignments need not be recorded if, in the Opinion of
Counsel (which must be from Independent counsel) (which Opinion of Counsel
may be in the form of a memorandum of law) acceptable to the Trustee and the
Rating Agencies, recording in such states is not required to protect the
Trustee's interest in the related Non-MERS Mortgage Loans. Subject to the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than 3 months thereafter except to the extent delays are caused by
the applicable recording office), the Trustee, at the expense of the
Depositor and with the cooperation of applicable Servicer, shall cause to be
properly recorded by such Servicer in each public recording office where the
related Mortgages are recorded each Assignment of Mortgage referred to in
subsection (b)(v) above with respect to a Non-MERS Mortgage Loan. With
respect to each Cooperative Loan, the Trustee, at the expense of the
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Depositor and with the cooperation of applicable Servicer, shall cause such
Servicer to take such actions as are necessary under applicable law in order
to perfect the interest of the Trustee in the related Mortgaged Property.
(i) With respect to each MERS Mortgage Loan, the applicable
Servicer, at the expense of the Depositor and with the cooperation
of the Trustee, shall take such actions as are necessary to cause
the Trustee to be clearly identified as the owner of each such
Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee, or to the applicable Custodian on behalf of the
Trustee, under clause (b)(viii) above and is not so delivered, the Depositor
will provide a copy of such Title Insurance Policy to the Trustee, or to the
applicable Custodian on behalf of the Trustee, as promptly as practicable
after the execution and delivery hereof, but in any case within 180 days of
the Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer's Certificate which
shall include a statement to the effect that all amounts received in
connection with such prepayment that are required to be deposited in the
applicable Collection Account pursuant to Section 4.01 have been so
deposited. All original documents that are not delivered to the Trustee or
the applicable Custodian on behalf of the Trustee shall be held by the Master
Servicer or the applicable Servicer in trust for the benefit of the Trustee
and the Certificateholders.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund.
(a) The Trustee, by execution and delivery hereof, acknowledges
receipt by the Custodian of the Mortgage Files pertaining to the Mortgage
Loans listed on the Mortgage Loan Schedule, subject to review thereof by the
Trustee, or by the applicable Custodian on behalf of the Trustee, under this
Section 2.02. The Trustee, or the applicable Custodian on behalf of the
Trustee, will execute and deliver to the Trustee, the Depositor and the
Master Servicer on the Closing Date an Initial Certification in the form
annexed hereto as Exhibit B-1 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-1, as applicable).
(b) Within 45 days after the Closing Date, the applicable Custodian
will, on behalf of the Trustee and for the benefit of Holders of the
Certificates, review each Mortgage File to ascertain that all required
documents set forth in Section 2.01 have been received and appear on their
face to contain the requisite signatures by or on behalf of the respective
parties thereto, and shall deliver to the Trustee, the Depositor and the
Master Servicer an Interim Certification in the form annexed hereto as
Exhibit B-2 (or in the form annexed to the applicable Custodial Agreement as
Exhibit B-2, as applicable) to the effect that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan prepaid in
full or any Mortgage Loan specifically identified in such certification as
not covered by such certification), (i) all of the applicable documents
specified in Section 2.01(b) are in its possession and (ii) such
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documents have been reviewed by it and appear to relate to such Mortgage
Loan. The Trustee, or the applicable Custodian on behalf of the Trustee,
shall make sure that the documents are executed and endorsed, but shall be
under no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that the same are
valid, binding, legally effective, properly endorsed, genuine, enforceable or
appropriate for the represented purpose or that they have actually been
recorded or are in recordable form or that they are other than what they
purport to be on their face. Neither the Trustee nor any Custodian shall have
any responsibility for verifying the genuineness or the legal effectiveness
of or authority for any signatures of or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (b) above
the Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear
regular on its face (i.e., is mutilated, damaged, defaced, torn or otherwise
physically altered) or appears to be unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule (each, a "Material Defect"), the
Trustee, or the applicable Custodian on behalf of the Trustee, shall promptly
identify the Mortgage Loan to which such Material Defect relates in the
Interim Certificate delivered to the Depositor or the Master Servicer (and to
the Trustee). Within 90 days of its receipt of such notice, the Depositor
shall be required to cure such Material Defect (and, in such event, the
Depositor shall provide the Trustee with an Officer's Certificate confirming
that such cure has been effected). If the Depositor does not so cure such
Material Defect, it shall, if a loss has been incurred with respect to such
Mortgage Loan that would, if such Mortgage Loan were not purchased from the
Trust Fund, constitute a Realized Loss, and such loss is attributable to the
failure of the Depositor to cure such Material Defect, repurchase the related
Mortgage Loan from the Trust Fund at the Purchase Price. A loss shall be
deemed to be attributable to the failure of the Depositor to cure a Material
Defect if, as determined by the Depositor, upon mutual agreement with the
Trustee acting in good faith, absent such Material Defect, such loss would
not have been incurred. Within the two year period following the Closing
Date, the Depositor may, in lieu of repurchasing a Mortgage Loan pursuant to
this Section 2.02, substitute for such Mortgage Loan a Qualifying Substitute
Mortgage Loan subject to the provisions of Section 2.05. The failure of the
Trustee or the applicable Custodian to give the notice contemplated herein
within 45 days after the Closing Date shall not affect or relieve the
Depositor of its obligation to repurchase any Mortgage Loan pursuant to this
Section 2.02 or any other Section of this Agreement requiring the repurchase
of Mortgage Loans from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Trustee, the Depositor and the
Master Servicer a Final Certification substantially in the form annexed
hereto as Exhibit B-3 (or in the form annexed to the applicable Custodial
Agreement as Exhibit B-3, as applicable) evidencing the completeness of the
Mortgage Files in its possession or control, with any exceptions noted
thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
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(f) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and deliver the
respective certifications thereof as provided in this Section 2.02.
Section 2.03. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
the benefit of Certificateholders and to the Master Servicer, as of the
Closing Date or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation
and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter
into and perform its obligations under this Agreement, and to create
the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate
action on the part of the Depositor; neither the execution and
delivery of this Agreement, nor the consummation of the transactions
herein contemplated, nor compliance with the provisions hereof, will
conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or
its properties or the certificate of incorporation or bylaws of the
Depositor;
(iii) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any
other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by
the Trustee and the Master Servicer, constitutes a valid and binding
obligation of the Depositor enforceable against it in accordance
with its terms except as such enforceability may be subject to (A)
applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally and
(B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened or likely to be asserted
against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by this Agreement or
(B) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely
affect it or its business, assets, operations or condition,
financial or otherwise, or adversely affect its ability to perform
its obligations under this Agreement; and
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(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good
and marketable title thereto, and had full right to transfer and
sell each Mortgage Loan to the Trustee free and clear, subject only
to (1) liens of current real property taxes and assessments not yet
due and payable and, if the related Mortgaged Property is a
condominium unit, any lien for common charges permitted by statute,
(2) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of
such Mortgage acceptable to mortgage lending institutions in the
area in which the related Mortgaged Property is located and
specifically referred to in the lender's Title Insurance Policy or
attorney's opinion of title and abstract of title delivered to the
originator of such Mortgage Loan, and (3) such other matters to
which like properties are commonly subject which do not,
individually or in the aggregate, materially interfere with the
benefits of the security intended to be provided by the Mortgage, of
any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign each Mortgage Loan
pursuant to this Agreement.
(b) The representations and warranties of each Transferor with
respect to the related Mortgage Loans in the applicable Transfer Agreement,
which have been assigned to the Trustee hereunder, were made as of the date
specified in the applicable Transfer Agreement (or underlying agreement, if
such Transfer Agreement is in the form of an assignment of a prior
agreement). To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty
of the applicable Transferor under the applicable Transfer Agreement and (ii)
a representation or warranty of ▇▇▇▇▇▇ Capital under the Mortgage Loan Sale
Agreement, the only right or remedy of the Trustee or of any
Certificateholder shall be the Trustee's right to enforce the obligations of
the applicable Transferor under any applicable representation or warranty
made by it. The Trustee acknowledges that ▇▇▇▇▇▇ Capital shall have no
obligation or liability with respect to any breach of a representation or
warranty made by it with respect to the Mortgage Loans if the fact, condition
or event constituting such breach also constitutes a breach of a
representation or warranty made by the applicable Transferor in the
applicable Transfer Agreement, without regard to whether such Transferor
fulfills its contractual obligations in respect of such representation or
warranty. The Trustee further acknowledges that the Depositor shall have no
obligation or liability with respect to any breach of any representation or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
Section 2.04. Discovery of Breach.
It is understood and agreed that the representations and warranties
(i) set forth in Section 2.03, (ii) of ▇▇▇▇▇▇ Capital or of ▇▇▇▇▇▇ Bank set
forth in the related Mortgage Loan Sale Agreement and assigned to the Trustee
by the Depositor hereunder and (iii) of each Transferor, assigned by ▇▇▇▇▇▇
Capital or by ▇▇▇▇▇▇ Bank, as applicable, to the Depositor pursuant to the
related Mortgage Loan Sale Agreement and assigned to the Trustee by the
Depositor hereunder shall each survive delivery of the Mortgage Files and the
Assignment of Mortgage of each Mortgage Loan to the Trustee and shall
continue throughout the term of this Agreement. Upon discovery by any of the
Depositor, the Master Servicer or the Trustee of a breach of any of such
39
representations and warranties that adversely and materially affects the
value of the related Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties. Within 90 days of the
discovery of a breach of any representation or warranty given to the Trustee
by the Depositor, any Transferor, ▇▇▇▇▇▇ Bank or ▇▇▇▇▇▇ Capital and assigned
to the Trustee, the Depositor, such Transferor, ▇▇▇▇▇▇ Bank or ▇▇▇▇▇▇
Capital, as applicable, shall either (a) cure such breach in all material
respects, (b) repurchase such Mortgage Loan or any property acquired in
respect thereof from the Trustee at the Purchase Price or (c) within the two
year period following the Closing Date, substitute a Qualifying Substitute
Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a
breach of any representation and warranty of any Transferor assigned to the
Trustee, the Trustee shall enforce its rights under the applicable Transfer
Agreement and the related Mortgage Loan Sale Agreement for the benefit of
Certificateholders. As provided in each Mortgage Loan Sale Agreement, if any
Transferor substitutes for a Mortgage Loan for which there is a breach of any
representations and warranties in the related Transfer Agreement which
adversely and materially affects the value of such Mortgage Loan and such
substitute mortgage loan is not a Qualifying Substitute Mortgage Loan, under
the terms of such Mortgage Loan Sale Agreement, either ▇▇▇▇▇▇ Capital or
▇▇▇▇▇▇ Bank, as applicable, will, in exchange for such Substitute Mortgage
Loan, (i) provide the applicable Purchase Price for the affected Mortgage
Loan or (ii) within two years of the Closing Date, substitute such affected
Mortgage Loan with a Qualifying Substitute Mortgage Loan.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage
Loans.
(a) With respect to any Mortgage Loan repurchased by the Depositor
pursuant to this Agreement, by ▇▇▇▇▇▇ Capital or ▇▇▇▇▇▇ Bank pursuant to the
related Mortgage Loan Sale Agreement or by any Transferor pursuant to the
applicable Transfer Agreement, the principal portion of the funds received by
the Trustee in respect of such repurchase of a Mortgage Loan will be
considered a Principal Prepayment and shall be deposited in the Collection
Account. The Trustee, upon receipt of the full amount of the Purchase Price
for a Deleted Mortgage Loan, or upon receipt of the Mortgage File for a
Qualifying Substitute Mortgage Loan substituted for a Deleted Mortgage Loan
(and any applicable Substitution Amount), shall release or cause to be
released and reassigned to the Depositor, ▇▇▇▇▇▇ Capital, ▇▇▇▇▇▇ Bank or the
applicable Transferor, as applicable, the related Mortgage File for the
Deleted Mortgage Loan and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation or
warranty, as shall be necessary to vest in such party or its designee or
assignee title to any Deleted Mortgage Loan released pursuant hereto, free
and clear of all security interests, liens and other encumbrances created by
this Agreement, which instruments shall be prepared by the Trustee (or its
custodian), and the Trustee shall have no further responsibility with respect
to the Mortgage File relating to such Deleted Mortgage Loan. Each Seller
indemnifies and holds the Trust Fund, the Trustee, the Depositor and each
Certificateholder harmless against any and all taxes, claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, fees and expenses that the Trust Fund, the
Trustee, the Depositor and any Certificateholder may sustain in connection
with any actions of the related Seller relating to a repurchase of a Mortgage
Loan other than in compliance with the terms of this Section 2.05 and the
related Mortgage Loan Sale Agreement, to the extent that any such action
causes (i) any federal or state tax to be imposed on the Trust Fund,
including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860 of the Code, or (ii) the REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
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(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor, ▇▇▇▇▇▇ Bank or ▇▇▇▇▇▇ Capital, as applicable, must
deliver to the Trustee (or its custodian) the Mortgage File for the
Qualifying Substitute Mortgage Loan containing the documents set forth in
Section 2.01(b) along with a written certification certifying as to the
delivery of such Mortgage File and containing the granting language set forth
in Section 2.01(a); and (ii) the Depositor will be deemed to have made, with
respect to such Qualified Substitute Mortgage Loan, each of the
representations and warranties made by it with respect to the related Deleted
Mortgage Loan. As soon as practicable after the delivery of any Qualifying
Substitute Mortgage Loan hereunder, the Trustee, at the expense of the
Depositor and at the direction and with the cooperation of the applicable
Servicer, shall (i) with respect to a Qualifying Substitute Mortgage Loan
that is a Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be
recorded by such Servicer if required pursuant to Section 2.01(c)(i), or (ii)
with respect to a Qualifying Substitute Mortgage Loan that is a MERS Mortgage
Loan, cause to be taken such actions as are necessary to cause the Trustee to
be clearly identified as the owner of each such Mortgage Loan on the records
of MERS if required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to
the additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee
has received an Opinion of Counsel (at the expense of the party seeking to
make the substitution) that, under current law, such substitution will not
(A) affect adversely the status of any REMIC established hereunder as a
REMIC, or of the related "regular interests" as "regular interests" in any
such REMIC, or (B) cause any such REMIC to engage in a "prohibited
transaction" or prohibited contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause.
(a) It is intended that the conveyance of the Depositor's right,
title and interest in and to property constituting the Trust Fund pursuant to
this Agreement shall constitute, and shall be construed as, a sale of such
property and not a grant of a security interest to secure a loan. However, if
such conveyance is deemed to be in respect of a loan, it is intended that:
(1) the rights and obligations of the parties shall be established pursuant
to the terms of this Agreement; (2) the Depositor hereby grants to the
Trustee for the benefit of the Holders of the Certificates a first priority
security interest in all of the Depositor's right, title and interest in, to
and under, whether now owned or hereafter acquired, the Trust Fund and all
proceeds of any and all property constituting the Trust Fund to secure
payment of the Certificates; and (3) this Agreement shall constitute a
security agreement under applicable law. If such conveyance is deemed to be
in respect of a loan and the Trust created by this Agreement terminates prior
to the satisfaction of the claims of any Person holding any Certificate, the
security interest created hereby shall continue in full force and effect and
the Trustee shall be deemed to be the collateral agent for the benefit of
such Person, and all proceeds shall be distributed as herein provided.
(b) The Trustee shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the other property described above, such security
41
interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the
term of this Agreement. The Depositor will, at its own expense, make all
initial filings on or about the Closing Date and shall forward a copy of such
filing or filings to the Trustee. Without limiting the generality of the
foregoing, the Depositor shall prepare and forward for filing, or shall cause
to be forwarded for filing, at the expense of the Depositor, all filings
necessary to maintain the effectiveness of any original filings necessary
under the relevant UCC to perfect the Trustee's security interest in or lien
on the Mortgage Loans, including without limitation (x) continuation
statements, and (y) such other statements as may be occasioned by (1) any
change of name of the Sellers, the Depositor or the Trustee, (2) any change
of location of the jurisdiction of the Sellers or the Depositor, (3) any
transfer of any interest of the Sellers or the Depositor in any Mortgage Loan
or (4) any change under the relevant UCC or other applicable laws. Neither
the Sellers nor the Depositor shall organize under the law of any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of such action to its immediate and intermediate transferee, including the
Trustee. Before effecting such change, the Sellers or the Depositor proposing
to change its jurisdiction of organization shall prepare and file in the
appropriate filing office any financing statements or other statements
necessary to continue the perfection of the interests of its immediate and
mediate transferees, including the Trustee, in the Mortgage Loans. In
connection with the transactions contemplated by this Agreement, each of the
Sellers and the Depositor authorizes its immediate or mediate transferee to
file in any filing office any initial financing statements, any amendments to
financing statements, any continuation statements, or any other statements or
filings described in this paragraph (b).
Article III THE CERTIFICATES
Section 3.01. The Certificates.
(a) The Certificates shall be issuable in registered form only and
shall be securities governed by Article 8 of the New York Uniform Commercial
Code. The Book-Entry Certificates will be evidenced by one or more
certificates, beneficial ownership of which will be held in the dollar
denominations in Certificate Principal Amount or Notional Principal Amount,
as applicable, or in the Percentage Interests, specified herein. Each Class
of Book-Entry Certificates shall be issued in the minimum denominations in
Certificate Principal Amount (or Notional Amount) or Percentage Interest
specified in the Preliminary Statement hereto and in integral multiples of $1
or 5% (in the case of Certificates issued in Percentage Interests) in excess
thereof. Each Class of Non-Book Entry Certificates other than the Residual
Certificate shall be issued in definitive, fully registered form in the
minimum denominations in Certificate Principal Amount (or Notional Amount)
specified in the Preliminary Statement hereto and in integral multiples of $1
in excess thereof. The Residual Certificate shall be issued as a single
Certificate and maintained in definitive, fully registered form in a minimum
denomination equal to 100% of the Percentage Interest of such Class. The
Certificates may be issued in the form of typewritten certificates. One
Certificate of each Class of Certificates other than any Class of Residual
Certificates may be issued in any denomination in excess of the minimum
denomination.
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(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of
the Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form
provided for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification
upon any Certificate shall be conclusive evidence, and the only evidence,
that such Certificate has been duly authenticated and delivered hereunder.
All Certificates shall be dated the date of their authentication. At any time
and from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee
or the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
(c) The Class B4, Class B5 or Class B6 Certificates offered and sold
in reliance on the exemption from registration under Rule 144A shall be
issued initially in the form of one or more permanent global Certificates in
definitive, fully registered form without interest coupons with the
applicable legends set forth in Exhibit A added to the forms of such
Certificates (each, a "Restricted Global Security"), which, in the case of
the Class B4, Class B5 and Class B6 Certificates, shall be deposited on
behalf of the subscribers for such Certificates represented thereby with the
Trustee, as custodian for DTC and registered in the name of a nominee of DTC,
duly executed and authenticated by the Trustee as hereinafter provided. The
aggregate principal amounts of the Restricted Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee or DTC or its nominee, as the case may be, as hereinafter provided.
The Class B4, Class B5 or Class B6 Certificates sold in offshore
transactions in reliance on Regulation S shall be issued initially in the
form of one or more permanent global Certificates in definitive, fully
registered form without interest coupons with the applicable legends set
forth in Exhibit A hereto added to the forms of such Certificates (each, a
"Regulation S Global Security"), which, in the case of the Class B4, Class B5
and Class B6 Certificates, shall be deposited on behalf of the subscribers
for such Certificates represented thereby with the Trustee, as custodian for
DTC and registered in the name of a nominee of DTC, duly executed and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amounts of the Regulation S Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee or
DTC or its nominee, as the case may be, as hereinafter provided.
The Class B4, Class B5 or Class B6 Certificates sold to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the Act
shall be issued initially in the form of one or more Definitive Certificates.
Section 3.02. Registration.
The Trustee is hereby appointed, and hereby accepts its appointment
as, Certificate Registrar in respect of the Certificates and shall maintain
books for the registration and for the transfer of Certificates (the
"Certificate Register"). The Trustee may appoint a bank or trust
43
company to act as Certificate Registrar. A registration book shall be
maintained for the Certificates collectively. The Certificate Registrar may
resign or be discharged or removed and a new successor may be appointed in
accordance with the procedures and requirements set forth in Sections 6.06
and 6.07 hereof with respect to the resignation, discharge or removal of the
Trustee and the appointment of a successor Trustee. The Certificate Registrar
may appoint, by a written instrument delivered to the Holders and the Master
Servicer, any bank or trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided, however,
that the Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
registration of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate or a Regulation S
Global Security, whether upon original issuance or subsequent transfer, each
Holder of such a Certificate acknowledges the restrictions on the transfer of
such Certificate set forth thereon and agrees that it will transfer such a
Certificate only as provided herein. In addition, each Holder of a Regulation
S Global Security shall be deemed to have represented and warranted to the
Trustee, the Certificate Registrar and any of their respective successors
that: (i) such Person is not a U.S. person within the meaning of Regulation S
and was, at the time the buy order was originated,
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outside the United States and (ii) such Person understands that such
Certificates have not been registered under the Securities Act of 1933, as
amended (the "Act"), and that (x) until the expiration of the 40-day
distribution compliance period (within the meaning of Regulation S), no
offer, sale, pledge or other transfer of such Certificates or any interest
therein shall be made in the United States or to or for the account or
benefit of a U.S. person (each as defined in Regulation S), (y) if in the
future it decides to offer, resell, pledge or otherwise transfer such
Certificates, such Certificates may be offered, resold, pledged or otherwise
transferred only (A) to a person which the seller reasonably believes is a
"qualified institutional buyer" (a "QIB") as defined in Rule 144A under the
Act, that is purchasing such Certificates for its own account or for the
account of a qualified institutional buyer to which notice is given that the
transfer is being made in reliance on Rule 144A or (B) in an offshore
transaction (as defined in Regulation S) in compliance with the provisions of
Regulation S, in each case in compliance with the requirements of this
Agreement; and it will notify such transferee of the transfer restrictions
specified in this Section.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the
Depositor or the Placement Agent, an affiliate (as defined in Rule
405 under the Act) of the Depositor or the Placement Agent or (y)
being made to a QIB by a transferor that has provided the Trustee
with a certificate in the form of Exhibit F hereto; and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under
the Act by a transferor who furnishes to the Trustee a letter of the
transferee substantially in the form of Exhibit G hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H (or Exhibit
D-1 in the case of the Class R Certificate) hereto from such transferee or
(B) an Opinion of Counsel satisfactory to the Trustee and the Depositor to
the effect that the purchase and holding of such a Certificate will not
constitute or result in the assets of the Trust Fund being deemed to be "plan
assets" subject to the prohibited transactions provisions of ERISA or Section
4975 of the Code and will not subject the Trustee or the Depositor to any
obligation in addition to those undertaken in the Agreement; provided,
however, that the Trustee will not require such certificate or opinion in the
event that, as a result of a change of law or otherwise, counsel satisfactory
to the Trustee has rendered an Opinion of Counsel to the effect that the
purchase and holding of an ERISA-Restricted Certificate by a Plan or a Person
that is purchasing or holding such a Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code. Each Transferee of an ERISA-Restricted Certificate
that is a Book-Entry Certificate shall be deemed to have made the
representations set forth in Exhibit H. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the
Trust Fund, the Trustee or the Depositor. Notwithstanding the foregoing, no
opinion or certificate shall be required for
45
the initial issuance of the ERISA-Restricted Certificates. The Trustee shall
have no obligations to monitor transfers of Book-Entry Certificates that are
ERISA-Restricted Certificates and shall have no liability for transfers of
such Certificates in violation of the transfer restrictions.
Notwithstanding anything to the contrary herein, any purported
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate to or on behalf of an employee benefit plan subject to Section
406 ERISA or a plan subject to Section 4975 of the Code without the delivery
to the Trustee of an Opinion of Counsel satisfactory to the Trustee as
described above shall be void and of no effect; provided that the restriction
set forth in this sentence shall not be applicable if there has been
delivered to the Trustee an Opinion of Counsel meeting the requirements of
clause (B) of the first sentence of the first paragraph of this Section
3.03(d). The Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 3.03(d) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer
was registered by the Trustee in accordance with the foregoing requirements.
The Trustee shall be entitled, but not obligated, to recover from any Holder
of any ERISA-Restricted Certificate that was in fact an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code
or a Person acting on behalf of any such plan at the time it became a Holder,
or at such subsequent time as it became such a plan or Person acting on
behalf of such a plan, all payments made on such ERISA-Restricted Certificate
at and after either such time. Any such payments so recovered by the Trustee
shall be paid and delivered by the Trustee to the last preceding Holder of
such Certificate that is not such a plan or Person acting on behalf of a
plan.
(e) As a condition of the registration of transfer or exchange of
any Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a
sum sufficient to cover any tax or other governmental charge imposed in
connection therewith; provided, however, that the Certificate Registrar shall
have no obligation to require such payment or to determine whether or not any
such tax or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United
States and has furnished the transferor and the Trustee with an effective
Internal Revenue Service Form 4224 or successor form at the time and in the
manner required by the Code (any such person who is not covered by clause (A)
or (B) above is referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer,
sale or other disposition of a Residual Certificate, the proposed transferee
shall deliver to the Trustee an affidavit in substantially the form attached
hereto as Exhibit D-1 representing and warranting, among other things, that
such transferee is neither a Disqualified Organization, an agent or nominee
acting on behalf of a Disqualified Organization, nor a Non-permitted Foreign
Holder (any such transferee, a "Permitted Transferee") and the proposed
transferor shall deliver to the Trustee an affidavit in
46
substantially the form attached hereto as Exhibit D-2. In addition, the
Trustee may (but shall have no obligation to) require, prior to and as a
condition of any such transfer, the delivery by the proposed transferee of an
Opinion of Counsel, addressed to the Depositor and the Trustee satisfactory
in form and substance to the Depositor, that such proposed transferee or, if
the proposed transferee is an agent or nominee, the proposed beneficial
owner, is not a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder. Notwithstanding the registration in the
Certificate Register of any transfer, sale, or other disposition of a
Residual Certificate to a Disqualified Organization, an agent or nominee
thereof, or Non-permitted Foreign Holder, such registration shall be deemed
to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual
Certificate. The Trustee shall not be under any liability to any person for
any registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder or
for the maturity of any payments due on such Residual Certificate to the
Holder thereof or for taking any other action with respect to such Holder
under the provisions of the Agreement, so long as the transfer was effected
in accordance with this Section 3.03(f), unless the Trustee shall have actual
knowledge at the time of such transfer or the time of such payment or other
action that the transferee is a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder. The Trustee shall be entitled to
recover from any Holder of a Residual Certificate that was a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder at
the time it became a Holder or any subsequent time it became a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder, all
payments made on such Residual Certificate at and after either such times
(and all costs and expenses, including but not limited to attorneys' fees,
incurred in connection therewith). Any payment (not including any such costs
and expenses) so recovered by the Trustee shall be paid and delivered to the
last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of transfer of a Residual
Certificate that is in fact not permitted by this Section 3.03(f), for making
any payment due on such Certificate to the registered Holder thereof or for
taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered upon receipt of the
affidavit described in the preceding paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
(h) Notwithstanding any provision to the contrary herein, so long as
a Global Security representing either of the Class B4, Class B5 or Class B6
Certificates remains outstanding and is held by or on behalf of DTC,
transfers of a Global Security representing any such Certificates, in whole
or in part, shall only be made in accordance with Section 3.01 and this
Section 3.03(h).
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(A) Subject to clauses (B) and (C) of this Section
3.03(h), transfers of a Global Security representing either of
the Class B4, Class B5 or Class B6 Certificates shall be
limited to transfers of such Global Security, in whole or in
part, to nominees of DTC or to a successor of DTC or such
successor's nominee.
(B) Restricted Global Security to Regulation S Global
Security. If a holder of a beneficial interest in a Restricted
Global Security deposited with or on behalf of DTC wishes at
any time to exchange its interest in such Restricted Global
Security for an interest in a Regulation S Global Security, or
to transfer its interest in such Restricted Global Security to
a Person who wishes to take delivery thereof in the form of an
interest in a Regulation S Global Security, such holder,
provided such holder is not a U.S. person, may, subject to the
rules and procedures of DTC, exchange or cause the exchange of
such interest for an equivalent beneficial interest in the
Regulation S Global Security. Upon receipt by the Trustee, as
Certificate Registrar, of (I) instructions from DTC directing
the Trustee, as Certificate Registrar, to be credited a
beneficial interest in a Regulation S Global Security in an
amount equal to the beneficial interest in such Restricted
Global Security to be exchanged but not less than the minimum
denomination applicable to such holder's Certificates held
through a Regulation S Global Security, (II) a written order
given in accordance with DTC's procedures containing
information regarding the participant account of DTC and, in
the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account to be
credited with such increase and (III) a certificate in the
form of Exhibit N-1 hereto given by the holder of such
beneficial interest stating that the exchange or transfer of
such interest has been made in compliance with the transfer
restrictions applicable to the Global Securities, including
that the holder is not a U.S. person, and pursuant to and in
accordance with Regulation S, the Trustee, as Certificate
Registrar, shall reduce the principal amount of the Restricted
Global Security and increase the principal amount of the
Regulation S Global Security by the aggregate principal amount
of the beneficial interest in the Restricted Global Security
to be exchanged, and shall instruct Euroclear or Clearstream,
as applicable, concurrently with such reduction, to credit or
cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Regulation S
Global Security equal to the reduction in the principal amount
of the Restricted Global Security.
(C) Regulation S Global Security to Restricted Global
Security. If a holder of a beneficial interest in a Regulation
S Global Security deposited with or on behalf of DTC wishes at
any time to transfer its interest in such Regulation S Global
Security to a Person who wishes to take delivery thereof in
the form of an interest in a Restricted Global Security, such
holder may, subject to the rules and procedures DTC, exchange
or cause the exchange of such interest for an equivalent
48
beneficial interest in a Restricted Global Security. Upon
receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate
Registrar, to cause to be credited a beneficial interest in a
Restricted Global Security in an amount equal to the
beneficial interest in such Regulation S Global Security to be
exchanged but not less than the minimum denomination
applicable to such holder's Certificates held through a
Restricted Global Security, to be exchanged, such instructions
to contain information regarding the participant account with
DTC to be credited with such increase, and (II) a certificate
in the form of Exhibit N-2 hereto given by the holder of such
beneficial interest and stating, among other things, that the
Person transferring such interest in such Regulation S Global
Security reasonably believes that the Person acquiring such
interest in a Restricted Global Security is a QIB, is
obtaining such beneficial interest in a transaction meeting
the requirements of Rule 144A and in accordance with any
applicable securities laws of any State of the United States
or any other jurisdiction, then the Trustee, as Certificate
Registrar, will reduce the principal amount of the Regulation
S Global Security and increase the principal amount of the
Restricted Global Security by the aggregate principal amount
of the beneficial interest in the Regulation S Global Security
to be transferred and the Trustee, as Certificate Registrar,
shall instruct DTC, concurrently with such reduction, to
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the
Restricted Global Security equal to the reduction in the
principal amount of the Regulation S Global Security.
(D) Other Exchanges. In the event that a Global Security
is exchanged for Certificates in definitive registered form
without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in
accordance with such procedures as are substantially
consistent with the provisions above (including certification
requirements intended to insure that such transfers comply
with Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or
are to non-U.S. persons in compliance with Regulation S under
the Act, as the case may be), and as may be from time to time
adopted by the Trustee.
(E) Restrictions on U.S. Transfers. Transfers of interests
in the Regulation S Global Security to U.S. persons (as
defined in Regulation S) shall be limited to transfers made
pursuant to the provisions of Section 3.03(h)(C).
Section 3.04. Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange
shall be cancelled and retained in accordance with normal retention policies
with respect to cancelled certificates maintained by the Trustee or the
Certificate Registrar.
49
Section 3.05. Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the
Trustee or any Authenticating Agent or (ii) the Trustee or any Authenticating
Agent receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate, and there is delivered to the Trustee or the
Authenticating Agent such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Depositor
and any Authenticating Agent that such destroyed, lost or stolen Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute and the
Trustee or any Authenticating Agent shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Certificate Principal
Amount. Upon the issuance of any new Certificate under this Section 3.05, the
Trustee and Authenticating Agent may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee or the Authenticating Agent) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.05 shall constitute complete
and indefeasible evidence of ownership in the applicable Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 3.06. Persons Deemed Owners.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Master Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in
whose name any Certificate is registered upon the books of the Certificate
Registrar as the owner of such Certificate for the purpose of receiving
distributions pursuant to Sections 5.01 and 5.02 and for all other purposes
whatsoever, and neither the Depositor, the Master Servicer, the Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by
notice to the contrary.
Section 3.07. Temporary Certificates.
(a) Pending the preparation of definitive Certificates, upon the
order of the Depositor, the Trustee shall execute and shall authenticate and
deliver temporary Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Certificates in lieu of which
they are issued and with such variations as the authorized officers executing
such Certificates may determine, as evidenced by their execution of such
Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to
the same benefits under this Agreement as definitive Certificates of the same
Class.
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Section 3.08. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent (which may be the Trustee)
for the purpose of making distributions to Certificateholders hereunder. The
Trustee shall cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee that
such Paying Agent will hold all sums held by it for the payment to
Certificateholders in an Eligible Account in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to the
Certificateholders. All funds remitted by the Trustee to any such Paying
Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid
shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the
Paying Agent on or before the Business Day prior to each Distribution Date,
by wire transfer in immediately available funds, the funds to be distributed
on such Distribution Date. Any Paying Agent shall be either a bank or trust
company or otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates.
(i) Each Class of Book-Entry Certificates, upon original
issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, or its custodian, the
initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the
Certificate Register in the name of the nominee of the Clearing
Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the
Book-Entry Certificates, except as provided in Section 3.09(c).
Unless Definitive Certificates have been issued to Certificate
Owners of Book-Entry Certificates pursuant to Section 3.09(c):
(ii) the provisions of this Section 3.09 shall be in full force
and effect;
(iii) the Depositor, the Master Servicer, the Paying Agent, the
Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate
Owners and the Clearing Agency shall be responsible for crediting
the amount of such distributions to the accounts of such Persons
entitled thereto, in accordance with the Clearing Agency's normal
procedures;
(iv) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions
of this Section 3.09 shall control; and
(v) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Certificates are
issued pursuant to Section 3.09(c), the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions
51
of principal of and interest on the Book-Entry Certificates to such Clearing
Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Class Principal
Amount of a Class of Book-Entry Certificates identified as such to the
Trustee by an Officer's Certificate from the Clearing Agency advise the
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Certificate Owners of a
Class of Book-Entry Certificates, the Trustee shall notify or cause the
Certificate Registrar to notify the Clearing Agency to effect notification to
all Certificate Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall issue the
Definitive Certificates. Neither the Transferor nor the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable, with
respect to such Definitive Certificates and the Trustee shall recognize the
holders of the Definitive Certificates as Certificateholders hereunder.
Article IV ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account.
(a) On the Closing Date, the Master Servicer shall open and shall
thereafter maintain a segregated account held in trust (the "Collection
Account"), entitled "Aurora Loan Services Inc., as Master Servicer, in trust
for the benefit of the Holders of Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2002-4H." The Collection Account
shall relate solely to the Certificates issued by the Trust Fund hereunder,
and funds in such Collection Account shall not be commingled with any other
monies.
(b) The Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the Master
Servicer shall establish a new Collection Account that is an Eligible Account
within 30 days and transfer all funds on deposit in such existing Collection
Account into such new Collection Account.
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(c) The Master Servicer shall give to the Trustee prior written
notice of the name and address of the depository institution at which the
Collection Account is maintained and the account number of such Collection
Account. No later than 12:00 p.m. on each Deposit Date, the entire amount on
deposit in the Collection Account (subject to permitted withdrawals set forth
in Section 4.02), not including any amounts which are to be excluded from the
Available Distribution Amount for such Distribution Date pursuant to clauses
(A) through (H) of paragraph (i) of the definition thereof (other than any
amounts due or reimbursable to the Trustee pursuant to this Agreement), shall
be remitted to the Trustee for deposit into the Certificate Account by wire
transfer in immediately available funds. The Master Servicer, at its option,
may choose to make daily remittances from the Collection Account to the
Trustee for deposit into the Certificate Account.
(d) The Master Servicer shall deposit or cause to be deposited into
the Collection Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the Master Servicer on or before the
Closing Date. Thereafter, the Master Servicer shall deposit or cause to be
deposited in the Collection Account on the applicable Remittance Date the
following amounts received or payments made by it (other than in respect of
principal of and interest on the Mortgage Loans due on or before the Cut-Off
Date):
(i) all payments on account of principal, including Principal
Prepayments, late collections and any Prepayment Penalty Amounts
with respect to those Mortgage Loans for which the Sellers own the
servicing rights, as indicated in the Mortgage Loan Schedule, on the
Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
(other than payments due prior to the Cut-off Date), net of the
applicable Servicing Fee and Master Servicing Fee with respect to
each such Mortgage Loan, but only to the extent of the amount
permitted to be withdrawn or withheld from the Collection Account in
accordance with Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with respect to
a Mortgage Loan not otherwise specified in this paragraph (d),
including all Net Liquidation Proceeds with respect to the Mortgage
Loans and REO Property, and all amounts received in connection with
the operation of any REO Property, net of any unpaid Servicing Fees
and Master Servicing Fees with respect to such Mortgage Loans, but
only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections
5.04 and 9.21;
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or any Servicer
pursuant to Section 5.04 or the applicable Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan purchased by any Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments (selected by and at the written direction of the Master Servicer)
which shall mature not later than
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the earlier of (a) the Deposit Date (except that if such Eligible Investment
is an obligation of the Trustee or the Paying Agent, if other than the
Trustee, and such Collection Account is maintained with the Trustee or the
Paying Agent, if other than the Trustee, then such Eligible Investment shall
mature not later than such applicable Distribution Date) or (b) the day on
which the funds in such Collection Account are required to be remitted to the
Trustee for deposit into the Certificate Account, and any such Eligible
Investment shall not be sold or disposed of prior to its maturity. All such
Eligible Investments shall be made in the name of the Trustee (in its
capacity as such) or its nominee. All income and gain realized from any such
investment shall be for the benefit of the Master Servicer and shall be
subject to its withdrawal on order from time to time, subject to Section
5.05, and shall not be part of the Trust Fund. The amount of any losses
incurred in respect of any such investments shall be deposited in such
Collection Account by the Master Servicer out of its own funds, without any
right of reimbursement therefor, immediately as realized. The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges or assumption fees and Prepayment Penalty
Amounts with respect to those Mortgage Loans for which the Sellers do not own
the servicing rights (as indicated in the Mortgage Loan Schedule), need not
be deposited by the Master Servicer in the Collection Account and may be
retained by the Master Servicer or the applicable Servicer as additional
servicing compensation. If the Master Servicer deposits in the Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Collection Account. In the event the Master
Servicer does not provide written direction to the Trustee pursuant to this
Section, all funds on deposit in the Collection Account shall remain
uninvested.
Section 4.02. Application of Funds in the Collection Account.
The Master Servicer may, from time to time, make, or cause to be
made, withdrawals from the Collection Account for the following purposes:
(i) to reimburse itself or any Servicer for Advances made by it
or by such Servicer pursuant to Section 5.04 or the applicable
Servicing Agreement; the Master Servicer's right to reimburse itself
pursuant to this subclause (i) is limited to amounts received on or
in respect of particular Mortgage Loans (including, for this
purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related
Mortgage) which represent late recoveries (net of the applicable
Servicing Fee and the Master Servicing Fee) of payments of principal
or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master
Servicer's or Servicer's right thereto shall be prior to the rights
of the Certificateholders;
(ii) to reimburse itself or any Servicer for any Servicing
Advances made by it or by such Servicer that it determines in good
faith will not be recoverable from amounts representing late
recoveries of payments of principal or interest respecting the
particular Mortgage Loan as to which such Servicing Advance was made
or from Liquidation Proceeds or Insurance Proceeds with respect to
such Mortgage Loan, it being understood,
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in the case of any such reimbursement, that such Master Servicer's
or Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(iii) to reimburse itself or any Servicer from Liquidation
Proceeds for Liquidation Expenses and for amounts expended by it
pursuant to Sections 9.20 and 9.22(a) or the applicable Servicing
Agreement in good faith in connection with the restoration of
damaged property and, to the extent that Liquidation Proceeds after
such reimbursement exceed the unpaid principal balance of the
related Mortgage Loan, together with accrued and unpaid interest
thereon at the applicable Mortgage Rate less the applicable
Servicing Fee and the Master Servicing Fee for such Mortgage Loan to
the Due Date next succeeding the date of its receipt of such
Liquidation Proceeds, to pay to itself out of such excess the amount
of any unpaid assumption fees, late payment charges or other
Mortgagor charges on the related Mortgage Loan and to retain any
excess remaining thereafter as additional servicing compensation, it
being understood, in the case of any such reimbursement or payment,
that such Master Servicer's or Servicer's right thereto shall be
prior to the rights of the Certificateholders;
(iv) to reimburse itself or any Servicer for expenses incurred
by and recoverable by or reimbursable to it or such Servicer
pursuant to Section 9.04, 9.05, 9.06, 9.16 or 9.22(a) or pursuant to
the applicable Servicing Agreement, and to reimburse itself for any
expenses reimbursable to it pursuant to Section 10.01(c);
(v) to pay to the applicable Person, with respect to each
Mortgage Loan or REO Property acquired in respect thereof that has
been repurchased by such Person pursuant to this Agreement, all
amounts received thereon and not distributed on the date on which
the related repurchase was effected;
(vi) subject to Section 5.05, to pay to itself income earned on
the investment of funds deposited in the Collection Account;
(vii) to make payments to the Trustee for deposit into the
Certificate Account in the amounts and in the manner provided for in
Section 4.04;
(viii) to make payment to itself, the Trustee and others
pursuant to any provision of this Agreement;
(ix) to withdraw funds deposited in error in the Collection
Account;
(x) to clear and terminate any Collection Account pursuant to
Section 7.02;
(xi) to reimburse a successor Master Servicer (solely in its
capacity as successor Master Servicer), for any fee, expense or
advance occasioned by a termination of the Master Servicer, and the
assumption of such duties by the Trustee or a successor Master
Servicer appointed by the Trustee pursuant to Section 6.14, in each
case to the extent not reimbursed by the terminated Master Servicer,
it being understood, in the case of any such reimbursement or
payment, that the right of the Master Servicer or the Trustee
thereto shall be prior to the rights of the Certificateholders; and
55
(xii) to reimburse any Servicer for such amounts as are due
thereto under the applicable Servicing Agreement and have not been
retained by or paid to such Servicer to the extent provided in such
Servicing Agreement.
If provided in the related Servicing Agreement, each Servicer shall
be entitled to retain as additional servicing compensation any Prepayment
Interest Excess (to the extent not offset by Prepayment Interest Shortfalls).
In connection with withdrawals pursuant to subclauses (i), (iii),
(iv) and (vi) above, the Master Servicer's or Servicer's entitlement thereto
is limited to collections or other recoveries on the related Mortgage Loan.
The Master Servicer shall therefore keep and maintain a separate accounting
for each Mortgage Loan it master services for the purpose of justifying any
withdrawal from the Collection Account it maintains pursuant to such
subclause (i), (iii), (iv) and (vi) above.
Section 4.03. Reports to Certificateholders.
(a) On each Distribution Date, the Trustee shall have prepared
(based solely on information provided by the Master Servicer) and shall make
available to each Certificateholder a written report setting forth the
following information, by Mortgage Pool and Certificate Group (on the basis
of Mortgage Loan level information obtained from the Servicers and the Master
Servicer):
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates,
other than any Class of Notional Certificates, allocable to
principal on the Mortgage Loans, including Liquidation Proceeds and
Insurance Proceeds, stating separately the amount attributable to
scheduled principal payments and unscheduled payments in the nature
of principal in each Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates,
other than any Class of Principal Only Certificates, allocable to
interest;
(iii) the amount, if any, of any distribution to the Holders of
a Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be
made by or on behalf of the Master Servicer or any Servicer (or the
Trustee) with respect to such Distribution Date, (B) the aggregate
amount of such Advances actually made, and (C) the amount, if any,
by which (A) above exceeds (B) above;
(v) the Aggregate Principal Balance of the Mortgage Loans and
the Non-AP Pool Balance of each Mortgage Pool for such Distribution
Date, after giving effect to payments allocated to principal
reported under clause (i) above;
(vi) the Class Principal Amount (or Class Notional Amount) of
each Class of Certificates, to the extent applicable, as of such
Distribution Date after giving effect to
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payments allocated to principal reported under clause (i) above,
separately identifying any reduction of any of the foregoing
Certificate Principal Amounts due to Realized Losses:
(vii) any Realized Losses realized with respect to the Mortgage
Loans (x) in the applicable Prepayment Period and (y) in the
aggregate since the Cut-off Date, stating separately the amount of
Special Hazard Losses, Fraud Losses and Bankruptcy Losses and the
aggregate amount of such Realized Losses, and the remaining Special
Hazard Loss Amount, Fraud Loss Amount and Bankruptcy Loss Amount;
(viii) the amount of the Master Servicing Fees, Servicing Fees
and Trustee Fees paid during the Due Period to which such
distribution relates;
(ix) the number and aggregate Scheduled Principal Balance of
Mortgage Loans, as reported to the Trustee by the Master Servicer,
(a) remaining outstanding (b) delinquent one month, (c) delinquent
two months, (d) delinquent three or more months, and (e) as to which
foreclosure proceedings have been commenced as of the close of
business on the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs;
(x) the deemed principal balance of each REO Property as of the
close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(xi) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the principal balance
of such Mortgage Loan and the number of such Mortgage Loans as of
the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(xii) with respect to substitution of Mortgage Loans in the
preceding calendar month, the Scheduled Principal Balance of each
Deleted Mortgage Loan, and of each Qualifying Substitute Mortgage
Loan;
(xiii) the aggregate outstanding Interest Shortfalls and Net
Prepayment Interest Shortfalls, if any, for each Class of
Certificates, after giving effect to the distribution made on such
Distribution Date;
(xiv) the Certificate Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates,
respectively;
(xv) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest
which Certificateholders would have received if there were
sufficient available amounts in the Certificate Account and the
amounts actually distributed); and
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(xvi) any other "loan level" information for any Mortgage Loans
that are delinquent three or more months and any REO Property held
by the Trustee that is reported by the Master Servicer to the
Trustee.
In the case of information furnished pursuant to subclauses (i),
(ii) and (vii) above, the amounts shall be expressed as a dollar amount per
$1,000 of original principal amount of Certificates.
The Trustee will make such report and additional loan level
information (and, at its option, any additional files containing the same
information in an alternative format) available each month to
Certificateholders and the Rating Agencies via the Trustee's internet
website. The Trustee's internet website shall initially be located at
"▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇\absmbs". Assistance in using the website can be obtained by
calling the Trustee's customer service desk at ▇-▇▇▇-▇▇▇-▇▇▇▇. Such parties
that are unable to use the website are entitled to have a paper copy mailed
to them via first class mail by calling the customer service desk and
indicating such. The Trustee shall have the right to change the way such
statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Trustee shall provide
timely and adequate notification to all above parties regarding any such
changes.
The foregoing information and reports shall be prepared and
determined by the Trustee based solely on Mortgage Loan data provided to the
Trustee by the Master Servicer (in a format agreed to by the Trustee and the
Master Servicer) no later than 2:00 p.m. Eastern Standard Time four Business
Days prior to the Distribution Date. In preparing or furnishing the Mortgage
Loan data to the Trustee, the Master Servicer shall be entitled to rely
conclusively on the accuracy of the information or data regarding the
Mortgage Loans and the related REO Property that has been provided to the
Master Servicer by each Servicer, and the Master Servicer shall not be
obligated to verify, recompute, reconcile or recalculate any such information
or data. The Trustee shall be entitled to conclusively rely on the Mortgage
Loan data provided by the Master Servicer and shall have no liability for any
errors in such Mortgage Loan data.
On each Distribution Date, the Trustee shall make available to the
Depositor a copy of the above-described written report.
(b) Upon the reasonable advance written request of any
Certificateholder that is a savings and loan, bank or insurance company,
which request, if received by the Trustee, will be promptly forwarded to the
Master Servicer, the Master Servicer shall provide, or cause to be provided,
(or, to the extent that such information or documentation is not required to
be provided by a Servicer under the applicable Servicing Agreement, shall use
reasonable efforts to obtain such information and documentation from such
Servicer, and provide) to such Certificateholder such reports and access to
information and documentation regarding the Mortgage Loans as such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to investment in the Certificates;
provided, however, that the Master Servicer shall be entitled to be
reimbursed by such Certificateholder for such Master Servicer's actual
expenses incurred in providing such reports and access.
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(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Trustee shall
make available to each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to Certificateholders
pursuant to Section 4.03(a) on an annual basis as may be required to enable
such Holders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. The
Master Servicer shall provide the Trustee with such information as is
necessary for the Trustee to prepare such reports.
Section 4.04. Certificate Account.
(a) The Trustee shall establish and maintain in its name, as
trustee, a trust account (the "Certificate Account"), to be held in trust for
the benefit of the Certificateholders until disbursed pursuant to the terms
of this Agreement. The Certificate Account shall be an Eligible Account. If
the existing Certificate Account ceases to be an Eligible Account, the
Trustee shall establish a new Certificate Account that is an Eligible Account
within 20 Business Days and transfer all funds on deposit in such existing
Certificate Account into such new Certificate Account. The Certificate
Account shall relate solely to the Certificates issued hereunder and funds in
the Certificate Account shall be held separate and apart from and shall not
be commingled with any other monies including, without limitation, other
monies of the Trustee held under this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate
Account on the day on which, or, if such day is not a Business Day, the
Business Day immediately following the day on which, any monies are remitted
by the Master Servicer to the Trustee all such amounts. The Trustee shall
make withdrawals from the Certificate Account only for the following
purposes:
(i) to withdraw amounts deposited in the Certificate Account in
error;
(ii) to pay itself any investment income earned with respect to
funds in the Certificate Account invested in Eligible Investments as
set forth in subsection (c) below, and to make payments to itself
prior to making distributions pursuant to Section 5.02 for any
expenses or other indemnification owing to the Trustee and others
pursuant to any provision of this Agreement;
(iii) to make payments of the Master Servicing Fee (to the
extent not already withheld or withdrawn from the Collection Account
by the Master Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders pursuant
to Article V; and
(v) to clear and terminate the Certificate Account pursuant to
Section 7.02.
(c) The Trustee may invest, or cause to be invested, funds held in
the Certificate Account, which funds, if invested, shall be invested in
Eligible Investments (which may be obligations of the Trustee described in
paragraph (viii) of the definition thereof). All such
59
investments must be payable on demand or mature no later than the next
Distribution Date, and shall not be sold or disposed of prior to their
maturity. All such Eligible Investments will be made in the name of the
Trustee (in its capacity as such) or its nominee. All income and gain
realized from any such investment shall be compensation for the Trustee and
shall be subject to its withdrawal on order from time to time. The amount of
any losses incurred in respect of any such investments shall be paid by the
Trustee for deposit in the Certificate Account out of its own funds, without
any right of reimbursement therefor, immediately as realized. Funds held in
the Certificate Account that are not invested shall be held in cash.
Article V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee or the Paying Agent shall
make distributions in accordance with this Article V. Such distributions
shall be made by check mailed to each Certificateholder's address as it
appears on the Certificate Register of the Certificate Registrar (which shall
initially be the Trustee) or, upon written request made to the Trustee at
least three Business Days prior to the related Distribution Date to any
Certificateholder owning an aggregate initial Certificate Principal Amount of
at least $2,500,000, or, in the case of the Notional Certificates and
Principal Only Certificates, a Percentage Interest of more than 25%, by wire
transfer in immediately available funds to an account specified in the
request and at the expense of such Certificateholder; provided, however, that
the final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office.
Wire transfers will be made at the expense of the Holder requesting such wire
transfer by deducting a wire transfer fee from the related distribution.
Notwithstanding such final payment of principal of any of the Certificates,
each Residual Certificate will remain outstanding until the termination of
the REMIC and the payment in full of all other amounts due with respect to
the Residual Certificate and at such time such final payment in retirement of
any Residual Certificate will be made only upon presentation and surrender of
such Certificate at the Corporate Trust Office of the Trustee. If any payment
required to be made on the Certificates is to be made on a day that is not a
Business Day, then such payment will be made on the next succeeding Business
Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Certificate Principal Amounts (or
initial Notional Amounts).
Section 5.02. Distributions from the Certificate Account.
(a) On each Distribution Date, the Trustee (or the Paying Agent on
behalf of the Trustee) shall withdraw from the Certificate Account the
Available Distribution Amount with respect to each Mortgage Pool, and shall
distribute such amount to the Holders of record of each Class of
Certificates, in the following order of priority:
(i) to the Trustee, the Trustee Fee for such Distribution Date;
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(ii) from the Available Distribution Amount for each Mortgage
Pool, to each Class of Senior Certificates in the related
Certificate Group (other than any related Class of Principal Only
Certificates), the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class's allocable share of any
Net Prepayment Interest Shortfalls for the related Mortgage Pool for
such Distribution Date; provided, however, that any shortfall in
available amounts for each Mortgage Pool shall be allocated among
the Classes of Senior Certificates of the related Certificate Group
in proportion to the amount of Accrued Certificate Interest (as so
reduced) that would otherwise be distributable thereon.
(iii) from the Available Distribution Amount for each Mortgage
Pool, to each Class of Senior Certificates in the related
Certificate Group (other than any related Class of Principal Only
Certificates), any related Interest Shortfall for such Distribution
Date; provided, however, that any shortfall in available amounts for
each Mortgage Pool shall be allocated among the Classes of Senior
Certificates of the related Certificate Group in proportion to the
Interest Shortfall for each such Class on such Distribution Date.
(iv) from the remaining Available Distribution Amount for each
Mortgage Pool, to the Senior Certificates of the related Certificate
Group (other than any Class of Notional Certificates), as provided
in the Senior Principal Priorities set forth in Exhibit O attached
hereto, except use of the word "approximately" therein shall be
disregarded in applying such priorities.
(v) to the Class 1-AP and Class 2-AP Certificates, to the
extent of the remaining Available Distribution Amount for both
Mortgage Pools, the AP Deferred Amount for such Certificates and
Distribution Date, until the Certificate Principal Amount thereof
has been reduced to zero; provided, however, that (A) distributions
pursuant to this priority shall not exceed the aggregate Subordinate
Principal Distribution Amount for both Mortgage Pools for such date;
(B) such amounts will not reduce the Certificate Principal Amounts
of such Certificates; and (C) in the event the aggregate Subordinate
Principal Distribution Amount for both Mortgage Pools is
insufficient to fully pay the AP Deferred Amount for the Class 1-AP
and Class 2-AP Certificates, such amount shall be distributed pro
rata to such Class on the basis of their respective AP Deferred
Amounts; and
(vi) from the remaining Available Distribution Amount for both
Mortgage Pools, subject to the prior distribution of amounts
pursuant to Section 5.02(g) in the case of clauses (C), (F), (I),
(L), (O) and (R) below, to the Subordinated Certificates, in the
following order of priority:
(A) to the Class B1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by
such Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(B) to the Class B1 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
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(C) to the Class B1 Certificates, in reduction of the
Class Principal Amount thereof, such Class's Subordinate Class
Percentage of each Subordinate Principal Distribution Amount
for such Distribution Date, except as provided in Section
5.02(c), until the Certificate Principal Balance thereof has
been reduced to zero;
(D) to the Class B2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by
such Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(E) to the Class B2 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(F) to the Class B2 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Class Principal Amount thereof has
been reduced to zero;
(G) to the Class B3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by
such Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(H) to the Class B3 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(I) to the Class B3 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Class Principal Amount thereof has
been reduced to zero;
(J) to the Class B4 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by
such Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(K) to the Class B4 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(L) to the Class B4 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Certificate Principal Balance
thereof has been reduced to zero;
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(M) to the Class B5 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by
such Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(N) to the Class B5 Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(O) to the Class B5 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Class Principal Balance thereof has
been reduced to zero;
(P) to the Class B6 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by
such Class's allocable share of any Net Prepayment Interest
Shortfalls for such Distribution Date;
(Q) to the Class B6 Certificates, any Interest Shortfall
for such Class on such Distribution Date; and
(R) to the Class B6 Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of each Subordinate Principal Distribution
Amount for such Distribution Date, except as provided in
Section 5.02(c), until the Certificate Principal Balance
thereof has been reduced to zero.
(b) Net Prepayment Interest Shortfalls for each Mortgage Pool shall
be allocated among the Certificates of the related Certificate Group (other
than any related Principal Only Certificates) pro rata based on (i) in the
case of the related Non-AP Senior Certificates, the Accrued Certificate
Interest otherwise distributable thereon, and (ii) in the case of the
Subordinate Certificates, interest accrued on the related Apportioned
Principal Balances.
(c) (i) If on any Distribution Date the Credit Support Percentage
for the Class B1 Certificates is less than the Original Credit Support
Percentage for such Class, then, notwithstanding anything to the contrary in
Section 5.02(a), no distribution of amounts described in clauses (ii) and
(iii) of the definition of Subordinate Principal Distribution Amount will be
made in respect of the Class B2, Class B3, Class B4, Class B5 or Class B6
Certificates on such Distribution Date. (ii) If on any Distribution Date the
Credit Support Percentage for the Class B2 Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described
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in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Class B3, Class B4, Class
B5 or Class B6 Certificates on such Distribution Date. (iii) If on any
Distribution Date the Credit Support Percentage for the Class B3 Certificates
is less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the
Class B4, Class B5 or Class B6 Certificates on such Distribution Date. (iv)
If on any Distribution Date the Credit Support Percentage for the Class B4
Certificates is less than the Original Credit Support Percentage for such
Class, then, notwithstanding anything to the contrary in Section 5.02(a), no
distribution of amounts described in clauses (ii) and (iii) of the definition
of Subordinate Principal Distribution Amount will be made in respect of the
Class B5 or Class B6 Certificates on such Distribution Date. (v) If on any
Distribution Date the Credit Support Percentage for the Class B5 Certificates
is less than the Original Credit Support Percentage for such Class, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the
Class B6 Certificates on such Distribution Date.
Any amount not distributed in respect of any Class on any
Distribution Date pursuant to the immediately preceding paragraph will be
allocated among the remaining Subordinate Classes in proportion to their
respective Certificate Principal Amounts.
(d) On each Distribution Date, the Trustee shall distribute to the
Holder of the Class R Certificate any amounts remaining in the REMIC for such
Distribution Date after application of all amounts described in paragraph (a)
of this Section 5.02. Any distributions pursuant to this paragraph (e) shall
not reduce the Class Principal Amount of the Class R Certificate.
(e) [Reserved].
(f) [Reserved].
(g) (i) On each Distribution Date prior to the Credit Support
Depletion Date but after the date on which the aggregate Certificate
Principal Amount of the Non-AP Senior Certificates of any Certificate Group
has been reduced to zero, amounts otherwise distributable as principal on
each Class of Subordinate Certificates pursuant to Section 5.02(a)(v), in
reverse order of priority, in respect of such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for the Mortgage
Pool relating to such retired Certificates, shall be distributed as principal
to the Non-AP Senior Certificates (other than any Notional Certificates)
remaining outstanding pursuant to Section 5.02(a)(iv) until the Class
Principal Amounts thereof have been reduced to zero, provided that on such
Distribution Date (a) the Aggregate Subordinate Percentage for such
Distribution Date is less than 200% of the Aggregate Subordinate Percentage
as of the Cut-off Date or (b) the average outstanding principal balance of
the Mortgage Loans in either Mortgage Pool that are delinquent 60 days or
more for the last six months as a percentage of the related Group Subordinate
Amount is greater than or equal to 50%. On each Distribution Date on which
the aggregate Certificate Principal Amount of the Non-AP Senior Certificates
of both Certificate Groups has been reduced to zero, any amounts
distributable pursuant to this Section 5.02(g)(i) will be allocated, as to
each applicable Class of Subordinate Certificates, in proportion to such
Class's Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for the Mortgage Pool relating to each such retired
Certificate Group.
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(ii) (A) On any Distribution Date on which any Certificate Group
constitutes an Undercollateralized Group, all amounts otherwise distributable
as principal on the Subordinate Certificates, in reverse order of priority
(other than amounts necessary to pay AP Deferred Amounts or unpaid Interest
Shortfalls) (or, following the Credit Support Depletion Date, such other
amounts described in the immediately following sentence), will be distributed
as principal to the Non-AP Senior Certificates (other than any Notional
Certificates) of such Undercollateralized Group pursuant to Section
5.02(a)(v), until the aggregate Certificate Principal Amount of such Non-AP
Senior Certificates equals the Non-AP Pool Balance of the related Mortgage
Pool (such distribution, an "Undercollateralization Distribution"). In the
event that either Certificate Group constitutes an Undercollateralized Group
on any Distribution Date following the Credit Support Depletion Date,
Undercollateralization Distributions will be made from any Available
Distribution Amount for the Mortgage Pool not related to an
Undercollateralized Group remaining after all required amounts have been
distributed to the Non-AP Senior Certificates of such other Certificate
Group. In addition, the amount of any unpaid Interest Shortfalls with respect
to an Undercollateralized Group on any Distribution Date (including any
Interest Shortfalls for such Distribution Date) will be distributed to the
Non-AP Senior Certificates of such Undercollateralized Group prior to the
payment of any Undercollateralization Distributions from amounts otherwise
distributable as principal on the Subordinate Certificates, in reverse order
of priority (or, following the Credit Support Depletion Date, as provided in
the preceding sentence).
(B) If on any Distribution Date both Certificate Groups
are Undercollateralized Groups, the distribution described
above will be made in proportion to the amount by which the
aggregate Certificate Principal Amount of the Non-AP Senior
Certificates of each such Certificate Group, after giving
effect to distributions pursuant to Sections 5.02(a) and
5.02(b) on such Distribution Date, exceeds the Non-AP Pool
Balance of the related Mortgage Pool for such Distribution
Date.
Section 5.03. Allocation of Realized Losses.
(a) On any Distribution Date, (x) the applicable AP Percentage of
the principal portion of each Realized Loss (other than any Excess Loss) in
respect of a Mortgage Loan in each Mortgage Pool will be allocated to the
related Class of Principal Only Certificates until the Class Principal Amount
thereof has been reduced to zero; and (y) the applicable Non-AP Percentage of
the principal portion of each Realized Loss (other than any Excess Loss) in
respect of a Mortgage Loan shall be allocated in the following order of
priority:
first, to the Class B6 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
second, to the Class B5 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
third, to the Class B4 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
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fourth, to the Class B3 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
fifth, to the Class B2 Certificates, until the Class
Principal Amount thereof has been reduced to zero;
sixth, to the Class B1 Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
seventh, to the Classes of Senior Certificates (other
than the related Principal Only Certificates) of the related Certificate
Group, pro rata, in accordance with their Class Principal Amounts.
(b) With respect to any Distribution Date, the applicable Non-AP
Percentage of the principal portion of any Excess Loss in respect of a
Mortgage Loan shall be allocated, pro rata, to the Subordinate Certificates
(without regard to which Mortgage Pool experienced the loss) and the Group 1
Certificates and Group 2 Certificates (without regard to whether the Realized
Loss was realized by Pool 1 or Pool 2) and on the basis of the Apportioned
Principal Balances of the Classes of Subordinate Certificates and Class
Principal Amounts of the Senior Certificates. The applicable AP Percentage of
the principal portion of an Excess Loss in a Mortgage Pool will be applied to
the related Class of Principal Only Certificates until the Class Principal
Amount thereof has been reduced to zero.
(c) Any Realized Losses allocated to a Class of Certificates
pursuant to Section 5.03(a) or (b) shall be allocated among the Certificates
of such Class in proportion to their respective Certificate Principal
Amounts. Any allocation of Realized Losses pursuant to this paragraph (c)
shall be accomplished by reducing the Certificate Principal Amount of the
related Certificates on the related Distribution Date in accordance with
Section 5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03
shall be allocated on the Distribution Date in the month following the month
in which such loss was incurred and, in the case of the principal portion
thereof, after giving effect to distributions made on such Distribution Date,
except that the aggregate amount of Realized Losses to be allocated to the
Principal Only Certificates on such Distribution Date will be taken into
account in determining distributions in respect of any related AP Deferred
Amount for such date.
(e) On each Distribution Date, the Subordinate Certificate Writedown
Amount for such date shall effect a corresponding reduction in the
Certificate Principal Amount of the lowest ranking Class of outstanding
Subordinate Certificates, which reduction shall occur on such Distribution
Date after giving effect to distributions made on such Distribution Date.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, each outstanding Class
to which any portion of such Realized Loss had previously been allocated
shall be entitled to receive, on the Distribution Date in the month following
the month in which such recovery is received, its pro rata share (based on
the Class Principal Amount thereof) of such recovery, up to the amount of the
portion of such Realized Loss previously allocated to such Class. In the
event that the total amount of such recovery
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exceeds the amount of Realized Loss allocated to the outstanding Classes in
accordance with the preceding provisions, each outstanding Class of
Certificates shall be entitled to receive its pro rata share of the amount of
such excess, up to the amount of any unrecovered Realized Loss previously
allocated to such Class. Any such recovery allocated to a Class of
Certificates shall not further reduce the Certificate Principal Amount of
such Certificate. Any such amounts not otherwise allocated to any Class of
Certificates, pursuant to this subsection shall be treated as Principal
Prepayments for purposes of this Agreement.
Section 5.04. Advances by Master Servicer and the Trustee.
(a) Advances shall be made in respect of each Deposit Date as
provided herein. If, on any Determination Date, the Master Servicer
determines that any Scheduled Payments due during the related Due Period
(other than Balloon Payments) have not been received, the Master Servicer
shall, or cause the applicable Servicer to, advance such amount, less an
amount, if any, to be set forth in an Officer's Certificate to be delivered
to the Trustee on such Determination Date, which if advanced the Master
Servicer or the applicable Servicer has determined would not be recoverable
from amounts received with respect to such Mortgage Loan, including late
payments, Liquidation Proceeds, Insurance Proceeds or otherwise. If the
Master Servicer determines that an Advance is required, it shall on the
Deposit Date immediately following such Determination Date either (i) remit
to the Trustee from its own funds (or funds advanced by the applicable
Servicer) for deposit in the Certificate Account immediately available funds
in an amount equal to such Advance, (ii) cause to be made an appropriate
entry in the records of the Collection Account that funds in such account
being held for future distribution or withdrawal have been, as permitted by
this Section 5.04, used by the Master Servicer to make such Advance, and
remit such immediately available funds to the Trustee for deposit in the
Certificate Account or (iii) make Advances in the form of any combination of
clauses (i) and (ii) aggregating the amount of such Advance. Any funds being
held in the Collection Account for future distribution to Certificateholders
and so used shall be replaced by the Master Servicer from its own funds by
remittance to the Trustee for deposit in the Certificate Account on or before
any future Deposit Date to the extent that funds in the Certificate Account
on such Deposit Date shall be less than payments to Certificateholders
required to be made on the related Distribution Date. The Master Servicer and
each Servicer shall be entitled to be reimbursed from the Collection Account
for all Advances made by it as provided in Section 4.02.
(b) In the event that the Master Servicer fails for any reason to
make an Advance required to be made pursuant to Section 5.04(a) on or before
the Deposit Date, the Trustee, solely in its capacity as successor Master
Servicer pursuant to Section 6.14, shall, on or before the related
Distribution Date, deposit in the Certificate Account an amount equal to the
excess of (a) Advances required to be made by the Master Servicer that would
have been deposited in such Certificate Account over (b) the amount of any
Advance made by the Master Servicer with respect to such Distribution Date;
provided, however, that the Trustee shall be required to make such Advance
only if it is not prohibited by law from doing so and it has determined that
such Advance would be recoverable from amounts to be received with respect to
such Mortgage Loan, including late payments, Liquidation Proceeds, Insurance
Proceeds, or otherwise. The Trustee shall be entitled to be reimbursed from
the Certificate Account for Advances made by it pursuant to this Section 5.04
as if it were the Master Servicer.
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Section 5.05. Compensating Interest Payments.
The amount of the Master Servicing Fee payable to the Master
Servicer in respect of any Distribution Date shall be reduced by the amount
of any Compensating Interest Payment for such Distribution Date, but only to
the extent such Compensating Interest Payment is not actually made by a
Servicer on the applicable Remittance Date. Such amount shall not be treated
as an Advance and shall not be reimbursable to the Master Servicer.
Article VI CONCERNING THE TRUSTEE;
EVENTS OF DEFAULT
Section 6.01. Duties of Trustee.
(a) The Trustee, except during the continuance of an Event of
Default (of which a Responsible Officer of the Trustee shall have actual
knowledge) undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. Any permissive right of the Trustee
provided for in this Agreement shall not be construed as a duty of the
Trustee. If an Event of Default (of which a Responsible Officer of the
Trustee shall have actual knowledge) has occurred and has not otherwise been
cured or waived, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs unless the Trustee
is acting as Master Servicer, in which case it shall use the same degree of
care and skill as the Master Servicer hereunder.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer, to the Trustee pursuant to
this Agreement, and shall not be required to recalculate or verify any
numerical information furnished to the Trustee pursuant to this Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good
faith in accordance with the consent or direction of Holders of
Certificates as provided in Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Master Servicer (i) to remit funds
(or to make Advances) or (ii) to furnish information to the Trustee
when required to do so) unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is
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received by the Trustee at the Corporate Trust Office, and such
notice references the Holders of the Certificates and this
Agreement; and
(iii) No provision of this Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be
responsible for the manner of performance of, any of the obligations
of the Master Servicer under this Agreement except during such time,
if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Master Servicer in
accordance with the terms of this Agreement.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which
may be alleged to have been delivered to or served upon it by the parties as
a consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer upon receipt any such complaint, claim, demand, notice or other
document (i) which is delivered to the Corporate Trust Office of the Trustee,
(ii) of which a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee to make a determination
that the real property to which such document relates is a Mortgaged
Property.
(e) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests
aggregating not less than 25% as to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Agreement.
(f) Subject to Section 4.04, the Trustee shall not be held liable by
reason of any insufficiency in any account (including without limitation the
Collection Account) held by or on behalf of the Trustee resulting from any
investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
(g) Except as otherwise provided herein, the Trustee shall have no
duty (A) to see to any recording, filing, or depositing of this Agreement or
any agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any re-recording, re-filing or
re-depositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Collection Account or the Certificate Account, or (D) to confirm or verify
the contents of any reports or certificates of the Master Servicer delivered
to the Trustee pursuant to this Agreement believed by the Trustee to be
genuine and to have been signed or presented by the proper party or parties.
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(h) The Trustee shall not be liable in its individual capacity for
an error of judgment made in good faith by a Responsible Officer or other
officers of the Trustee unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(i) Notwithstanding anything in this Agreement to the contrary, the
Trustee shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
Section 6.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors, Opinion of Counsel
or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any advice of its
counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same
appears regular on its face), unless requested in writing to do so
by Holders of at least a majority in Class Principal Amount (or
Class Notional Amount) of each Class of Certificates; provided,
however, that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability or
payment of such estimated expenses as a condition to proceeding. The
reasonable expense thereof shall be paid by the Holders requesting
such investigation;
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians, or attorneys, which agents, custodians
or attorneys shall have any and all of the rights, powers, duties
and obligations of the Trustee conferred on them by such appointment
provided that the Trustee shall continue to be responsible for its
duties and obligations hereunder to the extent provided herein, and
provided further that the Trustee shall not be responsible for
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any misconduct or negligence on the part of any such agent or
attorney appointed with due care by the Trustee;
(vi) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto, in each case at the request, order or direction of any of
the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(vii) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and
the Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act; and
(viii) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby
or the powers granted hereunder.
Section 6.03. Trustee Not Liable for Certificates.
The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (other than the
certificate of authentication on the Certificates) or of any Mortgage Loan,
or related document save that the Trustee represents that, assuming due
execution and delivery by the other parties hereto, this Agreement has been
duly authorized, executed and delivered by it and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms
except that such enforceability may be subject to (A) applicable bankruptcy
and insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally, and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law. The Trustee shall not be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration
of the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for the use or application of any funds deposited into the Collection
Account, the Certificate Account, any Escrow Account or any other fund or
account maintained with respect to the Certificates. The Trustee shall not be
responsible for the legality or validity of this Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates
issued or intended to be issued hereunder. The Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
Section 6.04. Trustee May Own Certificates.
The Trustee and any Affiliate or agent of the Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates and may transact banking and trust with the other parties hereto
with the same rights it would have if it were not Trustee or such agent.
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Section 6.05. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC and (ii) a corporation or national banking association,
organized and doing business under the laws of any State or the United States
of America, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section,
the combined capital and surplus of such corporation or national banking
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
time either the Trustee shall cease to be eligible in accordance with
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.06.
Section 6.06. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice thereof to the Depositor and
the Master Servicer. Upon receiving such notice of resignation, the Depositor
will promptly appoint a successor trustee by written instrument, one copy of
which instrument shall be delivered to the resigning Trustee one copy to the
successor trustee and one copy to the Master Servicer. If no successor
trustee shall have been so appointed and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)
a tax is imposed or threatened with respect to the Trust Fund by any state in
which the Trustee or the Trust Fund held by the Trustee is located, or (iv)
the continued use of the Trustee would result in a downgrading of the rating
by the Rating Agencies of any Class of Certificates with a rating, then the
Depositor shall remove the Trustee and appoint a successor trustee by written
instrument, one copy of which instrument shall be delivered to the Trustee so
removed, one copy to the successor trustee, and one copy to the Master
Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee and to the Depositor remove the Trustee
by such written instrument, signed by such Holders or their attorney-in-fact
duly authorized, one copy of which instrument shall be delivered to the
Depositor, one copy to the Trustee so removed and one copy to the Master
Servicer; the Depositor shall thereupon use its best efforts to appoint a
mutually acceptable successor trustee in accordance with this Section.
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(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.07.
Section 6.07. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 6.06
shall execute, acknowledge and deliver to the Depositor, the Master Servicer
and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee (or assign to the Trustee its interest
under each Custodial Agreement, to the extent permitted thereunder) all
Mortgage Files and documents and statements related to each Mortgage Files
held by it hereunder, and shall duly assign, transfer, deliver and pay over
to the successor trustee the entire Trust Fund, together with all necessary
instruments of transfer and assignment or other documents properly executed
necessary to effect such transfer and such of the record or copies thereof
maintained by the predecessor trustee in the administration hereof as may be
requested by the successor trustee and shall thereupon be discharged from all
duties and responsibilities under this Agreement. In addition, the Master
Servicer and the predecessor trustee shall execute and deliver such other
instruments and do such other things as may reasonably be required to more
fully and certainly vest and confirm in the successor trustee as applicable
all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in
this Section unless at the time of such appointment such successor trustee
shall be eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Master Servicer shall mail notice of the
succession of such trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies.
The expenses of such mailing shall be borne by the Master Servicer.
Section 6.08. Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or with which it may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons
succeeding to the business of the Trustee shall be the successor to the
Trustee hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, provided that such Person shall be eligible under
the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Amount (or Class Notional Amount) of each Class of
Certificates shall each have the power from time to
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time to appoint one or more Persons to act either as co-trustees jointly with
the Trustee, or as separate trustees, or as custodians, for the purpose of
holding title to, foreclosing or otherwise taking action with respect to any
Mortgage Loan outside the state where the Trustee has its principal place of
business where such separate trustee or co-trustee is necessary or advisable
(or the Trustee has been advised by the Master Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state
in which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust Fund is located. The separate
Trustees, co-trustees, or custodians so appointed shall be trustees or
custodians for the benefit of all the Certificateholders and shall have such
powers, rights and remedies as shall be specified in the instrument of
appointment; provided, however, that no such appointment shall, or shall be
deemed to, constitute the appointee an agent of the Trustee. The obligation
of the Trustee to make Advances pursuant to Section 5.04 and 6.14 hereof
shall not be affected or assigned by the appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys
shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee,
co-trustee, or custodian jointly, except to the extent that under
any law of any jurisdiction in which any particular act or acts are
to be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations, including the holding of title to the Trust Fund or
any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing more than
50% of the Aggregate Voting Interests of the Certificates may at any
time accept the resignation of or remove any separate trustee,
co-trustee or custodian, so appointed by it or them, if such
resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of
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this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. The Trustee shall
not be responsible for any action or inaction of any separate trustee,
co-trustee or custodian. If any separate trustee, co-trustee or custodian
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section 6.05 hereunder and no notice to Certificateholders of the appointment
shall be required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10. Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which
shall be authorized to act on behalf of the Trustee in authenticating
Certificates. Wherever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be a corporation organized and doing business
under the laws of the United States of America or of any state, having a
combined capital and surplus of at least $15,000,000, authorized under such
laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
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Authenticating Agent, shall give written notice of such appointment to the
Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No Authenticating Agent shall have responsibility or liability for any action
taken by it as such at the direction of the Trustee. Any Authenticating Agent
shall be entitled to reasonable compensation for its services and, if paid by
the Trustee, it shall be a reimbursable expense pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee.
The Trustee and its directors, officers, employees and agents shall
be entitled to indemnification from the Trust Fund for any loss, liability or
expense incurred without negligence or willful misconduct on their part (it
being understood that the negligence or willful misconduct of any Custodian
shall not constitute negligence or willful misconduct on the part of the
Trustee or its directors, officers, employees, or agents for such purpose),
arising out of, or in connection with, the acceptance or administration of
the trusts created hereunder or in connection with the performance of the
Trustee's duties hereunder or under any Servicing Agreement or Custodial
Agreement, including any applicable fees and expenses payable pursuant to
Section 6.12 and the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers
or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall have
given the Depositor, the Master Servicer and the Holders written
notice thereof promptly after the Trustee shall have knowledge
thereof; provided that failure to so notify shall not relieve the
Trust Fund of the obligation to indemnify the Trustee;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Depositor in
preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section
6.11, the Trust Fund shall not be liable for settlement of any such
claim by the Trustee entered into without the prior consent of the
Depositor, which consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense
under any environmental law.
Section 6.12. Compensation of the Trustee.
The Trustee shall be entitled to (i) the Trustee Fee, (ii) receive,
and is authorized to pay to itself the amount of income or gain earned from
the investment of funds in the Certificate Account and (iii) reimbursement of
all reasonable expenses, disbursements and advancements incurred or made by
the Trustee in accordance with this Agreement (including fees and expenses of
its counsel and all persons not regularly in its employment); except any such
expenses arising from its negligence, bad faith or willful misconduct;
provided that such expenses, disbursements
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and advancements are unanticipated within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii). The Custodian shall be compensated as separately
agreed with the Depositor.
Section 6.13. Collection of Monies.
Except as otherwise expressly provided in this Agreement, the
Trustee may demand payment or delivery of, and shall receive and collect, all
money and other property payable to or receivable by the Trustee pursuant to
this Agreement. The Trustee shall hold all such money and property received
by it as part of the Trust Fund and shall distribute it as provided in this
Agreement. If the Trustee shall not have timely received amounts to be
remitted with respect to the Mortgage Loans from the Master Servicer, the
Trustee shall request the Master Servicer to make such distribution as
promptly as practicable or legally permitted. If the Trustee shall
subsequently receive any such amount, it may withdraw such request.
Section 6.14. Events of Default; Trustee To Act; Appointment of
Successor.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default":
(i) Any failure by the Master Servicer to furnish the Trustee
the Mortgage Loan data sufficient to prepare the reports described
in Section 4.03(a) which continues unremedied for a period of one
Business Day after the date upon which written notice of such
failure shall have been given to such Master Servicer by the Trustee
or to such Master Servicer and the Trustee by the Holders of not
less than 25% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates affected thereby; or
(ii) Any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the
covenants or agreements on the part of such Master Servicer
contained in this Agreement which continues unremedied for a period
of 30 days (or 15 days, in the case of a failure to maintain any
Insurance Policy required to be maintained pursuant to this
Agreement) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to such
Master Servicer by the Trustee, or to such Master Servicer and the
Trustee by the Holders of not less than 25% of the Class Principal
Amount (or Class Notional Amount) of each Class of Certificates
affected thereby; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer, and such decree or order shall
have remained in force undischarged or unstayed for a period of 60
days or any Rating Agency reduces or withdraws or threatens to
reduce or withdraw the rating of the Certificates because of the
financial condition or loan servicing capability of such Master
Servicer; or
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(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to such
Master Servicer or of or relating to all or substantially all of its
property; or
(v) The Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose
of all or substantially all of its assets, or consolidate with or
merge into another entity or shall permit another entity to
consolidate or merge into it, such that the resulting entity does
not meet the criteria for a successor servicer as specified in
Section 9.27 hereof; or
(vii) If a representation or warranty set forth in Section 9.14
hereof shall prove to be incorrect as of the time made in any
respect that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have
been eliminated or cured within 60 days after the date on which
written notice of such incorrect representation or warranty shall
have been given to the Master Servicer by the Trustee, or to the
Master Servicer and the Trustee by the Holders of not less than 25%
of the Aggregate Certificate Principal Amount of each Class of
Certificates; or
(viii) A sale or pledge of the any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master
Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the
Trustee and Certificateholders holding more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of
Certificates;
(ix) Any Servicer at any time is not either an FNMA- or FHLMC-
approved Seller/Servicer, and the Master Servicer has not terminated
the rights and obligations of such Servicer under the applicable
Servicing Agreement and replaced such Servicer with an FNMA- or
FHLMC-approved servicer within 30 days of the absence of such
approval; or
(x) Any failure of the Master Servicer to remit to the Trustee
any payment required to be made to the Trustee for the benefit of
Certificateholders under the terms of this Agreement, including any
Advance, on any Deposit Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates, terminate all of the
rights and obligations of the Master
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Servicer hereunder and in and to the Mortgage Loans and the proceeds thereof.
If an Event of Default described in clause (x) of this Section 6.14 shall
occur, then, in each and every case, subject to applicable law, the Trustee,
by notice in writing to the Master Servicer, shall promptly terminate all of
the rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof. On or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer, and only in its capacity as Master Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under the terms of this Agreement; and
the Trustee is hereby authorized and empowered to execute and deliver, on
behalf of the defaulting Master Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The
defaulting Master Servicer agrees to cooperate with the Trustee in effecting
the termination of the defaulting Master Servicer's responsibilities and
rights hereunder as Master Servicer including, without limitation, notifying
Servicers of the assignment of the master servicing function and providing
the Trustee or its designee all documents and records in electronic or other
form reasonably requested by it to enable the Trustee or its designee to
assume the defaulting Master Servicer's functions hereunder and the transfer
to the Trustee for administration by it of all amounts which shall at the
time be or should have been deposited by the defaulting Master Servicer in
the Collection Account maintained by such defaulting Master Servicer and any
other account or fund maintained with respect to the Certificates or
thereafter received with respect to the Mortgage Loans. The Master Servicer
being terminated shall bear all costs of a master servicing transfer,
including but not limited to those of the Trustee reasonably allocable to
specific employees and overhead, legal fees and expenses, accounting and
financial consulting fees and expenses, and costs of amending the Agreement,
if necessary.
Notwithstanding the termination of its activities as Master
Servicer, each terminated Master Servicer shall continue to be entitled to
reimbursement to the extent provided in Section 4.02(i), (ii), (iii), (iv),
(v), (vi), (vii), (ix) and (xi) to the extent such reimbursement relates to
the period prior to such Master Servicer's termination.
If any Event of Default shall occur of which a Responsible Officer
of the Trustee has actual knowledge, the Trustee shall promptly notify the
Rating Agencies of the nature and extent of such Event of Default. The
Trustee shall immediately give written notice to the Master Servicer upon
such Master Servicer's failure to remit funds on the Deposit Date.
Within 90 days of the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.28, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall
not be considered a default by the Trustee hereunder. In addition, the
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Trustee shall have no responsibility for any act or omission of the Master
Servicer prior to the issuance of any notice of termination and shall have no
liability relating to the representations and warranties of the Master
Servicer set forth in Section 9.14. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation therefor, the Trustee shall
be entitled to receive all compensation payable to the Master Servicer under
this Agreement, including the Master Servicing Fee. The Trustee shall be
entitled to be reimbursed from the Master Servicer (or by the Trust Fund if
the Master Servicer is unable to fulfill its obligations hereunder) for all
costs associated with the transfer of master servicing from the predecessor
master servicer, including, without limitation, any costs or expenses
associated with the complete transfer of all master servicing data and the
completion, correction or manipulation of such master servicing data as may
be required by the Trustee to correct any errors or insufficiencies in the
master servicing data or otherwise to enable the Trustee to master service
the Mortgage Loans properly and effectively.
(b) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act,
appoint, petition a court of competent jurisdiction to appoint, any
established housing and home finance institution servicer, master servicer,
servicing or mortgage servicing institution having a net worth of not less
than $15,000,000 and meeting such other standards for a successor master
servicer as are set forth in this Agreement, as the successor to such Master
Servicer in the assumption of all of the responsibilities, duties or
liabilities of a master servicer, like the Master Servicer. Any entity
designated by the Trustee as a successor master servicer may be an Affiliate
of the Trustee; provided, however, that, unless such Affiliate meets the net
worth requirements and other standards set forth herein for a successor
master servicer, the Trustee, in its individual capacity shall agree, at the
time of such designation, to be and remain liable to the Trust Fund for such
Affiliate's actions and omissions in performing its duties hereunder. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted to the Master
Servicer hereunder. The Trustee and such successor shall take such actions,
consistent with this Agreement, as shall be necessary to effectuate any such
succession and may make other arrangements with respect to the servicing to
be conducted hereunder which are not inconsistent herewith. The Master
Servicer shall cooperate with the Trustee and any successor master servicer
in effecting the termination of the Master Servicer's responsibilities and
rights hereunder including, without limitation, notifying Mortgagors of the
assignment of the master servicing functions and providing the Trustee and
successor master servicer, as applicable, all documents and records in
electronic or other form reasonably requested by it to enable it to assume
the Master Servicer's functions hereunder and the transfer to the Trustee or
such successor master servicer, as applicable, all amounts which shall at the
time be or should have been deposited by the Master Servicer in the
Collection Account and any other account or fund maintained with respect to
the Certificates or thereafter be received with respect to the Mortgage
Loans. Neither the Trustee nor any other successor master servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by
(i) the failure of the Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, (ii) the failure of the Master
Servicer to cooperate as required by this Agreement, (iii) the failure of the
Master Servicer to deliver the Mortgage Loan data to the Trustee as required
by this
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Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 6.14, shall have the right, in its own name
and as trustee of an express trust, to take all actions now or hereafter
existing at law, in equity or by statute to enforce its rights and remedies
and to protect the interests, and enforce the rights and remedies, of the
Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filings of proofs of
claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative
and in addition to any other remedy, and no delay or omission to exercise any
right or remedy shall impair any such right or remedy or shall be deemed to
be a waiver of any Event of Default.
Section 6.16. Waiver of Defaults.
35% or more of the Aggregate Voting Interests of Certificateholders
may waive any default or Event of Default by the Master Servicer in the
performance of its obligations hereunder, except that a default in the making
of any required deposit to the Certificate Account that would result in a
failure of the Trustee to make any required payment of principal of or
interest on the Certificates may only be waived with the consent of 100% of
the affected Certificateholders. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement. No
such waiver shall extend to any subsequent or other default or impair any
right consequent thereon except to the extent expressly so waived.
Section 6.17. Notification to Holders.
Upon termination of the Master Servicer or appointment of a
successor to the Master Servicer, in each case as provided herein, the
Trustee shall promptly mail notice thereof by first class mail to the
Certificateholders at their respective addresses appearing on the Certificate
Register. The Trustee shall also, within 45 days after the occurrence of any
Event of Default known to a Responsible Officer of the Trustee, give written
notice thereof to Certificateholders, unless such Event of Default shall have
been cured or waived prior to the issuance of such notice and within such
45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default.
Subject to the provisions of Section 8.01 hereof, during the
continuance of any Event of Default, Holders of Certificates evidencing not
less than 25% of the Class Principal Amount (or Class Notional Amount) of
each Class of Certificates may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; provided, however, that the Trustee shall be under no obligation
to pursue any such remedy, or to exercise any of the trusts or powers
81
vested in it by this Agreement (including, without limitation, (i) the
conducting or defending of any administrative action or litigation hereunder
or in relation hereto and (ii) the terminating of the Master Servicer or any
successor master servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, in accordance
with an Opinion of Counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith determines
that the action or proceeding so directed would involve it in personal
liability or be unjustly prejudicial to the non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer
and Upon Event of Default.
In the event that a Responsible Officer or the Trustee shall have
actual knowledge of any action or inaction of the Master Servicer that would
become an Event of Default upon the Master Servicer's failure to remedy the
same after notice, the Trustee shall give notice thereof to the Master
Servicer. For all purposes of this Agreement, in the absence of actual
knowledge by a Responsible Officer of the Trustee, the Trustee shall not be
deemed to have knowledge of any failure of the Master Servicer or any other
Event of Default unless notified in writing by the Depositor, the Master
Servicer or a Certificateholder.
Section 6.20. Preparation of Tax Returns and Other Reports.
(a) The Trustee shall prepare or cause to be prepared on behalf of
the Trust Fund, based upon information calculated in accordance with this
Agreement pursuant to instructions given by the Depositor, and the Trustee
shall file, federal tax returns and appropriate state income tax returns and
such other returns as may be required by applicable law relating to the Trust
Fund, and shall file any other documents to the extent required by applicable
state tax law (to the extent such documents are in the Trustee's possession).
The Trustee shall forward copies to the Depositor of all such returns and
Form 1099 supplemental tax information and such other information within the
control of the Trustee as the Depositor may reasonably request in writing,
and shall forward to each Certificateholder such forms and furnish such
information within the control of the Trustee as are required by the Code and
the REMIC Provisions to be furnished to them, and will prepare and distribute
to Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the Trustee) to the extent required
by applicable law. The Master Servicer will indemnify the Trustee for any
liability of or assessment against the Trustee, as applicable, resulting from
any error in any of such tax or information returns directly resulting from
errors in the information provided by such Master Servicer.
(b) The Trustee shall prepare and file with the Internal Revenue
Service ("IRS"), on behalf of the REMIC, an application on IRS Form SS-4. The
Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned for the REMIC, shall promptly forward copies of such notice
to the Master Servicer and the Depositor. The Trustee will file an IRS Form
8811.
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(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K. Thereafter, within 15 days after each
Distribution Date, the Trustee shall, in accordance with industry standards,
file with the Securities and Exchange Commission (the "Commission") via the
Electronic Data Gathering and Retrieval System (▇▇▇▇▇), a Form 8-K with a
copy of the statement to the Certificateholders for such Distribution Date as
an exhibit thereto. Prior to January 30, 2003, the Trustee shall, in
accordance with industry standards, file a Form 15 Suspension Notification
with respect to the Trust Fund, if applicable. Prior to March 31, 2003, the
Trustee shall file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. The Depositor hereby grants to the
Trustee a limited power of attorney to execute and file each such document on
behalf of the Depositor. Such power of attorney shall continue until either
the earlier of (i) receipt by the Trustee from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust
Fund. The Depositor agrees to promptly furnish to the Trustee, from time to
time upon request, such further information, reports, and financial
statements within its control related to this Agreement and the Mortgage
Loans as the Trustee reasonably deems appropriate to prepare and file all
necessary reports with the Commission. The Trustee shall have no
responsibility to file any items other than those specified in this section.
Article VII PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or
Liquidation of All Mortgage Loans.
(a) The respective obligations and responsibilities of the Trustee
and the Master Servicer created hereby (other than the obligation of the
Trustee to make payments to Certificateholders as set forth in Section 7.02,
the obligation of the Master Servicer to make a final remittance to the
Trustee for deposit into the Certificate Account pursuant to Section 4.01 and
the obligations of the Master Servicer to the Trustee pursuant to Sections
9.10 and 9.14), shall terminate on the earlier of (i) the final payment or
other liquidation of the last Mortgage Loan remaining in the Trust Fund and
the disposition of all REO Property and (ii) the sale of the property held by
the Trust Fund in accordance with Section 7.01(b); provided, however, that in
no event shall the Trust Fund created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof. Any termination of the Trust Fund shall
be carried out in such a manner so that the termination of the REMIC included
therein shall qualify as a "qualified liquidation" under the REMIC
Provisions.
(b) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans is less than 5%
of the Cut-off Date Aggregate Principal Balance, the Master Servicer may,
upon written direction to the Trustee cause (i) the Trustee to sell (or
arrange for the sale of) the assets of the Trust Fund and (ii) the Trust Fund
to adopt a plan of complete liquidation pursuant to Section 7.03(a)(i) hereof
to sell all of its property. The property of the Trust Fund shall be sold at
a price (the "Termination Price") equal to the sum of: (i) 100% of the unpaid
principal balance of each Mortgage Loan on the day of such purchase plus
interest accrued thereon at the applicable Mortgage Rate with respect to any
Mortgage Loan to the Due Date in the Due Period immediately preceding the
related
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Distribution Date to the date of such repurchase, (ii) the fair market value
of any REO Property and any other property held by the REMIC, such fair
market value to be determined by an appraiser or appraisers appointed by the
Master Servicer with the consent of the Trustee and (iii) any unreimbursed
Servicing Advances with respect to each Mortgage Loan.
Section 7.02. Procedure Upon Termination of Trust Fund.
(a) Notice of any termination pursuant to the provisions of Section
7.01, specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Trustee by first class mail to
Certificateholders mailed (x) no later than five Business Days after the
Trustee has received notice from the Master Servicer of its intent to
exercise its right to cause the termination of the Trust Fund pursuant to
Section 7.01(b) or (y) upon the final payment or other liquidation of the
last Mortgage Loan or REO Property in the Trust Fund. Such notice shall
specify (A) the Distribution Date upon which final distribution on the
Certificates of all amounts required to be distributed to Certificateholders
pursuant to Section 5.02 will be made upon presentation and surrender of the
Certificates at the Corporate Trust Office, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified. The
Trustee shall give such notice to the Master Servicer and the Certificate
Registrar at the time such notice is given to Holders of the Certificates.
Upon any such termination, the duties of the Certificate Registrar with
respect to the Certificates shall terminate and the Trustee shall terminate,
or request the Master Servicer to terminate, the Collection Account it
maintains, the Certificate Account and any other account or fund maintained
with respect to the Certificates, subject to the Trustee's obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates
for cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice
any Certificates shall not have been surrendered for cancellation, the
Trustee shall, subject to applicable state law relating to escheatment, hold
all amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed
to a Certificateholder due to such Certificateholder's failure to surrender
its Certificate(s) for payment of the final distribution thereon in
accordance with this Section.
(c) Any reasonable expenses incurred by the Trustee in connection
with any termination or liquidation of the Trust Fund shall be reimbursed
from proceeds received from the liquidation of the Trust Fund.
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Section 7.03. Additional Trust Fund Termination Requirements.
(a) Any termination of the Trust Fund shall be effected in
accordance with the following additional requirements, unless the Trustee
seeks (at the request of the Master Servicer), and subsequently receives, an
Opinion of Counsel (at the expense of the Master Servicer), addressed to the
Trustee to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 7.03 will not (i) result in the imposition of
taxes on the REMIC under the REMIC Provisions or (ii) cause the REMIC
established hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) The Trustee shall sell all of the assets of the Trust Fund
for cash and, within 90 days of such sale, shall distribute the
proceeds of such sale to the Certificateholders in complete
liquidation of the Trust Fund and the REMIC; and
(ii) The Trustee shall attach a statement to the final Federal
income tax return for the REMIC stating that pursuant to Treasury
Regulation ss. 1.860F-1, the first day of the 90-day liquidation
period for the REMIC was the date on which the Trustee sold the
assets of the Trust Fund.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take the action described in paragraph
(a) above and (ii) agrees to take such other action as may be necessary to
facilitate liquidation of the REMIC created under this Agreement, which
authorization shall be binding upon all successor Residual
Certificateholders.
Article VIII RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of
this Trust Fund, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them. Except as otherwise expressly provided
herein, no Certificateholder, solely by virtue of its status as a
Certificateholder, shall have any right to vote or in any manner otherwise
control the Master Servicer or the operation and management of the Trust
Fund, or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association, nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an
Event of Default and of the continuance thereof, as hereinbefore provided,
and unless also the Holders of Certificates evidencing not less than 25% of
the Class Principal Amount (or Class Notional Amount) of Certificates of each
Class shall have made written request upon the Trustee to institute such
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action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require
against the cost, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for sixty days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request has been given such Trustee during such sixty-day period by such
Certificateholders; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and
the Trustee, that no one or more Holders of Certificates shall have any right
in any manner whatever by virtue or by availing of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other of such Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner herein provided and for the benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 8.02. Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request
by the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class
as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants reasonable
access during the normal business hours of the Trustee to the most recent
list of Certificateholders held by the Trustee or shall, as an alternative,
send, at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor,
the Master Servicer, the Certificate Registrar and the Trustee that neither
the Depositor, the Master Servicer, the Certificate Registrar nor the Trustee
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 8.03. Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders or Certificate Owner, if the Holder is a Clearing Agency, may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in
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writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Trustee and, where expressly required herein, to the Master Servicer.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agents shall be sufficient for any purpose
of this Agreement and conclusive in favor of the Trustee and Master Servicer,
if made in the manner provided in this Section. Each of the Trustee and
Master Servicer shall promptly notify the other of receipt of any such
instrument by it, and shall promptly forward a copy of such instrument to the
other.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Master Servicer, nor the
Depositor shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof, in respect of anything done, omitted or suffered to be done
by the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
Article IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer.
The Certificateholders, by their purchase and acceptance of the
Certificates, appoint Aurora Loan Services Inc., as Master Servicer. For and
on behalf of the Depositor, the Trustee and the Certificateholders, the
Master Servicer shall master service the Mortgage Loans in accordance with
the provisions of this Agreement and the provisions of the applicable
Servicing Agreement.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer
Errors and Omissions Insurance Policy.
(a) The Master Servicer, at its expense, shall maintain in effect a
Fidelity Bond and an Errors and Omissions Insurance Policy, affording
coverage with respect to all directors,
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officers, employees and other Persons acting on such Master Servicer's
behalf, and covering errors and omissions in the performance of the Master
Servicer's obligations hereunder. The Errors and Omissions Insurance Policy
and the Fidelity Bond shall be in such form and amount that would meet the
requirements of FNMA or FHLMC if it were the purchaser of the Mortgage Loans.
The Master Servicer shall (i) require each Servicer to maintain an Errors and
Omissions Insurance Policy and a Fidelity Bond in accordance with the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer to
provide to the Master Servicer certificates evidencing that such policy and
bond is in effect and to furnish to the Master Servicer any notice of
cancellation, non-renewal or modification of the policy or bond received by
it, as and to the extent provided in the applicable Servicing Agreement, and
(iii) furnish copies of the certificates and notices referred to in clause
(ii) to the Trustee upon its request. The Fidelity Bond and Errors and
Omissions Insurance Policy may be obtained and maintained in blanket form.
(b) The Master Servicer shall promptly report to the Trustee any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to
the Trustee, on request, certificates evidencing that such bond and insurance
policy are in full force and effect. The Master Servicer shall promptly
report to the Trustee all cases of embezzlement or fraud, if such events
involve funds relating to the Mortgage Loans. The total losses, regardless of
whether claims are filed with the applicable insurer or surety, shall be
disclosed in such reports together with the amount of such losses covered by
insurance. If a bond or insurance claim report is filed with any of such
bonding companies or insurers, the Master Servicer shall promptly furnish a
copy of such report to the Trustee. Any amounts relating to the Mortgage
Loans collected by the Master Servicer under any such bond or policy shall be
promptly remitted by the Master Servicer to the Trustee for deposit into the
Certificate Account. Any amounts relating to the Mortgage Loans collected by
any Servicer under any such bond or policy shall be remitted to the Master
Servicer to the extent provided in the applicable Servicing Agreement.
Section 9.03. Master Servicer's Financial Statements and Related
Information.
For each year this Agreement is in effect, the Master Servicer shall
submit to the Trustee, each Rating Agency and the Depositor a copy of its
annual unaudited financial statements on or prior to August 31 of each year.
Such financial statements shall include a balance sheet, income statement,
statement of retained earnings, statement of additional paid-in capital,
statement of changes in financial position and all related notes and
schedules and shall be in comparative form, certified by a nationally
recognized firm of Independent Accountants to the effect that such statements
were examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding year.
Section 9.04. Power to Act; Procedures.
(a) The Master Servicer shall master service the Mortgage Loans and
shall have full power and authority, subject to the REMIC Provisions and the
provisions of Article X hereof, and each Servicer shall have full power and
authority (to the extent provided in the applicable Servicing Agreement) to
do any and all things that it may deem necessary or desirable in connection
with the servicing and administration of the Mortgage Loans, including but
not limited to the power and authority (i) to execute and deliver, on behalf
of the Certificateholders
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and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions
of this Agreement and applicable Servicing Agreement, as applicable; provided
that the Master Servicer shall not take, or knowingly permit any Servicer to
take, any action that is inconsistent with or prejudices the interests of the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer further is authorized and empowered by the
Trustee, on behalf of the Certificateholders and the Trustee, in its own name
or in the name of any Servicer, when the Master Servicer or a Servicer, as
the case may be, believes it is appropriate in its best judgment to register
any Mortgage Loan with MERS, or cause the removal from the registration of
any Mortgage Loan on the MERS system, to execute and deliver, on behalf of
the Trustee and the Certificateholders or any of them, any and all
instruments of assignment and other comparable instruments with respect to
such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Trustee and its successors and assigns. The Master Servicer
shall represent and protect the interests of the Trust Fund in the same
manner as it protects its own interests in mortgage loans in its own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan
and shall not make or knowingly permit any Servicer to make any modification,
waiver or amendment of any term of any Mortgage Loan that would cause the
Trust Fund to fail to qualify as a REMIC or result in the imposition of any
tax under Section 860F(a) or Section 860G(d) of the Code. Without limiting
the generality of the foregoing, the Master Servicer in its own name or in
the name of a Servicer, and each Servicer, to the extent such authority is
delegated to such Servicer by the Master Servicer under the applicable
Servicing Agreement, is hereby authorized and empowered by the Trustee when
the Master Servicer or applicable Servicer, as the case may be, believes it
appropriate in its best judgment and in accordance with Accepted Servicing
Practices and the applicable Servicing Agreement, to execute and deliver, on
behalf of itself and the Certificateholders, the Trustee or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to
the Mortgage Loans and with respect to the Mortgaged Properties. The Trustee
shall execute, upon request, any powers of attorney furnished to it by the
Master Servicer empowering the Master Servicer or any Servicer to execute and
deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to
the Mortgage Loans or the Mortgaged Property, in accordance with the
applicable Servicing Agreement and this Agreement, and the Trustee shall
execute and deliver such other documents, as the Master Servicer may request,
necessary or appropriate to enable the Master Servicer to master service and
administer the Mortgage Loans and carry out its duties hereunder, in each
case in accordance with Accepted Servicing Practices (and the Trustee shall
have no liability for misuse of any such powers of attorney by the Master
Servicer or any Servicer). If the Master Servicer or the Trustee has been
advised that it is likely that the laws of the state in which action is to be
taken prohibit such action if taken in the name of the Trustee or that the
Trustee would be adversely affected under the "doing business" or tax laws of
such state if such action is taken in its name, then upon request of the
Trustee, the Master Servicer shall join with the Trustee in the appointment
of a co-trustee pursuant to Section 6.09
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hereof. In the performance of its duties hereunder, the Master Servicer shall
be an independent contractor and shall not, except in those instances where
it is taking action in the name of the Trustee, be deemed to be the agent of
the Trustee.
(b) In master servicing and administering the Mortgage Loans, the
Master Servicer shall employ procedures, and shall cause each Servicer to
employ procedures (including, but not limited to, collection procedures),
consistent with the applicable Servicing Agreement. Consistent with the
foregoing, the Master Servicer may, and may permit any Servicer to, in its
discretion (i) waive any late payment charge or any prepayment charge or
penalty interest in connection with the prepayment of a Mortgage Loan and
(ii) extend the due dates for payments due on a Mortgage Note for a period
not greater than 120 days; provided, however, that the maturity of any
Mortgage Loan shall not be extended past the date on which the final payment
is due on the latest maturing Mortgage Loan as of the Cut-off Date. In the
event of any extension described in clause (ii) above, the Master Servicer
shall make or cause to be made Advances on the related Mortgage Loan in
accordance with the provisions of Section 5.04 on the basis of the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such extension. Notwithstanding anything to the contrary in this
Agreement, the Master Servicer shall not, unless default by the related
Mortgagor is, in the reasonable judgment of the Master Servicer or the
related Servicer, imminent, make or knowingly permit such Servicer to make
any modification, waiver or amendment of any material term of any Mortgage
Loan (including but not limited to the interest rate, the principal balance,
the amortization schedule, or any other term affecting the amount or timing
of payments on the Mortgage Loan or the collateral therefor) unless the
Master Servicer or the related Servicer shall have provided or caused to be
provided to the Trustee an Opinion of Counsel (at the expense of the party
seeking the modification) in writing to the effect that such modification,
waiver or amendment would not be treated as giving rise to a new debt
instrument for federal income tax purposes and would not adversely affect the
status of the REMIC.
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations.
(a) Each Servicing Agreement requires the applicable Servicer to
service the Mortgage Loans in accordance with the provisions thereof.
References in this Agreement to actions taken or to be taken by the Master
Servicer include such actions taken or to be taken by a Servicer pursuant to
a Servicing Agreement. Any fees, costs and expenses and other amounts payable
to such Servicers shall be deducted from amounts remitted to the Master
Servicer by the applicable Servicer and shall not be an obligation of the
Trust, the Trustee or the Master Servicer.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall use its reasonable best efforts to
enforce the obligations of each Servicer under the related Servicing
Agreement and shall, upon its obtaining actual knowledge of the failure of a
Servicer to perform its obligations in accordance with the related Servicing
Agreement, to the extent that the non-performance of any such obligations
would have a material adverse effect on a Mortgage Loan, the Trust Fund or
Certificateholders, terminate the rights and obligations of such Servicer
thereunder to the extent and in the manner permitted by the related Servicing
Agreement and
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either act as servicer of the related Mortgage Loans or enter into a
Servicing Agreement with a successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the
owner of the related Mortgage Loans. The Master Servicer shall pay the costs
of such enforcement at its own expense, and shall be reimbursed therefor
initially only (i) from a general recovery resulting from such enforcement
only to the extent, if any, that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed, and then, to the extent that such amounts are
insufficient to reimburse the Master Servicer for the costs of such
enforcement, (iii) from the Collection Account.
Section 9.06. Collection of Taxes, Assessments and Similar Items.
(a) To the extent provided in the applicable Servicing Agreement,
the Master Servicer shall cause each Servicer to establish and maintain one
or more custodial accounts at a depository institution (which may be a
depository institution with which the Master Servicer or any Servicer
establishes accounts in the ordinary course of its servicing activities), the
accounts of which are insured to the maximum extent permitted by the FDIC
(each, an "Escrow Account") and shall deposit therein any collections of
amounts received with respect to amounts due for taxes, assessments, water
rates, Standard Hazard Insurance Policy premiums or any comparable items for
the account of the Mortgagors. Withdrawals from any Escrow Account may be
made (to the extent amounts have been escrowed for such purpose) only in
accordance with the applicable Servicing Agreement. Each Servicer shall be
entitled to all investment income not required to be paid to Mortgagors on
any Escrow Account maintained by such Servicer. The Master Servicer shall
make (or cause to be made) to the extent provided in the applicable Servicing
Agreement advances to the extent necessary in order to effect timely payment
of taxes, water rates, assessments, Standard Hazard Insurance Policy premiums
or comparable items in connection with the related Mortgage Loan (to the
extent that the Mortgagor is required, but fails, to pay such items),
provided that it has determined that the funds so advanced are recoverable
from escrow payments, reimbursement pursuant to Section 4.02(v) or otherwise.
(b) Costs incurred by the Master Servicer or by Servicers in
effecting the timely payment of taxes and assessments on the properties
subject to the Mortgage Loans may be added to the amount owing under the
related Mortgage Note where the terms of the Mortgage Note so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders. Such costs, to the extent that they are unanticipated,
extraordinary costs, and not ordinary or routine costs shall be recoverable
by the Master Servicer pursuant to Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor
Servicers.
(a) The Master Servicer shall be entitled to terminate the rights
and obligations of any Servicer under the applicable Servicing Agreement in
accordance with the terms and conditions of such Servicing Agreement and
without any limitation by virtue of this Agreement; provided, however, that
in the event of termination of any Servicing Agreement by the Master Servicer
or
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the related Servicer, the Master Servicer shall either act as Servicer of the
related Mortgage Loans, or enter into a Servicing Agreement with a successor
Servicer.
(b) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any,
that it replaces. The Master Servicer shall use reasonable efforts to have
the successor Servicer assume liability for the representations and
warranties made by the terminated Servicer in respect of the related Mortgage
Loans, and in the event of any such assumption by the successor Servicer, the
Trustee or the Master Servicer, as applicable, may, in the exercise of its
business judgment, release the terminated Servicer from liability for such
representations and warranties.
Section 9.08. Master Servicer Liable for Enforcement.
Notwithstanding any Servicing Agreement, the Master Servicer shall
remain obligated and liable to the Trustee and the Certificateholders in
accordance with the provisions of this Agreement, to the extent of its
obligations hereunder, without diminution of such obligation or liability by
virtue of such Servicing Agreements or arrangements. The Master Servicer
shall use commercially reasonable efforts to ensure that the Mortgage Loans
are serviced in accordance with the provisions of this Agreement and shall
use commercially reasonable efforts to enforce the provisions of each
Servicing Agreement for the benefit of the Certificateholders. The Master
Servicer shall be entitled to enter into any agreement with the Servicers for
indemnification of the Master Servicer and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification. Except as
expressly set forth herein, the Master Servicer shall have no liability for
the acts or omissions of any Servicer in the performance by such Servicer of
its obligations under the related Servicing Agreement.
Section 9.09. No Contractual Relationship Between Servicers and
Trustee or Depositor.
Any Servicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Servicer
in its capacity as such and not as an originator shall be deemed to be
between such Servicer, the Sellers and the Master Servicer, and, except to
the extent expressly provided therein, the Trustee and the Depositor shall
not be deemed parties thereto and shall have no claims, rights, obligations,
duties or liabilities with respect to such Servicer except as set forth in
Section 9.10 hereof.
Section 9.10. Assumption of Servicing Agreement by Trustee.
(a) In the event the Master Servicer shall for any reason no longer
be the Master Servicer (including by reason of any Event of Default under
this Agreement), the Trustee shall, in accordance with Section 6.14,
thereupon assume all of the rights and obligations of such Master Servicer
hereunder and enforce the rights under each Servicing Agreement entered into
with respect to the Mortgage Loans. The Trustee, its designee or any
successor master servicer appointed by the Trustee shall be deemed to have
assumed all of the Master Servicer's interest herein and therein to the same
extent as if such Servicing Agreement had been assigned to the assuming
party, except that the Master Servicer shall not thereby be relieved of any
liability or obligations of the Master Servicer under such Servicing
Agreement accruing prior to its replacement as Master Servicer, and shall be
liable to the Trustee, and hereby agrees to
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indemnify and hold harmless the Trustee from and against all costs, damages,
expenses and liabilities (including reasonable attorneys' fees) incurred by
the Trustee as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (but not its
performance, except to the extent that costs or liability of the Trustee are
created or increased as a result of negligent or wrongful acts or omissions
of the Master Servicer prior to its replacement as Master Servicer) of the
Master Servicer's obligations, duties or responsibilities thereunder;
provided that the Master Servicer shall not indemnify or hold harmless the
Trustee against negligent or willful misconduct of the Trustee.
(b) The Master Servicer that has been terminated shall, upon request
of the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to each Servicing Agreement
and the related Mortgage Loans and an accounting of amounts collected and
held by it and otherwise use its best efforts to effect the orderly and
efficient transfer of each Servicing Agreement to the assuming party.
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements.
(a) To the extent provided in the applicable Servicing Agreement, to
the extent Mortgage Loans contain enforceable due-on-sale clauses, and to the
extent that the Master Servicer has knowledge of the conveyance of a
Mortgaged Property, the Master Servicer shall use its reasonable best efforts
to cause the Servicers to enforce such clauses in accordance with the
applicable Servicing Agreement. If applicable law prohibits the enforcement
of a due-on-sale clause or such clause is otherwise not enforced in
accordance with the applicable Servicing Agreement, and, as a consequence, a
Mortgage Loan is assumed, the original Mortgagor may be released from
liability in accordance with the applicable Servicing Agreement.
(b) The Master Servicer or the related Servicer, as the case may be,
shall be entitled to approve a request from a Mortgagor for the granting of
an easement thereon in favor of another Person or any alteration or
demolition of the related Mortgaged Property if it has determined, exercising
its good faith business judgment in the same manner as it would if it were
the owner of the related Mortgage Loan, that the security for, and the timely
and full collectability of, such Mortgage Loan would not be materially
adversely affected thereby. Any fee collected by the Master Servicer or the
related Servicer for processing such a request will be retained by the Master
Servicer or such Servicer as additional servicing compensation.
Section 9.12. Release of Mortgage Files.
(a) Upon (i) becoming aware of the payment in full of any Mortgage
Loan or (ii) the receipt by the Master Servicer of a notification that
payment in full has been or will be escrowed in a manner customary for such
purposes, the Master Servicer will, or will cause the applicable Servicer to,
promptly notify the Trustee (or the applicable Custodian) by a certification
(which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment that are required
to be deposited in the Collection Account maintained by the Master Servicer
pursuant to Section 4.01 have been or will be so deposited) of a Servicing
Officer and shall request the Trustee or the applicable Custodian, to deliver
to the applicable Servicer the related Mortgage File. In lieu of sending a
hard copy certification of a Servicing Officer, the Master Servicer may, or
may cause the Servicer to, deliver the request for
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release in a mutually agreeable electronic format. To the extent that such a
request, on its face, originates from a Servicing Officer, no signature shall
be required. Upon receipt of such certification and request, the Trustee or
the applicable Custodian, shall promptly release the related Mortgage File to
the applicable Servicer and neither the Trustee nor the Custodian shall have
any further responsibility with regard to such Mortgage File. The Master
Servicer is authorized, and each Servicer, to the extent such authority is
delegated to such Servicer by the Master Servicer under the applicable
Servicing Agreement, is authorized, to give, as agent for the Trustee, as the
mortgagee under the Mortgage that secured the Mortgage Loan, an instrument of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction
or assignment, as the case may be, shall be delivered to the Person or
Persons entitled thereto against receipt therefor of such payment, it being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of, or other legal proceedings relating to, any Mortgage Loan and
in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such pleadings, request for trustee's
sale or other documents as shall be prepared and furnished to the Trustee by
the Master Servicer, or by a Servicer (in form reasonably acceptable to the
Trustee) and as are necessary to the prosecution of any such proceedings. The
Trustee or the Custodian, shall, upon request of the Master Servicer, or of a
Servicer, and delivery to the Trustee or the applicable Custodian, of a trust
receipt signed by a Servicing Officer substantially in the form annexed
hereto as Exhibit C or in the form annexed to the applicable Custodial
Agreement as Exhibit C, release the related Mortgage File held in its
possession or control to the Master Servicer (or the applicable Servicer).
Such trust receipt shall obligate the Master Servicer or applicable Servicer
to return the Mortgage File to the Trustee or Custodian, as applicable, when
the need therefor by the Master Servicer or applicable Servicer no longer
exists unless (i) the Mortgage Loan shall be liquidated, in which case, upon
receipt of a certificate of a Servicing Officer similar to that herein above
specified, the trust receipt shall be released by the Trustee or the
Custodian, as applicable, to the Master Servicer (or the applicable Servicer)
or (ii) the Mortgage File has been delivered directly or through a Servicer
to an attorney, or to a public trustee or other public official as required
by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially
or non-judicially, and the Master Servicer has delivered directly or through
a Servicer to the Trustee a certificate of a Servicing Officer certifying as
to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery.
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee.
(a) The Master Servicer shall transmit, or cause the applicable
Servicer to transmit, to the Trustee such documents and instruments coming
into the possession of the Master Servicer or such Servicer from time to time
as are required by the terms hereof to be delivered to the Trustee. Any funds
received by the Master Servicer or by a Servicer in respect of any Mortgage
Loan or which otherwise are collected by the Master Servicer or by a Servicer
as Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall be held for the benefit of the Trustee and the Certificateholders
subject to the Master Servicer's right to retain or withdraw
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from the Collection Account the Master Servicing Fee and other amounts
provided in this Agreement, and to the right of each Servicer to retain its
Servicing Fee and other amounts as provided in the applicable Servicing
Agreement. The Master Servicer shall, and shall (to the extent provided in
the applicable Servicing Agreement) cause each Servicer to, provide access to
information and documentation regarding the Mortgage Loans to the Trustee,
its agents and accountants at any time upon reasonable request and during
normal business hours, and to Certificateholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and
Corporation or examiners of any other federal or state banking or insurance
regulatory authority if so required by applicable regulations of the Office
of Thrift Supervision or other regulatory authority, such access to be
afforded without charge but only upon reasonable request in writing and
during normal business hours at the offices of the Master Servicer designated
by it. In fulfilling such a request the Master Servicer shall not be
responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, or any Servicer, in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by such Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee; provided, however, that the Master Servicer and each Servicer
shall be entitled to setoff against, and deduct from, any such funds any
amounts that are properly due and payable to the Master Servicer or such
Servicer under this Agreement or the applicable Servicing Agreement and shall
be authorized to remit such funds to the Trustee in accordance with this
Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee shall own or, to the extent that
a court of competent jurisdiction shall deem the conveyance of the Mortgage
Loans from either Seller to the Depositor not to constitute a sale, the
Trustee shall have a security interest in such Mortgage Loans and in all
Mortgage Files representing such Mortgage Loans and in all funds now or
hereafter held by, or under the control of, a Servicer or the Master Servicer
that are collected by such Servicer or the Master Servicer in connection with
such Mortgage Loans, whether as scheduled installments of principal and
interest or as full or partial prepayments of principal or interest or as
Liquidation Proceeds or Insurance Proceeds or otherwise, and in all proceeds
of the foregoing and proceeds of proceeds (but excluding any fee or other
amounts to which such Servicer is entitled under the applicable Servicing
Agreement, or the Master Servicer or the Depositor is entitled to hereunder);
and the Master Servicer agrees that so long as the Mortgage Loans are
assigned to and held by the Trustee, all documents or instruments
constituting part of the Mortgage Files, and such funds relating to the
Mortgage Loans which come into the possession or custody of, or which are
subject to the control of, the Master Servicer or any Servicer shall be held
by the Master Servicer or such Servicer for and on behalf of the Trustee as
the Trustee's agent and bailee for purposes of perfecting the Trustee's
security interest therein as provided by the applicable Uniform Commercial
Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not
authorize any Servicer to, create, incur or subject any Mortgage Loans, or
any funds that are deposited in any custodial account, Escrow Account or the
Collection Account, or any funds that otherwise are or may
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become due or payable to the Trustee, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, nor assert by legal
action or otherwise any claim or right of setoff against any Mortgage Loan or
any funds collected on, or in connection with, a Mortgage Loan.
Section 9.14. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the
Depositor and the Trustee, for the benefit of the Certificateholders, as of
the Closing Date that:
(i) it is validly existing and in good standing under the
jurisdiction of its formation, and as Master Servicer has full power
and authority to transact any and all business contemplated by this
Agreement and to execute, deliver and comply with its obligations
under the terms of this Agreement, the execution, delivery and
performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the Master
Servicer is a party or by which it is bound or to which any of its
assets are subject, which violation, default or breach would
materially and adversely affect the Master Servicer's ability to
perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties
hereto, a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with the terms
hereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights in general, and by general equity
principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any
order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that
any such default would materially and adversely affect its
performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw
or any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this Agreement or the performance
by the Master Servicer of its obligations under this Agreement;
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(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential
mortgage loans, is an FNMA- and FHLMC approved seller/servicer;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master
Servicer; and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section
9.02, each of which is in full force and effect, and each of which
provides at least such coverage as is required hereunder.
(b) It is understood and agreed that the representations and
warranties set forth in this Section 9.14 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Depositor
and the Trustee and hold them harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs
and expenses resulting from any claim, demand, defense or assertion based on
or grounded upon, or resulting from, a breach of the Master Servicer's
representations and warranties contained in Section 9.14(a). Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not be
liable for special, indirect or consequential losses or damages of any kind
whatsoever (including, but not limited to, lost profits). It is understood
and agreed that the enforcement of the obligation of the Master Servicer set
forth in this Section to indemnify the Depositor and the Trustee as provided
in this Section constitutes the sole remedy (other than as set forth in
Section 6.14) of the Depositor and the Trustee respecting a breach of the
foregoing representations and warranties. Such indemnification shall survive
any termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor,
the Master Servicer or the Trustee or notice thereof by any one of such
parties to the other parties.
(c) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 2.03(a) through (f) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicer and hold it harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Depositor's representations and warranties contained in
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Sections 2.03(a) through (f) hereof. It is understood and agreed that the
enforcement of the obligation of the Depositor set forth in this Section to
indemnify the Master Servicer as provided in this Section constitutes the
sole remedy of the Master Servicer respecting a breach by the Depositor of
the representations and warranties in Sections 2.03(a) through (f) hereof.
Any cause of action against the Depositor relating to or arising out
of the breach of the representations and warranties made in Sections 2.03(a)
through (f) hereof shall accrue upon discovery of such breach by either the
Depositor or the Master Servicer or notice thereof by any one of such parties
to the other parties.
Section 9.15. Closing Certificate and Opinion.
On or before the Closing Date, the Master Servicer shall cause to be
delivered to the Depositor and ▇▇▇▇▇▇ Brothers Inc. an Opinion of Counsel,
dated the Closing Date, in form and substance reasonably satisfactory to the
Depositor and ▇▇▇▇▇▇ Brothers Inc., as to the due authorization, execution
and delivery of this Agreement by the Master Servicer and the enforceability
thereof.
Section 9.16. Standard Hazard and Flood Insurance Policies.
For each Mortgage Loan (other than a Cooperative Loan), the Master
Servicer shall maintain, or cause to be maintained by each Servicer, standard
fire and casualty insurance and, where applicable, flood insurance, all in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Pursuant to Section 4.01, any amounts collected by the Master
Servicer, or by any Servicer, under any insurance policies maintained
pursuant to this Section 9.16 (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the Master Servicer's or the
Servicer's normal servicing procedures and Accepted Servicing Practices)
shall be deposited into the Collection Account, subject to withdrawal
pursuant to Section 4.02. Any cost incurred by the Master Servicer or any
Servicer in maintaining any such insurance if the Mortgagor defaults in its
obligation to do so shall be added to the amount owing under the Mortgage
Loan where the terms of the Mortgage Loan so permit; provided, however, that
the addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Section
4.02(v).
Section 9.17. Presentment of Claims and Collection of Proceeds.
The Master Servicer shall, or shall cause each Servicer (to the
extent provided in the applicable Servicing Agreement) to, prepare and
present on behalf of the Trustee and the Certificateholders all claims under
the Insurance Policies with respect to the Mortgage Loans,
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and take such actions (including the negotiation, settlement, compromise or
enforcement of the insured's claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or
disbursed to a Servicer and remitted to the Master Servicer) in respect of
such policies or bonds shall be promptly deposited in the Collection Account
upon receipt, except that any amounts realized that are to be applied to the
repair or restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the Master Servicer's or the Servicer's normal
servicing procedures need not be so deposited (or remitted).
Section 9.18. Maintenance of the Primary Mortgage Insurance
Policies.
(a) The Master Servicer shall not take, or knowingly permit any
Servicer (consistent with the applicable Servicing Agreement) to take, any
action that would result in non-coverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of such
Master Servicer or Servicer, would have been covered thereunder. To the
extent that coverage is available, the Master Servicer shall use its best
reasonable efforts to keep in force and effect, or to cause each Servicer to
keep in force and effect (to the extent that the Mortgage Loan requires the
Mortgagor to maintain such insurance), primary mortgage insurance applicable
to each Mortgage Loan in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable. The Master Servicer shall
not, and shall not permit any Servicer to, cancel or refuse to renew any such
Primary Mortgage Insurance Policy that is in effect at the date of the
initial issuance of the Certificates and is required to be kept in force
hereunder except as required by applicable law or in accordance with the
provisions of this Agreement and the related Servicing Agreement, as
applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
to present, on behalf of the Trustee and the Certificateholders, claims to
the insurer under any Primary Mortgage Insurance Policies and, in this
regard, to take such reasonable action as shall be necessary to permit
recovery under any Primary Mortgage Insurance Policies respecting defaulted
Mortgage Loans. Pursuant to Section 4.01, any amounts collected by the Master
Servicer or any Servicer under any Primary Mortgage Insurance Policies shall
be deposited in the Collection Account, subject to withdrawal pursuant to
Section 4.02.
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents.
The Trustee (or its custodian, if any, as directed by the Trustee),
shall retain possession and custody of the originals of the Primary Mortgage
Insurance Policies or certificate of insurance if applicable and any
certificates of renewal as to the foregoing as may be issued from time to
time as contemplated by this Agreement. Until all amounts distributable in
respect of the Certificates have been distributed in full and the Master
Servicer otherwise has fulfilled its obligations under this Agreement, the
Trustee (or its custodian, if any, as directed by the Trustee) shall also
retain possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions of this Agreement. The Master Servicer
shall promptly deliver or cause to be delivered to the Trustee (or its
custodian, if any, as directed by the Trustee), upon the execution or receipt
thereof the originals of the Primary Mortgage Insurance Policies and any
certificates of renewal thereof, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
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Section 9.20. Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall use its reasonable best efforts to, or to
cause each Servicer to, foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement. Alternatively, the Master
Servicer may take, or authorize any Servicer to take, other actions in
respect of a defaulted Mortgage Loan, which may include (i) accepting a short
sale (a payoff of the Mortgage Loan for an amount less than the total amount
contractually owed in order to facilitate a sale of the Mortgaged Property by
the Mortgagor) or permitting a short refinancing (a payoff of the Mortgage
Loan for an amount less than the total amount contractually owed in order to
facilitate refinancing transactions by the Mortgagor not involving a sale of
the Mortgaged Property), (ii) arranging for a repayment plan or (iii)
agreeing to a modification in accordance with Section 9.04. In connection
with such foreclosure or other conversion or action, the Master Servicer
shall, consistent with Section 9.18, follow such practices and procedures as
it shall reasonably determine to be in the best interests of the Trust Fund
and the Certificateholders and which shall be consistent with its customary
practices in performing its general mortgage servicing activities; provided
that the Master Servicer shall not be liable in any respect hereunder if the
Master Servicer is acting in connection with any such foreclosure or other
conversion or action in a manner that is consistent with the provisions of
this Agreement. Neither the Master Servicer, nor any Servicer, shall be
required to expend its own funds or incur other reimbursable charges in
connection with any foreclosure, or attempted foreclosure which is not
completed, or toward the correction of any default on a related senior
mortgage loan, or towards the restoration of any property unless it shall
determine (i) that such restoration and/or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan to the Certificateholders after
reimbursement to itself for such expenses or charges and (ii) that such
expenses and charges will be recoverable to it through Liquidation Proceeds
or Insurance Proceeds (as provided in Section 4.02).
Section 9.21. Compensation to the Master Servicer.
The Master Servicer shall be entitled to withdraw from the
Collection Account, subject to Section 5.05, the Master Servicing Fee to the
extent permitted by Section 4.02(vi). Servicing compensation in the form of
assumption fees, if any, late payment charges, as collected, if any, or
otherwise (including any Prepayment Penalty Amount) shall be retained by the
Master Servicer (or the applicable Servicer) and shall not be deposited in
the Collection Account. If the Master Servicer does not retain or withdraw
the Master Servicing Fee from the Collection Account as provided herein, the
Master Servicer shall be entitled to direct the Trustee to pay the Master
Servicing Fee to such Master Servicer by withdrawal from the Certificate
Account. The Master Servicer shall be required to pay all expenses incurred
by it in connection with its activities hereunder and shall not be entitled
to reimbursement therefor except as provided in this Agreement. Pursuant to
Section 4.01(e), all income and gain realized from any investment of funds in
the Collection Account shall be for the benefit of the Master Servicer as
additional compensation. The provisions of this Section 9.21 are subject to
the provisions of Section 6.14(b).
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Section 9.22. REO Property.
(a) In the event the Trust Fund acquires ownership of any REO
Property in respect of any Mortgage Loan, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee, on behalf of the
Certificateholders. The Master Servicer shall use its reasonable best efforts
to sell, or, to the extent provided in the applicable Servicing Agreement,
cause the applicable Servicer to sell, any REO Property as expeditiously as
possible and in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable, but in all events within the time
period, and subject to the conditions set forth in Article X hereof. Pursuant
to its efforts to sell such REO Property, the Master Servicer shall protect
and conserve, or cause the applicable Servicer to protect and conserve, such
REO Property in the manner and to such extent required by the applicable
Servicing Agreement, subject to Article X hereof.
(b) The Master Servicer shall deposit or cause to be deposited all
funds collected and received by it, or recovered from any Servicer, in
connection with the operation of any REO Property in the Collection Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees from Liquidation Proceeds received in connection with the
final disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Master Servicing Fees or Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of
any net rental income or other net amounts derived from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable
Servicer as provided above, shall be deposited in the Collection Account on
or prior to the Determination Date in the month following receipt thereof
(and the Master Servicer shall provide prompt written notice to the Trustee
upon such deposit) and be remitted by wire transfer in immediately available
funds to the Trustee for deposit into the Certificate Account on the next
succeeding Deposit Date.
Section 9.23. [Reserved].
Section 9.24. Reports to the Trustee.
(a) Not later than 30 days after each Distribution Date, the Master
Servicer shall forward to the Trustee a statement, deemed to have been
certified by a Servicing Officer, setting forth the status of the Collection
Account maintained by the Master Servicer as of the close of business on the
related Distribution Date, indicating that all distributions required by this
Agreement to be made by the Master Servicer have been made (or if any
required distribution has not been made by the Master Servicer, specifying
the nature and status thereof) and showing, for the period covered by such
statement, the aggregate of deposits into and withdrawals from the Collection
Account maintained by the Master Servicer. Copies of such statement shall be
provided by the Master Servicer to the Depositor, Attention: Contract
Finance, and, upon request, any Certificateholders (or by the Trustee at the
Master Servicer's expense if the Master Servicer shall fail to provide such
copies (unless (i) the Master Servicer shall have failed to
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provide the Trustee with such statement or (ii) the Trustee shall be unaware
of the Master Servicer's failure to provide such statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions,
"loan level" information with respect to the Mortgage Loans as of the related
Determination Date, to the extent that such information has been provided to
the Master Servicer by the Servicers or by the Depositor.
Section 9.25. Annual Officer's Certificate as to Compliance.
(a) The Master Servicer shall deliver to the Trustee and the Rating
Agencies on or before August 31 of each year, commencing on August 31, 2003,
an Officer's Certificate, certifying that with respect to the period ending
on the immediately preceding December 31; (i) such Servicing Officer has
reviewed the activities of such Master Servicer during the preceding calendar
year or portion thereof and its performance under this Agreement; (ii) to the
best of such Servicing Officer's knowledge, based on such review, such Master
Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement in all material respects throughout such
year, or, if there has been a default in the fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof, (iii) nothing has come
to the attention of such Servicing Officer to lead such Servicing Officer to
believe that any Servicer has failed to perform any of its duties,
responsibilities and obligations under its Servicing Agreement in all
material respects throughout such year, or, if there has been a material
default in the performance or fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof, and (iv) the Master
Servicer has received from each Servicer such Servicer's annual certificate
of compliance and a copy of such Servicer's annual audit report, in each case
to the extent required under the applicable Servicing Agreement, or, if any
such certificate or report has not been received by the Master Servicer, the
Master Servicer is using its best reasonable efforts to obtain such
certificate or report.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at
the Master Servicer's expense if the Master Servicer failed to provide such
copies (unless (i) the Master Servicer shall have failed to provide the
Trustee with such statement or (ii) the Trustee shall be unaware of the
Master Servicer's failure to provide such statement).
Section 9.26. Annual Independent Accountants' Servicing Report.
If the Master Servicer has, during the course of any fiscal year,
directly serviced any of the Mortgage Loans, then the Master Servicer at its
expense shall cause a nationally recognized firm of independent certified
public accountants to furnish a statement to the Trustee, the Rating Agencies
and the Depositor on or before August 31 of each year, commencing on August
31, 2003, to the effect that, with respect to the most recently ended fiscal
year, such firm has examined certain records and documents relating to the
Master Servicer's performance of its servicing obligations under this
Agreement and pooling and servicing and trust agreements in
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material respects similar to this Agreement and to each other and that, on
the basis of such examination conducted substantially in compliance with the
audit program for mortgages serviced for FHLMC or the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that
the Master Servicer's activities have been conducted in compliance with this
Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Program for Mortgages Serviced by FHLMC
requires it to report. Copies of such statements shall be provided to any
Certificateholder upon request by the Master Servicer, or by the Trustee at
the expense of the Master Servicer if the Master Servicer shall fail to
provide such copies. If such report discloses exceptions that are material,
the Master Servicer shall advise the Trustee whether such exceptions have
been or are susceptible of cure, and will take prompt action to do so.
Section 9.27. Merger or Consolidation.
Any Person into which the Master Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other
change in form or consolidation to which the Master Servicer shall be a
party, or any Person succeeding to the business of the Master Servicer, shall
be the successor to the Master Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that the successor or resulting Person to the Master Servicer shall be a
Person that shall be qualified and approved to service mortgage loans for
FNMA or FHLMC and shall have a net worth of not less than $15,000,000.
Section 9.28. Resignation of Master Servicer.
Except as otherwise provided in Sections 9.27 and 9.29 hereof, the
Master Servicer shall not resign from the obligations and duties hereby
imposed on it unless it or the Trustee determines that the Master Servicer's
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of
Counsel that shall be Independent to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee shall have assumed,
or a successor master servicer shall have been appointed by the Trustee and
until such successor shall have assumed, the Master Servicer's
responsibilities and obligations under this Agreement. Notice of such
resignation shall be given promptly by the Master Servicer to the Depositor.
Section 9.29. Assignment or Delegation of Duties by the Master
Servicer.
Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; provided, however, that the
Master Servicer shall have the right without the prior written consent of the
Trustee, the Depositor or the Rating Agencies to delegate or assign to or
subcontract with or authorize or
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appoint an Affiliate of the Master Servicer to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Master Servicer hereunder. In no case, however, shall any such delegation,
subcontracting or assignment to an Affiliate of the Master Servicer relieve
the Master Servicer of any liability hereunder. Notice of such permitted
assignment shall be given promptly by the Master Servicer to the Depositor
and the Trustee. If, pursuant to any provision hereof, the duties of the
Master Servicer are transferred to a successor master servicer, the entire
amount of the Master Servicing Fees and other compensation payable to the
Master Servicer pursuant hereto, including amounts payable to or permitted to
be retained or withdrawn by the Master Servicer pursuant to Section 9.21
hereof, shall thereafter be payable to such successor master servicer.
Section 9.30. Limitation on Liability of the Master Servicer and
Others.
Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to
the Trustee or the Certificateholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement, or
for errors in judgment; provided, however, that this provision shall not
protect the Master Servicer or any such person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of its duties or by reason of reckless
disregard for its obligations and duties under this Agreement. The Master
Servicer and any director, officer, employee or agent of the Master Servicer
shall be entitled to indemnification by the Trust Fund and will be held
harmless against any loss, liability or expense incurred in connection with
any legal action relating to this Agreement or the Certificates other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of his or its duties hereunder or by
reason of reckless disregard of his or its obligations and duties hereunder.
The Master Servicer and any director, officer, employee or agent of the
Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Master Servicer shall be under no obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties
to master service the Mortgage Loans in accordance with this Agreement and
that in its opinion may involve it in any expenses or liability; provided,
however, that the Master Servicer may in its sole discretion undertake any
such action that it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto and the interests
of the Certificateholders hereunder. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund and the Master Servicer shall be
entitled to be reimbursed therefor out of the Collection Account it maintains
as provided by Section 4.02.
Section 9.31. Indemnification; Third-Party Claims.
The Master Servicer agrees to indemnify the Depositor and the
Trustee, and hold them harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
any other costs, liability, fees and expenses that the Depositor and the
Trustee may sustain as a result of the failure of the Master Servicer to
perform its duties and master service the Mortgage Loans in compliance with
the terms of this Agreement. The Depositor and the Trustee shall immediately
notify the Master Servicer if a claim is made by a third party with respect
to this Agreement or the Mortgage Loans entitling the Depositor or the
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Trustee to indemnification hereunder, whereupon the Master Servicer shall
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any judgment or decree which may be entered against it or them in respect of
such claim.
Article X REMIC ADMINISTRATION
Section 10.01. REMIC Administration.
(a) As set forth in the Preliminary Statement hereto, the Trustee
shall elect REMIC status in accordance with the REMIC Provisions with respect
to the REMIC. The Trustee shall make such election on Forms 1066 or other
appropriate federal tax or information return for the taxable year ending on
the last day of the calendar year in which the Certificates are issued. For
the purposes of such elections, each Certificate, other than the Class R
Certificate, is hereby designated as a regular interest in the REMIC. The
Class R Certificate is hereby designated as the sole residual interest in the
REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of
the REMIC within the meaning of section 86OG(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.86OG-1(a)(4)
will be the Latest Possible Maturity Date.
(c) The Trustee shall pay any and all tax related expenses (not
including taxes) of the REMIC, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial
proceedings with respect to such REMIC that involve the Internal Revenue
Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Trustee in fulfilling its
duties hereunder (including its duties as tax return preparer). Subject to
Section 6.12 hereof, the Trustee shall be entitled to reimbursement of
expenses to the extent provided in clause (i) above from the Certificate
Account.
(d) The Trustee shall prepare, sign and file, all of the REMIC's
federal and state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be
borne by the Trustee. If any Disqualified Organization acquires any Ownership
Interest in a Residual Certificate, then the Trustee will upon request
provide to the Internal Revenue Service, and to the persons specified in
Sections 860E(e)(3) and (6) of the Code, such information as required in
Section 860D(a)(6)(B) of the Code needed to compute the tax imposed under
Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations. The Trustee shall be entitled to additional
compensation from such person for the cost of providing such information.
(e) The Trustee shall perform on behalf of the REMIC all reporting
and other tax compliance duties that are the responsibility of such REMIC
under the Code, the REMIC Provisions, or other compliance guidance issued by
the Internal Revenue Service or any state or local taxing authority. Among
its other duties, if required by the Code, the REMIC Provisions, or other
such guidance, the Trustee shall provide (i) to the Treasury or other
governmental
105
authority such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any disqualified person or
organization and (ii) to the Certificateholders such information or reports as
are required by the Code or REMIC Provisions.
(f) The Trustee, the Master Servicer and the Holders of Certificates
shall take any action or cause the REMIC to take any action necessary to
create or maintain the status of such REMIC as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain
such status. Neither the Trustee, the Master Servicer nor the Holder of any
Residual Certificate shall take any action, cause the REMIC to take any
action or fail to take (or fail to cause to be taken) any action that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of such REMIC as a REMIC or (ii) result in the imposition
of a tax upon such REMIC (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth on Section 860G(d) of the Code) (either such event,
an "Adverse REMIC Event") unless the Trustee and the Master Servicer have
received an Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not endanger
such status or result in the imposition of such a tax. In addition, prior to
taking any action with respect to the REMIC or the assets therein, or causing
such REMIC to take any action, which is not expressly permitted under the
terms of this Agreement any Holder of a Residual Certificate will consult
with the Trustee and the Master Servicer, or their respective designees, in
writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to such REMIC, and no such Person shall take any
such action or cause such REMIC to take any such action as to which the
Trustee or the Master Servicer has advised it in writing that an Adverse
REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the REMIC by federal or state governmental authorities.
To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in such REMIC or, if no such amounts are available, out
of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in such REMIC, as the case
may be.
(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to the REMIC on a calendar year and on an
accrual basis.
(i) No additional contributions of assets shall be made to the
REMIC, except as expressly provided in this Agreement with respect to
eligible substitute mortgage loans.
(j) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which the REMIC will receive a fee or other compensation for
services.
(k) Upon the request of any Rating Agency, the Trustee shall deliver
to such Rating Agency an Officer's Certificate stating the Trustee's
compliance with the provisions of this Section 10.01 applicable to it.
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Section 10.02. Prohibited Transactions and Activities.
Neither the Depositor, the Master Servicer nor the Trustee shall
sell, dispose of, or substitute for any of the Mortgage Loans, except in a
disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of the REMIC pursuant to
Article VII of this Agreement, (iv) a substitution pursuant to Article II of
this Agreement or (v) a repurchase of Mortgage Loans pursuant to Article II
of this Agreement, nor acquire any assets for the REMIC, nor sell or dispose
of any investments in the Certificate Account for gain, nor accept any
contributions to the REMIC after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition,
substitution, or acceptance will not (a) affect adversely the status of such
REMIC as a REMIC or of the Certificates other than the Residual Certificates
as the regular interests therein, (b) affect the distribution of interest or
principal on the Certificates, (c) result in the encumbrance of the assets
transferred or assigned to the Trust Fund (except pursuant to the provisions
of this Agreement) or (d) cause such REMIC to be subject to a tax on
prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and
Loss of REMIC Status.
(a) In the event that the REMIC fails to qualify as a REMIC, loses
its status as a REMIC, or incurs federal, state or local taxes as a result of
a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Trustee of its duties and
obligations set forth herein, the Trustee shall indemnify the Holder of the
Residual Certificate against any and all losses, claims, damages, liabilities
or expenses ("Losses") resulting from such negligence; provided, however,
that the Trustee shall not be liable for any such Losses attributable to the
action or inaction of the Master Servicer, the Depositor, or the Holder of
such Residual Certificate, as applicable, nor for any such Losses resulting
from misinformation provided by the Holder of such Residual Certificate on
which the Trustee has relied. The foregoing shall not be deemed to limit or
restrict the rights and remedies of the Holder of such Residual Certificate
now or hereafter existing at law or in equity. Notwithstanding the foregoing,
however, in no event shall the Trustee have any liability (1) for any action
or omission that is taken in accordance with and in compliance with the
express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent
performance by the Trustee of its duties and obligations set forth herein,
and (3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates).
Section 10.04. REO Property.
(a) Notwithstanding any other provision of this Agreement, the
Master Servicer, acting on behalf of the Trustee hereunder, shall not (except
to the extent provided in the applicable Servicing Agreement) permit any
Servicer to rent, lease, or otherwise earn income on behalf of the REMIC with
respect to any REO Property which might cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of section 860G(a)(8) of
the Code or result in the receipt by the REMIC of any "income from
non-permitted assets" within the meaning of section 860F(a)(2) of the Code or
any "net income from foreclosure property" which
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is subject to tax under the REMIC Provisions unless the Master Servicer has
advised, or has caused the applicable Servicer to advise, the Trustee in
writing to the effect that, under the REMIC Provisions, such action would not
adversely affect the status of the REMIC as a REMIC and any income generated
for such REMIC by the REO Property would not result in the imposition of a
tax upon such REMIC.
(b) The Master Servicer shall make, or shall cause the applicable
Servicer to make, reasonable efforts to sell any REO Property for its fair
market value. In any event, however, the Master Servicer shall, or shall
cause the applicable Servicer to, dispose of any REO Property within three
years from the end of the calendar year of its acquisition by the Trust Fund
unless the Trustee has received a grant of extension from the Internal
Revenue Service to the effect that, under the REMIC Provisions, the REMIC may
hold REO Property for a longer period without adversely affecting the REMIC
status of such REMIC or causing the imposition of a Federal tax upon such
REMIC. If the Trustee has received such an extension, then (a) the Trustee
shall provide a copy of such extension to the Master Servicer and (b) the
Trustee, or the Master Servicer, acting on its behalf hereunder, shall, or
shall cause the applicable Servicer to, continue to attempt to sell the REO
Property for its fair market value for such period longer than three years as
such extension permits (the "Extended Period"). If the Trustee has not
received such an extension and the Trustee, or the Master Servicer acting on
behalf of the Trustee hereunder, or the applicable Servicer is unable to sell
the REO Property within 33 months after its acquisition by the Trust Fund or
if the Trustee has received such an extension, and the Trustee, or the Master
Servicer acting on behalf of the Trustee hereunder, is unable to sell the REO
Property within the period ending three months before the close of the
Extended Period, the Master Servicer shall, or shall cause the applicable
Servicer to, before the end of the three year period or the Extended Period,
as applicable, (i) purchase such REO Property at a price equal to the REO
Property's fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Master Servicer) in an auction reasonably designed
to produce a fair price prior to the expiration of the three-year period or
the Extended Period, as the case may be.
Article XI MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02. Entire Agreement.
This Agreement contains the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control
and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof.
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Section 11.03. Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Master Servicer and the Trustee, without notice to or the
consent of any of the Holders, (i) to cure any ambiguity, (ii) to cause the
provisions herein to conform to or be consistent with or in furtherance of
the statements made with respect to the Certificates, the Trust Fund or this
Agreement in any Offering Document; or to correct or supplement any provision
herein which may be inconsistent with any other provisions herein, (iii) to
make any other provisions with respect to matters or questions arising under
this Agreement or (iv) to add, delete, or amend any provisions to the extent
necessary or desirable to comply with any requirements imposed by the Code
and the REMIC Provisions. No such amendment effected pursuant to the
preceding sentence shall, as evidenced by an Opinion of Counsel, adversely
affect the status of the REMIC created pursuant to this Agreement, nor shall
such amendment effected pursuant to clause (iii) of such sentence adversely
affect in any material respect the interests of any Holder. Prior to entering
into any amendment without the consent of Holders pursuant to this paragraph,
the Trustee may require an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that such amendment is permitted
under this paragraph. Any such amendment shall be deemed not to adversely
affect in any material respect any Holder if the Trustee receives written
confirmation from each Rating Agency that such amendment will not cause such
Rating Agency to reduce, qualify or withdraw the then current rating assigned
to the Certificates (and any Opinion of Counsel requested by the Trustee in
connection with any such amendment may rely expressly on such confirmation as
the basis therefor).
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the
Holders of not less than 66 2/3% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided, however, that no such amendment shall be made unless the
Trustee receives an Opinion of Counsel, at the expense of the party
requesting the change, that such change will not adversely affect the status
of the REMIC as a REMIC or cause a tax to be imposed on such REMIC; and
provided further, that no such amendment may (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate, without the consent of the
Holder of such Certificate or (ii) reduce the aforesaid percentages of Class
Principal Amount (or Percentage Interest) of Certificates of each Class, the
Holders of which are required to consent to any such amendment without the
consent of the Holders of 100% of the Class Principal Amount (or Class
Notional Amount) of each Class of Certificates affected thereby. For purposes
of this paragraph, references to "Holder" or "Holders" shall be deemed to
include, in the case of any Class of Book-Entry Certificates, the related
Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent
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shall approve the substance thereof. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by Holders shall
be subject to such reasonable regulations as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to any amendment of any Servicing
Agreement except pursuant to the standards provided in this Section with
respect to amendment of this Agreement.
Section 11.04. Voting Rights.
Except to the extent that the consent of all affected
Certificateholders is required pursuant to this Agreement, with respect to
any provision of this Agreement requiring the consent of Certificateholders
representing specified percentages of aggregate outstanding Certificate
Principal Amount (or Notional Amount), Certificates owned by the Depositor,
the Master Servicer, the Trustee or any Servicer or Affiliates thereof are
not to be counted so long as such Certificates are owned by the Depositor,
the Master Servicer, the Trustee or any Servicer or Affiliates thereof.
Section 11.05. Provision of Information.
(a) For so long as any of the Certificates of any Series or Class
are "restricted securities" within the meaning of Rule 144(a)(3) under the
Act, each of the Depositor and the Trustee agree to cooperate with each other
to provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such Certificateholder, upon the request of such
Certificateholder or prospective purchaser, any information required to be
provided to such holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the Act. Any reasonable, out-of-pocket
expenses incurred by the Trustee in providing such information shall be
reimbursed by the Depositor.
(b) The Trustee will provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or
documents requested, (i) a copy (excluding exhibits) of any report on Form
8-K or Form 10-K filed with the Securities and Exchange Commission pursuant
to Section 6.20(c) and (ii) a copy of any other document incorporated by
reference in the Prospectus. Any reasonable out-of-pocket expenses incurred
by the Trustee in providing copies of such documents shall be reimbursed by
the Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause to
be delivered by first class mail or to make available on its website to the
Depositor, Attention: Contract Finance, a copy of the report delivered to
Certificateholders pursuant to Section 4.03.
Section 11.06. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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Section 11.07. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered to such
party at the relevant address, facsimile number or electronic mail address
set forth below (or at such other address, facsimile number or electronic
mail address as such party may designate from time to time by written notice
in accordance with this Section 11.07): (a) in the case of the Depositor,
Structured Asset Securities Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇, (b) in the case of the
Trustee, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Institutional Trust Services (SASCO 2002-4H), and (c) in the case
of the Master Servicer, Aurora Loan Services Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Master Servicing, or as to each
party such other address as may hereafter be furnished by such party to the
other parties in writing. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at the address of
such Holder as shown in the Certificate Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice.
Section 11.08. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders
thereof.
Section 11.09. Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right,
remedy, power or privilege preclude any other or further exercise of the same
or of any other right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence. No waiver shall be effective unless it is in writing
and is signed by the party asserted to have granted such waiver.
Section 11.10. Headings Not To Affect Interpretation.
The headings contained in this Agreement are for convenience of
reference only, and they shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or
implied, shall give to any Person, other than the parties to this Agreement
and their successors hereunder and the Holders of the Certificates, any
benefit or any legal or equitable right, power, remedy or claim under this
Agreement, except to the extent specified in Sections 11.14 and 11.15.
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Section 11.12. Special Notices to the Rating Agencies.
(a) The Depositor shall give prompt notice to the Rating Agencies of
the occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any Assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in
Section 6.14;
(iv) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(v) the appointment of any successor to any Master Servicer
pursuant to Section 6.14; and
(vi) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier, as follows:
If to Moody's, to:
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgage Surveillance
If to S&P, to:
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Residential Mortgage Surveillance
If to Fitch, to:
Fitch Ratings
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgage Surveillance
(c) The Trustee shall provide or make available to the Rating
Agencies reports prepared pursuant to Section 4.03. In addition, the Trustee
shall, at the expense of the Trust Fund, make available to each Rating Agency
such information as such Rating Agency may
112
reasonably request regarding the Certificates or the Trust Fund, to the
extent that such information is reasonably available to the Trustee.
Section 11.13. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Section 11.14. Transfer of Servicing.
Each Seller agrees that it shall provide written notice to the
Trustee and the Master Servicer thirty days prior to any transfer or
assignment by such Seller of its rights under any Servicing Agreement or of
the servicing thereunder or delegation of its rights or duties thereunder or
any portion thereof to any Person other than the initial Servicer under such
Servicing Agreement; provided, that (i) each Seller shall not be required to
provide prior notice of any transfer of servicing that occurs within three
months following the Closing Date to an entity that is a Servicer on the
Closing Date or (ii) neither ▇▇▇▇▇▇ Capital nor ▇▇▇▇▇▇ Bank shall be required
to provide notice of any transfer of servicing rights by either of them to
the other. In addition, the ability of each Seller to transfer or assign its
rights and delegate its duties under any Servicing Agreement (other than a
transfer of servicing rights between ▇▇▇▇▇▇ Capital and ▇▇▇▇▇▇ Bank) or to
transfer the servicing thereunder to a successor servicer shall be subject to
the following conditions:
(i) Such successor servicer must be qualified to service loans
for FNMA or FHLMC;
(ii) Such successor servicer must satisfy the seller/servicer
eligibility standards in the applicable Servicing Agreement,
exclusive of any experience in mortgage loan origination, and must
be reasonably acceptable to the Master Servicer, whose approval
shall not be unreasonably withheld;
(iii) Such successor servicer must execute and deliver to the
Trustee and the Master Servicer an agreement, in form and substance
reasonably satisfactory to the Trustee and the Master Servicer, that
contains an assumption by such successor servicer of the due and
punctual performance and observance of each covenant and condition
to be performed and observed by the applicable Servicer under the
applicable Servicing Agreement or, in the case of a transfer of
servicing to a party that is already a Servicer pursuant to this
Agreement, an agreement to add the related Mortgage Loans to the
Servicing Agreement already in effect with such Servicer;
(iv) If the successor servicer is not a Servicer of Mortgage
Loans at the time of transfer, there must be delivered to the
Trustee a letter from each Rating Agency to the effect that such
transfer of servicing will not result in a qualification, withdrawal
or downgrade of the then-current rating of any of the Certificates;
(v) The related Seller shall, at its cost and expense, take
such steps, or cause the terminated Servicer to take such steps, as
may be necessary or appropriate to effectuate and evidence the
transfer of the servicing of the Mortgage Loans to such
113
successor servicer, including, but not limited to, the following:
(A) to the extent required by the terms of the Mortgage Loans and by
applicable federal and state laws and regulations, the related
Seller shall cause the prior Servicer to timely mail to each obligor
under a Mortgage Loan any required notices or disclosures describing
the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of
servicing, the related Seller shall cause the prior Servicer to
transmit to any related insurer notification of such transfer of
servicing; (C) on or prior to the effective date of such transfer of
servicing, the related Seller shall cause the prior Servicer to
deliver to the successor servicer all Mortgage Loan Documents and
any related records or materials; (D) on or prior to the effective
date of such transfer of servicing, the related Seller shall cause
the prior Servicer to transfer to the successor servicer, or, if
such transfer occurs after a Remittance Date but before the next
succeeding Deposit Date, to the Master Servicer, all funds held by
the applicable Servicer in respect of the Mortgage Loans; (E) on or
prior to the effective date of such transfer of servicing, the
related Seller shall cause the prior Servicer to, after the
effective date of the transfer of servicing to the successor
servicer, continue to forward to such successor servicer, within one
Business Day of receipt, the amount of any payments or other
recoveries received by the prior Servicer, and to notify the
successor servicer of the source and proper application of each such
payment or recovery; and (F) the related Seller shall cause the
prior Servicer to, after the effective date of transfer of servicing
to the successor servicer, continue to cooperate with the successor
servicer to facilitate such transfer in such manner and to such
extent as the successor servicer may reasonably request.
114
IN WITNESS WHEREOF, the Depositor, the Trustee and the Master
Servicer have caused their names to be signed hereto by their respective
officers hereunto duly authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By:_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK,
as Trustee
By:_______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
AURORA LOAN SERVICES INC.,
as Master Servicer
By:_______________________________
Name: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
115
Solely for purposes of Section 11.14,
accepted and agreed to by:
▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
Solely for purposes of Section 11.14
accepted and agreed to by:
▇▇▇▇▇▇ BROTHERS BANK, F.S.B.
By:________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
116
EXHIBIT A
---------
FORMS OF CERTIFICATES
[Intentionally Omitted]
EXHIBIT B-1
-----------
FORM OF INITIAL CERTIFICATION
---------------
[Date]
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Aurora Loan Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: Trust Agreement, dated as of February 1, 2002, (the "Trust
Agreement"), between Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services Inc., as Master Servicer and
JPMorgan Chase Bank, as Trustee, with respect to Structured
Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2002-4H
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Trust Agreement, subject
to review of the contents thereof, the undersigned, as Custodian on behalf of
the Trustee, hereby certifies that it has received the documents listed in
Section 2.01(b) of the Trust Agreement for each Mortgage File pertaining to
each Mortgage Loan listed on Schedule A, to the Trust Agreement, subject to
any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Trust
Agreement. This Certificate is subject in all respects to the terms of
Section 2.02 of the Trust Agreement and the Trust Agreement sections
cross-referenced therein.
[[Custodian]], on behalf of
JPMORGAN CHASE BANK,
as Trustee
By:________________________
Name:
Title:
B-1
EXHIBIT B-2
-----------
FORM OF INTERIM CERTIFICATION
---------------
[Date]
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Aurora Loan Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: Trust Agreement, dated as of February 1, 2002, (the "Trust
Agreement"), between Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services Inc., as Master Servicer and
JPMorgan Chase Bank, as Trustee, with respect to Structured
Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2002-4H
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on the attachment hereto, it has reviewed the documents listed above and has
determined that each such document appears regular on its face and appears to
relate to the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement including, but
not limited to, Section 2.02(b).
[[Custodian]], on behalf of
JPMORGAN CHASE BANK,
as Trustee
By:____________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM OF FINAL CERTIFICATION
---------------
[Date]
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Aurora Loan Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement, dated as of February 1, 2002, (the "Trust
Agreement"), between Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services Inc., as Master Servicer and
JPMorgan Chase Bank, as Trustee, with respect to Structured
Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2002-4H
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it has
received the applicable documents listed in Section 2.02(b) of the Trust
Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on the attachment hereto, it has reviewed the documents listed above and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in the Mortgage Loan
Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement.
[[Custodian]], on behalf of
JPMORGAN CHASE BANK,
as Trustee
By:___________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM OF ENDORSEMENT
Pay to the order of JPMorgan Chase Bank, as trustee (the "Trustee")
under the Trust Agreement dated as of February 1, 2002, among Structured
Asset Securities Corporation, as Depositor, the Trustee and the Master
Servicer relating to Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2002-4H, without recourse.
-----------------------------------
[current signatory on note]
By:________________________________
Name:
Title:
B-4-1
EXHIBIT C
---------
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
---------------
[Date]
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you
as Trustee under a certain Trust Agreement dated as of February 1, 2002 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc., as Master Servicer and you, as Trustee (the "Trust Agreement"), the
undersigned Master Servicer hereby requests a release of the Mortgage File
held by you as Trustee with respect to the following described Mortgage Loan
for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
Mortgage Loan paid in full. (The Master Servicer hereby certifies that all
amounts received in connection with the loan have been or will be credited to
the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
The Mortgage Loan is being foreclosed.
Mortgage Loan substituted. (The Master Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Trust Agreement.)
Mortgage Loan repurchased. (The Master Servicer hereby certifies that the
Purchase Price has been credited to the Collection Account or the Certificate
Account (whichever is applicable) pursuant to the Trust Agreement.)
Other. (Describe)
California Mortgage Loan expected to be paid in full.
C-1
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Trust
Agreement and will be returned to you within ten (10) days of our receipt of
the Mortgage File, except if the Mortgage Loan has been paid in full, or
repurchased or substituted for a Qualifying Substitute Mortgage Loan (in
which case the Mortgage File will be retained by us permanently) and except
if the Mortgage Loan is being foreclosed or is a California Mortgage Loan
specified in #6 above (in which case the Mortgage File will be returned when
no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Trust Agreement.
-------------------------------------
[Name of Master Servicer]
By:__________________________________
Name:
Title: Servicing Officer
C-2
EXHIBIT D-1
-----------
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly
sworn, deposes and says:
That he [she] is [title of officer] ________________________ of
[name of Purchaser] _________________________________________ (the
"Purchaser"), a _______________________ [description of type of entity] duly
organized and existing under the laws of the [State of __________] [United
States], on behalf of which he [she] makes this affidavit.
That the Purchaser's Taxpayer Identification Number is
______________.
That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as
amended (the "Code") and will not be a "disqualified organization" as of
__________________ [date of transfer], and that the Purchaser is not
acquiring a Residual Certificate (as defined in the Agreement) for the
account of, or as agent (including a broker, nominee, or other middleman)
for, any person or entity from which it has not received an affidavit
substantially in the form of this affidavit.
That the Purchaser is not, and on __________________ [date of
transfer] will not be, an employee benefit plan subject to Section 406 or
Section 407 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code, the trustee of any such plan
or a person acting on behalf of any such plan or investing the assets of any
such plan to acquire a Residual Certificate.
That the Purchaser hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, JPMorgan Chase Bank, as Trustee and Aurora Loan Services Inc.,
as Master Servicer, dated as of January 1, 2002, no transfer of a Residual
Certificate shall be permitted to be made to any person unless the Depositor
and the Trustee have received a certificate from such transferee containing
the representations in paragraphs 3, 4 and 5 hereof.
That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a "Book-Entry Nominee").
That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes legally
required to be paid with respect to such Residual
D-1-1
Certificate, and that the Purchaser has provided financial statements or
other financial information requested by the transferor in connection with
the transfer of the Residual Certificate in order to permit the transferor to
assess the financial capability of the Purchaser to pay such taxes.
That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof are
not satisfied or that the Purchaser has reason to believe does not satisfy
the requirements set forth in paragraph 7 hereof, and (ii) without obtaining
from the prospective Purchaser an affidavit substantially in this form and
providing to the Trustee a written statement substantially in the form of
Exhibit G to the Agreement.
That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash
flows generated by the interest and that it intends to pay taxes associated
with holding such Residual Certificate as they become due.
That the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor
and the Trustee with an effective Internal Revenue Service Form W-8 ECI
(Certificate of Foreign Person's Claim for exception From Withholding on
Income Effectively Connected with the Conduct of a Trade or Business in the
United States) or successor form at the time and in the manner required by
the Code. "Non-U.S. Person" means any person other than (i) a citizen or
resident of the United States; (ii) a corporation (or entity treated as a
corporation for tax purposes) created or organized in the United States or
under the laws of the United States or of any state thereof, including, for
this purpose, the District of Columbia; (iii) a partnership (or entity
treated as a partnership for tax purposes) organized in the United States or
under the laws of the United States or of any state thereof, including, for
this purpose, the District of Columbia (unless provided otherwise by future
Treasury regulations); (iv) an estate whose income is includible in gross
income for United States income tax purposes regardless of its source; (v) a
trust, if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more U.S. Persons
have authority to control all substantial decisions of the trust; (vi) and,
to the extent provided in Treasury regulations, certain trusts in existence
prior to August 20, 1996 that are treated as United States persons prior to
such date and elect to continue to be treated as United States persons.
That the Purchaser agrees to such amendments of the Trust Agreement
as may be required to further effectuate the restrictions on transfer of any
Residual Certificate to such a "disqualified organization," an agent thereof,
a Book-Entry Nominee, or a person that does not satisfy the requirements of
paragraph 7 and paragraph 10 hereof.
That the Purchaser consents to the designation of the Trustee as
its agent to act as "tax matters person" of the Trust Fund pursuant to the
Trust Agreement.
D-1-2
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________, 20__.
----------------------------------
[name of Purchaser]
By:_______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the [title of officer] _________________
of the Purchaser, and acknowledged to me that he [she] executed the same as
his [her] free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
------------------------------
COUNTY OF_____________________
STATE OF_______________________
My commission expires the _____ day of __________, 20__.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
------------------
Date
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2002-4H
---------------------------------------
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with respect to a Residual Certificate. In addition, the Transferor has
conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
D-2-1
EXHIBIT E
---------
SERVICING AGREEMENTS
[See Item #99.3 through #99.11]
E-1
EXHIBIT F
---------
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2002-4H
----------------------------------------------
Reference is hereby made to the Trust Agreement dated as of
February 1, 2002 (the "Trust Agreement") among Structured Asset Securities
Corporation, as Depositor, JPMorgan Chase Bank, as Trustee and Aurora Loan
Services Inc., as Master Servicer. Capitalized terms used but not defined
herein shall have the meanings given to them in the Trust Agreement.
This letter relates to $_________ initial Certificate
Principal Amount of Class Certificates which are held in the form of
Definitive Certificates registered in the name of (the "Transferor"). The
Transferor has requested a transfer of such Definitive Certificates for
Definitive Certificates of such Class registered in the name of [insert name
of transferee].
In connection with such request, and in respect of such
Certificates, the Transferor hereby certifies that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth
in the Trust Agreement and the Certificates and (ii) Rule 144A under the
Securities Act to a purchaser that the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A purchasing
for its own account or for the account of a "qualified institutional buyer",
which purchaser is aware that the sale to it is being made in reliance upon
Rule 144A, in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Placement Agent and the
Depositor.
--------------------------------------
[Name of Transferor]
By:___________________________________
Name:
Title:
Dated: __________________, ________
F-1
EXHIBIT G
---------
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
------------------
Date
Dear Sirs:
In connection with our proposed purchase of $______________
principal amount of Mortgage Pass-Through Certificates, Series 2002-4H (the
"Privately Offered Certificates") of Structured Asset Securities Corporation
(the "Depositor") which are held in the form of Definitive Certificates, we
confirm that:
We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell any Privately
Offered Certificates within two years of the later of the date of original
issuance of the Privately Offered Certificates or the last day on which such
Privately Offered Certificates are owned by the Depositor or any affiliate of
the Depositor (which includes the Placement Agent) we will do so only (A) to
the Depositor, (B) to "qualified institutional buyers" (within the meaning of
Rule 144A under the Securities Act) in accordance with Rule 144A under the
Securities Act ("QIBs"), (C) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or (D) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act that is not a QIB (an "Institutional
Accredited Investor") which, prior to such transfer, delivers to the Trustee
under the Trust Agreement dated as of February 1, 2002 among the Depositor,
JPMorgan Chase Bank, as Trustee (the "Trustee") and Aurora Loan Services
Inc., as Master Servicer, a signed letter in the form of this letter; and we
further agree, in the capacities stated above, to provide to any person
purchasing any of the Privately Offered Certificates from us a notice
advising such purchaser that resales of the Privately Offered Certificates
are restricted as stated herein.
We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor, we
will be required to furnish to the Trustee and the Depositor a certification
from such transferee in the form hereof to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act. We further understand
that the Privately Offered Certificates purchased by us will bear a legend to
the foregoing effect.
We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act. We have such knowledge and
experience in financial and business matters as to be capable
G-1
of evaluating the merits and risks of our investment in the Privately Offered
Certificates, and we and any account for which we are acting are each able to
bear the economic risk of such investment.
We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or for one
or more accounts (each of which is an Institutional Accredited Investor) as
to each of which we exercise sole investment discretion.
We have received such information as we deem necessary in order to
make our investment decision.
If we are acquiring ERISA-Restricted Certificates, we understand
that in accordance with ERISA, the Code and the Exemption, no Plan and no
person acting on behalf of such a Plan may acquire such Certificate except in
accordance with Section 3.03(d) of the Trust Agreement.
Terms used in this letter which are not otherwise defined herein
have the respective meanings assigned thereto in the Trust Agreement.
G-2
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
------------------------------
[Purchaser]
By_____________________________
Name:
Title:
G-3
EXHIBIT H
---------
[FORM OF ERISA TRANSFER AFFIDAVIT]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says
as follows:
The undersigned is the ______________________ of (the "Investor"), a
[corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
The Investor either (x) is not, and on ___________ [date of
transfer] will not be, an employee benefit plan subject to Section 406 or
Section 407 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), the trustee of any such plan or a person acting on
behalf of any such plan or investing the assets of any such plan; (y) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, is an
insurance company that is purchasing the Certificate with funds contained in
an "insurance company general account" as defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60 and the purchase and
holding of the Certificate are covered under Section I and III of PTCE 95-60;
or (z) herewith delivers to the Trustee and shall deliver to the Depositor an
opinion of counsel (a "Benefit Plan Opinion") satisfactory to the Trustee and
the Depositor, and upon which the Trustee and the Depositor shall be entitled
to rely, to the effect that the purchase or holding of such Certificate by
the Investor will not result in the assets of the Trust Fund being deemed to
be plan assets and subject to the prohibited transaction provisions of ERISA
or the Code and will not subject the Trustee or the Depositor to any
obligation in addition to those undertaken by such entities in the Trust
Agreement, which opinion of counsel shall not be an expense of the Trustee or
the Depositor.
The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities Corporation, as
Depositor, JPMorgan Chase Bank, as Trustee and Aurora Loan Services Inc., as
Master Servicer, dated as of February 1, 2002, no transfer of the
ERISA-Restricted Certificates shall be permitted to be made to any person
unless the Depositor and Trustee have received a certificate from such
transferee in the form hereof.
H-1
IN WITNESS WHEREOF, the Investor has caused this instrument
to be executed on its behalf, pursuant to proper authority, by its duly
authorized officer, duly attested, this ____ day of _______________, 20__.
-------------------------------
[Investor]
By:____________________________
Name:
Title:
ATTEST:
---------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named
___________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the _________________ of the Investor, and
acknowledged that he executed the same as his free act and deed and the free
act and deed of the Investor.
Subscribed and sworn before me this _____ day of
___________ 20___.
-------------------------------
NOTARY PUBLIC
My commission expires the
____ day of__________, 20__.
H-2
EXHIBIT I
---------
MONTHLY REMITTANCE ADVICE
[Intentionally Omitted]
I-1
EXHIBIT J
---------
MONTHLY ELECTRONIC DATA TRANSMISSION
[Intentionally Omitted]
J-1
EXHIBIT K
---------
CUSTODIAL AGREEMENTS
[Intentionally Omitted]
K-1
EXHIBIT L
---------
[Reserved]
L-1
EXHIBIT M
---------
[Reserved]
M-1
EXHIBIT N-1
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO REGULATION S GLOBAL SECURITY
(Transfers pursuant to ss.3.03(h)(B)
of the Agreement)
--------------------------------------------------------------------
Re: Structured Asset Securities Corporation Mortgage Loan
Trust Mortgage Pass-Through Certificates, Series
2002-4H
Reference is hereby made to the Trust Agreement (the "Agreement")
among Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services Inc., as Master Servicer, JPMorgan Chase Bank, as Trustee, dated as
of February 1, 2002. Capitalized terms used but not defined herein shall have
the meanings given to them in the Agreement.
This letter relates to U.S. $ aggregate principal amount of
Securities which are held in the form of a Restricted Global Security with
DTC in the name of [name of transferor] (the "Transferor")
to effect the transfer of the Securities in exchange for an equivalent
beneficial interest in a Regulation S Global Security.
In connection with such request, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Agreement and the Securities and in accordance
with Rule 904 of Regulation S, and that:
a. the offer of the Securities was not made to a person
in the United States;
b. at the time the buy order was originated, the
transferee was outside the United States or the Transferor
and any person acting on its behalf reasonably believed that
the transferee was outside the United States;
c. no directed selling efforts have been made in
contravention of the requirements of Rule 903 or 904 of
Regulation S, as applicable;
d. the transaction is not part of a plan or scheme to
evade the registration requirements of the United States
Securities Act of 1933, as amended; and
the transferee is not a U.S. person (as defined in Regulation S).
N-1-1
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby. Terms used in this certificate have the meanings
set forth in Regulation S.
-------------------------------------
[Name of Transferor]
By:__________________________________
Name:
Title:
Date:_______________________,_______
N-1-2
EXHIBIT N-2
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL SECURITY
TO RESTRICTED GLOBAL SECURITY
(Transfers pursuant toss.3.03(h)(C)
of the Agreement)
---------------------------------------------------------------------
Re: Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2002-4H
Reference is hereby made to the Trust Agreement (the "Agreement")
among Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services Inc., as Master Servicer, JPMorgan Chase Bank, as Trustee, dated as
of February 1, 2002. Capitalized terms used but not defined herein shall have
the meanings given to them in the Agreement.
This letter relates to U.S. $ aggregate principal amount of
Securities which are held in the form of a Regulations S Global Security in
the name of [name of transferor] (the "Transferor") to effect the transfer of
the Securities in exchange for an equivalent beneficial interest in a
Restricted Global Security.
In connection with such request, and in respect of such Securities,
the Transferor does hereby certify that such Securities are being transferred
in accordance with (i) the transfer restrictions set forth in the Agreement
and the Securities and (ii) Rule 144A under the United States Securities Act
of 1933, as amended, to a transferee that the Transferor reasonably believes
is purchasing the Securities for its own account or an account with respect
to which the transferee exercises sole investment discretion, the transferee
and any such account is a qualified institutional buyer within the meaning of
Rule 144A, in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
-------------------------------------
[Name of Transferor]
By:__________________________________
Name:
Title:
Date:_______________________,_______
N-2-1
EXHIBIT O
SENIOR PRINCIPAL PRIORITIES
(EXCERPTED FROM SASCO 2002-4H PROSPECTUS SUPPLEMENT)
(a) to the Class 1-A, Class R and Class 1-AP Certificates, in
reduction of their respective Class Principal Amounts, from the Available
Distribution Amount for Pool 1, concurrently, as follows:
(i) sequentially, to the Class R and Class 1-A Certificates, in
that order, in an amount up to the Senior Principal Distribution
Amount for Pool 1, until their respective Class Principal Amounts
have been reduced to zero; and
(ii) to the Class 1-AP Certificates, the AP Principal
Distribution Amount (as defined herein) for Pool 1, until its Class
Principal Amount has been reduced to zero;
(b) to the Class 2-A and Class 2-AP Certificates, in reduction of
their Class Principal Amounts from the Available Distribution Amount for Pool
2, concurrently, as follows:
(i) to the Class 2-A Certificates, in an amount up to the
Senior Principal Distribution Amount for Pool 2, until its Class
Principal Amount has been reduced to zero; and
(ii) to the Class 2-AP Certificates, the AP Principal
Distribution Amount for Pool 2, until its Class Principal Amount has
been reduced to zero; and
O-1
SCHEDULE A
----------
MORTGAGE LOAN SCHEDULE
(in the Aggregate and by Mortgage Pool)
[Intentionally Omitted]