EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC., as Seller,
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Master Servicer,
THE MURRAYHILL COMPANY, as Loss Mitigation Advisor,
FIRST UNION NATIONAL BANK, as Trustee
and
FEDERAL HOME LOAN MORTGAGE CORPORATION, as Guarantor
---------------------------
TRUST AGREEMENT
Dated as of August 1, 2000
---------------------------
AMORTIZING RESIDENTIAL COLLATERAL TRUST
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-BC3
Table of Contents
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................................................6
Section 1.02. Calculations Respecting Mortgage Loans.....................................................34
Section 1.03. Calculations Respecting Accrued Interest...................................................34
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans.......................34
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation for Trust Fund................37
Section 2.03. Representations and Warranties of the Depositor............................................39
Section 2.04. Discovery of Breach........................................................................40
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.....................................41
Section 2.06. Grant Clause...............................................................................42
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates...........................................................................42
Section 3.02. Registration...............................................................................43
Section 3.03. Transfer and Exchange of Certificates......................................................43
Section 3.04. Cancellation of Certificates...............................................................46
Section 3.05. Replacement of Certificates................................................................46
Section 3.06. Persons Deemed Owners......................................................................46
Section 3.07. Temporary Certificates.....................................................................47
Section 3.08. Appointment of Paying Agent................................................................47
Section 3.09. Book-Entry Certificates....................................................................47
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account.........................................................................49
Section 4.02. Application of Funds in the Collection Account.............................................50
Section 4.03. Reports to Trustee, Guarantor and Certificateholders.......................................52
Section 4.04. Certificate Account........................................................................56
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally....................................................................57
Section 5.02. Distributions from the Certificate Account.................................................58
Section 5.03. The Guarantee..............................................................................64
Section 5.04. Allocation of Losses.......................................................................64
Section 5.05. Advances by Master Servicer, Servicers and Trustee.........................................64
Section 5.06. Compensating Interest Payments.............................................................65
Section 5.07. Basis Risk Reserve Fund....................................................................65
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee..........................................................................66
Section 6.02. Certain Matters Affecting the Trustee......................................................68
Section 6.03. Trustee Not Liable for Certificates........................................................69
Section 6.04. Trustee May Own Certificates...............................................................70
Section 6.05. Eligibility Requirements for Trustee.......................................................70
Section 6.06. Resignation and Removal of Trustee.........................................................70
Section 6.07. Successor Trustee..........................................................................71
Section 6.08. Merger or Consolidation of Trustee.........................................................72
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian...................................72
Section 6.10. Authenticating Agents......................................................................73
Section 6.11. Indemnification of Trustee.................................................................74
Section 6.12. Fees and Expenses of Trustee...............................................................75
Section 6.13. Collection of Monies.......................................................................75
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor................................75
Section 6.15. Additional Remedies of Trustee Upon Event of Default.......................................78
Section 6.16. Waiver of Defaults.........................................................................79
Section 6.17. Notification to Holders....................................................................79
Section 6.18. Directions by Certificateholders and Duties of Trustee During Event of Default.............79
Section 6.19. Action Upon Certain Failures of the Master Servicer and Upon Event of Default..............79
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND
Section 7.01. Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All Mortgage Loans......................................................................80
Section 7.02. Procedure Upon Termination of Trust Fund...................................................81
Section 7.03. Additional Trust Fund Termination Requirements.............................................81
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders............................................................82
Section 8.02. Access to List of Holders..................................................................83
Section 8.03. Acts of Holders of Certificates............................................................83
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER; LOSS MITIGATION ADVISOR
Section 9.01. Duties of the Master Servicer..............................................................84
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.....................................................................................84
Section 9.03. Master Servicer's Financial Statements and Related Information.............................85
Section 9.04. Power to Act; Procedures...................................................................85
Section 9.05. Enforcement of Servicer's and Master Servicer's Obligations................................87
Section 9.06. Collection of Taxes, Assessments and Similar Items.........................................87
Section 9.07. Termination of Servicing Agreements; Successor Servicers...................................88
Section 9.08. Master Servicer Liable for Enforcement.....................................................89
Section 9.09. No Contractual Relationship Between Any Servicer and Trustee or Depositor..................89
Section 9.10. Assumption of Servicing Agreement by Trustee...............................................89
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements...............................................90
Section 9.12. Release of Mortgage Files..................................................................90
Section 9.13. Documents, Records and Funds in Possession of Master Servicer To Be Held for
Trustee....................................................................................91
Section 9.14. Representations and Warranties of the Master Servicer......................................92
Section 9.15. Opinion....................................................................................94
Section 9.16. Standard Hazard and Flood Insurance Policies...............................................94
Section 9.17. Presentment of Claims and Collection of Proceeds...........................................95
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies.....................................95
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies and Documents...................96
Section 9.20. [RESERVED].................................................................................96
Section 9.21. Compensation to the Master Servicer........................................................96
Section 9.22. REO Property...............................................................................96
Section 9.23. Preparation of Tax Returns and Other Reports...............................................97
Section 9.24. Reports to the Trustee.....................................................................98
Section 9.25. Annual Officer's Certificate as to Compliance..............................................98
Section 9.26. Annual Independent Accountants' Servicing Report...........................................99
Section 9.27. Merger or Consolidation....................................................................99
Section 9.28. Resignation of Master Servicer............................................................100
Section 9.29. Assignment or Delegation of Duties by the Master Servicer.................................100
Section 9.30. Limitation on Liability of the Master Servicer and Others.................................100
Section 9.31. Indemnification; Third-Party Claims.......................................................101
Section 9.32. Alternative Index.........................................................................101
Section 9.33. Master Servicer Audit and Declaration of Event of Default.................................101
Section 9.34. Special Servicing of Delinquent Mortgage Loans............................................102
Section 9.35. Duties of the Loss Mitigation Advisor.....................................................102
Section 9.36. Limitation Upon Liability of the Loss Mitigation Advisor..................................102
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration......................................................................103
Section 10.02. Prohibited Transactions and Activities....................................................105
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of REMIC Status....................105
Section 10.04. REO Property..............................................................................106
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment...................................................107
Section 11.02. Entire Agreement..........................................................................107
Section 11.03. Amendment.................................................................................107
Section 11.04. Voting Rights.............................................................................109
Section 11.05. Provision of Information..................................................................109
Section 11.06. Governing Law.............................................................................109
Section 11.07. Notices...................................................................................109
Section 11.08. Severability of Provisions................................................................110
Section 11.09. Indulgences; No Waivers...................................................................110
Section 11.10. Headings Not To Affect Interpretation.....................................................110
Section 11.11. Benefits of Agreement.....................................................................110
Section 11.12. Conflicts.................................................................................110
Section 11.13. Counterparts..............................................................................110
Section 11.14. Transfer of Servicing.....................................................................110
Section 11.15. Special Notices to the Rating Agencies....................................................112
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B [Reserved]
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Residual Certificate Transfer Affidavit (Transferor)
Exhibit E-l Reconstituted Servicing Agreement (▇▇▇▇▇ Fargo Home Mortgage, Inc.)
Exhibit E-2 Reconstituted Servicing Agreement (Ocwen Federal Bank FSB)
Exhibit E-3 Reconstituted Servicing Agreement (Option One Mortgage Corporation)
Exhibit E-4 Servicing Agreement (Aurora Loan Services Inc.)
Exhibit E-5 Reconstituted Servicing Agreement (Ameriquest Mortgage Company)
Exhibit E-6 Reconstituted Servicing Agreement (Homeside Lending, Inc.)
Exhibit E-7 Reconstituted Servicing Agreement (Life Bank)
Exhibit E-8 Reconstituted Servicing Agreement (Long Beach Mortgage Company)
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-1 Custodial Agreement (Bankers Trust Company of California N.A.)
Exhibit I-2 Custodial Agreement (The Chase Manhattan Bank, successor by merger to Chase Bank of
Texas, National Association)
Exhibit I-3 Custodial Agreement (LaSalle Bank)
Exhibit I-4 Custodial Agreement (U.S. Bank Trust, National Association)
Exhibit I-5 Custodial Agreement (▇▇▇▇▇ Fargo Bank Minnesota, N.A.)
Exhibit J [Reserved]
Exhibit K Form of Loan Data Remittance Report
Exhibit L Form of Bond Data Remittance Report
Exhibit M Form of Loss Mitigation Advisory Agreement, dated as of August 1,
2000, between The Murrayhill Company, as Loss Mitigation Advisor, the Trustee and each
Servicer
Schedule A. Mortgage Loan Schedule
This TRUST AGREEMENT, dated as of August 1, 2000 (the "Agreement"),
is by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware
corporation, as depositor (the "Depositor"), ▇▇▇▇▇▇ BROTHERS HOLDINGS INC., as
seller (the "Seller"), ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as
master servicer (the "Master Servicer"), THE MURRAYHILL COMPANY, a Colorado
corporation, as loss mitigation advisor (the "Loss Mitigation Advisor"), FIRST
UNION NATIONAL BANK, a national banking association, as trustee (the
"Trustee"), and the FEDERAL HOME LOAN MORTGAGE CORPORATION, as guarantor (the
"Guarantor").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Seller, and at
the Closing Date is the owner of the Mortgage Loans and the other property
being conveyed by it to the Trustee hereunder 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
Seller in the Mortgage Loan Sale and Assignment Agreement and 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 and the
Guarantor. The Depositor, the Seller, the Trustee, the Guarantor, the Master
Servicer and the Loss Mitigation Advisor 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 each of the
segregated pools of assets of the Trust Fund described below be treated for
federal income tax purposes as comprising a real estate mortgage investment
conduit (each a "REMIC" or, in the alternative, REMIC 1 and REMIC 2, REMIC 2
also being referred to as the "Upper Tier REMIC"). Each Certificate, other
than the Class X Certificate, the Class R Certificate and the Class P
Certificate, represents ownership of a regular interest in the Upper Tier
REMIC for purposes of the REMIC Provisions. The Class X Certificate represents
ownership of two regular interests in the Upper Tier REMIC as described in
note 7 of the table below for such REMIC. In addition, each Certificate, other
than the Class R, Class X, and Class P Certificates, represents the right to
receive payments with respect to any Basis Risk Shortfalls from the Basis Risk
Reserve Fund pursuant to Section 5.07. The Class R Certificate represents
ownership of the sole class of residual interests in each of REMIC 1 and the
Upper Tier REMIC for purposes of the REMIC Provisions. The Upper Tier REMIC
shall hold as its assets the several classes of uncertificated Lower Tier
Interests, other than the Class LT-R Interest, in REMIC 1. Each such Lower
Tier Interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in REMIC 1. REMIC 1 shall hold as its assets the property of
the Trust Fund other than the Lower Tier Interests in REMIC 1, the Basis Risk
Reserve Fund, the right to receive Prepayment Premiums and the Escrow
Accounts. The startup day for each REMIC created hereby for purposes of the
REMIC Provisions is the Closing Date. In addition, for purposes of the REMIC
Provisions, the latest possible maturity date for each regular interest in
each REMIC created hereby is the latest date specified in Section 7.01.
The following table sets forth (or describes) the class designation,
interest rate, and principal amount for each class of REMIC 1 Lower Tier
Interests.
REMIC I REMIC 1
Lower Tier Lower Tier Initial Class Principal Corresponding Class
Class Designation Interest Rate Amount of Certificate(s)
----------------- ------------- ------ -----------------
Class LT-A1 (1) $2,181,696,000.00 Class A1
Class LT-A2 (2) 550,202,000.00 Class A2
Class LT-M1 (3) 87,655,000.00 Class M1
Class LT-M2 (3) 80,350,000.00 Class M2
Class LT-B (3) 21,914,000.00 Class B
Class LT-X (3) 1,509.24 Class X
Class LT-R (4) (4) Class R
(1) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for the Class LT-A1 Interest is a per annum
rate equal to the Pool 1 Net Funds Cap.
(2) The interest rate with respect to any Distribution Date (and the
related Accrual Period), on or prior to the Distribution Date on which
the Class Principal Amount of the Class A1 Certificates has been
reduced to zero, for the Class LT-A2 Interest is a per annum rate
equal to the Pool 2 Net Funds Cap. The interest rate with respect to
any Distribution Date (and the related Accrual Period), after the
Distribution Date on which the Class Principal Amount of the Class A1
Certificates has been reduced to zero, for the Class LT-A2 Interest
is a per annum rate equal to the Average Rate.
(3) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for the Class LT-M1, Class LT-M2, Class LT-B
and Class LT-X Interests is a per annum rate equal to the Average
Rate.
(4) The Class LT-R Interest is the sole class of residual interests in
REMIC 1. It does not have an interest rate or a principal balance.
On each Distribution Date interest shall be distributed with respect
to each of the Lower Tier Interests based on the above-described pass-through
rates.
On each Distribution Date the Principal Distribution Amount for each
Mortgage Pool and Realized Losses for each Mortgage Pool shall be allocated
among the Class LT-A1, Class LT-A2, Class LT-M1, Class LT-M2, Class LT-B, and
LT-X Interests in the same manner that amounts and such losses are allocated
among the corresponding classes of Certificates under Sections 5.02(d) and
5.04, respectively.
Each month, REMIC 1 shall charge as an expense an amount equal to the
sum of (i) the Guarantee Fee, (ii) the Loss Mitigation Advisor's Fee, (iii)
the MGIC Insurance Premiums, (iv) the Trustee Fee, (v) the Servicing Fee, and
(vi) the Master Servicing Fee payable with respect to Pool 1 or Pool 2. Each
month REMIC 1 shall also charge as an expense all income from the investment
of funds in the Collection Account and the Certificate Account.
As used herein, the Class A1 Certificates are "related" to Pool 1 and
the Class A2 Certificates are "related" to Pool 2.
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate, initial Class Principal Amount, and minimum
denomination for each Class of Certificates comprising interests in the Trust
Fund created hereunder. Each Certificate, other than the Class P and Class R
Certificates, represents ownership of regular interests in the Upper Tier
REMIC.
Certificate Interest Initial Class Minimum
Class Designation Rate Principal Amount Denominations
----------------- ---- ---------------- -------------
Class A1 (1) $2,181,696,000 (9)
Class A2 (2) 550,202,000 $25,000
Class M1 (3) 87,655,000 25,000
Class M2 (4) 80,350,000 25,000
Class B (5) 21,914,000 25,000
Class P (6) (6) (10)
Class X (7) (7) (10)
Class R (8) (8) (10)
---------------------------
(1) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class A1 Certificates is
the per annum rate equal to the lesser of (i) LIBOR plus 0.145% and
(ii) the Pool 1 Net Funds Cap for such Distribution Date; provided,
that if the holder of the Class X Certificate does not exercise its
option to purchase the Mortgage Loans and related property pursuant
to Section 7.01(b) on the Distribution Date on which it is first
entitled to do so, then with respect to each subsequent Distribution
Date the per annum rate calculated pursuant to clause (i) above with
respect to the Class A1 Certificates will be LIBOR plus 0.290%.
(2) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class A2 Certificates is
the per annum rate equal to the lesser of (i) LIBOR plus 0.260% and
(ii) with respect to any Distribution Date on which the Class A1
Certificates are outstanding, the Pool 2 Net Funds Cap for such
Distribution Date or, after the Distribution Date on which the Class
Principal Amount of the Class A1 Certificates has been reduced to
zero, the Average Rate; provided, that if the holder of the Class X
Certificate does not exercise its option to purchase the Mortgage
Loans and related property pursuant to Section 7.01(b) on the
Distribution Date on which it is first entitled to do so, then with
respect to each subsequent Distribution Date the per annum rate
calculated pursuant to clause (i) above with respect to the Class A2
Certificates will be LIBOR plus 0.520%.
(3) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class M1 Certificates is
the per annum rate equal to the lesser of (i) LIBOR plus 0.600% and
(ii) the Average Rate for such Distribution Date; provided, that if
the holder of the Class X Certificate does not exercise its option
to purchase the Mortgage Loans and related property pursuant to
Section 7.01(b) on the Distribution Date on which it is first
entitled to do so, then with respect to each subsequent Distribution
Date the per annum rate calculated pursuant to clause (i) above with
respect to the Class M1 Certificates will be LIBOR plus 1.100%.
(4) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class M2 Certificates is
the per annum rate equal to the lesser of (i) LIBOR plus 1.100% and
(ii) the Average Rate for such Distribution Date; provided, that if
the holder of the Class X Certificate does not exercise its option
to purchase the Mortgage Loans and related property pursuant to
Section 7.01(b) on the Distribution Date on which it is first
entitled to do so, then with respect to each subsequent Distribution
Date the per annum rate calculated pursuant to clause (i) above with
respect to the Class M2 Certificates will be LIBOR plus 1.600%
(5) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class B Certificates is the
per annum rate equal to the lesser of (i) LIBOR plus 1.800% and (ii)
the Average Rate for such Distribution Date; provided, that if the
holder of the Class X Certificate does not exercise its option to
purchase the Mortgage Loans and related property pursuant to Section
7.01(b) on the Distribution Date on which it is first entitled to do
so, then with respect to each subsequent Distribution Date the per
annum rate calculated pursuant to clause (i) above with respect to
the Class B Certificates will be LIBOR plus 2.300%.
(6) The Class P Certificate will be issued without a Certificate
Principal Amount and will not bear interest at a stated rate but
shall entitle the Holder thereof to receive Prepayment Premiums paid
with respect to the Mortgage Loans as provided in Section 5.02(f).
The Class P Certificate shall be an interest in the Trust Fund but
shall not be an interest in any REMIC created under this Agreement.
(7) The Class X Certificate shall have an initial principal balance of
$1,509.24, but shall not accrue interest on that balance. In
addition to the right to receive ultimately the initial principal
balance of $1,509.24, which right represents a regular interest in
the Upper Tier REMIC, the Class X Certificate also comprises a
notional component, which is also a regular interest in the Upper
Tier REMIC. The notional component has a notional principal balance
that at all times will equal the aggregate of the principal balances
of the Class LT-A1, Class LT-A2, Class LT-M1, Class LT-M2, Class
LT-B, and Class LT-X Interests (i.e., the Aggregate Loan Balance).
For each Distribution Date (and the related Accrual Period), the
notional component shall bear interest at a rate equal to the excess
of (a) the weighted average of the Pool 1 Net Funds Cap and the Pool
2 Net Funds Cap, weighted on the basis of the Pool Balance for each
Mortgage Pool, over (b) the Adjusted Average Rate. For any
Distribution Date, interest that accrues on the notional component
of the Class X Certificate shall be deferred to the extent of any
increase in the Overcollateralization Amount on such date. Such
deferred interest shall not itself bear interest.
(8) The Class R Certificate will be issued without a Certificate
Principal Amount and will not bear interest at a stated rate. The
Class R Certificate represents ownership of the residual interest in
the Upper Tier REMIC, as well as ownership of the Class LT-R
Interest.
(9) The Class A1 Certificates will initially be issued as a single
Certificate evidencing the entire Class Principal Amount thereof.
(10) The Class P, Class X and Class R Certificates will each be issued as
a single Certificate evidencing the entire Percentage Interest in
such Class.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $2,921,818,509.24
In consideration of the mutual agreements herein contained, the
Depositor, the Seller, the Master Servicer, the Guarantor, the Loss Mitigation
Advisor and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or master service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, to the extent applicable to the
Trustee or the Master Servicer (except in its capacity as successor to any
Servicer), or (y) as provided in the applicable Servicing Agreement, to the
extent applicable to any 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.
Accrual Period: With respect to any Distribution Date, the one-month
period beginning on the immediately preceding Distribution Date (or on the
Closing Date, in the case of the first Accrual Period) and ending on the day
immediately preceding the current Distribution Date.
Adjustable Rate Mortgage Loan: Any Mortgage Loan as to which the
related Mortgage Note provides for the adjustment of the Mortgage Rate payable
in respect thereto.
Adjusted Average Rate: With respect to any Distribution Date (and the
related Accrual Period) the weighted average of the interest rates on the
Class LT-A1, Class LT-A2, Class LT-M1, Class LT-M2, Class LT-B, and Class LT-X
Interests, computed for this purpose by limiting the interest rate payable on
the Class LT-X Interest to zero and the rate payable on each of the other
Lower Tier Interests to a rate that corresponds to the Certificate Interest
Rate payable on the Corresponding Class of Certificates.
Advance: An advance of the aggregate of payments of principal and
interest (net of the Master Servicing Fee and the Servicing Fee) on one or
more Mortgage Loans that were due on the Due Date in the related Collection
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 any Servicer (or by the Trustee) pursuant to Section 5.05.
Adverse REMIC Event: As defined in Section 10.01(f).
Advisor's Fee Rate: 0.015% per annum.
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" shall have meanings correlative to the foregoing.
Aggregate Loan Balance: As of any date of determination, the
aggregate of the Scheduled Principal Balances of all Mortgage Loans (in both
Mortgage Pools).
Aggregate Master Servicing Compensation: As to any Distribution Date,
the aggregate of the Master Servicing Fees payable to the Master Servicer in
respect of such Distribution Date.
Aggregate Overcollateralization Release Amount: With respect to any
Distribution Date, the lesser of (x) the aggregate of the Principal Remittance
Amounts for both Mortgage Pools for such Distribution Date and (y) the amount,
if any, by which (i) the Overcollateralization Amount for such date,
calculated for this purpose on the basis of the assumption that 100% of the
aggregate of the Principal Remittance Amounts for such Distribution Date is
applied on such date in reduction of the aggregate of the Certificate
Principal Amounts of the Certificates, exceeds (ii) the Targeted
Overcollateralization Amount for such 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 hereof and
supplements hereto.
Anniversary Year: The one-year period beginning on the Closing Date
and ending on the first anniversary thereof, and each subsequent one-year
period beginning on the day after the end of the preceding Anniversary Year
and ending on next succeeding anniversary of the Closing Date.
Applied Loss Amount: With respect to any Distribution Date, the
amount, if any, by which (x) the aggregate Certificate Principal Amount of the
Certificates after giving effect to all Realized Losses incurred with respect
to the Mortgage Loans during the related Collection Period and distributions
of principal on such Distribution Date, but before giving effect to any
application of the Applied Loss Amount with respect to such date, exceeds (y)
the Aggregate Loan Balance for such Distribution 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 or record 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.
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.
Average Rate: With respect to the Class M1, Class M2 and Class B
Certificates and any Distribution Date on which the Class A1 Certificates are
outstanding, the weighted average of the Pool 1 Net Funds Cap and the Pool 2
Net Funds Cap, weighted on the basis of the Pool Subordinate Amount for each
Mortgage Pool. After the Distribution Date on which the Class Principal Amount
of the Class A1 Certificates has been reduced to zero, the "Average Rate" will
equal the weighted average of the Pool 1 Net Funds Cap and the Pool 2 Net
Funds Cap, weighted on the basis of the Pool Balance for each Mortgage Pool.
B Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Amounts of the Class A1,
Class A2, Class M1 and Class M2 Certificates, in each case after giving effect
to distributions on such Distribution Date and (ii) the Class Principal Amount
of the Class B Certificates immediately prior to such Distribution Date
exceeds (y) the B Target Amount.
B Target Amount: With respect to any Distribution Date, an amount
equal to the lesser of (a) the product of (i) 99.000000000000% and (ii) the
Aggregate Loan Balance for such Distribution Date and (b) the amount, if any,
by which (i) the Aggregate Loan Balance for such Distribution Date exceeds
(ii) 0.10% of the Cut-off Date Aggregate Loan Balance.
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the Bankruptcy Code or
any other similar state laws.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as
amended.
Basis Risk Payment: With respect to any Distribution Date, an amount
equal to the sum of (i) any Basis Risk Shortfall for such Distribution Date,
(ii) any Unpaid Basis Risk Shortfalls from previous Distribution Dates and
(iii) any Required Reserve Fund Deposit for such Distribution Date. The amount
of the Basis Risk Payment for any Distribution Date cannot exceed the amount
otherwise distributable in respect to the Class X Certificates.
Basis Risk Reserve Fund: A fund created as part of the Trust Fund
pursuant to Section 5.07 of this Agreement but which is not an asset of any of
the REMICs.
Basis Risk Shortfall: With respect to any Distribution Date and any
Class of LIBOR Certificates, the amount by which the amount of interest
calculated at the Certificate Interest Rate applicable to such Class for such
date, determined without regard to the applicable Net Funds Cap or Average
Rate for such date but subject to a cap equal to the Maximum Interest Rate,
exceeds the amount of interest calculated at the Pool 1 Net Funds Cap, Pool 2
Net Funds Cap or Average Rate, as applicable.
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.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, the following Classes of
Certificates constitute Book-Entry Certificates: the Class A2, Class M1, Class
M2 and Class B Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in Maryland, Minnesota or New York or the
city in which the Corporate Trust Office of the Trustee is located, (iii) with
respect to any Remittance Date or any Servicer's reporting date, any day on
which the banking institutions in the States specified in the definition of
"Business Day" in each Servicing Agreement, are authorized or obligated by law
or executive order to be closed or (iv) a day on which the Guarantor is
closed.
Carryforward Interest: With respect to any Distribution Date and each
Class of LIBOR Certificates, the sum of (i) the amount, if any, by which (x)
the sum of (A) Current Interest for such Class for the immediately preceding
Distribution Date and (B) any unpaid Carryforward Interest from previous
Distribution Dates exceeds (y) the amount distributed in respect of interest
on such Class on such immediately preceding Distribution Date, and (ii)
interest on such amount for the related Accrual Period at the applicable
Certificate Interest Rate without regard to the Pool 1 Net Funds Cap, Pool 2
Net Funds Cap or Average Rate, whichever is applicable.
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 Interest Rate: With respect to any Class of Certificates
and any Distribution Date, the applicable per annum rate set forth or
described 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 the Class P and Class R Certificates) and any date of determination, the
initial Certificate Principal Amount thereof on the Closing Date, less the
amount of all principal distributions previously distributed with respect to
such Certificate and any Applied Loss Amount previously allocated to such
Certificate. The Class P and Class R 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."
Civil Relief Act: The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
Class: All Certificates bearing the same class designation.
Class Principal Amount: With respect to each Class of Certificates
other than the Class P and Class R Certificates, the aggregate of the
Certificate Principal Amounts of all Certificates of such Class at the date of
determination.
Class P Certificate: An interest in the Trust Fund that is not an
interest in any REMIC created pursuant to this Agreement and that is entitled
to distributions as provided in Section 5.02(f).
Class R Certificate: The Class R Certificate executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially in
the form annexed hereto as Exhibit A and evidencing the ownership of the Class
LT-R Interest and the residual interest in the Upper Tier REMIC.
Class X Distributable Amount: On any Distribution Date, the amount of
interest that has accrued on the notional component of the Class X
Certificate, as described in the Preliminary Statement, but that has not been
distributed prior to such date. In addition, such amount shall include the
initial Overcollateralization Amount of $1,509.24 to the extent such amount
has not been distributed on an earlier Distribution Date as part of the
Overcollateralization Release Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: September 8, 2000.
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.
Collection Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month immediately preceding the
month in which such Distribution Date occurs and ending on the first day of
the calendar month in which such Distribution Date occurs.
Combined 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, plus, with respect to any Junior Mortgage Loan,
the outstanding principal balance of the mortgage loan senior thereto, to the
Original Value thereof.
Compensating Interest Payment: With respect to any Distribution Date,
an amount equal to the excess of (x) the aggregate of any Prepayment Interest
Shortfalls with respect to such Distribution Date required to be paid by the
Servicers in respect of such shortfalls with respect to such Distribution Date
over (y) the aggregate amounts actually paid by the Servicers in respect of
such shortfalls; provided, that such amount, to the extent payable by the
Master Servicer, shall not exceed the Aggregate Master Servicing Compensation
that would be payable to the Master Servicer in respect of such Distribution
Date without giving effect to any Compensating Interest Payment.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured
Finance Trust Services.
Corresponding Class: The Class of Certificates which corresponds with
a class of interests in REMIC 1 as described in the Preliminary Statement.
Current Interest: With respect to each Class of LIBOR Certificates
and any Distribution Date, the aggregate amount of interest accrued at the
applicable Certificate Interest Rate during the related Accrual Period on the
Class Principal Amount immediately prior to such Distribution Date.
Custodial Account: Any custodial account (other than an Escrow
Account) established and maintained by the Servicers pursuant to each
Servicing Agreement.
Custodial Agreement: Each custodial agreement attached as Exhibit I
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. The initial Custodians are
Bankers Trust Company of California N.A.; The Chase Manhattan Bank, successor
by merger to Chase Bank of Texas, National Association; LaSalle Bank; U.S.
Bank Trust, National Association; and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Cut-off Date: The close of business on August 1, 2000.
Cut-off Date Aggregate Loan Balance: With respect to the Mortgage
Loans in the Trust Fund on the Closing Date, the Aggregate Loan Balance as of
the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction in the Scheduled Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such
a reduction resulting from a Deficient Valuation.
Deferred Amount: With respect to any Distribution Date and each
Certificate, the aggregate of Applied Loss Amounts previously applied in
reduction of the Certificate Principal Amount thereof, less any amounts
previously reimbursed in respect thereof.
Deficiency Amount: With respect to any Distribution Date, the sum of
(i) the Guaranteed Interest Distribution Amount and (ii) the Guaranteed
Principal Distribution Amount, in each case with respect to such Distribution
Date.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
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.
Delinquency Rate: With respect to any calendar month, the fraction,
expressed as a percentage, the numerator of which is the aggregate outstanding
principal balance of all Mortgage Loans 60 days Delinquent or more (including
all foreclosures, bankruptcies and REO Properties) as of the close of business
on the last day of such month, and the denominator of which is the Aggregate
Loan Balance as of the close of business on the last day of such month.
Delinquent: For reporting purposes, a Mortgage Loan is "delinquent"
when any payment contractually due thereon has not been made by the close of
business on the Due Date therefor. Such Mortgage Loan is "30 days Delinquent"
if such payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which such
payment was first due, or, if there is no such corresponding day (e.g., as
when a 30-day month follows a 31-day month in which a payment was due on the
31st day of such month), then on the last day of such immediately succeeding
month. Similarly for "60 days Delinquent" and the second immediately
succeeding month and "90 days Delinquent" and the third immediately succeeding
month.
Deposit Date: With respect to each Distribution Date, the Business
Day immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Determination Date: With respect to each Distribution Date, the close
of business on the fifth Business Day prior to such Distribution Date.
Disqualified Organization: Either (i) the United States, (ii) any
state or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative
described in section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax imposed
by section 511 of the Code, (vii) any organization described in section
1381(a)(2)(C) of the Code, (viii) any "electing large partnership" described
in section 775 of the Code, or (ix) any other entity designated as a
Disqualified Organization by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if, with the exception of FHLMC, all of its activities are subject to
tax and a majority of its board of directors is not selected by such
governmental unit.
Distribution Date: The 25th day of each month or, if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in September
2000.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable
to the Guarantor, 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 a 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 Guarantor. 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) direct obligations of, and obligations fully guaranteed
by, the Guarantor;
(iii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
or state banking authorities, so long as at the time of investment
or the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iv) 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;
(v) 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 long-term credit rating categories 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 Loan 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 any Rating Agency;
(vi) 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 rating category;
(vii) a Qualified GIC;
(viii) 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
(ix) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current
rating by each Rating Agency of any of the Certificates. Such
investments in this subsection (ix) may include money market mutual
funds or common trust funds, including any fund for which First
Union National Bank (the "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) the Bank, the Master Servicer
or an affiliate thereof charges and collects fees and expenses from
such funds for services rendered, (y) the 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 the Bank or an
affiliate thereof to charge and collect from the Trustee such fees
as are collected from all investors in such funds for services
rendered to such funds (but not to exceed investment earnings
thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA-Restricted Certificate: Any Class M1, Class M2, Class B, Class
P, Class X and Class R Certificate.
Escrow Account: As defined in Section 9.06.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14(a).
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: With respect to the Class A1,
Class A2, Class M1, Class M2 and Class B Certificates, September 25, 2030.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Guarantee: The obligations of the Guarantor pursuant to Section 5.03.
Guarantee Fee: With respect to any Distribution Date, the fee payable
to the Guarantor in respect of its services as Guarantor that accrues at the
Guarantee Fee Rate on a balance equal to the Class Principal Amount of the
Class A1 Certificates immediately prior to such Distribution Date, based on
the actual number of days in the related Collection Period and a 360-day year.
Guarantee Fee Rate: The per annum rate set forth in a side letter of
the Guarantor addressed to the Trustee, the Depositor, the Master Servicer and
the Seller.
Guaranteed Interest Distribution Amount: With respect to any
Distribution Date, the amount, if any, by which Current Interest on the Class
A1 Certificates for such Distribution Date exceeds the amount remaining on
deposit in the Certificate Account after giving effect to distributions
pursuant to Section 5.02(b)(i)-(iii) on such Distribution Date.
Guaranteed Principal Distribution Amount: With respect to any
Distribution Date, the amount, if any, by which the Class Principal Amount of
the Class A1 Certificates (after giving effect to all distributions to be made
on such Distribution Date other than the Guarantor Payment) exceeds the Pool
Balance for Pool 1 as of the end of the related Collection Period.
Guarantor: FHLMC or its successor in interest.
Guarantor Payment: Any payment made by the Guarantor in respect of a
Deficiency Amount.
Guarantor Reimbursement Amount: With respect to any Distribution
Date, (i) the sum of any accrued but unpaid Guarantee Fees, and (ii) the sum
of all Guarantor Payments made on all prior Distribution Dates to the extent
not previously reimbursed, with interest thereon at a rate equal to the Prime
Rate (as of such Distribution Date) plus 2.00%.
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
Seller, the Trustee, the Master Servicer, any Servicer, the Loss Mitigation
Advisor, MGIC 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, the applicable Servicer, the Loss Mitigation
Advisor or MGIC in determining whether any Certificates are registered to an
Affiliate of the Depositor, the Seller, the Master Servicer, any Servicer, the
Loss Mitigation Advisor or MGIC.
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.
Index: The index specified in the related Mortgage Note for
calculation of the Mortgage Rate thereof.
Information Circular: The information circular dated August 31, 2000,
relating to the Class A1 Certificates.
Initial LIBOR Rate: 6.620%.
Initial Optional Purchase Date: The first Distribution Date following
the date on which the Aggregate Loan Balance is less than 10% of the Cut-off
Date Aggregate Loan Balance.
Insurance Fee Rate: With respect to each MGIC-Insured Mortgage Loan,
a per annum rate equal to 0.706%, plus any taxes due and payable with respect
to such MGIC-Insured Mortgage Loan which are located in the states of Kentucky
and West Virginia.
Insurance Policy: Any Primary Mortgage Insurance Policy (whether
obtained by the borrower or the Seller on behalf of the Trust), 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
any 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.
Interest Remittance Amount: With respect to each Mortgage Pool and
any Distribution Date, (a) the sum of (i) all interest collected (other than
Payaheads) or advanced in respect of Scheduled Payments on the Mortgage Loans
in such Mortgage Pool, during the related Collection Period, less (w) the MGIC
Insurance Premiums related to the Mortgage Loans in such Mortgage Pool and
certain state taxes imposed on such premiums, (x) any Prepayment Premiums
received by the Servicers with respect to such Mortgage Loans during such
Collection Period, (y) the Servicing Fee and the Master Servicing Fee with
respect to such Mortgage Loans and (z) previously unreimbursed Advances due to
the Master Servicer, any Servicer or the Trustee to the extent allocable to
interest and previously unreimbursed Servicing Advances with respect to such
Mortgage Loans, (ii) any amounts paid by any Servicer with respect to
Prepayment Interest Shortfalls with respect to such Mortgage Loans and any
Compensating Interest Payment with respect to the Mortgage Loans with respect
to the related Prepayment Period, (iii) the portion of any Substitution Amount
paid with respect to such Mortgage Loans during the related Prepayment Period
allocable to interest and (iv) all Net Liquidation Proceeds, Insurance
Proceeds and other recoveries collected with respect to such Mortgage Loans
during the related Prepayment Period, to the extent allocable to interest, as
reduced by unreimbursed interest Advances and other amounts due the Master
Servicer, any Servicer or the Trustee, to the extent allocable to interest,
and as reduced by, for each Mortgage Pool, (b) the product of (i) the
applicable Pool Percentage for such Distribution Date and (ii) any expenses of
the Trustee reimbursable pursuant to Section 6.11 and any costs, liabilities
and expenses of the Master Servicer or any Servicer reimbursable pursuant to
Section 4.02(v) but, in the case of the Master Servicer, such reimbursable
amounts may not exceed (A) $500,000 in the aggregate for the first Anniversary
Year, and (B) for each subsequent Anniversary Year, an aggregate amount equal
to the greater of (1) the product of (x) the number of Mortgage Loans
outstanding as of the end of the Collection Period immediately preceding the
beginning of such Anniversary Year and (y) $18 or (2) $200,000.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Junior Mortgage Loan: Any Mortgage Loan that is secured by a junior
lien on the related Mortgaged Property.
Late Collections: With respect to any Mortgage Loan, all amounts
received subsequent to the Remittance Date immediately following any related
Collection Period, whether as late payments of Scheduled Payments or as
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent on a contractual basis for such Collection Period and not
previously recovered.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR
Rate. With respect to each subsequent Accrual Period, a per annum rate
determined on the LIBOR Determination Date in the following manner by the
Master Servicer on the basis of the "Interest Settlement Rate" set by the
British Bankers' Association (the "BBA") for one-month United States dollar
deposits, as such rates appear on the Telerate Page 3750, as of 11:00 a.m.
(London time) on such LIBOR Determination Date.
(a) If on such a LIBOR Determination Date, the BBA's Interest
Settlement Rate does not appear on the Telerate Page 3750 as of 11:00 a.m.
(London time), or if the Telerate Page 3750 is not available on such date, the
Master Servicer will obtain such rate from Reuters' "page LIBOR 01" or
Bloomberg's page "BBAM". If such rate is not published for such LIBOR
Determination Date, LIBOR for such date will be the most recently published
Interest Settlement Rate. In the event that the BBA no longer sets an Interest
Settlement Rate, the Master Servicer will designate an alternative index that
has performed, or that the Depositor expects to perform, in a manner
substantially similar to the BBA's Interest Settlement Rate. The Master
Servicer will select a particular index as the alternative index only if it
receives an Opinion of Counsel (a copy of which shall be furnished to the
Trustee and the Guarantor), which opinion shall be an expense reimbursed from
the Collection Account pursuant to Section 4.02(v), that the selection of such
index will not cause any of the REMICs to lose their classification as REMICs
for federal income tax purposes.
(b) The establishment of LIBOR by the Master Servicer and the Master
Servicer's subsequent calculation of the Certificate Interest Rate applicable
to the LIBOR Certificates for the relevant Accrual Period, in the absence of
manifest error, will be final and binding.
LIBOR Business Day: Any day on which banks in London, England and The
City of New York are open and conducting transactions in foreign currency and
exchange.
LIBOR Certificate: Any Class A1, Class A2, Class M1, Class M2 and
Class B Certificate.
LIBOR Determination Date: The second LIBOR Business Day immediately
preceding the commencement of each Accrual Period for any LIBOR Certificates.
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 not recoverable under the applicable Primary Mortgage
Insurance Policy, if any, 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, payment in
full, discounted payoff 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.
Loss Mitigation Advisor: The Murrayhill Company, a Colorado
corporation, and its successors and assigns.
Loss Mitigation Advisory Agreement: The loss mitigation and advisory
agreement, dated as of the Closing Date, entered into by each Servicer, the
Trustee on behalf of the Trust and the Loss Mitigation Advisor in connection
with the MGIC Insurance Policy in the form of Exhibit M1.
Loss Mitigation Advisor's Fee: As to any Distribution Date and each
Mortgage Loan, an amount equal to the product of one-twelfth of the Advisor's
Fee Rate and the Scheduled Principal Balance of such Mortgage Loan as of the
first day of the related Collection Period.
Lower Tier Interest: As described in the Preliminary Statement.
M1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Amount of the Class A1 and
Class A2 Certificates, in each case after giving effect to distributions on
such Distribution Date and (ii) the Class Principal Amount of the Class M1
Certificates immediately prior to such Distribution Date exceeds (y) the M1
Target Amount.
M1 Target Amount: With respect to any Distribution Date, an amount
equal to the lesser of (a) the product of (i) 92.000079201593% and (ii) the
Aggregate Loan Balance for such Distribution Date and (b) the amount, if any,
by which (i) the Aggregate Loan Balance for such Distribution Date exceeds
(ii) 0.10% of the Cut-off Date Aggregate Loan Balance.
M2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Amount of the Class A1, Class
A2 and Class M1 Certificates, in each case after giving effect to
distributions on such Distribution Date and (ii) the Class Principal Amount of
the Class M2 Certificates immediately prior to such Distribution Date exceeds
(y) the M2 Target Amount.
M2 Target Amount: With respect to any Distribution Date, an amount
equal to the lesser of (a) the product of (i) 97.500078585258% and (ii) the
Aggregate Loan Balance for such Distribution Date and (b) the amount, if any,
by which (i) the Aggregate Loan Balance for such Distribution Date exceeds
(ii) 0.10% of the Cut-off Date Aggregate Loan Balance.
Master Servicer: ▇▇▇▇▇ Fargo Bank Minnesota, National Association, 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 and each Mortgage
Loan, an amount equal to the product of one-twelfth of the Master Servicing
Fee Rate and the Scheduled Principal Balance of such Mortgage Loan as of the
first day of the related Collection Period.
Master Servicing Fee Rate: 0.005% per annum.
Material Defect: As defined in Section 2.02(b) hereof.
Maximum Interest Rate: With respect to any Distribution Date on which
the Class A1 Certificates are outstanding, the per annum rate equal to the
weighted average of the maximum "lifetime" Mortgage Rates specified in the
related Mortgage Notes of the (i) Pool 1 Mortgage Loans (in the case of the
Class A1 Certificates), (ii) Pool 2 Mortgage Loans (in the case of the Class
A2 Certificates) or (iii) the weighted average of the rates determined in
clause (i) and (ii), weighted on the basis of the Pool Subordinate Amount for
each Mortgage Pool, in the case of the Subordinate Certificates. After the
Distribution Date on which the Class Principal Amount of the Class A1
Certificates has been reduced to zero, the "Maximum Interest Rate" will in all
cases be equal to the weighted average of the maximum "lifetime" Mortgage
Rates specified in the related Mortgage Notes for all the Mortgage Loans.
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.
MGIC: Mortgage Guaranty Insurance Corporation, a monoline insurance
company and its successors or assigns.
MGIC-Insured Mortgage Loan: Any Mortgage Loan included for coverage
under a MGIC Insurance Policy.
MGIC Insurance Policy: The loan-level Primary Mortgage Insurance
Policies on the MGIC-Insured Mortgage Loans issued by MGIC to the Trust, as
the insured, as evidenced by the issuance of a Mortgage Guaranty Master Policy
Number 32-110-4-1013 and related endorsements.
MGIC Insurance Premium: With respect to each Distribution Date and
each MGIC-Insured Mortgage Loan, the product of (a) one-twelfth of the
Insurance Fee Rate and (b) the Scheduled Principal Balance of such Mortgage
Loan as of the first day of the related Collection Period.
Monthly Excess Cashflow: With respect to any Distribution Date, the
sum of (x) the Pool 1 Monthly Excess Interest for such date, (y) the Pool 2
Monthly Excess Interest for such date and (z) the Aggregate
Overcollateralization Release Amount for such date.
Moody's: ▇▇▇▇▇'▇ Investors Service, 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 pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage 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 and Assignment Agreement: The agreement, dated as
of August 1, 2000, for the sale of the Mortgage Loans by the Seller to the
Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund. Any such amendment to such schedule shall
be provided by the Depositor to the Loss Mitigation Advisor within 15 Business
Days of such amendment. Such schedule shall, among other things (i) designate
the applicable Mortgage Pool relating to such Mortgage Loan; (ii) designate
the Servicer servicing such Mortgage Loan; (iii) designate the Servicing
Agreement relating to such Mortgage Loan; (iv) designate the Custodian with
respect to the Mortgage File related to such Mortgage Loan; (v) designate the
Custodial Agreement relating to such Mortgage Loan; and (vi) where applicable,
indicate whether such Mortgage Loan is a MGIC-Insured Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Either 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: 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.
Mortgagor: The obligor on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date, (A) the
fraction, expressed as a percentage, the numerator of which is equal to the
product of (i) the amount, if any, by which (a) the aggregate Interest
Remittance Amounts for both Mortgage Pools for such Distribution Date (as
reduced by the Trustee Fee, Guarantee Fee, Guarantor Reimbursement Amounts and
Loss Mitigation Advisor's Fee) exceeds (b) the Current Interest payable with
respect to the Certificates for such date and (ii) twelve, and the denominator
of which is the Aggregate Loan Balance for such Distribution Date, multiplied
by (B) a fraction, the numerator of which is thirty and the denominator of
which is the greater of thirty and the actual number of days in the
immediately preceding calendar month.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds net of (i) unreimbursed expenses and
(ii) any unreimbursed Advances and Servicing Advances, 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 Servicing Fee Rate, the Master
Servicing Fee Rate, the Trustee Fee Rate, the Insurance Fee Rate, in the case
of a MGIC-Insured Mortgage Loan, the Guarantee Fee Rate, in the case of a
Mortgage Loan in Pool 1 (multiplied, for this purpose only, by a fraction the
numerator of which is the Class Principal Amount of the Class A1 Certificates
and the denominator of which is the Pool Balance for Pool 1) and the Advisor's
Fee Rate.
Net Prepayment Interest Shortfall: With respect to any Distribution
Date, the excess, if any, of any Prepayment Interest Shortfalls with respect
to the Mortgage Loans for such date over any amounts paid by the Servicers or
the Master Servicer pursuant to the Servicing Agreements or this Agreement.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
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 individual, corporation, partnership or other
person other than (i) a citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any state thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of
any state thereof, including, for this purpose, the District of Columbia
(unless provided otherwise by future Treasury regulations); (iv) an estate
whose income is includible in gross income for United States income tax
purposes regardless of its source; or (v) a trust, if a court within the
United States is able to exercise primary supervision over the administration
of the trust and one or more U.S. Persons have authority to control all
substantial decisions of the trust. Notwithstanding the last clause of the
preceding sentence, to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996, and treated as U.S. Persons prior to
such date, may elect to continue to be U.S. Persons.
Offering Document: The Information Circular and 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 and the
Guarantor.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee and the Guarantor, and who may
be in-house or outside counsel to the Depositor, the Master Servicer, or the
Trustee but which must be Independent outside counsel with respect to any such
opinion of counsel concerning the transfer of any Residual Certificate or
concerning certain matters with respect to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or the taxation, or the federal
income tax status, of each REMIC or, if provided by a Servicer, as provided in
the related Servicing Agreement.
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.
Overcollateralization Amount: With respect to any Distribution Date,
the amount, if any, by which (x) the Aggregate Loan Balance for such
Distribution Date exceeds (y) the aggregate Class Principal Amount of the
Class A1, Class A2, Class M1, Class M2 and Class B Certificates after giving
effect to distributions on such Distribution Date.
Overcollateralization Deficiency: With respect to any Distribution
Date, the amount, if any, by which (x) the Targeted Overcollateralization
Amount for such Distribution Date exceeds (y) the Overcollateralization Amount
for such Distribution Date, calculated for this purpose after giving effect to
the reduction on such Distribution Date of the Certificate Principal Amounts
of the Certificates resulting from the distribution of the Principal
Remittance Amounts on such Distribution Date, but prior to allocation of any
Applied Loss Amount on such Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date and each Mortgage Pool, the amount equal to the product of
(i) the Aggregate Overcollateralization Release Amount for such Distribution
Date and (ii) the Pool Percentage for such Mortgage Pool for such Distribution
Date.
Payahead: With respect to any Mortgage Loan and any Due Date
therefor, any Scheduled Payment received by the applicable Servicer during any
Collection Period in addition to the Scheduled Payment due on such Due Date,
intended by the related Mortgagor to be applied on a subsequent Due Date or
Due Dates.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate, its 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 the Class A1, Class A2, Class M1, Class M2 and Class B
Certificates, 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 the
Class P, Class X and Class R Certificates, the Percentage Interest evidenced
thereby shall be as specified on the face thereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: ▇▇▇▇▇▇ Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. 2510.3-101.
Pool Balance: With respect to each Mortgage Pool, the aggregate of
the Scheduled Principal Balances of all Mortgage Loans in such Mortgage Pool
at the date of determination.
Pool 1 Monthly Excess Interest: With respect to any Distribution
Date, the amount of any Interest Remittance Amount remaining after application
pursuant to clauses (i) through (ix) of Section 5.02(b) on such date.
Pool 2 Monthly Excess Interest: With respect to any Distribution
Date, the amount of any Interest Remittance Amount remaining after application
pursuant to clauses (i) through (vii) of Section 5.02(c) on such date.
Pool 1 Net Funds Cap: With respect to any Distribution Date and the
Class A1 Certificates, a per annum rate equal to (a) a fraction, expressed as
a percentage, the numerator of which is the product of (i) the Pool 1 Optimal
Interest Remittance Amount for such date and (ii) 12, and the denominator of
which is the Pool Balance for Pool 1 for the immediately preceding
Distribution Date multiplied by (b) a fraction, the numerator of which is 30
and the denominator of which is the actual number of days in the Accrual
Period related to such Distribution Date.
Pool 2 Net Funds Cap: With respect to any Distribution Date and the
Class A2 Certificates, a per annum rate equal to (a) a fraction, expressed as
a percentage, the numerator of which is the product of (i) the Pool 2 Optimal
Interest Remittance Amount for such date and (ii) 12, and the denominator of
which is the Pool Balance for Pool 2 for the immediately preceding
Distribution Date multiplied by (b) a fraction, the numerator of which is 30
and the denominator of which is the actual number of days in the Accrual
Period related to such Distribution Date.
Pool 1 Optimal Interest Remittance Amount: With respect to each
Distribution Date and the Class A1 Certificates, the product of (1) (x) the
weighted average of the Net Mortgage Rates of the Pool 1 Mortgage Loans as of
the first day of the related Collection Period, divided by (y) 12 and (2) the
Pool Balance for Pool 1 for the immediately preceding Distribution Date.
Pool 2 Optimal Interest Remittance Amount: With respect to each
Distribution Date and the Class A2 Certificates, the product of (1) (x) the
weighted average of the Net Mortgage Rates of the Pool 2 Mortgage Loans as of
the first day of the related Collection Period, divided by (y) 12 and (2) the
Pool Balance for Pool 2 for the immediately preceding Distribution Date.
Pool 1: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 1.
Pool 1 Subordinate Percentage: Immediately after any Distribution
Date, a fraction, expressed as a percentage, the numerator of which is the
Pool Subordinate Amount for Pool 1 and the denominator of which is the sum of
the Pool Subordinate Amount for Pool 1 and the Pool Subordinate Amount for
Pool 2.
Pool 2: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 2.
Pool 2 Subordinate Percentage: Immediately after any Distribution
Date, a fraction, expressed as a percentage, the numerator of which is the
Pool Subordinate Amount for Pool 2 and the denominator of which is the sum of
the Pool Subordinate Amount for Pool 1 and the Pool Subordinate Amount for
Pool 2.
Pool Percentage: With respect to each Mortgage Pool and any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Pool Balance for such Mortgage Pool for such date and the
denominator of which is the Aggregate Loan Balance for such date.
Pool Subordinate Amount: As to either Mortgage Pool and any
Distribution Date, the excess of the Pool Balance for such Mortgage Pool for
the immediately preceding Distribution Date over the Class Principal Amount of
the Class A1 Certificates (in the case of Pool 1) or the Class A2 Certificates
(in the case of Pool 2) immediately prior to the related Distribution Date.
Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the difference between (i) one full
month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction) (and in the case of Principal Prepayments in
full, as reduced by the Master Servicing Fee Rate and the Servicing Fee Rate)
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 at the time of such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date, the
one-month period beginning on the Cut-off Date, in the case of the first
Distribution Date, and thereafter on the second day of the calendar month
immediately preceding the month in which the related Distribution Date occurs,
in the case of each subsequent Distribution Date, and ending on the first day
of the month in which such Distribution Date occurs.
Prepayment Premiums: Any prepayment fees and penalties to be paid by
the Mortgagor on a Mortgage Loan.
Primary Mortgage Insurance Policy: The MGIC Insurance Policy, and any
other mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
Prime Rate: The prime rate of United States money center commercial
banks as published in The Wall Street Journal, Northeast Edition.
Principal Distribution Amount: With respect to each Mortgage Pool and
any Distribution Date, an amount equal to the Principal Remittance Amount for
such Mortgage Pool for such date minus the Overcollateralization Release
Amount, if any, for such Mortgage Pool for such date.
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 and/or the applicable Servicing
Agreement.
Principal Remittance Amount: With respect to each Mortgage Pool and
any Distribution Date, (a) the sum of (i) all principal collected (other than
Payaheads) or advanced in respect of Scheduled Payments on the Mortgage Loans
in such Mortgage Pool during the related Collection Period (less unreimbursed
Advances due to the Master Servicer, the Servicers or the Trustee with respect
to the related Mortgage Loans, to the extent allocable to principal), (ii) all
Principal Prepayments in full or in part received during the related
Prepayment Period, (iii) the outstanding principal balance of each Mortgage
Loan that was purchased from the Trust Fund during the related Prepayment
Period, (iv) the portion of any Substitution Amount paid during the related
Prepayment Period allocable to principal, and (v) all Net Liquidation
Proceeds, Insurance Proceeds and other recoveries collected with respect to
such Mortgage Loans during the related Prepayment Period, to the extent
allocable to principal, minus, for each Mortgage Pool, (b) to the extent the
Interest Remittance Amount is less than amounts reimbursable to the Master
Servicer pursuant to Section 4.02(v), the product of (i) the applicable Pool
Percentage for such Distribution Date and (ii) any amounts reimbursable during
the related Anniversary Year to the Master Servicer therefrom and not
reimbursed from the Interest Remittance Amount or otherwise.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Prospectus: The prospectus supplement dated August 31, 2000, together
with the accompanying prospectus dated May 23, 2000, relating to the Class A2,
Class M1, Class M2 and Class B Certificates.
Purchase Price: With respect to the purchase of a Mortgage Loan or
related REO Property pursuant to this Agreement, an amount equal to the sum of
(a) 100% of the unpaid principal balance of such Mortgage Loan and (b) accrued
interest thereon at the applicable Mortgage Rate, from the date as to which
interest was last paid to (but not including) the Due Date in the Collection
Period immediately preceding the related Distribution Date. The Master
Servicer, the Guarantor 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 Guarantor Reimbursement Amounts, Advances and
Servicing Advances made under this Agreement or the related Servicing
Agreement, together with any accrued and unpaid compensation due to the
Trustee, the Master Servicer and the applicable Servicer hereunder or
thereunder.
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:
(i) 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;
(ii) 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;
(iii) 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;
(iv) provide that the Trustee's interest therein shall be
transferable to any successor trustee hereunder; and
(v) 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.
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this
Agreement, a Mortgage Loan that, on the date of such substitution, (i) has an
outstanding Scheduled Principal Balance (or in the case of a substitution of
more than one mortgage loan for a Deleted Mortgage Loan, an aggregate
Scheduled Principal Balance), after application of all Scheduled Payments due
during or prior to the month of substitution, not in excess of, and not more
than 5% less than, the outstanding Scheduled Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) has a Mortgage Rate not less than the Mortgage Rate
on the Deleted Mortgage Loan, (iii) if applicable, has a maximum Mortgage Rate
not less than the maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) has
a minimum Mortgage Rate not less than the minimum Mortgage Rate of the Deleted
Mortgage Loan, (v) has a gross margin equal to or greater than the gross
margin of the Deleted Mortgage Loan, (vi) has a next adjustment date not later
than the next adjustment date on the Deleted Mortgage Loan, (vii) has the same
Due Date as the Deleted Mortgage Loan, (viii) has a remaining term to maturity
not greater than (and not more than one year less than) that of the Deleted
Mortgage Loan, (ix) is current as of the date of substitution, (x) has a
Loan-to-Value Ratio or Combined Loan-to-Value Ratio as of the date of
substitution equal to or lower than the Loan-to-Value Ratio or Combined
Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (xi) has
been underwritten by any Transferor or in accordance with the same
underwriting criteria and guidelines as the Deleted Mortgage Loan, (xii) has a
risk grading determined by the Seller at least equal to the risk grading
assigned on the Deleted Mortgage Loan, (xiii) is secured by the same property
type as the Deleted Mortgage Loan, (xiv) conforms to each representation and
warranty applicable to the Deleted Mortgage Loan made in the Mortgage Loan
Sale and Assignment Agreement, (xv) for any Mortgage Loan to be substituted
into Pool 1, has an original Scheduled Principal Balance within the maximum
dollar amount limitations prescribed by the Guarantor for conforming one- to
four- family mortgage loans, (xvi) has the same or higher lien position as the
Deleted Mortgage Loan, and (xvii) for any Mortgage Loan to be substituted into
Pool 1, such Mortgage Loan is approved by the Guarantor. In the event that one
or more mortgage loans are substituted for one or more Deleted Mortgage Loans,
the amounts described in clause (i) hereof shall be determined on the basis of
aggregate Scheduled Principal Balances, the Mortgage Rates described in clause
(ii) hereof shall be determined on the basis of weighted average Mortgage
Rates, the risk gradings described in clause (xii) hereof shall be satisfied
as to each such mortgage loan, the terms described in clause (viii) hereof
shall be determined on the basis of weighted average remaining term to
maturity, the Loan-to-Value Ratios or Combined Loan-to-Value Ratios described
in clause (x) hereof shall be satisfied as to each such mortgage loan and,
except to the extent otherwise provided in this sentence, the representations
and warranties described in clause (xiv) hereof must be satisfied as to each
Qualified Substitute Mortgage Loan or in the aggregate, as the case may be.
Rating Agency: Each of Fitch, ▇▇▇▇▇'▇ and S&P.
Realized Loss: 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, minus (ii) Liquidation Proceeds received, to the
extent allocable to principal, net of amounts that are reimbursable therefrom
to the Master Servicer or any Servicer with respect to such Mortgage Loan
(other than Advances of principal) including expenses of liquidation. In
determining whether a Realized Loss is a Realized Loss of 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.
Record Date: With respect to any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC
pursuant to Section 10.01(a) hereof.
REMIC 1: As described in the Preliminary Statement.
REMIC 2: As described in the Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 860G 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: With respect to each Distribution Date, the 18th day
(or, if such 18th day is not a Business Day, the next succeeding Business Day)
of the month in which such Distribution Date occurs.
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.
Required Reserve Fund Deposit: With respect to any Distribution Date
on which the Net Excess Spread is less than 0.25%, the amount, if any by which
(a) the product of 1.00% and the Aggregate Loan Balance for such date exceeds
(b) the amount on deposit in the Basis Risk Reserve Fund immediately prior to
such date. With respect to any Distribution Date on which the Net Excess
Spread is equal to or greater than 0.25%, the amount, if any, by which (i)
$5,000 exceeds (ii) the amount on deposit in the Basis Risk Reserve Fund
immediately prior to such date.
Residual Certificate: The Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department and having responsibility for the administration of this Agreement.
Restricted Certificate: Any Class P, Class X or Class R Certificate.
Rolling Three Month Delinquency Rate: With respect to any
Distribution Date, the average of the Delinquency Rates for each of the three
(or one and two, in the case of the September 2000 and October 2000
Distribution Dates) immediately preceding calendar months.
S&P: Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor in interest.
Scheduled Payment: Each scheduled payment of principal and interest
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service
Reduction (excluding all amounts of principal and interest that were due on or
before the Cut-off Date whenever received) and, in the case of an REO
Property, an amount equivalent to the Scheduled Payment that would have been
due on the related Mortgage Loan if such Mortgage Loan had remained in
existence.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as
of any Distribution Date, the principal balance of such Mortgage Loan 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 Collection Period, whether or not received from the Mortgagor or
advanced by any Servicer or the Master Servicer, and all amounts allocable to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the related 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 and the Cut-off Date, as
specified in the Mortgage Loan Schedule.
Seller: ▇▇▇▇▇▇ Brothers Holdings Inc., or any successor in interest.
Senior Certificate: Any Class A1 or Class A2 Certificate.
Senior Enhancement Percentage: With respect to any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the sum of
the aggregate Class Principal Amount of the Class M1, Class M2 and Class B
Certificates and the Overcollateralization Amount (which amount, for purposes
of this definition only, shall not be less than zero and assuming for purposes
of this definition that the aggregate Principal Distribution Amounts have been
distributed on such Distribution Date and a Trigger Event is not in effect)
and the denominator of which is the Aggregate Loan Balance for such
Distribution Date, in each such case after giving effect to distributions on
such Distribution Date.
Senior Principal Distribution Amount: With respect to each Mortgage
Pool, for any Distribution Date (a) prior to the Stepdown Date or if a Trigger
Event is in effect with respect to such Distribution Date, an amount equal to
100% of the Principal Distribution Amount and (b) on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, the lesser of (x) the Principal Distribution Amount for
such Mortgage Pool and (y) the product of (i) the applicable Senior
Proportionate Percentage and (ii) the amount, if any, by which (x) the
aggregate Certificate Principal Amount of the Senior Certificates immediately
prior to such Distribution Date exceeds (y) the Senior Target Amount.
Senior Proportionate Percentage: With respect to Pool 1 and any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Principal Distribution Amount for Pool 1 for such Distribution
Date and the denominator of which is the aggregate of the Principal
Distribution Amounts for Pool 1 and Pool 2 for such Distribution Date. With
respect to Pool 2 and any Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Principal Distribution Amount for
Pool 2 for such Distribution Date and the denominator of which is the
aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for such
Distribution Date.
Senior Target Amount: With respect to each Mortgage Pool and for any
Distribution Date, an amount equal to the lesser of (a) the product of (i)
86.000048760085% and (ii) the Aggregate Loan Balance for such Distribution
Date and (b) the amount, if any, by which (i) the Aggregate Loan Balance for
such Distribution Date exceeds (ii) 0.10% of the Cut-off Date Aggregate Loan
Balance.
Servicer: Any Servicer that has entered into any of the Servicing
Agreements attached as Exhibit E hereto, or any successors in interest.
Initially, the Servicers are ▇▇▇▇▇ Fargo Home Mortgage, Inc. (formerly known
as Norwest Mortgage Inc.); Ocwen Federal Bank FSB; Option One Mortgage
Corporation; Aurora Loan Services Inc.; Ameriquest Mortgage Company; Homeside
Lending, Inc.; Life Bank; and Long Beach Mortgage Company.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorney's fees and
disbursements) incurred by the Servicer or the Master Servicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration, inspection and protection of the
Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures and (iii) the management and liquidation of the REO Property.
Servicing Agreement: Each reconstituted servicing agreement or
servicing agreement between the applicable Servicer and the Seller (and
acknowledged by the Master Servicer, the Trustee and the Guarantor) attached
hereto as Exhibit E.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of the Servicing Fee Rate and the outstanding
principal balance of such Mortgage Loan as of the first day of the related
Collection Period.
Servicing Fee Rate: With respect to each Distribution Date, 0.50% per
annum.
Special Servicer: Any special servicer appointed by a Servicer
pursuant to Section 9.34 hereof and the terms of the applicable Servicing
Agreement.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stepdown Date: The later to occur of (x) the Distribution Date in
September 2003 and (y) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose after giving effect to
payments or other recoveries in respect of the Mortgage Loans during the
related Collection Period but before giving effect to distributions on the
Certificates on such Distribution Date) is greater than or equal to 14.00%.
Subordinate Certificate: Any Class M1, Class M2, Class B, Class P or
Class X Certificate.
Substitution Amount: The amount, if any, by which the Scheduled
Principal Balance of a Deleted Mortgage Loan exceeds the Scheduled Principal
Balance of the related Qualifying Substitute Mortgage Loan, or aggregate
Scheduled Principal Balance, if applicable, plus unpaid interest thereon, and
any related unpaid Advances or Servicing Advances, unpaid Servicing Fees, or
any unpaid Guarantor Reimbursement Amounts.
Target Amount: With respect to any Distribution Date beginning with
the Distribution Date in March 2001, the amount equal to the Aggregate Loan
Balance as of such Distribution Date minus the Targeted Overcollateralization
Amount for such Distribution Date.
Targeted Overcollateralization Amount: With respect to any
Distribution Date (x) beginning with the Distribution Date in March 2001 and
prior to the Stepdown Date, 0.50% of the Cut-off Date Balance and (y) on or
after the Stepdown Date and provided a Trigger Event is not in effect, the
greater of (1) 1.00% of the Aggregate Loan Balance as of the related
Distribution Date and (2) 0.10% of the Cut-off Date Balance and (z) on or
after the Stepdown Date and provided a Trigger Event is in effect, the
Targeted Overcollateralization Amount for the immediately preceding
Distribution Date.
Tax Matters Person: The "tax matters person" as specified in the
REMIC Provisions.
Telerate Page 3750: The display currently so designated as "Page
3750" on the Bridge Telerate Service (or such other page selected by the
Guarantor as may replace Page 3750 on that service for the purpose of
displaying daily comparable rates on prices).
Termination Price: As defined in Section 7.01.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
Total Distribution Amount: With respect to any Distribution Date, the
sum of the aggregate of the Interest Remittance Amounts for such date and the
aggregate of the Principal Remittance Amounts for such date.
Transfer Agreement: As defined in the Mortgage Loan Sale and
Assignment Agreement.
Transferor: The seller of Mortgage Loans to the Seller or ▇▇▇▇▇▇
Brothers Bank FSB pursuant to the applicable Transfer Agreement.
Trigger Event: A Trigger Event shall be in effect with respect to any
Distribution Date if the Rolling Three Month Delinquency Rate as of the last
day of the immediately preceding Collection Period equals or exceeds the
Senior Enhancement Percentage for such Distribution Date.
Trust: The trust created pursuant to this Agreement, known as
"Amortizing Residential Collateral Trust".
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 applicable Transfer Agreement, the Mortgage Loan Sale and
Assignment Agreement and each Servicing Agreement, such amounts as shall from
time to time be held in the Collection Account, the Certificate Account, any
Custodial Account, any Escrow Account, the Basis Risk Reserve Fund, the
Insurance Policies, the Guarantee, any REO Property and the other items
referred to in, and conveyed to the Trustee under, Section 2.01(a).
Trustee: First Union National Bank, not in its individual capacity
but solely as Trustee, or any successor in interest, or if any successor
trustee or any co-trustee shall be appointed as herein provided, then such
successor trustee and such co-trustee, as the case may be.
Trustee Fee: $3,500 per year, payable in equal monthly installments.
Trustee Fee Rate: With respect to each Distribution Date, the rate
equal to the fraction, expressed as a percentage, calculated by dividing the
Trustee Fee by the Aggregate Loan Balance.
Unpaid Basis Risk Shortfall: With respect to any Distribution Date
and any LIBOR Certificate, the aggregate of all Basis Risk Shortfalls with
respect to such Certificate remaining unpaid from previous Distribution Dates,
plus interest accrued thereon at the applicable Certificate Interest Rate
(calculated without giving effect to the applicable Net Funds Cap or Average
Rate).
Upper Tier REMIC: REMIC 2.
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,
98% of all Voting Interests shall be allocated to the Certificates other than
the Class P and Class X Certificates; provided, however, on any date on which
the Class A1 Certificates are outstanding or any amounts are owed the
Guarantor under this Agreement, all of the Voting Interests allocated to the
Class A1 Certificates shall be vested in the Guarantor. Voting Interests shall
be allocated among such Certificates (other than the Class R Certificates)
based on the product of (i) 98% and (ii) the fraction, expressed as a
percentage, the numerator of which is the aggregate Class Principal Amounts
for each Class then outstanding and the denominator is the Aggregate Loan
Balance then outstanding. The remainder of such percentage of Voting Interests
shall be allocated to the Class R Certificates. At all times during the term
of this Agreement, 1% of all Voting Interests shall be allocated to the Class
P Certificates and 1% of all Voting Interests shall be allocated to the Class
X Certificate. Voting Interests shall be allocated among the other Classes of
Certificates (and among the Certificates within each such Class) in proportion
to their Class Principal Amounts (or Certificate Principal Amounts) or
Percentage Interests.
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.
Section 1.03. Calculations Respecting Accrued Interest. Accrued
interest on any Class of Certificates shall be calculated based upon a 360-day
year and the actual number of days in each Accrual Period.
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 (or its designee, in the case of any MERS
Mortgage Loans), 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 after the Cut-off Date (in the case of Scheduled Payments) and
on and after the Cut-off Date (in the case of all other amounts in respect of
principal) (other than payments of principal and interest due on or before
such respective 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 Custodial Account, any Escrow Account established pursuant to
Section 9.06 and all amounts from time to time credited to and the proceeds of
any such Escrow Account, any Basis Risk Reserve Fund established pursuant to
Section 5.07 and all amounts from time to time credited to and the proceeds of
any such Basis Risk Reserve Fund, any REO Property and the proceeds thereof,
the Depositor's rights under any Insurance Policies related to the Mortgage
Loans, the Depositor's security interest in any collateral pledged to secure
the Mortgage Loans, including the Mortgaged Properties, 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 the Mortgage Loan Sale and Assignment Agreement, including all rights of
the Seller under each Servicing Agreement and the Transfer Agreements to the
extent assigned under the Mortgage Loan Sale and Assignment Agreement. The
Trustee hereby accepts such assignment, and shall be entitled to exercise all
rights of the Depositor under the Mortgage Loan Sale and Assignment Agreement
as if, for such purpose, it were the Depositor. Both the Depositor and the
Seller acknowledge the Trustee's entitlement to exercise such rights under
such agreements.
(b) In connection with such transfer and assignment, the Depositor
has delivered to, and deposited with the applicable Custodian 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, or in
blank (in each case, with all necessary intervening endorsements as
applicable), or with respect to any lost Mortgage Note, an original lost note
affidavit in the form annexed as Exhibit B-5 to each Custodial Agreement
stating that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
(ii) the original of any guarantee executed in connection with the
Mortgage Note, assigned to the Trustee;
(iii) with respect to any Mortgage Loan, the original recorded
Mortgage with evidence of recording indicated thereon, and the original
recorded power of attorney if the Mortgage was executed pursuant to a power of
attorney, with evidence of recording thereon. If, in connection with any
Mortgage Loan, the Depositor cannot deliver the Mortgage or such power of
attorney 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
or such power of attorney has been delivered for recordation or because such
Mortgage or such power of attorney has been lost, the Depositor shall deliver
or cause to be delivered to the applicable 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, the Depositor and the Guarantor (in the case of any Pool 1 Mortgage
Loan) 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, written assurance
or substitution agreement, if any, relating to the Mortgage Loans, or, as to
any assumption, modification, written assurance 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,
written assurance or substitution agreement has been delivered for
recordation, a photocopy of such assumption, modification, written assurance
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, the original
Assignment of Mortgage for each Mortgage Loan assumed either (a) in blank,
without recourse, or (B) to "First Union National Bank, as Trustee of the
Amortizing Residential Collateral Trust, Series 2000-BC3, without recourse;"
(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 and the Guarantor
(in the case of any Pool 1 Mortgage Loan) that such original Intervening
Assignment is not required to enforce the Trustee's interest in the Mortgage
Loans;
(vii) with respect to any Mortgage Loan, the original mortgagee title
insurance policy or attorney's opinion of title and abstract of title; and
(viii) the original of any security agreement, deed of trust or
equivalent instrument executed in connection with the Mortgage or as to any
security agreement or equivalent instrument 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 or equivalent instrument 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.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-6 to each Custodial Agreement 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 shall be recorded; provided, however, that such Assignments need
not be recorded if, on or prior to the Closing Date, the Depositor delivers,
at its own expense, an Opinion of Counsel (which must be from Independent
counsel) acceptable to the Trustee and the Guarantor, which states that
recording in such states is not required to protect the Trustee's interest in
the related 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 Seller and with the cooperation of
the applicable Servicer, shall cause to be properly recorded by each 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
each Non-MERS Mortgage Loan.
(ii) With respect to each MERS Mortgage Loan, the Trustee, at
the expense of the Depositor and at the direction and with the
cooperation of the applicable Servicer, shall cause to be taken such
actions as are necessary to cause the Trustee to be clearly
identified as the owner of each such Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee or the applicable Custodian on behalf of the Trustee
under clause (b)(vii) 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 shall be held by
the Master Servicer or the applicable Servicer in trust for the benefit of the
Trustee, the Guarantor 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 applicable Custodian on its behalf of the
Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage Loan
Schedule. The applicable Custodian on behalf of the Trustee has reviewed 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 will execute
and deliver on the Closing Date to the Depositor, the Guarantor and the Master
Servicer an Initial Certification in the form annexed as Exhibit B-1 to each
Custodial Agreement to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan specifically identified
in such certification as not covered by such certification), (i) all of the
applicable documents specified in Section 2.01(b) are in its possession and
(ii) such documents have been reviewed by it and appear to relate to such
Mortgage Loan. The applicable Custodian on behalf of the Trustee shall
determine whether such 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. None of the Trustee or any applicable 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.
(b) If in the course of the review described in paragraph (a) above
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 applicable Custodian on behalf
of the Trustee, discovering such Material Defect shall promptly identify the
Mortgage Loan to which such Material Defect relates in the certificate
delivered with the Interim Certificate in the form annexed as Exhibit B-2 to
each Custodial Agreement within 45 days of the Closing Date. Within 90 days of
its receipt of such notice, the applicable Transferor, or, if such Transferor
does not do so, the Seller shall be required to cure such Material Defect
(and, in such event, the Seller shall provide the Trustee with an Officer's
Certificate confirming that such cure has been effected). If the applicable
Transferor or the Seller, as applicable, does not so cure such Material
Defect, such Transferor, or, if such Transferor does not do so, the Seller,
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 Seller to cure such Material Defect, shall repurchase (in accordance with
Section 2.05) 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 Seller
to cure a Material Defect if, as determined by the Seller, upon mutual
agreement with the Trustee and the Guarantor 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 Seller 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 Seller 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.
(c) Within 180 days following the Closing Date, the applicable
Custodian, shall deliver to the Depositor, the Guarantor and the Master
Servicer a Final Certification substantially in the form annexed as Exhibit
B-3 to each Custodial Agreement evidencing the completeness of the Mortgage
Files in its possession or control.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Custodian, the Guarantor or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(e) Each of the parties hereto acknowledges that the applicable
Custodian shall perform the applicable review of the Mortgage Loans and
deliver the applicable certifications as provided in its Custodial Agreement.
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 and the Guarantor, 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
(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 Mortgage Loans in the applicable Transfer Agreement, which have
been assigned to the Trustee hereunder, were made as of the date of such
Transfer Agreement. To the extent that any fact, condition or event with
respect to a Mortgage Loan constitutes a breach of a representation or
warranty made under a Transfer Agreement or herein, the Trustee, the Guarantor
or a Certificateholder shall have the right to require that the Seller cure
such breach or effect such other remedy as is specified in subsection 1.04(e)
of the Mortgage Loan Sale and Assignment Agreement.
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 the
Seller set forth in the Mortgage Loan Sale and Assignment Agreement and
assigned to the Trustee by the Depositor hereunder and (iii) of each
Transferor and of each Servicer assigned by the Seller to the Depositor
pursuant to the Mortgage Loan Sale and Assignment 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 Guarantor, the Master Servicer, or the
Trustee of a breach of any of such representations and warranties that
adversely and materially affects the value of the related Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties. Within 90 days of the discovery of a breach of any representation or
warranty (i) given to the Trustee and the Guarantor by the Depositor under
Section 2.03 or (ii) given by the Seller under the Mortgage Loan Sale and
Assignment Agreement or (iii) made by a Transferor to the Seller under a
Transfer Agreement, and assigned by the Seller to the Depositor under the
Mortgage Loan Sale and Assignment Agreement (and assigned by the Depositor to
the Trustee hereunder), the Depositor or the Seller shall (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 each case in
accordance with Section 2.05. For purposes of the foregoing sentence, any
breach of the representations and warranties contained in Sections
1.04(c)(xl), (xli), (xlii) and (li) of the Mortgage Loan Sale and Assignment
Agreement shall be deemed to adversely and materially affect the value of the
related Mortgage Loan. In the event of discovery of a breach of any
representation and warranty of any Transferor which has been assigned to the
Trustee under this Agreement, the Trustee may either enforce its rights
against the Seller pursuant to the immediately preceding sentence or enforce
its rights under the related Transfer Agreement for the benefit of
Certificateholders; provided, however, if such rights are enforced directly
against the Seller such rights shall be subrogated to the rights of the
Trustee under the related Transfer Agreement.
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 the Seller pursuant to the Mortgage Loan Sale and
Assignment Agreement or by a Transferor pursuant to the applicable Transfer
Agreement, the principal portion of the Purchase Price of a Mortgage Loan will
be considered a Principal Prepayment and the Purchase Price shall be deposited
in the Collection Account or a Custodial Account, as applicable. The Trustee,
upon receipt of the full amount of the Purchase Price for a Deleted Mortgage
Loan, or upon receipt of the Mortgage File for a Qualifying Substitute
Mortgage Loan substituted for a Deleted Mortgage Loan (and any applicable
Substitution Amount), shall release or cause to be released and reassign to
the Depositor, the Seller 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 applicable Custodian, and the Trustee shall have no further responsibility
with respect to the Mortgage File relating to such Deleted Mortgage Loan. The
Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the
Guarantor and each Certificateholder harmless against any and all taxes,
claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgements, and any other costs, fees and expenses that the
Trust Fund, the Trustee, the Depositor, the Guarantor and any
Certificateholder may sustain in connection with any actions of the Seller
relating to a repurchase of a Mortgage Loan other than in compliance with the
terms of this Section 2.05 and the Mortgage Loan Sale and Assignment
Agreement, to the extent that any such action causes (i) any federal or state
tax to be imposed on the Trust Fund, including without limitation, any federal
tax imposed on "prohibited transactions" under Section 860F(a)(l) of the Code
or on "contributions after the startup date" under Section 860G(d)(l) of the
Code, or (ii) the REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor or the Seller, 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 (or the Seller) 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 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 the applicable 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 and
the Guarantor have 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 federal or state tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(l) of the Code or on "contributions after
the startup date" under Section 860G(d)(l) of the Code.
Section 2.06. Grant Clause. 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.
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 Certificates will be evidenced by
one or more certificates, beneficial ownership of which will be held in the
dollar denominations in the Certificate Principal Amount or in the Percentage
Interests, specified herein. Each Class of Book-Entry Certificates will be
issued in the minimum denominations in the Certificate Principal Amount
specified in the Preliminary Statement hereto and in integral multiples of $1
in excess thereof. The Class A1 Certificate, Class P Certificate, Class X
Certificate and the Class R Certificate shall each be issued as a single
Certificate and maintained in definitive, fully registered form in a
denomination equal to 100% of the Class Principal Amount or Percentage
Interest of such Class. The Certificates may be issued in the form of
typewritten certificates.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of
the Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02. Registration. The Trustee is hereby appointed, and
hereby accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may appoint
a bank or trust company to act as Certificate Registrar. A registration book
shall be maintained for the Certificates collectively. The Certificate
Registrar may resign or be discharged or removed and a new successor may be
appointed in accordance with the procedures and requirements set forth in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
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 144(a)(1) under the ▇▇▇▇ ▇▇▇) of the
Depositor or the Placement Agent or (y) being made to a "qualified
institutional buyer" (a "QIB") as defined in Rule 144A under the Securities
Act of 1933, as amended (the "Act") by a transferor who has provided the
Trustee with a certificate in the form of Exhibit F 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, the
Master Servicer and the Guarantor have received (A) a certificate
substantially in the form of Exhibit H hereto from such transferee or (B) an
Opinion of Counsel satisfactory to the Trustee, the Guarantor, the Master
Servicer 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, the Guarantor, the Master Servicer 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,
the Master Servicer and the Guarantor has rendered an opinion to the effect
that the purchase and holding of an ERISA-Restricted Certificate by a Plan or
a Person that is purchasing or holding such a Certificate with the assets of a
Plan will not constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code. The preparation and delivery of the certificate and
opinions referred to above shall not be an expense of the Trust Fund, the
Trustee, the Guarantor, the Master Servicer or the Depositor. Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, (i) no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to 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 (i) 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 (ii) a QIB or
either the Depositor or an affiliate (as defined in Rule 405 under the Act)
thereof and the proposed transferor shall deliver to the Trustee an affidavit
in substantially the form attached hereto as Exhibit D-2. In addition, the
Trustee may (but shall have no obligation to) require, prior to and as a
condition of any such transfer, the delivery by the proposed transferee of an
Opinion of Counsel, addressed to the Depositor, the Guarantor and the Trustee
satisfactory in form and substance to the Depositor and the Guarantor, 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 a 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.
Neither the Trustee nor the Guarantor shall 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, or an 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 Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, or an interest therein, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
Section 3.04. Cancellation of Certificates. Any Certificate
surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Depositor and any Authenticating Agent that such
destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or the Authenticating Agent)
connected therewith. Any replacement Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Master Servicer, the Guarantor, 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 Guarantor, the Master Servicer, the Trustee, the Certificate
Registrar nor any agent of any of them shall be affected by notice to the
contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to the Certificateholders. All funds remitted by the
Trustee to any such Paying Agent for the purpose of making distributions shall
be paid to Certificateholders on each Distribution Date and any amounts not so
paid shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the Paying
Agent on or before the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates. (a) Each Class of Book-Entry
Certificates, upon original issuance, shall be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Depositor. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09(a) shall be in full
force and effect;
(ii) 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;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions
of this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Certificates are
issued pursuant to Section 3.09(c), the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on
the Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer's Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Depositor 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 "Collection Account, ▇▇▇▇▇ Fargo
Bank Minnesota, National Association, as Master Servicer, in trust for the
benefit of the Holders of Amortizing Residential Collateral Trust Mortgage
Pass-Through Certificates, Series 2000-BC3". 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 15 days and transfer all funds on deposit in such existing Collection
Account into such new Collection Account.
(c) The Master Servicer will give to the Trustee and the Guarantor
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. The Master Servicer shall take such actions as are
necessary to cause the depository institution holding the Collection Account
to hold such account in the name of the Master Servicer under this Agreement.
On each Deposit Date, the entire amount on deposit in the Collection Account
(subject to permitted withdrawals set forth in Section 4.02), other than
amounts not included in the Total Distribution Amount for such Distribution
Date 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 received with respect to the Mortgage Loans representing
Scheduled Payments on the Mortgage Loan due after the Cut-off Date and
unscheduled payments due on or 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
earlier of the applicable Remittance Date and one Business Day following
receipt thereof, 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 August 1, 2000):
(i) all payments on account of principal, including Principal
Prepayments and Late Collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
(other than payments due prior to the Cut-off Date), including
Prepayment Premiums, net of the Servicing Fee, Master Servicing Fee
and the MGIC Insurance Premiums, if any, 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 5.05 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 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 (x) 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
5.05 and 9.21) and (y) any amounts reimbursable to a Servicer with
respect to such Mortgage Loan under the applicable Servicing
Agreement and retained by such Servicer;
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or any Servicer
pursuant to Section 5.05 or applicable Servicing Agreement; and
(vi) the Purchase Price of any Mortgage Loan repurchased by the
Depositor, the Seller, the Master Servicer or any other Person and
any Substitution Amount related to any Qualifying Substitute
Mortgage Loan.
(e) Funds in the Collection Account may be invested in Eligible
Investments selected by and at the written direction of the Depositor and
acceptable to the Guarantor (as indicated on such written direction), which
shall mature not later than one Business Day prior to the Deposit Date. 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 or order from time to time, and shall not be part of
the Trust Fund. The amount of any losses incurred in respect of any such
investments shall be deposited in such 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,
assumption fees and other incidental fees and charges relating to the Mortgage
Loans (other than Prepayment Premiums) 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 Depositor does not provide written
direction to the Master Servicer pursuant to this Section, all funds on
deposit in the Collection Account shall be invested in a money market fund as
described in paragraph (viii) of the definition of "Eligible Investment" set
forth in Article I.
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 or
Servicing Advances made by it or by such Servicer pursuant to
Section 5.05 or the applicable Servicing Agreement; such right to
reimbursement pursuant to this subclause (i) is limited to amounts
received on or in respect of a particular Mortgage Loan (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
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, following a final
liquidation of a Mortgage Loan (except as otherwise provided in the
related Servicing Agreement) for any previously unreimbursed
Advances made by it or by such Servicer (A) 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 Advance was made or from
Liquidation Proceeds or Insurance Proceeds with respect to such
Mortgage Loan and/or (B) to the extent that such unreimbursed
Advances exceed the related Liquidation Proceeds or Insurance
Proceeds, it being understood, in the case of each 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 Section 9.22(c) 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 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) in the event it has elected not to pay itself the Master
Servicing Fee out of any Mortgagor payment on account of interest or
other recovery with respect to a particular Mortgage Loan prior to
the deposit of such Mortgagor payment or recovery in the Collection
Account, to pay to itself the Master Servicing Fee for each
Distribution Date and any unpaid Master Servicing Fees for prior
Distribution Dates, as reduced pursuant to Section 5.06, from any
Mortgagor payment as to interest or such other recovery with respect
to that Mortgage Loan, as is permitted by this Agreement;
(v) to reimburse itself or any Servicer for expenses incurred
by and recoverable by or reimbursable to it or any Servicer pursuant
to Sections 9.04, 9.05(b), 9.07(a), 9.30 or 11.14, or to reimburse
itself for any expenses reimbursable to it pursuant to Section
10.01(c); provided, however, that any amounts in excess of the
annual cap described in clause (b) of the definition of "Interest
Remittance Amount" in any Anniversary Year shall be included in the
amount remitted by the Master Servicer to the Trustee pursuant to
clause (viii) below and the Master Servicer's reimbursement for such
excess amounts shall be made pursuant to Section 5.02(b) and 5.02(c)
hereof;
(vi) to pay to the Depositor, the Seller, any Transferor or the
Class X Certificateholder, as applicable, with respect to each
Mortgage Loan or REO Property acquired in respect thereof that has
been purchased pursuant to this Agreement, all amounts received
thereon and not distributed on the date on which the related
repurchase was effected, and to pay to the applicable Person any
Advances and Servicing Advances to the extent specified in the
definition of Purchase Price;
(vii) to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(viii) 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;
(ix) to make payment to itself and others pursuant to any
provision of this Agreement;
(x) to withdraw funds deposited in error in the Collection
Account;
(xi) to clear and terminate the Collection Account pursuant to
Section 7.02;
(xii) to reimburse a successor Master Servicer (solely in its
capacity as successor Master Servicer), for any fee or advance
occasioned by a termination of the Master Servicer, and the
assumption of such duties by the Trustee or a successor Master
Servicer appointed by the Trustee pursuant to Section 6.14, in each
case to the extent not reimbursed by the terminated Master Servicer,
it being understood, in the case of any such reimbursement or
payment, that the right of the Master Servicer or the Trustee
thereto shall be prior to the rights of the Certificateholders; and
(xiii) to reimburse any Servicer for such amounts as are due
thereto under the applicable Servicing Agreement and have not been
retained by or paid to such Servicer, to the extent provided in such
Servicing Agreement.
In connection with withdrawals pursuant to subclauses (i), (iii),
(iv) and (vi) above, the Master Servicer's, any Servicer's or such other
Person's entitlement thereto is limited to collections or other recoveries on
the related Mortgage Loan. The Master Servicer shall therefore keep and
maintain a separate accounting for each Mortgage Loan it master services for
the purpose of justifying any withdrawal from the Collection Account it
maintains pursuant to such subclause (i), (iii), (iv) and (vi).
Section 4.03. Reports to Trustee, Guarantor and Certificateholders.
(a) On the fifth Business Day prior to each Distribution Date, (each a "Data
Remittance Date") by noon New York City time, the Master Servicer shall
furnish two reports (the "Loan Data Remittance Report" and the "Bond Data
Remittance Report," respectively) in the forms attached hereto as Exhibit K
and Exhibit L, respectively, to the Trustee and the Guarantor by electronic
medium as agreed to by the Master Servicer, the Trustee and the Guarantor.
(b) Subject to paragraph (c) below, if any month the Master Servicer
fails to provide the Guarantor either the Loan Data Remittance Report or the
Bond Data Remittance Report on or prior to the Data Remittance Date, the
Master Servicer shall pay to the Guarantor the following amounts: (i) upon the
first such failure, $500; (ii) upon the second such failure, $750; and (iii)
upon the third such failure, $1,000; provided, however, that the Master
Servicer shall not be required to make any such payment upon the first such
failure during each successive two year period following the Closing Date. The
fourth consecutive such failure to provide either a Loan Data Remittance
Report or a Bond Remittance Data Report to the Guarantor pursuant to Section
4.03(a) shall permit the Guarantor to remove the Master Servicer for cause.
(c) The Master Servicer shall have no responsibility or liability
(including removal as Master Servicer) under paragraph (b) of this Section
4.03 if the Master Servicer's failure to timely deliver any Loan Data
Remittance Report or Bond Data Remittance Report is due to the failure of any
Servicer to furnish the Master Servicer on a timely basis with the relevant
data in accordance with the related Servicing Agreement.
(d) On each Distribution Date, the Trustee shall provide or make
available by electronic means to each Certificateholder a report setting forth
the following information, which information the Master Servicer will
determine (on the basis of information obtained from the Servicers) and
provide or make available to the Trustee and the Guarantor pursuant to
subsection (a) above:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates;
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates
set forth in clause (i) allocable to principal, separately
identifying the aggregate amount of Principal Prepayments or other
unscheduled recoveries of principal included therein;
(iii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates
set forth in clause (i) allocable to interest and the calculation
thereof;
(iv) the amount, if any, of any distribution to the Holders of
the Class X Certificate and the Residual Certificate;
(v) the amount of Advances for the related Collection Period,
the amount of unrecovered Advances outstanding (after giving effect
to Advances made on such Distribution Date), and the aggregate
amount of nonrecoverable advances for such Distribution Date;
(vi) the Aggregate Loan Balance and the Pool Balance of each
Mortgage Pool as of the close of business on the last day of the
related Collection Period (after giving effect to the principal
portion of Scheduled Payments due during the related Collection
Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment
Period);
(vii) the Class Principal Amount of each Class of Certificates,
to the extent applicable, as of such Distribution Date after giving
effect to payments allocated to principal reported under clause (ii)
above, separately identifying any reduction of any of the foregoing
Certificate Principal Amounts due to Applied Loss Amounts;
(viii) the amount of all prepayment penalties or premiums
distributed to the Class P Certificates;
(ix) by Mortgage Pool and in the aggregate, the amount of
Realized Losses incurred with respect to the Mortgage Loans (x) in
the applicable Prepayment Period and (y) in the aggregate since the
Cut-off Date;
(x) cumulative Guarantor Payments after giving effect to
distributions to be made on such Distribution Date;
(xi) the amount of any Guarantor Reimbursement Amounts;
(xii) with respect to any Guarantor Reimbursement Amounts paid
to the Guarantor on such Distribution Date, the amount, if any,
allocable to principal and the amount allocable to interest;
(xiii) the amount of the Master Servicing Fees, Servicing Fees,
Trustee Fees, Loss Mitigation Advisor's Fees, and MGIC Insurance
Premiums paid or retained during the Collection Period to which such
distribution relates;
(xiv) by Mortgage Pool and in the aggregate, the number and
aggregate Scheduled Principal Balance of Mortgage Loans (a)
remaining outstanding (b) Delinquent 30 to 59 days on a contractual
basis, (c) Delinquent 60 to 89 days on a contractual basis, (d)
Delinquent 90 or more days on a contractual basis, (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, (f) in
bankruptcy and (g) that are REO Properties;
(xv) the aggregate Scheduled Principal Balance of any Mortgage
Loans in either Mortgage Pool with respect to which the related
Mortgaged Property became an REO Property as of the close of
business on the last day of the related Prepayment Period;
(xvi) 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;
(xvii) the aggregate outstanding Carryforward Interest, Net
Prepayment Interest Shortfalls, Basis Risk Shortfalls and Unpaid
Basis Risk Shortfalls, if any, for each Class of Certificates, after
giving effect to the distribution made on such Distribution Date;
(xviii) the Certificate Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates;
(xix) with respect to the MGIC-Insured Mortgage Loans, the
amount of (a) claims filed under the MGIC Insurance Policies, (b)
claims paid under the MGIC Insurance Policies and (c) claims denied
under the MGIC Insurance Policies on an aggregate basis during the
Collection Period to which such distribution relates and on a
cumulative basis over the term of this Agreement;
(xx) with respect to each Mortgage Pool, the Interest
Remittance Amount and Principal Remittance Amount applicable to such
Distribution Date; and
(xxi) the amount of any Overcollateralization Deficiency Amount
after giving effect to the distribution made on such Distribution
Date.
In the case of information furnished pursuant to subclauses (i),
(ii), (iii) and (vii) above, the amounts shall be expressed as a dollar amount
per $1,000 of original principal amount of Certificates. On each Distribution
Date, the Master Servicer also will make available to the Guarantor a report
listing any MGIC Insurance Policies that were cancelled during the preceding
Collection Period.
The Master Servicer may also make such reports available each month
via the Master Servicer's website and its fax-on-demand service. The Master
Servicer's website can be accessed at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇. The Master
Servicer's fax-on-demand service may be accessed by calling (▇▇▇) ▇▇▇-▇▇▇▇. In
preparing or furnishing the foregoing information 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 the Servicers, and the Master
Servicer shall not be obligated to verify, recompute, reconcile or recalculate
any such information or data.
On each Distribution Date, the Trustee shall also deliver or cause to
be delivered by first class mail to the Depositor a copy of the
above-described written report, to the following address: Mortgage Finance
Group, ▇▇▇▇▇▇ Brothers Inc., Three World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, or to such other
address as the Depositor may designate.
(e) Upon the reasonable advance written request of the Guarantor or
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 or the Guarantor, as applicable, for the Master
Servicer's actual expenses incurred in providing such reports and access.
(f) 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
send to each Person who at any time during the calendar year was a
Certificateholder of record, 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.
(g) The Master Servicer shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of the Trust Fund, an application for an
employer identification number on IRS Form SS-4 or by any other acceptable
method. The Master Servicer, upon receipt from the IRS of the Notice of
Taxpayer Identification Number Assigned, shall upon request promptly forward a
copy of such notice to the Trustee, the Depositor and the Guarantor. The
Trustee shall furnish such other information as the Guarantor may reasonably
request in such format as reasonably requested by the Guarantor and any other
information that is required by the Code and regulations thereunder to be made
available to Certificateholders.
(h) By no later than October 15, 2000 (or such other date that is
mutually agreeable to the Guarantor and the Master Servicer), the Master
Servicer is required to (i) confirm, to the extent such data is available in
the Information Circular, that the cash flows, weighted average lives, yields
and credit enhancement default analysis for the Class A1 Certificates as
presented in the Information Circular are correct therein based on the
assumptions and principal and interest methodology described in the
Information Circular and are consistent with the model developed by the Master
Servicer for the calculations that the Master Servicer is required to make
hereunder and (ii) notify the Guarantor that the information referred to in
clause (i) above is consistent with the model developed by the Master
Servicer.
Section 4.04. Certificate Account. (a) The Trustee shall establish
and maintain in its name, as trustee, a special segregated deposit trust
account (the "Certificate Account") entitled "Certificate Account, First Union
National Bank, as Trustee, in trust for the benefit of the Holders of
Amortizing Residential Collateral Trust Mortgage Pass-Through Certificates,
Series 2000-BC3" 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 15 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 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;
(iii) to make distributions to the Certificateholders and
deposits in the Basis Risk Reserve Fund pursuant to Article V; and
(iv) 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 at the direction of the Depositor (acceptable to the
Guarantor), which funds, if invested, shall be invested in Eligible
Investments (which may be obligations of the Trustee). All such investments
must be payable on demand or mature no later than the next Distribution Date,
and shall not be sold or disposed of prior to their maturity. All such
Eligible Investments will be made in the name of the Trustee (in its capacity
as such) or its nominee. All income and gain realized from any such investment
shall be compensation to the Trustee and shall be subject to its withdrawal on
any Distribution Date. 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. In the event that the Depositor does not provide
written direction to the Trustee pursuant to this Section, all funds on
deposit in the Certificate Account shall be invested in a money market or
common trust fund as described in paragraph (ix) of the definition of
"Eligible Investment" set forth in Article I.
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. Except in the case of the Class A1 Certificates, 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 five Business Days prior to the related Record Date by any
Certificateholder owning an aggregate initial Certificate Principal Amount of
at least $2,500,000, or, in the case of a Class X Certificate or Class P
Certificate, a Percentage Interest of 100%, 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; provided, further, that the
foregoing provisions shall not apply to any Class of Certificates as long as
such Certificate remains a Book-Entry Certificate in which case all payments
shall be made through the Clearing Agency and its Clearing Agency
Participants. Distributions in respect of the Class A1 Certificates shall be
made by wire transfer in immediately available funds no later than 12:00 p.m.
EST on each Distribution Date to an account specified by the Holder thereof.
Except in case of the Class A1 Certificates, 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. The cost of any wire transfer made
to the Holder of a Class A1 Certificate shall be borne by the Trustee and the
Trustee shall be reimbursed for such expense by the Trust Fund.
Notwithstanding such final payment of principal of any of the Certificates,
each Residual Certificate will remain outstanding until the termination of
each REMIC and the payment in full of all other amounts due with respect to
the Residual Certificates 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 Corporate Trust Operations/CIC, ▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at the office of the
Trustee's New York presenting agent.
(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 Class Principal 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 Total Distribution Amount and
shall allocate such amount to the interests issued in respect of REMIC 1 and
REMIC 2 and shall distribute such amount as specified in this Section.
(b) On each Distribution Date, the Trustee shall distribute the
Interest Remittance Amount for Pool 1 for such date in the following order of
priority:
(i) to the Trustee, the product of (a) the Trustee Fee divided
by twelve and (b) the Pool Percentage for Pool 1 for such
Distribution Date;
(ii) to the Guarantor, the Guarantee Fee payable with respect
to the Class A1 Certificates for such Distribution Date;
(iii) to the Guarantor, previously unreimbursed Guarantor
Reimbursement Amounts;
(iv) to the Class A1 Certificates, Current Interest for such
Class and such Distribution Date and any Carryforward Interest for
such Class and such Distribution Date;
(v) to the Class M1 Certificates, Current Interest for such
Class and such Distribution Date;
(vi) to the Class M2 Certificates, Current Interest for such
Class and such Distribution Date;
(vii) to the Class B Certificates, Current Interest for such
Class and such Distribution Date;
(viii) to the Loss Mitigation Advisor, the Loss Mitigation
Advisor's Fee for such Distribution Date;
(ix) to the Master Servicer, any amounts reimburseable pursuant
to Section 4.02(v) and not previously reimbursed to the Master
Servicer; and
(x) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in subsection (e) of this Section,
any Interest Remittance Amount for Pool 1 remaining after
application pursuant to clauses (i) through (ix) above.
(c) On each Distribution Date, the Trustee shall distribute the
Interest Remittance Amount for Pool 2 for such date in the following order of
priority:
(i) to the Trustee, the product of (a) the Trustee Fee divided
by twelve and (b) the Pool Percentage for Pool 2 for such
Distribution Date;
(ii) to the Class A2 Certificates, Current Interest for such
Class and such Distribution Date and any Carryforward Interest for
such Class and such Distribution Date;
(iii) to the Class M1 Certificates, Current Interest for such
Class and such Distribution Date;
(iv) to the Class M2 Certificates, Current Interest for such
Class and such Distribution Date;
(v) to the Class B Certificates, Current Interest for such
Class and such Distribution Date;
(vi) to the Loss Mitigation Advisor, the Loss Mitigation
Advisor's Fee for such Distribution Date;
(vii) to the Master Servicer, any amounts reimburseable
pursuant to Section 4.02(v) and not previously reimbursed to the
Master Servicer; and
(viii) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in subsection (e) of this
Section, any Interest Remittance Amount for Pool 2 remaining after
application pursuant to clauses (i) through (vii) above.
(d) On each Distribution Date, the Trustee shall distribute the
Principal Distribution Amount with respect to each Mortgage Pool for such date
as follows:
(i) On each Distribution Date (a) prior to the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, the Trustee
will make the following distributions:
For Pool 1: Until the aggregate Certificate
Principal Amount of all of the Certificates equals the
Target Amount for such Distribution Date, the Principal
Distribution Amount for Pool 1 will be distributed in the
following order of priority:
(A) to the Class A1 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(B) to the Class A2 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(C) to the Class M1 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(D) to the Class M2 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(E) to the Class B Certificates, until the
Class Principal Amount of such Class has been reduced
to zero; and
(F) for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
subsection (e) of this Section, any Principal
Distribution Amount for Pool 1 remaining after
application pursuant to clauses (A) through (E)
above.
For Pool 2: Until the aggregate Certificate
Principal Amount of all of the Certificates equals the
Target Amount for such Distribution Date, the Principal
Distribution Amount for Pool 2 will be distributed in the
following order of priority:
(G) to the Class A2 Certificates, until the
Class Principal Amount of such Class has been reduced to
zero;
(H) to the Class A1 Certificates, until the
Class Principal Amount of such Class has been reduced to
zero;
(I) to the Class M1 Certificates, until the
Class Principal Amount of such Class has been reduced to
zero;
(J) to the Class M2 Certificates, until the
Class Principal Amount of such Class has been reduced to
zero;
(K) to the Class B Certificates, until the
Class Principal Amount of such Class has been reduced to
zero; and
(L) for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
subsection (e) of this Section, any Principal Distribution
Amount remaining after application pursuant to clauses (G)
through (K) above.
Any Principal Distribution Amount remaining on any Distribution Date
after the Target Amount is achieved will be applied as part of Monthly Excess
Cashflow for such Distribution Date as provided in subsection (e) of this
Section.
(ii) On each Distribution Date (a) on or after the Stepdown
Date and (b) with respect to which a Trigger Event is not in effect,
the Principal Distribution Amounts for both Mortgage Pools for such
date will be distributed in the following order of priority:
(1) so long as the Class M1, Class M2 or Class B
Certificates are outstanding, to the Class A1 Certificates (in
the case of Pool 1), and to the Class A2 Certificates (in the
case of Pool 2), an amount equal to the lesser of (x) the
Principal Distribution Amount for the related Mortgage Pool for
such Distribution Date and (y) the Senior Principal
Distribution Amount for such Mortgage Pool for such date, in
each case until the Class Principal Amount of such Class has
been reduced to zero; provided, however, to the extent that the
Principal Distribution Amount for a Mortgage Pool exceeds the
Senior Principal Distribution Amount for such Mortgage Pool,
such excess shall be applied to the Senior Certificates of the
other Mortgage Pool, but in an amount not to exceed the Senior
Principal Distribution Amount related to such other Mortgage
Pool for such Distribution Date (as reduced by any
distributions pursuant to subclauses (x) or (y) of this clause
(1) on such Distribution Date); provided, however, that if none
of the Class M1, Class M2 or Class B Certificates are
outstanding, then to the Class A1 and Class A2 Certificates,
the Principal Distribution Amount for the related Mortgage Pool
for such Distribution Date;
(2) to the Class M1 Certificates, an amount equal to the
lesser of (x) the excess of (a) the aggregate Principal
Distribution Amounts for each of Pool 1 and Pool 2 for such
Distribution Date over (b) the amount distributed to the Class
A1 and Class A2 Certificates on such date pursuant to clause
(1) above, and (y) the M1 Principal Distribution Amount for
such date, until the Class Principal Amount of such Class has
been reduced to zero;
(3) to the Class M2 Certificates, an amount equal to the
lesser of (x) the excess of (a) the aggregate Principal
Distribution Amounts for each of Pool 1 and Pool 2 for such
Distribution Date over (b) the amount distributed to the Class
A1, Class A2 and Class M1 Certificates on such date pursuant to
clauses (1) and (2) above, and (y) the M2 Principal
Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
(4) to the Class B Certificates, an amount equal to the
lesser of (x) the excess of (a) the aggregate Principal
Distribution Amounts for each of Pool 1 and Pool 2 for such
Distribution Date over (b) the amount distributed to the Class
A1, Class A2, Class M1 and Class M2 Certificates on such date
pursuant to clauses (1) through (3) above, and (y) the B
Principal Distribution Amount for such date, until the Class
Principal Amount of such Class has been reduced to zero; and
(5) for application as part of Monthly Excess Cashflow
for such Distribution Date, as provided in subsection (e) of
this Section, any Principal Distribution Amount remaining after
application pursuant to clauses (1) through (4) above.
Notwithstanding the foregoing, on any Distribution Date on which the
Class Principal Amount of each Class of Certificates having a higher
priority of distribution has been reduced to zero, any remaining
Principal Distribution Amount will be distributed to the remaining
Certificates in the order of priority set forth above until the Class
Principal Amount of each such Class has been reduced to zero.
(e) On each Distribution Date, the Trustee shall distribute the
Monthly Excess Cashflow for such date in the following order of priority:
(i) for each Distribution Date occurring (a) on or after the
Distribution Date in March 2001, but before the Stepdown Date or (b)
on or after the Stepdown Date but for which a Trigger Event is in
effect, then until the aggregate Certificate Principal Amount equals
the Aggregate Loan Balance for such Distribution Date minus the
Targeted Overcollateralization Amount for such Distribution Date,
(1) concurrently, in proportion to their respective Class
Principal Amounts after giving effect to previous principal
distributions on such Distribution Date pursuant to Section
5.02(d)(i), to the Class A1 Certificates and to the Class A2
Certificates, until the respective Class Principal Amount of
each such Class has been reduced to zero;
(2) to the Class M1 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(3) to the Class M2 Certificates, until the Class
Principal Amount of such Class has been reduced to zero; and
(4) to the Class B Certificates, until the Class Principal
Amount of such Class has been reduced to zero;
(ii) for each Distribution Date occurring on or after the
Stepdown Date and for which a Trigger Event is not in effect,
(A) concurrently, in proportion to their respective Class
Principal Amounts after giving effect to previous distributions
on such Distribution Date pursuant to Section 5.02(d)(ii), to
the Class A1 Certificates and the Class A2 Certificates until
the aggregate Class Principal Amount of such Senior
Certificates equals the Senior Target Amount;
(B) to the Class M1 Certificates, until the Class
Principal Amount for such Class equals the M1 Target Amount;
(C) to the Class M2 Certificates, until the Class
Principal Amount for such Class equals the M2 Target Amount;
and
(D) to the Class B Certificates, until the Class Principal
Amount for such Class equals the B Target Amount;
(iii) to the Basis Risk Reserve Fund, an amount equal to the
Basis Risk Payment for such Distribution Date, and then from the
Basis Risk Reserve Fund,
(A) concurrently, in proportion to their respective Class
Principal Amounts after giving effect to previous principal
distributions on such Distribution Date pursuant to Sections
5.02(d)(i) or 5.02(d)(ii), to the Class A1 and Class A2
Certificates, any applicable Basis Risk Shortfall and Unpaid
Basis Risk Shortfall for each such Class and such Distribution
Date;
(B) to the Class M1 Certificates, any applicable Basis
Risk Shortfall and Unpaid Basis Risk Shortfall for such
Distribution Date;
(C) to the Class M2 Certificates, any applicable Basis
Risk Shortfall and Unpaid Basis Risk Shortfall for such
Distribution Date; and
(D) to the Class B Certificates, any applicable Basis Risk
Shortfall and Unpaid Basis Risk Shortfall for such Distribution
Date;
(iv) to the Class M1 Certificates, any Carryforward Interest
for such Class and such Distribution Date;
(v) to the Class M1 Certificates, any Deferred Amount for such
Class and such Distribution Date;
(vi) to the Class M2 Certificates, any Carryforward Interest
for such Class and such Distribution Date;
(vii) to the Class M2 Certificates, any Deferred Amount for
such Class and such Distribution Date;
(viii) to the Class B Certificates, any Carryforward Interest
for such Class and such Distribution Date;
(ix) to the Class B Certificates, any Deferred Amount for such
Class and such Distribution Date;
(x) subject to Section 9.34(b), to the Class X Certificate, the
Class X Distributable Amount for such Distribution Date, together
with any amounts withdrawn from the Basis Risk Reserve Fund for
distribution to such Class X Certificate pursuant to Section 5.07(c)
and (d) on such Distribution Date; and
(xi) to the Class R Certificate, any amount remaining on such
date after application pursuant to clauses (i) through (x) above.
(f) On each Distribution Date, an amount equal to the aggregate of
all Prepayment Premiums collected during the preceding Prepayment Period shall
be distributed to the Class P Certificate.
(g) The failure of the Trustee to make distributions to the Class A1
Certificateholders in accordance with Sections 5.02(b) and 5.02(d) due to the
negligence or willful misconduct of the Trustee will result in the Trustee
being obligated to pay to the Guarantor an amount equal to the related
Guarantor Reimbursement Amount as a result of the Trustee's failure to make
such distribution, plus a $100 fee.
Section 5.03. The Guarantee. On each Distribution Date following
receipt of a statement (as set forth in Section 4.03(a)) that indicates a
Deficiency Amount for such Distribution Date, the Guarantor shall distribute a
Guarantor Payment in an aggregate amount equal to the Deficiency Amount for
such Distribution Date directly to the Class A1 Certificateholders, without
first depositing such amount in the Certificate Account, as follows: (i) the
portion of any such Deficiency Amount related to clause (i) of the definition
of Deficiency Amount shall be distributed to the Class A1 Certificateholders
based on the Guaranteed Interest Distribution Amount payable on such
Certificates with respect to such Distribution Date; and (ii) the portion of
any such Deficiency Amount related to clause (ii) of the definition of
Deficiency Amount shall be distributed as provided in Section 5.02(d)(i)(A) or
5.02(d)(ii)(1), as applicable.
Section 5.04. Allocation of Losses. On each Distribution Date, the
Class Principal Amounts of the Class M1, Class M2 and Class B Certificates
will be reduced by the amount of any Applied Loss Amount for such date, in the
following order of priority:
(i) to the Class B Certificates, until the Class Principal
Amount thereof has been reduced to zero;
(ii) to the Class M2 Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
(iii) to the Class M1 Certificates, until the Class Principal
Amount thereof has been reduced to zero.
The Holders of the Subordinate Certificates that are or may be affected by a
Realized Loss on a Liquidated Mortgage Loan shall be deemed to have
repurchased the ownership interest in such Liquidated Mortgage Loan held by
Holders of the Senior Certificates. After such repurchase, the Master
Servicer, if requested in writing by such Holders of Subordinate Certificates,
will direct the related Servicer, provided such Servicer is offered suitable
indemnification and reimbursement for expenses from such Holders of
Subordinate Certificates, to seek a deficiency judgment if permitted by law
against the Mortgagor under such Liquidated Mortgage Loan on behalf of the
Holders of the Subordinate Certificates to the extent of any Realized Loss.
Section 5.05. Advances by Master Servicer, Servicers and Trustee. (a)
Subject to Section 9.07, Advances shall be made in respect of each Deposit
Date as provided herein. If, on any Determination Date, the Master Servicer or
Servicers determine that any Scheduled Payments due during the related
Collection Period (other than Balloon Payments) have not been received, the
Master Servicer shall, or shall cause the applicable Servicer to, advance such
amount to the extent provided in the applicable Servicing Agreement. 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
5.05, 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; provided, however, that the
Guarantor may, by written notice to the Master Servicer, revoke the Master
Servicer's right to make such Advances pursuant to clauses (ii) and (iii) of
this Section 5.05(a), upon which revocation the Master Servicer shall (x)
prior to the next Deposit Date, remit from its own funds an amount equal to
the aggregate amount of all Advances previously made by it out of funds from
the Collection Account and not repaid from collections on the Mortgage Loans
and related Advances then due, and thereafter (y) only make such Advances
pursuant to clause (i) of this Section 5.05(a). 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. Notwithstanding anything to
the contrary herein, in the event the Master Servicer determines in its
reasonable judgement that an Advance is non-recoverable, the Master Servicer
shall be under no obligation to make such Advance.
(b) In the event that the Master Servicer or Servicer fails for any
reason to make an Advance required to be made pursuant to this Section 5.05 on
or before the Deposit Date, the Trustee, as successor Master Servicer pursuant
to Section 6.14, shall, on or before the related Distribution Date, deposit in
the Certificate Account an amount equal to the excess of (a) Advances required
to be made by the Master Servicer or the Servicer that would have been
deposited in such Certificate Account over (b) the amount of any Advance made
by the Master Servicer or any Servicer with respect to such Distribution Date;
provided, however, that the Trustee shall be required to make such Advance
only if it is not prohibited by law from doing so and it has determined that
such Advance would be recoverable from amounts to be received with respect to
such Mortgage Loan, including late payments, Liquidation Proceeds, Insurance
Proceeds, or otherwise. The Trustee shall be entitled to be reimbursed from
the Certificate Account for Advances made by it pursuant to this Section 5.05
as if it were the Master Servicer.
Section 5.06. Compensating Interest Payments. The amount of the
Aggregate Master Servicing Compensation payable to the Master Servicer in
respect of any Distribution Date shall be reduced (but not below zero) by the
amount of any Compensating Interest Payment for such Distribution Date, but
only to the extent Prepayment Interest Shortfalls relating to such
Distribution Date are required to be paid but not actually paid by the
Servicers on the applicable Remittance Date. Such amount shall not be treated
as an Advance and shall not be reimbursable to the Master Servicer.
Section 5.07. Basis Risk Reserve Fund. (a) On the Closing Date, the
Trustee shall establish and maintain in its name, in trust for the benefit of
the holders of the LIBOR Certificates, a Basis Risk Reserve Fund, into which
the Seller shall deposit $5,000. The Basis Risk Reserve Fund shall be an
Eligible Account, and funds on deposit therein shall be held separate and
apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Trustee held pursuant to this
Agreement.
(b) The Trustee shall make withdrawals from the Basis Risk Reserve
Fund to make distributions pursuant to Section 5.02(e)(iii).
(c) Funds in the Basis Risk Reserve Fund shall be invested in
Eligible Investments. Any earnings on such amounts shall be distributed to the
Class X Certificateholder pursuant to Section 5.02(e)(x). The Class X
Certificate shall evidence ownership of the Basis Risk Reserve Fund for
federal income tax purposes and the Holder thereof shall direct the Trustee,
in writing, as to investment of amounts on deposit therein. The Class X
Certificateholder shall be liable for any losses incurred on such investments.
In the absence of written instructions from the Class X Certificateholder as
to investment of funds on deposit in the Basis Risk Reserve Fund, such funds
shall be invested in the Trustee's Corporate Trust Short Term Investment Fund.
Any amounts on deposit in the Basis Risk Reserve Fund in excess of the
Required Reserve Fund Deposit on any Distribution Date shall be distributed to
the Class X Certificateholder on the following Distribution Date. For all
Federal income tax purposes, amounts transferred by REMIC 2 to the Basis Risk
Reserve Fund shall be treated as amounts distributed by REMIC 2 to the Class X
Certificateholder.
(d) Upon termination of the Trust Fund, any amounts remaining in the
Basis Risk Reserve Fund shall be distributed to the Class X Certificateholder
pursuant to Section 5.02(e)(x).
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, 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 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.
Subject to the immediately preceding sentence, if any such resolution,
certificate, statement, opinion, report, document, order or other instrument
is found not to conform to the form required by this Agreement in a material
manner the Trustee shall take such action as it deems appropriate to cause the
instrument to be corrected, and if the instrument is not corrected to the
Trustee's satisfaction, the Trustee will provide notice thereof to the
Guarantor and will, at the expense of the Seller, which expense shall be
reasonable given the scope and nature of the required action, take such
further action as directed by the Guarantor.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. 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).
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 direction of Holders of Certificates as
provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Master Servicer (i) to remit funds
(or to make Advances) or (ii) to furnish information to the Trustee
when required to do so) unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Holders of
the Certificates and this Agreement;
(iii) 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
(iv) The Trustee shall not be responsible for any act or
omission of the Master Servicer.
(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 and the Guarantor 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) The Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability for the performance of any of its
duties hereunder or the exercise of any of its rights or powers if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of 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 or any Servicer under this
Agreement or any Servicing 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.
(g) 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 Amount) 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).
(h) 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 rerecording, refiling or
redepositing 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.
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 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
Percentage Interest) 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 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. Except as otherwise provided herein, 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
business with the other parties hereto with the same rights it would have if
it were not Trustee or such agent.
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 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, the Guarantor and the Master
Servicer. Upon receiving such notice of resignation, the Depositor, with the
consent of the Guarantor, 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, one copy to the Master Servicer
and one copy to the Guarantor. 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 or Guarantor, (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, or
(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,
then the Guarantor may 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) If at any time 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, one
copy to the Guarantor and one copy to the Master Servicer.
(d) The Holders of more than 51% of the Aggregate Voting Interests of
the Certificates may at any time upon 30 days' written notice (sent by mail or
facsimile) 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, one copy to the Master Servicer, and one
copy to the Guarantor; the Guarantor shall thereupon use its best efforts to
appoint a mutually acceptable successor trustee in accordance with this
Section.
(e) 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, the Guarantor 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 File 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 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 outgoing Trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register, to the Rating Agencies and to the
Guarantor. The expenses of such mailing shall be borne by the outgoing
Trustee.
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 corporate trust
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, the Guarantor or the Certificateholders evidencing 51%
of the Class Principal Amount (or Percentage Interest) of each Class of
Certificates shall have the power from time to time to appoint one or more
Persons to act either as co-trustees jointly with the Trustee, or as separate
trustees, or as custodians, for the purpose of holding title to, foreclosing
or otherwise taking action with respect to any Mortgage Loan outside the state
where the Trustee has its principal place of business where such separate
trustee or co-trustee is necessary or advisable (or the Trustee has been
advised by the Master Servicer, the Guarantor or the Depositor 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 5.05 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 51% of
the Aggregate Voting Interests of the Certificates may at any time
accept the resignation of or remove any separate trustee, co-trustee
or custodian, so appointed by it or them, if such resignation or
removal does not violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. 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, but any such separate trustee, co-trustee
or custodian must be acceptable to the Guarantor.
(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, subject to supervision or
examination by federal or state authorities and acceptable to the Guarantor.
(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, the
Guarantor 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, the Guarantor and the Depositor. Upon receiving a notice
of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and the Guarantor 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 in connection
with any legal proceeding and incurred without negligence or willful
misconduct on their part, arising out of, or in connection with, the
acceptance or administration of the trusts created hereunder, including 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 Guarantor, the Master Servicer and the
Holders written notice thereof promptly after the Trustee shall have
knowledge thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Depositor and the
Guarantor 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 and the Guarantor, 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. Fees and Expenses of Trustee. The Trustee will receive
compensation and reimbursement or payment of its expenses hereunder and under
each Custodial Agreement from the Depositor as provided in writing between the
Depositor and the Trustee.
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 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 after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to such
Master Servicer and Guarantor by the Trustee or the Guarantor, or to
such Master Servicer and the Trustee by the Holders of not less than
51% of the Aggregate Voting Interests of the Certificates; or
(ii) 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
(iii) 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
(iv) 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
(v) 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
(vi) 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 30 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 51%
of the Aggregate Voting Interests of the Certificates; or
(vii) A sale or pledge of 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, the Guarantor and Certificateholders holding more than 51%
of the Aggregate Voting Interests of the Certificates; or
(viii) Any Servicer at any time is not a FHLMC-approved
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 a FHLMC-approved servicer
within 45 days of the absence of such approval;
(ix) The Guarantor has declared an Event of Default pursuant to
Section 9.33; or
(x) After receipt of notice from the Trustee, 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 and the Guarantor may, and shall, if so
directed by Certificateholders evidencing more than 51% of the Aggregate
Voting Interests of the Certificates affected thereby, terminate all of the
rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof. If an Event of Default described in
clause (x) of this Section 6.14 shall occur, then, in each and every case,
subject to applicable law, the Trustee, by notice in writing to the Master
Servicer and the Guarantor, 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 or a notice of removal pursuant to Section 4.03(b), 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 and the Guarantor in effecting the termination of the
defaulting Master Servicer's responsibilities and rights hereunder as Master
Servicer including, without limitation, notifying the 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
its costs of a master servicing transfer and the reasonable out-of-pocket fees
and expenses of the Trustee associated with such master servicing transfer.
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) and (ix) to
the extent such reimbursement relates to the period prior to such Master
Servicer's termination.
If any Event of Default shall occur, the Trustee, upon becoming aware
of the occurrence thereof, shall promptly notify the Rating Agencies and the
Guarantor of the nature and extent of such Event of Default. The Trustee shall
immediately give written notice to the Master Servicer and the Guarantor upon
the Master Servicer's failure to remit funds on the Deposit Date.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee or the Guarantor pursuant to Section 6.14(a) or
Section 4.03(b) or the Trustee or the Guarantor 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 Trustee shall have no responsibility
for any act or omission of the Master Servicer prior to the issuance of any
notice of termination and shall have no liability relating to the
representations and warranties of the Master Servicer set forth in Section
9.14. In the Trustee's capacity as such successor, the Trustee shall have the
same limitations on liability herein granted to the Master Servicer. As
compensation therefor, the Trustee shall be entitled to receive all
compensation payable to the Master Servicer under this Agreement, including
the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer as are set
forth in this Agreement (and which successor master servicer is otherwise
acceptable to the Guarantor), 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 (and which
successor master servicer is otherwise acceptable to the Guarantor), 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 Servicers 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 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. Holders of 51% 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 and to the Guarantor at their respective
addresses appearing on the Certificate Register. The Trustee shall also,
within 45 days after the occurrence of any Event of Default known to the
Trustee, give written notice thereof to 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 51% of the Aggregate Voting Interests of Certificates
affected thereby may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Agreement; provided, however,
that the Trustee shall be under no obligation to pursue any such remedy, or to
exercise any of the trusts or powers vested in it by this Agreement
(including, without limitation, (i) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto and (ii)
the terminating of the Master Servicer or any successor master servicer from
its rights and duties as master servicer hereunder) at the request, order or
direction of any of the Certificateholders, unless such Certificateholders
shall have offered to the Trustee reasonable security or indemnity against the
cost, expenses and liabilities which may be incurred therein or thereby; and,
provided further, that, subject to the provisions of Section 8.01, the Trustee
shall have the right to decline to follow any such direction if the Trustee,
in accordance with an Opinion of Counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith determines that the action or proceeding so directed would involve it in
personal liability or be unjustly prejudicial to the non-assenting
Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event of Default. In the event that the Trustee shall have actual
knowledge of any action or inaction of the Master Servicer that would become
an Event of Default upon the Master Servicer's failure to remedy the same
after notice, the Trustee shall give notice thereof to the Master Servicer and
the Guarantor.
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01. Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase 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. ▇▇▇▇▇, living on the date hereof. Any
termination of the Trust Fund shall be carried out in such a manner so that
the termination of each REMIC included therein shall qualify as a "qualified
liquidation" under the REMIC Provisions as evidenced by an Opinion of Counsel.
(b) On any Distribution Date occurring on or after the Initial
Optional Purchase Date, the Class X Certificateholder has the option to cause
the Trust Fund to adopt a plan of complete liquidation pursuant to Section
7.03(a)(i) hereof to sell all of its property. Upon exercise of such option,
the property of the Trust Fund shall be sold to the Class X Certificateholder
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 from the Due Date in the Collection Period immediately
preceding the related Distribution Date to the date of such repurchase, (ii)
the unpaid principal balance of the Mortgage Loan related to any REO Property
and any other property held by any REMIC and (iii) any unpaid Master Servicing
Fee and any amounts owing to the Guarantor under this Agreement together with
the amount of any Advances and Servicing Advances made with respect to the
Mortgage Loans that are reimbursable to the Master Servicer. If the Class X
Certificateholder has not exercised such option by the close of business on
the third Distribution Date following the Initial Optional Purchase Date, the
Depositor shall have the option to cause the Trust Fund to adopt a plan of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all of its
property to the Depositor at the Termination Price. If the Depositor elects to
exercise such right, then upon receipt of notice thereof the Trustee shall
promptly notify the Class X Certificateholder thereof, in writing, and shall
effect the transfer of the Mortgage Loans and related property to the
Depositor as provided herein only if the Trustee does not receive notification
from the Class X Certificateholder within ten Business Days of the sending of
such notice that such Class X Certificateholder intends to promptly exercise
its option to purchase such Mortgage Loans and related property. The Master
Servicer shall be reimbursed from the Termination Price for any Mortgage Loan
or related REO Property for any Advances and Servicing Advances made with
respect to the Mortgage Loans that are reimbursable to it under this
Agreement, together with any accrued and unpaid fees and expenses due to the
Master Servicer hereunder.
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
upon (x) the sale of all of the property of the Trust Fund by the Trustee
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, the Guarantor 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.
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 party exercising the option to purchase all of the Mortgage Loans pursuant
to Section 7.01(b)), and subsequently receives, an Opinion of Counsel (at the
expense of such requesting party), addressed to the Trustee and the Guarantor
to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 7.03 will not (i) result in the imposition of
taxes on any REMIC under the REMIC Provisions or (ii) cause any REMIC
established hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) The Trustee shall sell all of the assets of the Trust Fund
for cash and, within 90 days of such sale, shall distribute the
proceeds of such sale to the Certificateholders in complete
liquidation of the Trust Fund, REMIC 1 and REMIC 2;
(ii) The Trustee shall attach a statement to the final Federal
income tax return for each of REMIC 1 and REMIC 2 stating that
pursuant to Treasury Regulation ss. 1.860F-1, the first day of the
90-day liquidation period for each such REMIC was the date on which
the Trustee sold the assets of the Trust Fund.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take the action described in paragraph
(a) above and (ii) agrees to take such other action as may be necessary to
facilitate liquidation of each REMIC created under this Agreement, which
authorization shall be binding upon all successor Residual Certificateholders.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of this Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote or in any manner otherwise control the Master
Servicer or the operation and management of the Trust Fund, or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 51% of the
Aggregate Voting Interests of the Certificates shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding and no direction
inconsistent with such written request has been given such Trustee during such
sixty-day period by such Certificateholders; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not
acting as Certificate Registrar, the Certificate Registrar will furnish or
cause to be furnished to the Trustee, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders (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, by receiving and holding a Certificate, agrees with
the Depositor, the Master Servicer, the Guarantor, the Certificate Registrar
and the Trustee that neither the Depositor, the Master Servicer, the
Guarantor, 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, may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee and the
Guarantor 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 and the Guarantor of receipt of any
such instrument by it, and shall promptly forward a copy of such instrument to
the other and the Guarantor.
(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, the
Guarantor, 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; LOSS MITIGATION ADVISOR
Section 9.01. Duties of the Master Servicer. The Certificateholders,
by their purchase and acceptance of the Certificates, appoint ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as Master Servicer. For and on behalf of the
Depositor, the Trustee, the Guarantor and the Certificateholders, the Master
Servicer shall master service the Mortgage Loans in accordance with the
provisions of this Agreement and the provisions of each Servicing Agreement.
Notwithstanding anything in this Agreement, any Servicing Agreement or any
Loss Mitigation Advisory Agreement to the contrary, the Master Servicer shall
have no duty or obligation to enforce any Loss Mitigation Advisory Agreement
or to supervise, monitor or oversee the activities of any Servicer under its
Loss Mitigation Advisory Agreement with respect to any action taken or not
taken by a Servicer at the direction of the Class X Certificateholder or
pursuant to a recommendation of the Loss Mitigation Advisor.
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 Master Servicer Fidelity Bond and a Master
Servicer Errors and Omissions Insurance Policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer's behalf, and covering errors and omissions in the performance
of the Master Servicer's obligations hereunder. The Master Servicer Errors and
Omissions Insurance Policy and the Master Servicer Fidelity Bond shall be in
such form and amount that would be consistent with coverage customarily
maintained by master servicers of mortgage loans similar to the Mortgage
Loans. The Master Servicer shall (i) require each Servicer to maintain an
Errors and Omissions Insurance Policy and a Servicer 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 and the Guarantor upon request.
(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 and the Guarantor, 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 and the Guarantor 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 and the Guarantor. 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 the applicable 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, the Guarantor and the
Depositor a copy of its annual unaudited financial statements on or prior to
May 31 of each year, beginning May 31, 2001. 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, the Trustee and
the Guarantor, 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 the 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, the Certificateholders and the
Guarantor under this Agreement. 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 any part of 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 under the
applicable Servicing Agreement, is hereby authorized and empowered by the
Trustee when the Master Servicer or such Servicer, as the case may be,
believes it appropriate in its best judgment and in accordance with Accepted
Servicing Practices and the applicable Servicing Agreement, to execute and
deliver, on behalf of itself and the Certificateholders, the Trustee or any of
them, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge and all other comparable instruments, with
respect to the Mortgage Loans and with respect to the Mortgaged Properties.
The Trustee shall furnish the Master Servicer, upon request, with any powers
of attorney empowering the Master Servicer or any Servicer to execute and
deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to
the Mortgage Loans or the Mortgaged Property, in accordance with the
applicable Servicing Agreement and this Agreement, and the Trustee shall
execute and deliver such other documents, as the Master Servicer may request,
necessary or appropriate to enable the Master Servicer to master service and
administer the Mortgage Loans and carry out its duties hereunder, in each case
in accordance with Accepted Servicing Practices (and the Trustee and the
Guarantor 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 and the Guarantor, the Master Servicer shall join with the Trustee
and the Guarantor in the appointment of a co-trustee pursuant to Section 6.09
hereof. In the performance of its duties hereunder, the Master Servicer shall
be an independent contractor and shall not, except in those instances where it
is taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
(b) In master servicing and administering the Mortgage Loans, the
Master Servicer shall employ procedures, and shall cause each Servicer to
employ procedures (including, but not limited to, collection procedures),
consistent with the applicable Servicing Agreement. Consistent with the
foregoing, the Master Servicer may, and may permit any Servicer to, in its
discretion (i) waive any late payment charge (but not any Prepayment Premium)
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 such Servicer (if required by the applicable Servicing
Agreement) to make Advances on the related Mortgage Loan in accordance with
the provisions of Section 5.05 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 knowingly permit 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: (1) such Mortgage Loan is in default or default
by the related Mortgagor is, in the reasonable judgment of the Master Servicer
or the applicable Servicer, imminent, or (2) the Master Servicer shall have
provided or (if required by the applicable Servicing Agreement) caused to be
provided to the Trustee and the Guarantor an Opinion of Counsel (which opinion
shall, if provided by the Master Servicer, be an expense reimbursed from the
Collection Account pursuant to Section 4.02(v)) in writing to the effect that
such modification, waiver or amendment would not cause an Adverse REMIC Event,
and, if required by the related Servicing Agreement, the Servicer shall have
obtained the written consent of the Trustee and shall have provided a copy of
such consent to the Master Servicer and the Guarantor.
Section 9.05. Enforcement of Servicer's and Master Servicer's
Obligations. (a) Each Servicing Agreement requires the applicable Servicer,
respectively, 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 actions taken or to be taken by a Servicer on behalf
of the Master Servicer. Any fees and other amounts payable to a Servicer shall
be deducted from amounts remitted to the Master Servicer by such Servicer and
shall not be an obligation of the Trust 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, subject to the prior approval of the
Guarantor, in the event that a Servicer fails to perform its obligations in
accordance therewith, terminate the rights and obligations of such Servicer
thereunder and either act as servicer of the related Mortgage Loans or cause
the other parties hereto to enter into a Servicing Agreement (and such parties
hereby agree to execute and deliver any such successor Servicing Agreement),
with a successor Servicer subject to the Guarantor's approval. 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 (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, (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed, and then, (iii) to the extent that such amounts are
insufficient to reimburse the Master Servicer for the costs of such
enforcement, 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 to deposit therein any collections of amounts received
with respect to amounts due for taxes, assessments, water rates, standard
hazard insurance policy premiums, Payaheads, if applicable, 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 or the applicable Servicer has determined that the funds so advanced are
recoverable from escrow payments, reimbursement pursuant to Section 4.02 or
otherwise.
(b) Costs incurred by the Master Servicer or by any Servicer 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 as
a Servicing Advance by the Master Servicer pursuant to Section 4.02.
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,
the Master Servicer shall provide for the servicing of the Mortgage Loans by a
successor Servicer to be appointed as provided in the applicable Servicing
Agreement and acceptable to the Guarantor.
In the event that the Master Servicer cannot terminate a Servicer for
a breach of such Servicer's obligation to make an Advance (each, a "Defaulted
Advance") without the consent of the Guarantor, then the Master Servicer
shall, in accordance with Section 5.05, make such Defaulted Advance, but the
Master Servicer shall have no obligation to make any subsequent Advance under
Section 5.05 with respect to such Servicer if the Guarantor shall have elected
not to approve the termination of the defaulting Servicer by the Master
Servicer or if the Guarantor does not exercise any right it may have to
terminate the defaulting Servicer as a consequence of such Event of Default or
if the Guarantor otherwise shall have waived such Event of Default.
The Master Servicer agrees that it will use its best efforts to
effect the transfer of servicing to a successor Servicer within the first one
to two weeks after the termination of such Servicer in accordance with the
first paragraph of this Section 9.07(a). The parties acknowledge that
notwithstanding the preceding sentence, there may be a transition period, not
to exceed 60 days from the above-mentioned two-week period, in order to effect
the transfer of servicing to a successor Servicer. To the extent that the
costs and expenses of the Master Servicer related to any termination of the
Servicer, the appointment of a successor Servicer and the transfer of
servicing by the Master Servicer (including any assumption of servicing by the
Master Servicer) are not timely reimbursed by the Servicer, then the Master
Servicer shall be entitled to reimbursement of such costs and expenses from
the Collection Account.
(b) If the Master Servicer acts as a successor Servicer, it will not
assume liability for the representations and warranties of the Servicer, if
any, that it replaces. The Master Servicer or the Guarantor shall use
reasonable efforts to have the successor Servicer assume liability for the
representations and warranties made by the terminated Servicer in the related
Servicing Agreement, 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.
(c) If the Master Servicer acts as a successor Servicer, it will have
no obligation to make an Advance if it determines in its reasonable judgment
that such Advance is non-recoverable. To the extent that the Master Servicer
is unable to find a successor Servicer that is willing to service the Mortgage
Loans for the Servicing Fee because of the obligation of the Servicer to make
Advances regardless of whether such Advance is recoverable, the applicable
Servicing Agreement may be amended to provide that the successor Servicer
shall have no obligation to make an Advance if it determines in its reasonable
judgment that such Advance is non-recoverable and provides an Officer's
Certificate to such effect.
Section 9.08. Master Servicer Liable for Enforcement. Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee, the Certificateholders and the Guarantor 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. The Master Servicer shall ensure that the Mortgage Loans are
serviced in accordance with the provisions of this Agreement and shall enforce
the provisions of each Servicing Agreement for the benefit of the
Certificateholders and the Guarantor. The Master Servicer shall be entitled to
enter into any agreement with any Servicer for indemnification of the Master
Servicer and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
Section 9.09. No Contractual Relationship Between Any Servicer and
Trustee or Depositor. Any Servicing Agreement that may be entered into and any
other transactions or services relating to the Mortgage Loans involving any
Servicer in its capacity as such and not as an originator shall be deemed to
be between such Servicer, the Seller and the Master Servicer, and 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 thereupon assume all of the rights and obligations of such
Master Servicer hereunder and under each Servicing Agreement entered into with
respect to the Mortgage Loans. The Trustee, its designee or any successor
master servicer appointed by the Trustee or the Guarantor shall be deemed to
have assumed all of the Master Servicer's interest herein and therein to the
same extent as if such Servicing Agreement had been assigned to the assuming
party, except that the Master Servicer shall not thereby be relieved of any
liability or obligations of the Master Servicer under such Servicing Agreement
accruing prior to its replacement as Master Servicer, and shall be liable to
the Trustee, and hereby agrees to indemnify and hold harmless the Trustee from
and against all costs, damages, expenses and liabilities (including reasonable
attorneys' fees) incurred by the Trustee as a result of such liability or
obligations of the Master Servicer and in connection with the Trustee's
assumption (but not its performance, except to the extent that costs or
liability of the Trustee are created or increased as a result of negligent or
wrongful acts or omissions of the Master Servicer prior to its replacement as
Master Servicer) of the Master Servicer's obligations, duties or
responsibilities thereunder.
(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. To the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the related Servicer 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.
Section 9.12. Release of Mortgage Files. (a) Upon becoming aware of
the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes for payment to Certificateholders on the next
Distribution Date, the Master Servicer will, or will cause the related
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 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 (on the form attached hereto as Exhibit C or on the
form attached to the related Custodial Agreement) the Trustee or the
applicable Custodian, to deliver to the applicable Servicer the related
Mortgage File. Upon receipt of such certification and request, the Trustee or
the applicable Custodian (with the consent, and at the direction of the
Trustee), shall promptly release the related Mortgage File to the applicable
Servicer and the Trustee shall have no further responsibility with regard to
such Mortgage File. Upon any such payment in full, 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 any Mortgage Loan and in accordance with Accepted Servicing
Practices and the applicable Servicing Agreement, the Trustee shall execute
such 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 applicable 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 of Exhibit C
(or the form specified in the related Custodial Agreement), 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 Servicer to return the Mortgage File to the Trustee or the
applicable Custodian, as applicable, when the need therefor by the Master
Servicer or Servicer no longer exists unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the trust receipt shall be
released by the Trustee or the applicable Custodian, as applicable, to the
Master Servicer (or the applicable Servicer).
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 or of the applicable
Servicing Agreement 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 a Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall be held
for the benefit of the Trustee and the Certificateholders subject to the
Master Servicer's right to retain or withdraw from the Collection Account the
Master Servicing Fee and other amounts provided in this Agreement and to the
right of each Servicer to retain its Servicing Fee and other amounts as
provided in the related 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 and the Guarantor, 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 any 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.
(c) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee shall own or, to the extent that
a court of competent jurisdiction shall deem the conveyance of the Mortgage
Loans from the Seller to the Depositor not to constitute a sale, the Trustee
shall have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by, or
under the control of, a Servicer or the Master Servicer that are collected by
any Servicer or the Master Servicer in connection with the Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a
Servicer is entitled under the applicable Servicing Agreement, or the Master
Servicer or the Depositor is entitled to hereunder); and the Master Servicer
agrees that so long as the Mortgage Loans are assigned to and held by the
Trustee, all documents or instruments constituting part of the Mortgage Files,
and such funds relating to the Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Master Servicer or
any Servicer shall be held by the Master Servicer or such Servicer for and on
behalf of the Trustee as the Trustee's agent and bailee for purposes of
perfecting the Trustee's security interest therein as provided by the
applicable Uniform Commercial Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not
authorize any Servicer to, create, incur or subject any Mortgage Loans, or any
funds that are deposited in any Custodial Account, Escrow Account or the
Collection Account, or any funds that otherwise are or may become due or
payable to the Trustee, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, nor assert by legal action or
otherwise any claim or right of setoff against any Mortgage Loan or any funds
collected on, or in connection with, a Mortgage Loan.
Section 9.14. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor, the
Guarantor 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 laws
of the United States of America as a national banking association,
and as Master Servicer has full power and authority to transact any
and all business contemplated by this Agreement and to execute,
deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have
been duly authorized by all necessary corporate action on the part
of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the Master
Servicer is a party or by which it is bound or to which any of its
assets are subject, which violation, default or breach would
materially and adversely affect the Master Servicer's ability to
perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties
hereto, a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with the terms
hereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights in general, and by general equity
principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any
order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that
any such default would materially and adversely affect its
performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw
or any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this Agreement or the performance
by the Master Servicer of its obligations under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential
mortgage loans, is a 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;
(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; and
(xi) the information about the Master Servicer under the
heading "The Master Servicer" in the Offering Documents relating to
the Master Servicer does not include an untrue statement of a
material fact and does not omit to state a material fact, with
respect to the statements made, necessary in order to make the
statements in light of the circumstances under which they were made
not misleading.
(b) It is understood and agreed that the representations and
warranties set forth in this Section 9.14 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Depositor,
the Guarantor 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). It is understood and agreed that the enforcement of the obligation of
the Master Servicer set forth in this Section to indemnify the Depositor, the
Guarantor 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 Guarantor, 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(i) through (vi) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicer and the Guarantor and hold each of 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 Depositor's representations and warranties contained in
Sections 2.03(i) through (vi) 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(i) through (vi) 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(i)
through (vi) hereof shall accrue upon discovery of such breach by either the
Depositor, the Guarantor or the Master Servicer or notice thereof by any one
of such parties to the other parties.
Section 9.15. Opinion. On or before the Closing Date, the Master
Servicer shall cause to be delivered to the Depositor, the Seller, the
Guarantor and the Trustee one or more Opinions of Counsel, dated the Closing
Date, in form and substance reasonably satisfactory to the Depositor, ▇▇▇▇▇▇
Brothers Inc. and the Guarantor, 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, 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 or any Servicing Agreement (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 applicable
Servicing Agreement) 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.
Section 9.17. Presentment of Claims and Collection of Proceeds. The
Master Servicer shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies
with respect to the Mortgage Loans, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to a Servicer and remitted to
the Master Servicer) in respect of such policies or bonds shall be promptly
deposited in the Collection Account or the Custodial Account upon receipt,
except that any amounts realized that are to be applied to the repair or
restoration of the related Mortgaged Property as a condition requisite to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy 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 noncoverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of such Master Servicer or such
Servicer, would have been covered thereunder. 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 knowingly 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 in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees, to the extent provided in each
Servicing Agreement, 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 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 the applicable custodian 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 each Servicer to deliver to
the Trustee (or the applicable Custodians, 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 or any Servicer from time
to time.
Section 9.20. [RESERVED]
Section 9.21. Compensation to the Master Servicer. The Master
Servicer shall (i) be entitled, at its election, either (a) to pay itself the
Master Servicing Fee, as reduced pursuant to Section 5.06, in respect of the
Mortgage Loans out of any Mortgagor payment on account of interest prior to
the deposit of such payment in the Collection Account it maintains or (b) to
withdraw from the Collection Account, subject to Section 5.06, the Master
Servicing Fee to the extent permitted by Section 4.02. The Master Servicer
shall also be entitled, at its election, either (a) to pay itself the Master
Servicing Fee in respect of each delinquent Mortgage Loan master serviced by
it out of Liquidation Proceeds in respect of such Mortgage Loan or other
recoveries with respect thereto to the extent permitted in Section 4.02 or (b)
to withdraw from the Collection Account it maintains the Master Servicing Fee
in respect of each Liquidated Mortgage Loan to the extent of such Liquidation
Proceeds or other recoveries, to the extent permitted by Section 4.02.
Servicing compensation in the form of assumption fees, if any, late payment
charges, as collected, if any, or otherwise (but not including any Prepayment
Premium) 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 to the extent that payments have been
received with respect to the applicable Mortgage Loan. 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. The provisions of this Section 9.21 are
subject to the provisions of Section 6.14(b).
Section 9.22. REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any Mortgage Loan, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Certificateholders. The Master Servicer shall use its reasonable
best efforts to sell, or cause the applicable Servicer, to the extent provided
in the applicable Servicing Agreement 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 each Servicer, upon the final disposition
of any REO Property, shall be entitled to reimbursement for any related
unreimbursed Advances and other 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. Preparation of Tax Returns and Other Reports. (a) The
Master Servicer shall prepare in accordance with the provisions of Article X
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, the Guarantor 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 the Trustee shall
forward copies to the Depositor and the Guarantor of all such returns and Form
1099 information and such other information within the control of the Trustee
as the Depositor or the Guarantor 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 the Master Servicer or the Trustee
will prepare, to the extent that they are familiar with applicable state
requirements, and the Trustee will file, annual reports (other than tax
returns), if any, required by applicable state authorities, will file copies
of this Agreement with the appropriate state authorities as may be required by
applicable law, and will prepare and disseminate to Certificateholders Form
1099 (or otherwise furnish information within the control of the Trustee) to
the extent required by applicable law. The Master Servicer will indemnify the
Trust for any liability of or assessment against the Trust resulting from any
error in any of such tax or information returns resulting from errors in the
information provided by such Master Servicer (other than any such information
that is delivered solely from information provided by a Servicer).
(b) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K. Within 15 days after each Distribution Date, the
Master Servicer shall, in accordance with industry standards, file with the
Securities and Exchange Commission (the "SEC") 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, 2001, the Master Servicer shall, in accordance
with industry standards, file a Form 15 Suspension Notification with respect
to the Trust Fund, if applicable. Prior to March 31, 2001, the Master Servicer
shall file a Form 10-K, in substance conforming to industry standards, with
respect to the Trust Fund. The Depositor hereby grants to the Master Servicer
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 Master Servicer 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 Master Servicer from
time to time upon request such further information, reports, and financial
statements within the Depositor's control related to this Agreement and the
Mortgage Loans as the Master Servicer reasonably deems appropriate to prepare
and file all necessary reports with the SEC. The Master Servicer shall have no
responsibility to file any items other than those specified in this Section
9.23(b). Promptly after filing a Form 15 or other applicable form with the SEC
in connection with such termination, the Master Servicer shall deliver to the
Depositor a copy of such form together with copies of confirmations of receipt
by the SEC of each report filed therewith on behalf of the Trust Fund.
Section 9.24. Reports to the Trustee. (a) Not later than 30 days
after each Distribution Date, the Master Servicer shall, upon request, forward
to the Trustee and the Guarantor a statement in a form acceptable to the
Guarantor, 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, upon
request, to the Depositor, Attention: Contract Finance, and, to the Guarantor,
Attention: Securities Servicing, and any Certificateholders (or by the Trustee
at the Master Servicer's expense if the Master Servicer shall fail to provide
such copies to the Certificateholders (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall be unaware of the Master Servicer's failure to provide such statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to one 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 on or before May 31 of each year,
commencing on May 31, 2001, 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 an 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 (or any of its Affiliates) has, during the course of any
fiscal year, directly serviced, as a successor Servicer, any of the Mortgage
Loans, then the Master Servicer at its expense shall cause a nationally
recognized firm of independent certified public accountants (acceptable to the
Guarantor) to furnish a statement to the Trustee, the Depositor and the
Guarantor on or before May 31 of each year, commencing on May 31, 2001 to the
effect that, with respect to the most recently ended fiscal year, such firm
has examined certain records and documents relating to the Master Servicer's
performance of its servicing obligations under this Agreement and pooling and
servicing and trust agreements in material respects similar to this Agreement
and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
FHLMC or the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Master Servicer's activities have been
conducted in compliance with this Agreement, or that such examination has
disclosed no material items of noncompliance except for (i) such exceptions as
such firm believes to be immaterial, (ii) such other exceptions as are set
forth in such statement and (iii) such exceptions that the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
Serviced by FHLMC requires it to report. Copies of such statements shall be
provided to the Guarantor and 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 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 (with the Guarantor's approval) 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, the Depositor and the Guarantor.
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 Guarantor to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to perform and carry out any duties, covenants or obligations to be performed
and carried out by the Master Servicer hereunder. In no case, however, shall
any such delegation, subcontracting or assignment to an Affiliate of the
Master Servicer relieve the Master Servicer of any liability hereunder. Notice
of such permitted assignment shall be given promptly by the Master Servicer to
the Depositor, the Guarantor 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, the Guarantor 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 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.
The Master Servicer shall not be liable for any acts or omissions of
any Servicer. In particular, the Master Servicer shall not be liable for any
course of action taken by the Servicers with respect to loss mitigation of
defaulted Mortgage Loans at the direction of the Loss Mitigation Advisor or
the Class X Certificateholder pursuant to any Loss Mitigation Advisory
Agreement.
Section 9.31. Indemnification; Third-Party Claims. The Master
Servicer agrees to indemnify the Depositor, the Trustee and the Guarantor, and
hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses that the Depositor, the Guarantor 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 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.
Section 9.32. Alternative Index. In the event that the Index for any
Mortgage Loan, as specified in the related Mortgage Note, becomes unavailable
for any reason, the Master Servicer shall select an alternative index, which
in all cases shall be an index that constitutes a qualified rate on a regular
interest under the REMIC Provisions, in accordance with the terms of such
Mortgage Note or, if such Mortgage Note does not make provision for the
selection of an alternative index in such event, the Master Servicer shall,
subject to applicable law, select an alternative index based on information
comparable to that used in connection with the original Index and, in either
case, such alternative index shall thereafter be the Index for such Mortgage
Loan.
Section 9.33. Master Servicer Audit and Declaration of Event of
Default. In the event that either (i) the credit rating assigned by any Rating
Agency to the Master Servicer's master servicing practices is downgraded to a
rating that in the reasonable judgment of the Guarantor merits an audit or
(ii) the net worth of the Master Servicer falls below $50,000,000, the
Guarantor, at its expense, during normal business hours or such other times as
the Master Servicer may agree, on the Master Servicer's premises, and upon
reasonable advance notice to the Master Servicer, with the assistance and
cooperation of a knowledgeable financial officer of the Master Servicer, shall
have the right to (i) review and audit the Master Servicer's master servicing
procedures as they relate to the Mortgage Loans and (ii) examine and audit the
related files, books, records and other information of the Master Servicer,
but solely as they relate to the Mortgage Loans and this Agreement. If, based
upon the result of the audit and inspection performed pursuant to this Section
9.33, the Guarantor, in its reasonable judgment, determines that the Master
Servicer's master servicing practices materially and adversely effect the
Certificateholders and Guarantor under this Agreement, the Guarantor may
declare an Event of Default pursuant to Section 6.14(a)(ix) with all the
attendant consequences thereunder.
Section 9.34. Special Servicing of Delinquent Mortgage Loans.
(a) If permitted under the terms of the applicable Servicing
Agreement, the Class X Certificateholder may appoint, pursuant to the terms of
the applicable Servicing Agreement and with the written consent of the
Depositor, the Seller, the Master Servicer, the Trustee and the Guarantor, a
Special Servicer to special service any Mortgage Loans which are more than 90
days delinquent. Any applicable Termination Fee related to the termination of
the related Servicer and the appointment of any Special Servicer shall be paid
by the Class X Certificateholder. Except as provided under clause (b) below,
any fees paid to any such Special Servicer shall not exceed the Servicing Fee
Rate.
(b) Under the related Servicing Agreement, in the event a Mortgage
Loan becomes greater than 150 days delinquent, Ocwen Federal Bank FSB shall be
entitled, in addition to its Servicing Fee, to a one time "special servicing"
fee equal to $1,500 for such Mortgage Loan which will be paid in installments
of $125 per month over a period of twelve months after amounts payable
pursuant to Section 5.02(e)(ix).
Section 9.35. Duties of the Loss Mitigation Advisor. The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint The Murrayhill Company as Loss Mitigation Advisor. For and on behalf
of the Depositor, the Trustee, the Guarantor and the Certificateholders, the
Loss Mitigation Advisor will provide reports and recommendations concerning
Mortgage Loans that are past due, as to which there has been commencement of
foreclosure, as to which there has been forbearance in exercise of remedies
which are in default, as to which any obligor is the subject of bankruptcy,
receivership, or an arrangement of creditors, or which have become REO
Properties. Such reports and recommendations will be based upon information
provided pursuant to Loss Mitigation Advisory Agreements to the Loss
Mitigation Advisor by the Servicers. The Loss Mitigation Advisor shall look
solely to the Servicers for all information and data (including loss and
delinquency information and data) and loan level information and data relating
to the servicing of the Mortgage Loans and the Master Servicer shall have no
obligation to provide any such information to the Loss Mitigation Advisor.
Section 9.36. Limitation Upon Liability of the Loss Mitigation
Advisor. Neither the Loss Mitigation Advisor, nor any of the directors,
officers, employees or agents of the Loss Mitigation Advisor, shall be under
any liability to the Trustee, the Guarantor, the Certificateholders or the
Depositor for any action taken or for refraining from the taking of any action
in good faith pursuant to this Agreement, in reliance upon information
provided by Servicers under the Loss Mitigation Advisory Agreements or for
errors in judgment; provided, however, that this provision shall not protect
the Loss Mitigation Advisor or any such person against liability that would
otherwise be imposed by reason of willful malfeasance, bad faith or gross
negligence in its performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement or the Loss Mitigation
Advisory Agreements. The Loss Mitigation Advisor and any director, officer,
employee or agent of the Loss Mitigation Advisor 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, and may rely in good faith upon the
accuracy of information furnished by the Servicers pursuant to the Loss
Mitigation Advisory Agreements in the performance of its duties thereunder and
hereunder.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a) REMIC elections as set forth
in the Preliminary Statement shall be made by the Trustee 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. The regular interests and residual interest in each REMIC shall be as
designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 860G(a)(9) of the Code.
(c) The Trustee (after consultation with the Guarantor and
accommodating the Guarantor's reasonable requests) shall represent the Trust
Fund in any administrative or judicial proceeding relating to an examination
or audit by any governmental taxing authority with respect thereto. The Master
Servicer shall pay any and all tax related expenses (not including taxes) of
each REMIC, including but not limited to any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect
to such REMIC that involve the Internal Revenue Service or state tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Master Servicer in fulfilling its duties hereunder
(including its duties as tax return preparer). The Master Servicer shall be
entitled to reimbursement of expenses to the extent provided in clause (i)
above from the Collection Account.
(d) The Master Servicer shall prepare, and the Trustee shall sign and
file, all of each REMIC's federal and appropriate state tax and information
returns as such REMIC's direct representative. The expenses of preparing and
filing such returns shall be borne by the Master Servicer.
(e) The Master Servicer or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Among its other duties, if required by the Code, the
REMIC Provisions, or other such guidance, the Master Servicer shall provide
(i) to the Treasury or other governmental authority such information as is
necessary for the application of any tax relating to the transfer of a
Residual Certificate to any disqualified person or organization pursuant to
Treasury Regulation 1.860E-(2)(a)(5) and any person designated in Section
860E(e)(3) of the Code and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions.
(f) The Trustee, the Master Servicer, the Guarantor and the Holders
of Certificates shall take any action or cause any REMIC to take any action
necessary to create or maintain the status of any 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, the Guarantor
nor the Holder of any Residual Certificate shall knowingly take any action,
cause any 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 any REMIC as a REMIC or (ii)
result in the imposition of a tax upon any REMIC (including but not limited to
the tax on prohibited transactions as defined in Code Section 860F(a)(2) and
the tax on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an "Adverse REMIC Event") unless the Trustee, the
Guarantor 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 any
REMIC or the assets therein, or causing any REMIC to take any action, which is
not expressly permitted under the terms of this Agreement, any Holder of a
Residual Certificate will consult with the Trustee, the Guarantor, 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 any
REMIC, and no such Person shall take any such action or cause any 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 related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in any 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 any such REMIC, as the
case may be.
(h) The Master Servicer shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and
on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) On or before April 15 of each calendar year beginning in 2001,
the Master Servicer shall deliver to the Trustee and the Guarantor an
Officer's Certificate stating, without regard to any actions taken by any
party other than the Master Servicer, the Master Servicer's compliance with
the provisions of this Section 10.01.
(l) The Trustee shall treat the Basis Risk Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation Section 1.860G-2(h)
that is owned by the Holder of the Class X Certificate and that is not an
asset of the REMIC. The Trustee shall treat the rights of the Class A1, Class
A2, Class M1, Class M2 and Class B Certificateholders to receive payments from
any Basis Risk Reserve Fund in the event of a Basis Risk Shortfall as rights
in an interest rate cap contract written by the Class X Certificateholder in
favor of the Class A1, Class A2, Class M1, Class M2 and Class B
Certificateholders. Thus, each Class A1, Class A2, Class M1, Class M2 and
Class B Certificate shall be treated as representing not only ownership of
regular interests in REMIC 2, but also ownership of an interest in an interest
rate cap contract. For purposes of determining the issue prices of the REMIC 2
regular interests, that Trustee shall assume that the interest rate cap
contract for the Class A1 Certificates shall have a nominal value of
$189,084.86; that the interest rate cap contract for the Class A2 Certificates
shall have a nominal value of $27,510.11; that the interest rate cap contract
for the Class M1 Certificates shall have a nominal value of $ 4,382.75; that
the interest rate cap contract for the Class M2 Certificates shall have a
nominal value of $ 4,017.50; and that the interest rate cap contract for the
Class B Certificates shall have a nominal value of $ 1,095.70.
Section 10.02. Prohibited Transactions and Activities. Neither the
Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to any 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 any such REMIC as a REMIC or of the interests therein
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 any
such REMIC to be subject to any tax including 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 any 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 Master Servicer of its
duties and obligations set forth herein, the Master Servicer shall indemnify
the Holder of the related Residual Certificate or the Trust Fund, as
applicable, against any and all losses, claims, damages, liabilities or
expenses ("Losses") resulting from such negligence; provided, however, that
the Master Servicer shall not be liable for any such Losses attributable to
the action or inaction of the Trustee, the Depositor, the Class X
Certificateholder 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 Master Servicer 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 Master
Servicer 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 or the any Servicing
Agreement, (2) for any Losses other than arising out of a negligent
performance by the Master Servicer 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).
(b) In the event that any 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 related
Residual Certificate or the Trust Fund, as applicable, 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 Depositor, the
Class X Certificateholder 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 or the any Servicing 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).
(c) If the Internal Revenue Service determines that one of the REMICs
established hereunder recognized income from a prohibited transaction within
the meaning of Section 860F(a)(2) of the Code as a result of the lapse of the
Class X Certificateholder's right to effect a Special Termination of the Trust
Fund by purchasing the assets of the Trust Fund, then the Seller shall
indemnify the Trust Fund for any such tax and any tax imposed upon such
indemnification.
(d) In the event that any of the REMICs incur a state or local tax as
a result of a determination that any of the REMICs are domiciled in the State
of California for state tax purposes by virtue of the location of any
Servicer, the Seller agrees to pay on behalf of the Trust Fund when due any
and all state and local taxes imposed as a result of such determination. In
the event that any of the REMICs incur a state or local tax as a result of a
determination that any of the REMICs are domiciled in the State of Minnesota
for state tax purposes by virtue of the location of the Master Servicer, the
Seller agrees to pay on behalf of the Trust Fund when due any and all state
and local taxes imposed as a result of such determination.
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, and shall, to the extent provided in the applicable
Servicing Agreement, not knowingly permit any Servicer to, rent, lease, or
otherwise earn income on behalf of any REMIC with respect to any REO Property
which might cause such REO Property to fail to qualify as "foreclosure"
property within the meaning of section 860G(a)(8) of the Code or result in the
receipt by any REMIC of any "income from non-permitted assets" within the
meaning of section 860F(a)(2) of the Code or any "net income from foreclosure
property" which is subject to tax under the REMIC Provisions unless the Master
Servicer has advised, or has caused the applicable Servicer to advise, the
Trustee in writing to the effect that, under the REMIC Provisions, such action
would not adversely affect the status of any REMIC as a REMIC and any income
generated for any REMIC by the REO Property would not result in the imposition
of a tax upon such REMIC.
(b) The Master Servicer shall cause the applicable Servicer (to the
extent provided in its Servicing Agreement) to make reasonable efforts to sell
any REO Property for its fair market value. In any event, however, the Master
Servicer shall cause the applicable Servicer (to the extent provided in its
Servicing Agreement) to dispose of any REO Property within three years of its
acquisition by the Trust Fund unless the Trustee has received a grant of
extension from the Internal Revenue Service to the effect that, under the
REMIC Provisions and any relevant proposed legislation and under applicable
state law, the REMIC may hold REO Property for a longer period without
adversely affecting the REMIC status of such REMIC or causing the imposition
of a Federal or state tax upon such REMIC. If the Trustee has received such an
extension, then the Trustee, or the Master Servicer, acting on its behalf
hereunder, or the applicable Servicer shall 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, or the
applicable Servicer, acting on behalf of the Trustee hereunder 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, or the applicable
Servicer 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, before the end of the three year period
or the Extended Period, as applicable, to (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 applicable Servicer or the
Master Servicer) in an auction reasonably designed to produce a fair price
prior to the expiration of the three-year period or the Extended Period, as
the case may be.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section 11.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. Amendment. (a) This Agreement may be amended from time
to time by the Depositor, the Seller, the Master Servicer, the Loss Mitigation
Advisor, the Trustee and the Guarantor, 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 or with the provisions of any
Servicing Agreement, (iii) to make any other provisions with respect to
matters or questions arising under this Agreement or (iv) to add, delete, or
amend any provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of Counsel, adversely affect the status of any REMIC created pursuant to this
Agreement, nor shall such amendment effected pursuant to clause (iii) of such
sentence adversely affect in any material respect the interests of any Holder.
In addition, any amendment to this Agreement which affects any Custodial
Agreement must be consented to in writing by the applicable Custodian. 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 the then current rating assigned to the
Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor, the Seller, the Master Servicer, the Loss Mitigation Advisor, the
Trustee and the Guarantor 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 any 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 Percentage Interest) 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, the Rating Agencies and to the Guarantor.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to any amendment of any Servicing
Agreement except pursuant to the standards provided in this Section with
respect to amendment of this Agreement.
Section 11.04. Voting Rights. Except to the extent that the consent
of all affected Certificateholders is required pursuant to this Agreement,
with respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate outstanding
Certificate Principal Amount (or Percentage Interest), Certificates owned by
the Depositor, the Master Servicer, the Trustee, any Servicer, MGIC, the Loss
Mitigation Advisor or Affiliates thereof are not to be counted so long as such
Certificates are owned by the Depositor, the Master Servicer, the Trustee, any
Servicer, MGIC, the Loss Mitigation Advisor or any Affiliate 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, Master
Servicer 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 Master Servicer will provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, 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 9.23(b). Any reasonable out-of-pocket expenses incurred by
the Master Servicer 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 to the Depositor, Attention: Contract
Finance, a copy of the report delivered to Certificateholders pursuant to
Section 4.03.
Section 11.06. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Structured Asset Securities
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Mortgage Finance ARC 2000-BC3, (b) in the case of the Seller,
▇▇▇▇▇▇ Brothers Holdings Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Finance ARC 2000-BC3, (c) in the case of the
Loss Mitigation Advisor, The Murrayhill Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, (d) in the case of the
Trustee, First Union National Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance Trust Services, (e)
in the case of the Master Servicer, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention:
Master Servicing, and (f) in the case of the Guarantor, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Attention: Director, Securities Servicing, or as to
each party such other address as may hereafter be furnished by such party to
the other parties in writing. All demands, notices and communications to a
party 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 above 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.
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 Section
11.14.
Section 11.12. Conflicts. To the extent that the terms of this
Agreement conflict with the terms of any Servicing Agreement, the related
Servicing Agreement, shall govern.
Section 11.13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. The Class X Certificateholder
agrees, by its acceptance of the Class X Certificate, that it shall provide
written notice to the Trustee, the Guarantor and the Master Servicer thirty
days prior to any transfer or assignment by the Class X Certificateholder of
its rights under the applicable Servicing Agreement or of the servicing
thereunder or delegation of its rights or duties thereunder or any portion
thereof to any other Person including any other Servicer under the applicable
Servicing Agreement. All costs and expenses of the Master Servicer and Trustee
related to any such transfer or assignment shall be at the expense of the
Class X Certificateholder. In addition, the ability of the Class X
Certificateholder to transfer or assign its rights and delegate its duties
under any Servicing Agreement or to transfer the servicing thereunder to a
successor servicer shall be subject to the following conditions:
(i) Such successor servicer must be qualified to service loans
for 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, the Trustee and the
Guarantor, 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 such Servicer under the applicable
Servicing Agreement;
(iv) There must be delivered to the Trustee and the Guarantor 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 Class X Certificateholder shall, at its own cost and
expense, take such steps, or cause the terminated Servicer to take
such steps, as may be necessary or appropriate to effectuate and
evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following:
(A) to the extent required by the terms of the Mortgage Loans and by
applicable federal and state laws and regulations, the Class X
Certificateholder 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 Class X Certificateholder 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 Class X
Certificateholder 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 Class X Certificateholder 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 prior Servicer in respect of the Mortgage Loans; (E) on or prior
to the effective date of such transfer of servicing, the Class X
Certificateholder 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 Class X Certificateholder shall
cause the prior Servicer to, after the effective date of transfer of
servicing to the successor servicer, continue to cooperate with the
successor servicer to facilitate such transfer in such manner and to
such extent as the successor servicer may reasonably request.
Section 11.15. 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;
(vi) the making of a final payment pursuant to Section 7.02;
and
(vii) any termination of the rights and obligations of any
Servicer under the applicable Servicing Agreement.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier, as follows:
If to Fitch, to:
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgages
If to Moody's, to:
▇▇▇▇▇'▇ Investor Services, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgages
If to S&P, to:
Standard & Poor's Rating Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Residential Mortgages
(c) The Trustee shall deliver to the Rating Agencies reports prepared
pursuant to Section 4.03.
IN WITNESS WHEREOF, the Depositor, the Seller, the Loss Mitigation
Advisor, the Trustee, the Master Servicer and the Guarantor have caused their
names to be signed hereto by their respective officers hereunto duly
authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE MURRAYHILL COMPANY,
as Loss Mitigation Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: President
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trust Officer
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Master Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
FEDERAL HOME LOAN MORTGAGE
CORPORATION, as Guarantor
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director-Securities Servicing
& Processing
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
as Seller
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B
[RESERVED]
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 August 1, 2000 among
Structured Asset Securities Corporation, as Depositor, ▇▇▇▇▇▇ Brothers
Holdings Inc., as Seller, The Murrayhill Company, as Loss Mitigation Advisor,
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Master Servicer, The
Federal Home Loan Mortgage Corporation, as Guarantor, and you, as Trustee (the
"Trust Agreement"), the undersigned Servicer hereby requests a release of the
Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full. (The Servicer hereby certifies that
all amounts received in connection with the loan have been or will be credited
to the Collection Account or the Certificate Account (whichever is applicable)
pursuant to the Trust Agreement.)
____ 2. The Mortgage Loan is being foreclosed.
____ 3. Mortgage Loan substituted. (The Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Trust Agreement.)
____ 4. Mortgage Loan purchased. (The Servicer hereby certifies that the
Purchase Price has been credited to the Collection Account or the Certificate
Account (whichever is applicable) pursuant to the Trust Agreement.)
____ 5. Other. (Describe)
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 (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 Servicer],
as Servicer
By:_______________________________
Name:
Title: Servicing Officer
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes
and says:
1. That he [she] is [title of officer] ________________________
of [name of Purchaser] _____________________________________
(the "Purchaser"), a _______________________ [description of
type of entity] duly organized and existing under the laws
of the [State of __________] [United States], on behalf of
which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization"
within the meaning of Section 860E(e)(5) of the Internal
Revenue Code of 1986, as amended (the "Code") and will not
be a "disqualified organization" as of [date of transfer],
and that the Purchaser is not acquiring a Residual
Certificate (as defined in the Agreement) for the account
of, or as agent (including a broker, nominee, or other
middleman) for, any person or entity from which it has not
received an affidavit substantially in the form of this
affidavit. For these purposes, a "disqualified organization"
means the United States, any state or political subdivision
thereof, any foreign government, any international
organization, any agency or instrumentality of any of the
foregoing (other than an instrumentality if all of its
activities are subject to tax and a majority of its board of
directors is not selected by such governmental entity), any
cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as
described in Code Section 1381(a)(2)(C), any "electing large
partnership" within the meaning of Section 775 of the Code,
or any organization (other than a farmers' cooperative
described in Code Section 521) that is exempt from federal
income tax unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511.
4. That the Purchaser is not, and on __________ [insert date of
transfer of Residual Certificate to Purchaser] will not be,
and is not and on such date will not be investing the assets
of, an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan subject to Code Section 4975 or a
person or entity that is using the assets of any employee
benefit plan or other plan to acquire a Residual
Certificate.
5. That the Purchaser hereby acknowledges that under the terms
of the Trust Agreement (the "Agreement") among Structured
Asset Securities Corporation, as Depositor, ▇▇▇▇▇▇ Brothers
Holdings Inc., as Seller, The Murrayhill Company, as Loss
Mitigation Advisor, First Union National Bank, as Trustee,
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Master
Servicer, and The Federal Home Loan Mortgage Corporation, as
Guarantor, dated as of August 1, 2000, no transfer of the
Residual Certificates shall be permitted to be made to any
person unless the Trustee has received a certificate from
such transferee to the effect that such transferee is not an
employee benefit plan subject to ERISA or a plan subject to
Section 4975 of the Code and is not using the assets of any
employee benefit plan or other plan to acquire Residual
Certificates.
6. That the Purchaser does not hold REMIC residual securities
as nominee to facilitate the clearance and settlement of
such securities through electronic book-entry changes in
accounts of participating organizations (such entity, a
"Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local
taxes legally required to be paid with respect to such
Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate
to any person or entity (i) as to which the Purchaser has
actual knowledge that the requirements set forth in
paragraph 3, paragraph 6 or paragraph 10 hereof are not
satisfied or that the Purchaser has reason to believe does
not satisfy the requirements set forth in paragraph 7
hereof, and (ii) without obtaining from the prospective
Purchaser an affidavit substantially in this form and
providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the Agreement.
9. That the Purchaser understands that, as the holder of a
Residual Certificate, the Purchaser may incur tax
liabilities in excess of any cash flows generated by the
interest and that it intends to pay taxes associated with
holding such Residual Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in
connection with the conduct of a trade or business within
the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service Form 4224
or successor form at the time and in the manner required by
the Code or (iii) is a Non-U.S. Person that has delivered to
both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the
transfer of such Residual Certificate to it is in accordance
with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax
purposes. "Non-U.S. Person" means an individual,
corporation, partnership or other person other than (i) a
citizen or resident of the United States; (ii) a corporation
(or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws
of the United States or of any state thereof, including, for
this purpose, the District of Columbia; (iii) a partnership
(or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the
United States or of any state thereof, including, for this
purpose, the District of Columbia (unless provided otherwise
by future Treasury regulations); (iv) an estate whose income
is includible in gross income for United States income tax
purposes regardless of its source; or (v) a trust, if a
court within the United States is able to exercise primary
supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial
decisions of the trust. Notwithstanding the last clause of
the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996,
and treated as U.S. Persons prior to such date, may elect to
continue to be U.S. Persons.
11. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such
a "disqualified organization," an agent thereof, a
Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Master
Servicer as its agent to act as "tax matters person" of the
Trust Fund pursuant to the Trust Agreement.
13. The Purchaser has provided financial statements or other
financial information requested by the Transferor in
connection with the transfer of the Class R Certificates to
permit the Transferor to assess the financial capability of
the Purchaser to pay such taxes.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________, 20__.
---------------------------------
[name of Purchaser]
By:______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
---------------------------
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, 20__.
EXHIBIT D-2
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
----------------------------
Date
Re: Amortizing Residential Collateral Trust
Mortgage Pass-Through Certificates, Series 2000-BC3
---------------------------------------------------
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
EXHIBIT E-1
RECONSTITUTED SERVICING AGREEMENT (▇▇▇▇▇ Fargo Home Mortgage Inc.)
EXHIBIT E-2
RECONSTITUTED SERVICING AGREEMENT (Ocwen Federal Bank FSB)
EXHIBIT E-3
RECONSTITUTED SERVICING AGREEMENT (Option One Mortgage Corporation)
EXHIBIT E-4
SERVICING AGREEMENT (Aurora Loan Services Inc.)
EXHIBIT E-5
RECONSTITUTED SERVICING AGREEMENT (Ameriquest Mortgage Company)
EXHIBIT E-6
RECONSTITUTED SERVICING AGREEMENT (Homeside Lending, Inc.)
EXHIBIT E-7
RECONSTITUTED SERVICING AGREEMENT (Life Bank)
EXHIBIT E-8
RECONSTITUTED SERVICING AGREEMENT (Long Beach Mortgage Company)
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Amortizing Residential Collateral Trust
Mortgage Pass-Through Certificates
Series 2000-BC3
----------------------------------------
Reference is hereby made to the Trust Agreement dated as of August 1,
2000 (the "Trust Agreement") among Structured Asset Securities Corporation, as
Depositor, ▇▇▇▇▇▇ Brothers Holdings Inc., as Seller, The Murrayhill Company,
as Loss Mitigation Advisor, ▇▇▇▇▇ Fargo Bank Minnesota, National Association,
as Master Servicer, First Union National Bank, as Trustee, and The Federal
Home Loan Mortgage Corporation, as Guarantor. Capitalized terms used but not
defined herein shall have the meanings given to them in the Trust Agreement.
This letter relates to $__________ initial Certificate Balance of
Class Certificates which are held in the form of Definitive Certificates
registered in the name of (the "Transferor"). The Transferor has requested a
transfer of such Definitive Certificates for Definitive Certificates of such
Class registered in the name of [insert name of transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Trust
Agreement and the Certificates and (ii) Rule 144A under the Securities Act to
a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer," which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Placement Agent and the Depositor.
-------------------------------------
[Name of Transferor]
By:__________________________________
Name:
Title:
Dated: ___________, ____
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
------------------
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 2000-BC3 (the "Privately
Offered Certificates") of Amortizing Residential Collateral Trust, Series
2000-BC3 (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Privately Offered Certificates
within three 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 August
1, 2000 among the Depositor, ▇▇▇▇▇▇ Brothers Holdings, Inc., as
Seller, The Murrayhill Company, as Loss Mitigation Advisor, ▇▇▇▇▇
Fargo Bank Minnesota, National Association, as Master Servicer, First
Union National Bank, as Trustee (the "Trustee"), and The Federal Home
Loan Mortgage Corporation, as Guarantor, a signed letter in the form
of this letter; and we further agree, in the capacities stated above,
to provide to any person purchasing any of the Privately Offered
Certificates from us a notice advising such purchaser that resales of
the Privately Offered Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited
Investor, we will be required to furnish to the Trustee and the
Depositor a certification from such transferee in the form hereof to
confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. We further understand that the
Privately Offered Certificates purchased by us will bear a legend to
the foregoing effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in
the Privately Offered Certificates, and we and any account for which
we are acting are each able to bear the economic risk of such
investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional
Accredited Investor) as to each of which we exercise sole investment
discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By: ________________________________
Name:
Title:
EXHIBIT H
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the "Investor"),
a [corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The Investor either (x) is not 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 nor a person using the assets of any such plan or
(2) if the Investor is an insurance company, such Investor is purchasing such
Certificates with funds contained in an "Insurance Company General Account"
(as such term is defined in Section v(e) of the Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60; or (y) shall deliver to the
Trustee, the Master Servicer and the Depositor an opinion of counsel (a
"Benefit Plan Opinion") satisfactory to the Trustee and the Depositor, and
upon which the Trustee, the Master Servicer 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, the Master
Servicer 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, the Master Servicer or the Depositor.
3. The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities Corporation, as
Depositor, ▇▇▇▇▇▇ Brothers Holdings Inc., as Seller, The Murrayhill Company,
as Loss Mitigation Advisor, ▇▇▇▇▇ Fargo Bank Minnesota, National Association,
as Master Servicer, First Union National Bank, as Trustee, and The Federal
Home Loan Mortgage Corporation, as Guarantor, dated as of August 1, 2000, no
transfer of the ERISA-Restricted Certificates shall be permitted to be made to
any person unless the Depositor and Trustee have received a certificate from
such transferee in the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 20 .
---------------------------------
[Investor]
By:______________________________
Name:
Title:
ATTEST:
-----------------------------
STATE OF )
) ss:
COUNTY OF )
Personally appeared before me the above-named ________________, known
or proved to me to be the same person who executed the foregoing instrument
and to be the ____________________ of the Investor, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this _____ day of _________ 20_.
------------------------------
NOTARY PUBLIC
My commission expires the
_____ day of __________, 20__.
EXHIBIT I-1
CUSTODIAL AGREEMENT (Bankers Trust Company of California N.A.)
EXHIBIT I-2
CUSTODIAL AGREEMENT (The Chase Manhattan Bank, successor by merger to
Chase Bank of Texas, National Association)
EXHIBIT I-3
CUSTODIAL AGREEMENT (LaSalle Bank)
EXHIBIT I-4
CUSTODIAL AGREEMENT (U.S. Bank Trust, National Association)
EXHIBIT I-5
CUSTODIAL AGREEMENT (▇▇▇▇▇ Fargo Bank Minnesota, N.A.)
EXHIBIT J
[Reserved]
EXHIBIT K
FORM OF LOAN DATA REMITTANCE REPORT
EXHIBIT L
FORM OF BOND DATA REMITTANCE REPORT
EXHIBIT M
FORM OF LOSS MITIGATION ADVISORY AGREEMENT
BETWEEN THE MURRAYHILL COMPANY, AS LOSS
MITIGATION ADVISOR, THE TRUSTEE, AND EACH SERVICER
SCHEDULE A
MORTGAGE LOAN SCHEDULE